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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010 - page 8 / 12





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in no other manner and [be] destroyed immediately after the maintenance or repair is completed.” Although the maintenance code loaded into RAM after CHE rebooted the machine was not destroyed after CHE’s maintenance session but remained loaded, continuing to monitor the machine’s operation, the court found that although the “repair” was completed after CHE’s maintenance session, the “maintenance” was ongoing, including continued monitoring of the machine for problems. It was therefore sufficient, the court concluded, that CHE rebooted the machine at the end of its maintenance contract, thereby destroying the copy of the maintenance code in RAM.

  • c.

    Second critical step was court’s conclusion that the maintenance code, as well as the functional code, was “necessary for the machine to be activated” under § 117(c)(2), because the maintenance code was inextricably intertwined with the functional code, so that both “need[ed] to be . . . loaded in order for the machine to be turned on,” H.R. Rep. No. 105-551, pt. 1, at 28. 421

    • F.

      3d at 1314. It found the fact that the maintenance code has “other functions,” such as diagnosing malfunctions, to be irrelevant, as was the possibility that Storage Tech might have written the maintenance code “as a separate, ‘freestanding’ program that would not have been needed to start the machine.”

  • d.

    Court added, “To the extent that CHE's activities do not constitute copyright infringement or facilitate copyright infringement, StorageTek is foreclosed from maintaining an action under the DMCA. . . . That result follows because the DMCA must be read in the context of the Copyright Act, which balances the rights of the copyright owner against the public's interest in having appropriate access to the work.” 421 F.3d at 1318. It went on to state that even if there had been infringement, there would have been no violation of the DMCA, because the copying of the maintenance code into RAM upon rebooting takes place whether or not CHE’s device was used thereafter, so “there is no nexus between any possible infringement and the use of the circumvention devices.” Activation of the maintenance code may violate Storage Tech’s contractual rights, but “those rights are not the rights protected by copyright law.” 421 F.3d at 1319.


Dissent opened by stating, “This court's opinion today destroys copyright protection for software that continually monitors computing machine behavior.” 421 F.3d at 1321. It noted, inter alia, that the maintenance code could be disabled with no effect on the operating system and was “incidental, not indispensable, to activation.” 421 F.3d at 1321. It also argued that CHE did not perform any maintenance or repair when it rebooted the system

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Marc Temin, Foley Hoag LLP ABA Litigation Section, Copyright Litigation Subcommittee, May 6, 2010

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