Turning to the anti-circumvention claim based on the defendants’ circumvention of the
GetKey protocol, the court cited its earlier opinion in the Chamberlain case for the proposition
that a “copyright owner alleging a violation of section 1201(a) ... must prove that the
circumvention of the technological measure either ‘infringes or facilitates infringing a right
protected by the Copyright Act.’”^1277 Thus, to the extent that the defendants’ activities did not
constitute copyright infringement or facilitate copyright infringement, the plaintiff was
foreclosed from maintaining an action under the DMCA.^1278 Citing the Lexmark and
RealNetworks v. Streambox cases, the court observed that “courts generally have found a
violation of the DMCA only when the alleged access was intertwined with a right protected by
the Copyright Act. ... To the extent that StorageTek’s rights under copyright law are not at risk,
the DMCA does not create a new source of liability.”^1279
Even if the plaintiff were able to prove that the automatic copying of the Maintenance
Code into RAM constituted copyright infringement, it would still have to show that the LEM or
ELEM (which bypassed GetKey) facilitated that infringement. With respect to that issue, the
court noted the problem that the copying of the Maintenance Code into RAM took place
regardless of whether the LEM or ELEM was used. Thus, there was no nexus between any
possible infringement and the use of the LEM and ELEM circumvention devices. Rather, the
circumvention of GetKey only allowed the defendants to use portions of the copyrighted
software that the plaintiff wished to restrict technologically, but that had already been loaded into
RAM. “The activation of the maintenance code may violate StorageTek’s contractual rights vis-
à-vis its customers, but those rights are not the rights protected by copyright law. There is
simply not a sufficient nexus between the rights protected by copyright law and the
circumvention of the GetKey system.”^1280 Accordingly, it was unlikely that the plaintiff would
prevail on its anti-circumvention claim.^1281 The court therefore vacated the preliminary
injunction and remanded for further proceedings.^1282
Two significant aspects of the Storage Tech case are worth noting:- First, the court read the Section 117(c) rights very broadly. Section 117(c) was clearly
designed to absolve maintenance providers from copyright liability based merely on the making
of a copy of a computer program by virtue of its getting loaded into RAM upon starting a
computer for maintenance. However, the Federal Circuit went further, and ruled that the
defendants were entitled to use, in aid of rendering maintenance, any software that got loaded
and its agents is implicitly authorized by the license agreement unless the agreement explicitly prohibits third
parties from powering up the machines.” Id. at 1317.(^1277) Id. at 1318 (quoting Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178, 1203 (Fed. Cir.
2004)).
(^1278) Storage Technology, 421 F.3d at 1318.
(^1279) Id.
(^1280) Id. at 1319.
(^1281) Id.
(^1282) Id. at 1321.