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Court Rules That Bypassing Dongle Is Not a DMCA Violation

kdawson posted about 4 years ago | from the watch-out-you-ink-cartridges dept.

The Courts 266

tcrown007 sends along an appeals court ruling that, for once, limits the reach of the Digital Millennium Copyright Act's anti-circumvention clause. "MGE UPS makes UPS systems and software that are protected by hardware dongles. After the dongles expired, GE bypassed the dongles and continued to use the software. MGE sued, won, and has now lost on GE's appeal. Directly from the court's ruling (PDF): "Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA's anti-circumvention provision... The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.' Say what? I think I just saw a pig fly by."

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266 comments

If this precedent holds... (5, Insightful)

JoshuaZ (1134087) | about 4 years ago | (#33022990)

If this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

A modicum of common sense prevails (at last) (0)

Anonymous Coward | about 4 years ago | (#33023026)

So the DMCA does not apply to someone circumventing a Dongle. Hurrah.
Great news. But how does it apply in the real world?

Ok, so we can create work arounds to the silly dongles when our support contract expires. Whooppee Doo.
IMHO, the lawyers will have a field day here.

Remember that the only winners in this are the lawyers. Eveyone else (inc copyright holders) loses.

Re:If this precedent holds... (1, Interesting)

BradMajors (995624) | about 4 years ago | (#33023082)

I think as a whole it is a bad ruling.

The part where he ruled circumventing a Dongle to use software you are legally entitled to use is not illegal is good.

But, GE was illegally using software which it did not have the rights to use with of without the Dongle, which the judge said is OK. This part of his ruling is bad.

I read it differently... (4, Insightful)

earnest murderer (888716) | about 4 years ago | (#33023336)

The judge seemed clear to me that the previous court's award for the continued use of the software was correct. But that the DMCA did not in itself entitle them to further damages.

Re:If this precedent holds... (3, Insightful)

sangreal66 (740295) | about 4 years ago | (#33023342)

I think as a whole it is a bad ruling.

The part where he ruled circumventing a Dongle to use software you are legally entitled to use is not illegal is good.

But, GE was illegally using software which it did not have the rights to use with of without the Dongle, which the judge said is OK. This part of his ruling is bad.

The judge did not say it was okay, only that MGE failed to provide sufficient proof of damages (they tried to claim damages against the total revenue of the division and not just revenue related to servicing MGE UPS products)

Re:If this precedent holds... (4, Insightful)

Kristian T. (3958) | about 4 years ago | (#33023378)

Correct me if I'm wrong, but I think GE still have to pay for violating the copyright/contract. The DMCA claim got thrown out because a dongle is a use prevention rather than a copy prevention device. The software itself was probably copied without circumventing anything. MGE are probably saying: "Oh what the hell it was worth a shot" regarding the DMCA claim, but it was not the core of their case. Regarding precedent, ther's not much in it for Joe average with his DVD collection.

Re:If this precedent holds... (5, Insightful)

PRMan (959735) | about 4 years ago | (#33023868)

I think this quote is a huge precedent...

The owner's technological measure must protect the copyrighted material against an infringement of a right that the Copyright Act protects, not from mere use or viewing.

It means everything for Joe Average's DVD collection. He should have no problem putting it on a home server or a laptop, for instance, because he is not violating the Copyright Act by copying it for his own viewing/use.

Re:If this precedent holds... (5, Insightful)

arivanov (12034) | about 4 years ago | (#33023154)

All that the precedent does is that it sends a warning to people to stop frivolously mixing in DMCA into what should be covered by contract law. The dongle is a mere enforcer of the contract so unless someone at MGE was very very daft GE would be in violation of a contract.

So while the first impression is that a pig has taken off, a more close inspection is showing that it is continuing on a ballistic trajectory after someone gave it some initial thrust. Not really flying.

Re:If this precedent holds... (5, Funny)

Splab (574204) | about 4 years ago | (#33023246)

We wont know if the pig is flying until it continuesly fails to hit the ground.

Re:If this precedent holds... (3, Funny)

Anonymous Coward | about 4 years ago | (#33023560)

Even if it never hits the ground it could still be orbiting, and that's not quite the same thing as flying either.

Re:If this precedent holds... (2, Insightful)

martin-boundary (547041) | about 4 years ago | (#33023752)

For a sufficiently small planet, it is.

Re:If this precedent holds... (0, Offtopic)

twidarkling (1537077) | about 4 years ago | (#33023572)

It's not flying, it's falling, with STYLE!!

Re:If this precedent holds... (0, Offtopic)

FrankieBaby1986 (1035596) | about 4 years ago | (#33023698)

it's not flying, it's *orbiting*!

Re:If this precedent holds... (-1, Offtopic)

Anonymous Coward | about 4 years ago | (#33023738)

So while the first impression is that a pig has taken off, a more close inspection is showing that it is continuing on a ballistic trajectory after someone gave it some initial thrust. Not really flying.

A projectile pig is flying pig too, in principle.

Re:If this precedent holds... (1)

gnasher719 (869701) | about 4 years ago | (#33023872)

f this precedent holds we may be in very good shape. The obvious generalization is to allowing such circumvention for fair use. If that occurs, then most of the problems with this legislation go out the window.

Just to clarify: I hold in my hands a DRM-"protected" DVD that I own. You stand besides me, and I could lend the CD to you. What things do you think "fair use" would allow me and you to do?

Does this apply to everything? (1, Insightful)

Anonymous Coward | about 4 years ago | (#33022992)

I feel stupid for asking this, but doesn't this mean that as long as you're not violating copyright, you can go ahead and crack that protection? As in... backing up a DVD I own will finally be legal? Any actual lawyers got a thought on this?

Re:Does this apply to everything? (0)

beelsebob (529313) | about 4 years ago | (#33023036)

I feel stupid for asking this, but doesn't this mean that as long as you're not violating copyright, you can go ahead and crack that protection?

Maybe, but let's assume yes for the sake of argument.

As in... backing up a DVD I own will finally be legal?

No, backing up involves copying, and hence violates copyright. It does mean though that things like VLC can get on with playing DVDs/Blurry disks.

Any actual lawyers got a thought on this?

Nope, not me.

Re:Does this apply to everything? (4, Interesting)

Pluvius (734915) | about 4 years ago | (#33023170)

No, backing up involves copying, and hence violates copyright.

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.
-- 17 U.S.C. 117

For whatever reason, however, this only applies to computer programs. Presumably because other media weren't so easy to copy back when this part of the code was last modified in 1980.

Rob

Re:Does this apply to everything? (4, Interesting)

sjames (1099) | about 4 years ago | (#33023360)

I wonder, given that DVD menus are effectively a simple bytecode run in an interpretor that results in the playing of video (possibly with additional video and audio overlays) that the DVD as a whole can be taken to be a computer program and it's essential associated data files.

Re:Does this apply to everything? (1)

hedwards (940851) | about 4 years ago | (#33023944)

It's effectively a moot point as they aren't going to know about such back ups unless you're definitely violating copyright law. Meaning that they have no way of knowing if you make the copy, only if you distribute said copy over the net, or download as a substitute for backing up. Consequently, I doubt very much that it's going to be litigated at this point, except for third party providers of technology specifically to back up the materials.

Re:Does this apply to everything? (1)

MrLint (519792) | about 4 years ago | (#33023676)

Didn't Blizzard argue that loading a game into memory to play is a copy? And then altering it in memory would be a DMCA violation. In order to play a video thats encrypted, you must work on the data, and thus to do so must make a copy of the data off the disk.

Now IMO this 'copying' argument when used this way is retarded... but clearly IANAL

Re:Does this apply to everything? (4, Insightful)

Man On Pink Corner (1089867) | about 4 years ago | (#33023732)

No, backing up involves copying, and hence violates copyright. It does mean though that things like VLC can get on with playing DVDs/Blurry disks.

Note that copying a DVD is entirely trivial, and unencumbered by any protection at all. CSS is purely a "use-protection" mechanism (which is why it was always so violently wrong for the DMCA to apply to it -- copyright law was supposed to govern copying and distribution, not use.)

So IMHO, not being AL, this ruling does appear to argue against the DMCA's ability to regulate DeCSS cracking. I expect it will be promptly overturned at the next level of appeals, because after all we can't allow copyright law to work for both the producer and consumer, can we?

Re:Does this apply to everything? (1)

BoneFlower (107640) | about 4 years ago | (#33023078)

At least as applies to simply using the protected work.

I wouldn't be shocked if it reaches the Supreme Court and they uphold the ruling in the most narrow manner possible, leaving fair use copying uncovered while permitting simple use and viewing.

That doesn't necessarily mean the Court says fair use shouldn't be covered, just that it was not explicitly part of the original case so it does not get answered in their ruling.

Re:Does this apply to everything? (3, Interesting)

BoberFett (127537) | about 4 years ago | (#33023316)

I thought courts have already ruled that a program residing in memory is a copy, and therefore making that copy without the dongle (which implies limited consent to making said copy in memory) is a violation of copyright. I wouldn't be surprised to see this reversed.

Re:Does this apply to everything? (1)

Dwonis (52652) | about 4 years ago | (#33023582)

I think that was the case in the U.K., but not in the U.S.

Re:Does this apply to everything? (2, Informative)

Anonymous Coward | about 4 years ago | (#33023818)

In the PsyStar vs. Apple case, I believe it was ruled that Apple could not claim copyright infringement on the copies of Mac OS loaded into RAM when each of the computers booted.

Re:Does this apply to everything? (1)

Ashriel (1457949) | about 4 years ago | (#33023922)

To my knowledge, in the US it was found that a copy of any media held in volatile memory in order to allow usage was considered to be fair use and not a copyright violation.

Honestly, would any other finding even make sense? (Not that I'm implying that judges always make sensible decisions).

Re:Does this apply to everything? (1)

hedwards (940851) | about 4 years ago | (#33023952)

Citation needed as copyright law specifically exempts such copies from consideration.

it's still good! (2, Funny)

JazzyMusicMan (1012801) | about 4 years ago | (#33022998)

It's the pig le resistance! It's just a little airborne! It's still good, it's still good!

Wrong law to try and apply (4, Insightful)

Derekloffin (741455) | about 4 years ago | (#33023000)

While they did circumvent a defensive measure, they didn't make a copy of it. This is a matter of a contractual violation (assuming it is even that, I'm no lawyer so...). They paid for said software use for a period of time, and are going beyond that allowed period of time.

Re:Wrong law to try and apply (1)

orkysoft (93727) | about 4 years ago | (#33023282)

They made a copy of the software from disk to ram to run it. At least, that's the reason you need a licence to use software. Srsly.

Re:Wrong law to try and apply (1)

burris (122191) | about 4 years ago | (#33023696)

The copy in RAM is exempted in 17 USC 117(a)(1) [cornell.edu] Other states probably also have similar laws. You don't need a license to use an authorized copy of software.

Re:Wrong law to try and apply (1)

orkysoft (93727) | about 4 years ago | (#33023780)

Then how does it become authorized? Why do EULAs exist?

Re:Wrong law to try and apply (1)

burris (122191) | about 4 years ago | (#33023830)

A copy is authorized if it's made under the authority of the copyright holder. When you obtain a copy of software that was manufactured by the copyright holder or someone authorized by them to manufacture copies, or download it from the copyright holder or someone authorized to distribute their software, then that copy is authorized.

EULAs exist because software companies want more than copyright gives them. A EULA is just an ordinary contract and has nothing to do with copyright.

Re:Wrong law to try and apply (1)

Pharmboy (216950) | about 4 years ago | (#33023950)

The same reason that police say "You can't make a video of us in action!" in states where there is no such law (and other states with those laws, if you consider the US Constitution). They do it because they think it gives them more rights, although this has never been tested. Considering you aren't actually SIGNING a contract, it is likely that a click through EULA isn't worth the paper it's written on.

EULAs are the equivalent of McDonalds saying "By accepting this beverage from our drive-thru, you are agreeing to only sip the drink with an approved straw, with your eyes closed, and not allow anyone else to have a sip of the beverage. If you fail to abide by these rules, you are subject to a fine of $150,000 and criminal prosecution." It is no less absurd.

Re:Wrong law to try and apply (1)

gnasher719 (869701) | about 4 years ago | (#33023932)

The copy in RAM is exempted in 17 USC 117(a)(1) [cornell.edu] Other states probably also have similar laws. You don't need a license to use an authorized copy of software.

The devil is in the details. You are allowed to make a copy into RAM if you have the right to use the software (so if I sold you some software with a contract to do anything you want with the software except loading it into RAM, and sued you as soon as you use it, that wouldn't fly). But it is a copy, obviously, so if you _don't_ have the right to use the software then everytime you load it into RAM you commit copyright infringement. That's why EULAs actually work. Nobody can hold you to the terms of a EULA (probably) but if you don't accept most EULAs then you have no right to copy the software and making a copy into RAM is copyright infringement.

Re:Wrong law to try and apply (1)

hedwards (940851) | about 4 years ago | (#33023794)

Copyright doesn't cover that. Any copies necessary to use a authorized copy are deemed to be non-infringing. That includes copies in RAM. The reason why you need a license is that companies distribute their products contingent on agreeing to the license. No agreement no authorization to use the copy. It's kind of a bastardization of copyright as you're not supposed to give the copy away before working out the agreement. But it's not as bad as MS and the ever changing EULAs.

Re:Wrong law to try and apply (1)

vux984 (928602) | about 4 years ago | (#33023846)

But it's not as bad as MS and the ever changing EULAs.

I take it you haven't used iTunes lately. I get a 250 page document to agree to on my phone everytime i fool around with a free new app. This is not an MS phenomena.

Re:Wrong law to try and apply (1)

seeker_1us (1203072) | about 4 years ago | (#33023358)

We haven't read their EULA. There is likely nothing there saying that they have to have the dongle on. Most of those are boilerplates anyway.

Re:Wrong law to try and apply (1)

burris (122191) | about 4 years ago | (#33023726)

If you read the opinion you will see that the Court found that they did not circumvent anything. Someone else did the circumvention and GE/PMI simply used a cracked copy.

Moreover, the DMCA’s anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself. Universal City Studios, Inc. v. Corley, 273 F.3d 429, 443 (2d Cir. 2001). MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).
Because the DMCA does not apply to mere use of a copyrighted work, and because MGE has not shown that GE/PMI circumvented MGE’s software protections in violation of the DMCA, the district court did not err in granting GE/PMI’s Rule 50(a) motion dismissing MGE’s DMCA claim.

The summary could be better (5, Informative)

stinerman (812158) | about 4 years ago | (#33023014)

[quote]MGE sued, won, and has now lost on GE's appeal.[/quote]

TFA:

[quote]A jury awarded MGE more than $4.6 million in damages for copyright infringement and misappropriation of trade secrets, but the trial judge dismissed its Digital Millennium Copyright Act claim. MGE appealed, arguing that its dongles barred the kind of access to its software that the Act is meant to prevent.[/quote]

MGE appealed the trial judge throwing out the DMCA claim. The appeals court confirmed the ruling. GE didn't appeal anything.

Re:The summary could be better (0, Offtopic)

stinerman (812158) | about 4 years ago | (#33023024)

And I forgot Slashdot doesn't do bbcode. I'm too used to posting at theforvm.

Re:The summary could be better (1, Informative)

Anonymous Coward | about 4 years ago | (#33023252)

You also seem to have missed the fact that you need to preview your post before submitting it.

Re:The summary could be better (0, Offtopic)

afabbro (33948) | about 4 years ago | (#33023452)

And I forgot Slashdot doesn't do bbcode. I'm too used to posting at theforvm.

This is Slashdot. Welcome to 1998.

Re:The summary could be better (-1, Flamebait)

socsoc (1116769) | about 4 years ago | (#33023610)

If only there was a preview, so you could see your fucked up bbcode instead of proper html prior to submission. [moron]

I always have a hard time associating... (1)

Rivalz (1431453) | about 4 years ago | (#33023018)

Common sense prevails again. Now let's start blocking common sense in EULA's and only license the software to our users that way any time they use our software they run the risk of breaking our agreement.

Re:I always have a hard time associating... (1)

Z00L00K (682162) | about 4 years ago | (#33023108)

Common sense is already blocked in many EULA:s.

Re:I always have a hard time associating... (1)

Dunbal (464142) | about 4 years ago | (#33023330)

Microsoft at least isn't calling it EULA anymore. They are calling it a CONTRACT.

So I think this is kinda cute - I print out said "contract". I make some modifications, add or remove some clauses. And I am still waiting for an authorized Microsoft rep to come to my place and sign said "contract".

Re:I always have a hard time associating... (1)

hairyfeet (841228) | about 4 years ago | (#33023470)

You know, I'll probably get hate for just asking this, but I really want to know: what is so bad about the MSFT EULA? I mean we have all heard the story of the guy that had to go to court to be allowed to sell his legally bought copy of AutoCAD, but short of printing off fake discs or VLK keys, has anybody ever been hassled by MSFT over their EULA? You look and everybody has Windows and Office discs for sale, OEM, standard, upgrade, and nobody gets hassled. My former boss bought and sold a ton of OEM Windows and Office copies he got from bankruptcies and auctions, never got hassled So what is the problem?

The ONLY people I've ever heard of getting the smackdown from MSFT were selling counterfeit Windows, hell I don't even think I've ever heard of MSFT pulling an RIAA and suing kids who got a hold of a hot copy of XP, so I just don't get why MSFT gets so much hate for their EULA when they don't seem to be using it to bludgeon folks, unlike say AutoCAD.

Re:I always have a hard time associating... (1)

Rivalz (1431453) | about 4 years ago | (#33023564)

Just because they don't doesn't mean they can't.
And the fact that they are prepared to at a moments notice doesn't make me feel loved as a customer.

Re:I always have a hard time associating... (1)

JohnRoss1968 (574825) | about 4 years ago | (#33023712)

Because it has something/anything to do with Microsoft.
Welcome to Slashdot. Don't think just drink the kool-aid and bow down to the penguin.

Re:I always have a hard time associating... (2, Insightful)

Dunbal (464142) | about 4 years ago | (#33023784)

So what is the problem?

      The problem is that some people do not like having terms dictated to them, "problems" or not. It's the principle of the thing. An "agreement" is between TWO parties. An EULA is one party telling another party what to do. Only the funny thing is, back in my day, usually it was the guy that was doing the paying that got to have a say.

That's no pig... (1, Funny)

Anonymous Coward | about 4 years ago | (#33023034)

...that was a lawyer catapulted over the city walls...

Re:That's no pig... (1)

meerling (1487879) | about 4 years ago | (#33023326)

but wouldn't that be a shark jumping the... err...

Re:That's no pig... (1)

OneAhead (1495535) | about 4 years ago | (#33023694)

Sounds like a clear violation of the Geneva conventions to me.

Dream (2, Interesting)

ceraphis (1611217) | about 4 years ago | (#33023046)

I wonder if this may ever escalate into being allowed to legally download a torrent of a DVD you own but have broken? Yeah...a guy can dream :(

Re:Dream (4, Interesting)

tsa (15680) | about 4 years ago | (#33023140)

But does this ruling mean you're now allowed to circumvent the region code on DVDs so you can watch a DVD you bought in Europe in the US?

Re:Dream (1)

twidarkling (1537077) | about 4 years ago | (#33023612)

That is a ruddy good question. I've always thought region codes were rather stupid, personally, though I know why they're used.

Re:Dream (2, Insightful)

couchslug (175151) | about 4 years ago | (#33023804)

Torrenting is usually (unless all you do is leech) simultaneously redistributing while downloading.

Re:Dream (1)

hedwards (940851) | about 4 years ago | (#33023898)

Doubtful, that would only happen if the DVD is a license and not a copy. What you can however do is copy DVDs for back up. And that's more what the sort of thing this ruling speaks to.

Re:Dream (1)

PRMan (959735) | about 4 years ago | (#33023910)

I wonder if this may ever escalate into being allowed to legally download a torrent of a DVD you own but have broken? Yeah...a guy can dream :(

Actually, the judge mentioned this possibility in the Tenenbaum case. The problem I see is that you are almost certainly uploading it to other people who are not licensed.

Before you get too excited... (3, Informative)

TubeSteak (669689) | about 4 years ago | (#33023102)

Conclusion. VI.
For the foregoing reasons, [1] we AFFIRM the district court's grant of
GE/PMI's Rule 50(a) motion dismissing MGE's DMCA claim. [2] We also AFFIRM
the district court's grant of a permanent injunction against GE/PMI's use of
MGE's software and trade secrets. [3] We REVERSE the district court's denial of
GE/PMI's Rule 50(a) motion on MGE's copyright infringement, unfair
competition, and misappropriation of trade secrets claims for MGE's failure to
prove damages under 17 U.S.C. 504(b) and Texas law, [4] and RENDER a takenothing
judgment for MGE.

GE/PMI already paid for what they've done (the Rule 50 motions) and the injunction effectively means they'll either have to setup a new support contract or replace the UPS systems.

This opens a lot of doors (1)

erroneus (253617) | about 4 years ago | (#33023114)

Anything DeCSS related just got opened. I can RIP DVDs legally if I own them. This also means that people can build DVD/hard drive juke boxes for home use and sell them where previously, we have heard that such products were blocked due to DMCA threats and claims.

This is a good thing. I expect to see this fought hard.

Re:This opens a lot of doors (5, Interesting)

s0litaire (1205168) | about 4 years ago | (#33023302)

Think it's more like Linux users will be able to use "open source" programs to play Blu-Ray disks legally.

As it stands, it's illegal to rip/copy the Blu-Ray to another format for storing or viewing.

However this ruling makes it legal to break the encryption just for the purposes of playback. (The intended function of the disk is for playback).

But what do I know! IANAL!

Re:This opens a lot of doors (3, Insightful)

XanC (644172) | about 4 years ago | (#33023406)

The trouble with that is that GE's "circumvention" allowed them to use the product, but had no bearing on their ability to copy the product.

With DVDs/Blu-Rays, there's no distinction: the same "device" which allows you to "use" the product also allows you to copy it.

Or am I wrong about the GE case?

Re:This opens a lot of doors (1)

bcmm (768152) | about 4 years ago | (#33023906)

They could have installed the software on multiple machines without having multiple dongles, which might count as copying.

Re:This opens a lot of doors (1)

PRMan (959735) | about 4 years ago | (#33023920)

Good luck proving that I circumvented the protection on my own DVDs in my own house...

Re:This opens a lot of doors (4, Insightful)

sangreal66 (740295) | about 4 years ago | (#33023392)

I don't think so. The ruling specifically touches on this:

Here, MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act. MGE’s dongle merely prevents initial access to the software. If no dongle is detected, the software program will not complete the start-up process. However, even if a dongle is present, it does not prevent the literal code or text of MGE’s copyrighted computer software from being freely read and copied once that access is obtained; there is no encryption or other form of protection on the software itself to prevent copyright violations. Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.

IANAL, but I don't believe you can apply this same logic to DeCSS

Re:This opens a lot of doors (4, Insightful)

icebraining (1313345) | about 4 years ago | (#33023476)

According to the Wiki, you could already rip the DVDs. It was illegal to make and distribute the tools to rip such DVDs, though.

what about the "trafficking" prong? (4, Insightful)

l2718 (514756) | about 4 years ago | (#33023120)

Note that in this case GE is a large company which has within it the know-how to break copy protection. But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

The real problem with the DMCA is that it criminalizes "trafficking" in anti-circumvention technology, even when both the provider and the recipient intend to make legal copies. So this ruling actually means basically nothing to individuals, and very little to companies (except for those that have in-house engineers capable of reinventing the wheel).

At the bottom there's no way for the courts to fix the DMCA, since it's likely within Congress's powers to enact and it's not up to the courts to second-guess Congress about the policy choices – no matter how bad they were. The only way to fix the DMCA is for Congress to fix it.

Re:what about the "trafficking" prong? (2, Informative)

YesIAmAScript (886271) | about 4 years ago | (#33023228)

The real problem with the DMCA is that it criminalizes "trafficking" in anti-circumvention technology, even when both the provider and the recipient intend to make legal copies.

I think you mean it criminalizes "trafficking" in circumvention technology.

Re:what about the "trafficking" prong? (1)

Blue Stone (582566) | about 4 years ago | (#33023362)

>it would still be illegal for them to give the software solution to anyone else

>the DMCA is that it criminalizes "trafficking" in [...] circumvention technology

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

"Using" software involved copying (2, Interesting)

l2718 (514756) | about 4 years ago | (#33023448)

They used the software to *use* the locked-down content, not to violate the copyright, therefore the software is not a circumvention tool (for violating copyright) and can be distributed without breaching the DMCA.

For the anti-trafficking provision what matters is the potential uses of the tool. That GE as the initial develper used the tools for legitimate purposes is beside the point -- as long as the tools can be used to circumvent copyright protection, they fall under the no-trafficking prohibition. For example, it is perfectly legal to copy the works of William Shakespeare. But it is not legal to break copy-protection on specific editions of his works, even for the purpose of making legal copies. Second, in the US the legal rule is that running software involves copying (copying the binary from storage media to RAM) and therefore requires specific authorization from the copyright owner. In other words, there exist a kind of copyrighted work where "using" the content inheretly involves copying. I think the legal rule is wrong, but as long as it stands you cannot separate "using" and "copying".

Re:"Using" software involved copying (1)

HungryHobo (1314109) | about 4 years ago | (#33023620)

If that were the case then the fact that the dongle prevents the program from running (and as such prevents it/parts of it from being read into memory) would be enough to be covered under copyright.

Re:"Using" software involved copying (1)

hedwards (940851) | about 4 years ago | (#33023924)

Citation needed, copies to RAM are not counted as copying for the purposes of copyright law in the US.

Re:what about the "trafficking" prong? (1)

sjames (1099) | about 4 years ago | (#33023398)

Not necessarily. It helps establish a legal use case for the technology. It at least moves it into the same gray area as 'video stabilizers'.

Re:what about the "trafficking" prong? (1)

sangreal66 (740295) | about 4 years ago | (#33023414)

But even if GE was within their rights to circumvent the dongles, it would still be illegal for them to give the software solution to anyone else -- even if the present ruling stands and the recipient would be allowed to break the protections themselves.

Actually, a key part of the ruling is that GE did NOT break the protections themselves.

MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).

Re:what about the "trafficking" prong? (1)

GWRedDragon (1340961) | about 4 years ago | (#33023776)

At the bottom there's no way for the courts to fix the DMCA, since it's likely within Congress's powers to enact...

Should not the discussion of technological device and software design, and how to break certain ones, be protected free speech and thus this provision be invalid under the 1st amendment?

So are backups legal again? (1)

zwede (1478355) | about 4 years ago | (#33023130)

Does this mean that it is now legal to circumvent copy protection to make a backup?

Re:So are backups legal again? (3, Insightful)

Anonymous Coward | about 4 years ago | (#33023258)

If you have $782 Billion in assets, yes.

Re:So are backups legal again? (1, Insightful)

Anonymous Coward | about 4 years ago | (#33023518)

IANAL, but from what I can see, the answer is "no". What it seems to imply is that you can work around a hardware lockout in order to make use of a product in your possession.(Analogy: You own a padlocked toolbox, and you lost the key, you can pop the lock with bolt cutters) Whether their continued possession of that product is legitimate is not what was at issue, that would be a matter for a separate suit, which in this case may be subject to existing contract law. (Analogy: inside the toolbox is your cousin's wrench, he can sue you to recover the wrench)

Oh, fair use might allow you to backup something you own, so long as 1) it's actually yours to own and 2) you don't circumvent any encryption algorithms in the process and 3) you're not violating someone else's copyright in making that copy.

As I understand it, the DMCA also prevents you from changing formats of the material you intend to copy. VHS to VHS might be ok, (subject to the prior restrictions) DVD to DVD might also be allowed (same restrictions) but VHS to DVD or DVD to VHS is a big no-no.
Obtaining permission from the copyright holder may or may not help, either. If in doubt, best thing is just not to run the risk.

What's more troublesome is the ability to reclaim copyright from things that are in the public domain. Now, a bunch of things that WERE legal may not actually be so, anymore, and how the heck do you know the difference?

US copyright law is fundamentally broken, for many reasons, retroactive reclamation of copyright is only one example.

Re:So are backups legal again? (1)

AusIV (950840) | about 4 years ago | (#33023606)

I think a more likely question is "does that mean it's now legal to circumvent copy protection to play content?" It sounds like the ruling found that it was legal to circumvent technological measures so that they could use the product - I don't know that making a copy of the product would necessarily qualify as use, but I imagine playing back a DVD or BluRay disc would.

What's Right (1)

dontgetshocked (1073678) | about 4 years ago | (#33023188)

So if the intention of the the software owner was to protect it's interest which is the case here then if you bypass that you are wrong and and not adhering to your word. Just as a lie is a lie with NO color differences or little or big ones,just a lie period so goes the person or persons who attempt to bypass this.

Re:What's Right (1)

XanC (644172) | about 4 years ago | (#33023416)

The software owner was GE. They bought it.

Bottom line (1)

ArchieBunker (132337) | about 4 years ago | (#33023196)

GE has deeper pockets than the other company.

Re:GE has deeper pockets (5, Insightful)

snikulin (889460) | about 4 years ago | (#33023280)

Shut up and enjoy the ride.

Re:GE has deeper pockets (0)

Anonymous Coward | about 4 years ago | (#33023370)

Wake up. This doesn't affect personal usage of media controlled and locked away by the MAFIAosa.

We bring good things to life..... (1)

BatGnat (1568391) | about 4 years ago | (#33023266)

Like the GE M134 Mini-Gun...

GE (0)

Anonymous Coward | about 4 years ago | (#33023344)

...is a multinational, influential, multi-level enterprise that is politically aligned with the current tyrannical administration and Congress. That means breaking the law is ok for them.

HDCP? (2, Interesting)

Dusty101 (765661) | about 4 years ago | (#33023386)

Can any Slashdotters with legal know-how are to comment on any implications this ruling might have for HDCP stripper dongles/boxes?

UPS software that's protected by a dongle??? (1)

Linker3000 (626634) | about 4 years ago | (#33023436)

WHA? Next GE will be in trouble for copying their Lotus 123 V1.0 floppies. Seriously, a DONGLE for UPS software? I guess the software's pretty special..or...??

Re:UPS software that's protected by a dongle??? (1)

Fieryphoenix (1161565) | about 4 years ago | (#33023490)

Yes, it actually generates more power than is consumed. If it weren't for the dongles limiting the amount of power released, the earth would melt.

Re:UPS software that's protected by a dongle??? (1)

scottbomb (1290580) | about 4 years ago | (#33023604)

It looks like GE made a rather foolish choice in UPS software. I would never, EVER "subscribe" to software. Once I buy it, it's mine, indefinitely. Yes, I may be "licensing" it (according to those "terms and conditions" no one bothers to read), but I fully expect to be able to use it tomorrow, a year from now, and forever without having to repeatedly ask the permission of (and fork over money to) the author.

Re:UPS software that's protected by a dongle??? (0)

Anonymous Coward | about 4 years ago | (#33023976)

Next GE will be in trouble for copying their Lotus 123 V1.0 floppies.

I suspect if they did that, they would be in trouble, because the floppies are probably close to collections of random data by now.

haha (0)

Anonymous Coward | about 4 years ago | (#33023440)

Dongless. Haha...

Finally (2, Interesting)

Anonymous Coward | about 4 years ago | (#33023480)

Good, finally something to stop such nonsense.

I imagine these UPS systems are incredibly expensive as it is, and the maker does something so they're limited use? Which was probably discovered AFTER the fact. To me, that's highway robbery, you buy a machine, then have to upgrade a license?

I have to say, even though GE is one of the big evil companies that most slashdotters hate (or should hate, given hate towards companies like microsoft, GE makes them look like angels) They had a right to fight this.

Sadly, they only won because they're so damn huge and have a lot of sway in the government *AND* media. If this had been, say, you or me, we'd get taken to the cleaners.

Funny how the DMCA is coming back to bite the same companies who pushed for it, in the ass.

Re:Finally (1)

mysidia (191772) | about 4 years ago | (#33023814)

Actually, it seems the software is required by technicians to SERVICE UPSes, because access to calibrations and voltage controls are restricted on the UPS and only available through the software. And the GE company being sued is a company that sells UPS maintenance and repair services.

I would equate this to vehicle manufacturers using encrypted communications with the cars' computers, to ensure only authorized dealers and servicers can possibly have access to diagnostic information.

So their technicians would be using the software while the company receives payments from other organizations for UPS repair/maintenance.

So they are (possibly) competing against the company that manufactures the UPS for repair, management, and maintenance services, as not an "authorized" servicer of their UPSes.

The software is not generally available to the public, and it sounds as if they might have obtained it through an unapproved channel.

There is also a possibilitythey might be providing service for UPSes that are not under service contracts with the manufacturer.

Hm.. http://www.law.com/jsp/tx/LawDecisionTX.jsp?id=1202463809581 [law.com]

I. MGE manufactures several lines of UPS machines, some of which require the use of MGE's copyrighted software programs Pacret and Muguet during servicing. This software fixes calibration problems more quickly than traditional manual servicing techniques. Without the software, a service technician can still partially service an MGE UPS machine, but a number of critical procedures (including recalibration and adjustment of voltage levels) can only be performed through use of the software, which works only on MGE-manufactured devices.

The software requires connection of an external hardware security key (called a "dongle") to the laptop serial port. Each dongle has an expiration date, a maximum number of uses, and a unique password. ... If the protocol exchange is successful, MGE's software proceeds to collect system status information for the technician.

Years after MGE introduced its security technology, a number of software hackers published information on the internet disclosing general instructions on how to defeat the external security features of a hardware key.

...
PMI is a critical power service company servicing a variety of brands of UPS machines, including MGE UPS machines. PMI initially subcontracted MGE to perform software service on MGE UPS machines, but sometime before June 2000, a group of PMI employees obtained at least one copy of MGE's software from an unknown source. GE acquired PMI in 2001.

"Licencing" a product. (2, Insightful)

Anonymous Coward | about 4 years ago | (#33023686)

If Company X says you're merely licensed, doesn't that mean that they now need to provide replacements in perpetuity? Lets say my priceless collection of 8 tracks has finally lost its magnetism. Isn't that company now required to provide me with replacement 8-tracks, at cost? Never mind that 8-tracks are a dead tech, I paid the license for 8-tracks, therefore they are OBLIGATED to make sure I keep that format.

Or even games? Shouldn't companies be obligated to support EVERY game they sell to valid "licensees", in perpetuity (until they die)? Game servers must be always up, tech support, etc. After all the game never said it's a limited license for support and features.

Companies can't have it both ways. If they only they own it and merely license, then they need to license and support forever, or give up this notion that "licensees" cannot do whatever with it.

Bypassing Dongles ~= Bypassing Media Checks (4, Interesting)

JakFrost (139885) | about 4 years ago | (#33023718)

This is the equivalent of buying a game or a program that requires a media check (e.g. "Insert DVD/CD-ROM to start the game") and then downloading a modified executable from GameCopyWorld.com [gamecopyworld.com] to play your own game without the media check. Many people have been doing this for a long time and this ruling sets a precedent that effectively legitimizes the usage of these helpful executable.

The problems with GCW is that a lot of times they include a full copy of the modified executable instead of just a small patcher or cracker program so they are still violating the copyright on the original executable code by distributing it without a license from the authors. The quick solution would be to download the patchers or crackers but since many of those are built using pre-made small assembly or C modular code (not shared libraries or DLLs) that has also be used by virus makers many of these legitimate pieces of modular code have been flagged by anti-virus companies as viruses just because they were used to make them. This is why your keygen, patcher, cracker executable will end up flagging anti-virus warnings immediately on download or usage or even months or years after you've successfully used them without getting an infection since their modules were flagged later. So GCW has a hard time with false-positive virus warnings and that's why they show that web page on download about their code being 100% clean and still allow download of full executables instead of just the patchers.

Dongle Freedom, I guess (0)

cdrguru (88047) | about 4 years ago | (#33023870)

What this would appear to mean is that any use of a dongle by a program for licensing is now null and void. If a "remover" tool is available to eliminate the need for the dongle, then anyone is free to use this.

Now the question becomes, when does a license violation or copyright violation occur? If you purchase one license (one dongle) is there now court-sanctioned approval to use multiple copies of the software through the use of a dongle-remover tool? If the dongle-remover is legal, it would seem now to place the onus on the publisher to figure out if the customer is using more than the licensed number of copies. If, and only if, such a discovery were made, then the issue of a copyright violation could be brought up.

But simply disabling the dongle would appear to be perfectly legal. For expensive software, this pretty much means only a single copy ever need be purchased and the customer can do this with impunity. There is considerable interest in this as today budgets are tight and even the most ethical organization is going to be sorely tempted. They have now been given court approval for modifying their software licensing.

This would not seem to open the door to redistribution outside of a licensed user. But again, once you enshrine the right to disable dongles you have opened the door to unlimited redistribution. Who exactly can determine whether or not a dongle-removal tool will only be used for legal purposes or not?

While you might try to equate this to legal vs. illegal use of a hammer where murder isn't a legal use I would frame this far closer to the idea of someone marketing full-size guillotines for trimming "Really Big Cigars" and attempting to say that the legal vs. murderous use of such a device outweighs any other interest in the matter.

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