The court also found a violation of the anti-circumvention provisions of the DMCA,
ruling that GetKey was unquestionably a qualifying access control measure and there was no
question that the defendants bypassed GetKey. The court also rejected the defendants’ reliance
on Section 1201(f), because that defense exempts circumvention only if it does not constitute
infringement, and the defendants’ bypassing of GetKey resulted in an infringing copy of the
program being made in RAM.^1271 Accordingly, the court issued a preliminary injunction against
the defendants.
On appeal, the Federal Circuit reversed, principally on the ground that the district court’s
analysis of Section 117(c) was incorrect. The court found that the district court had erred by
focusing on the term “repair” in Section 117(c), while ignoring the term “maintenance,” which
the court noted from the legislative history was meant to encompass monitoring systems for
problems, not simply fixing a single, isolated malfunction.^1272 The defendant had created
software, known as the Library Event Manager (LEM) and the Enhanced Library Event Manager
(ELEM) to intercept and interpret fault symptom codes produced by the plaintiff’s Maintenance
Code.^1273 The plaintiff’s expert testified that a copy of the Maintenance Code remained in RAM
on an ongoing basis as the system operated with the LEM and ELEM attached. Because that
description did not comport with the notion of “repair,” the district court had ruled Section
117(c) inapplicable. However, in describing the defendants’ process, the expert noted that the
LEM and ELEM stayed in place so that when problems occurred, the defendants could detect
and fix the malfunction. The Federal Circuit ruled that this ongoing presence to detect and repair
malfunctions fell within the definition of “maintenance” in Section 117(c). Moreover, when the
defendants’ maintenance contract was over, the storage library was rebooted, which destroyed
the Maintenance Code. The court noted that the protection of Section 117 does not cease simply
by virtue of the passage of time, but rather ceases only when maintenance ends.^1274
With respect to whether the Maintenance Code was necessary for the machine to be
activated, the Federal Circuit relied heavily on the fact that both parties agreed the Maintenance
Code was “so entangled with the functional code that the entire code must be loaded into RAM
for the machine to function at all.”^1275 The fact that the Maintenance Code had other functions,
such as diagnosing malfunctions in the equipment, was irrelevant. Accordingly, the defendants
were likely to prevail on their argument that Section 117(c) protected their act of copying of the
plaintiff’s Maintenance Code into RAM.^1276
(^1271) Id. at 14-15.
(^1272) Storage Technology Corp. v. Custom Hardware Eng’g & Consulting, Inc., 421 F.3d 1307, 1312 (Fed. Cir.
2005), reh’g denied, 431 F.3d 1374 (Fed. Cir. 2005).
(^1273) Id. at 1310.
(^1274) Id. at 1313.
(^1275) Id. at 1314.
(^1276) Id. In the alternative, the court ruled that the defendants’ copying of the software into RAM was within the
software license rights of their customers because the defendants were acting as their customers’ agents in
turning on the machines. Id. at 1315. “Because the whole purpose of the license is to allow the tape library
owners to activate their machines without being liable for copyright infringement, such activity by the licensee