or indirect commercial advantage, rent, lease or lend the copy, with narrow exceptions. § 109(b)(1)
As result of 1998 Computer Maintenance Competition Assurance Act (part of DMCA), right of an owner or lessee of a machine to make (or authorize) a copy of a computer program “solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine,” if the copy is destroyed immediately thereafter, and no program not necessary for the activation is accessed or used other than to make the new copy by virtue of the activation. § 117(c)
Enacted in light of MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511 (9th Cir. 1993), so that those repairing computers could make certain temporary, limited copies while working on a computer.
Storage Tech. Corp. v. Custom Hardware Eng'g & Consulting, Inc. 421
3d 1307, petition for rehearing denied, 431 F.3d 1374 (Fed. Cir. 2005) (dubitante).
When Storage Tech’s tape library system is turned on, the Management Unit (MU) loads “9330” code into its RAM and the Control Unit (CU) loads “9311” code into its RAM. 9330 and 9311 code both consist of intertwined but distinct “functional code” and “maintenance code,” the latter of which diagnoses malfunctions and maintains performance of the MU and CU. Storage Tech licenses only the functional code, not the maintenance code, portion of the software to its customers. CHE repairs data libraries manufactured by Storage Tech. In order to diagnose problems, CHE intercepts and interprets error messages produced by the maintenance code. The messages are generated by the CU and sent to the MU. To ensure that the CU was configured to send the error messages, CHE had to override a password protection scheme, which (after initially using a different scheme) it did by attaching a device between the CU and MU that mimics a signal from the MU to the CU upon rebooting the CU, which causes the maintenance code on the CU to be configured to send the error messages. CHE then intercepts and interprets the error messages, on the basis of which it is able to diagnose and repair the data libraries. The maintenance code and functional code are both copied into the MU’s or CU’s RAM when the system is rebooted.
Crux of decision was conclusion that § 117(c) immunized copying of the maintenance code upon CHE’s rebooting of the system. First obstacle to that conclusion was that § 117(c)(1) requires that the copy be “made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine,” be “used
Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010