into RAM upon activation of the machine. Such a result seems in tension with Section
117(c)(2), which provides that, “with respect to any computer program or part thereof that is not
necessary for the machine to be activated, such program or part thereof is not accessed or used
other than to make such new copy by virtue of the activation of the machine.” The reference to
“part thereof” seems to contemplate that some code might get loaded upon machine activation,
but yet not be necessary for the machine to be activated (in the way, for example, that operating
system software is necessary for a machine to be activated). In that event, Section 117(c)(1)
absolves the maintenance provider from liability for the making of the copy of such code upon
machine activation, but Section 117(c)(2) would seem to prevent the maintenance provider from
accessing or using such code “other than to make such new copy by virtue of the activation of
the machine.”
Notwithstanding this, the Federal Circuit’s decision gave the maintenance provider the
right to access and use the Maintenance Code, just because it was loaded upon activation. The
court did so on the articulated basis that 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.”^1283 However, this factual assertion seems belied by the fact that, as noted by the district
court, the default setting for the Maintenance Code was level 0 (disabled), and it was designed to
require intervention by Storage Tech engineers through the GetKey process to activate it to
higher levels. Thus, although the Maintenance Code was loaded upon machine activation, it
would not seem necessary for the machine to activate (function), because it was by default set to
be disabled.
- Second, the court’s interpretation of the anti-circumvention provisions gives them a
narrower scope than the literal language of the copyright statute seems to read. Specifically, the
court ruled that those provisions do not create a new source of liability beyond copyright
infringement. If a circumvention does not lead to a copyright infringement, the circumvention is
not illegal. In other words, the act of circumvention is not a malum in se.^1284 This holding,
whatever merit it might be argued to have as a policy matter, seems contrary to the literal
language of Section 1201(a)(1)(A), which states “No person shall circumvent a technological
measure that effectively controls access to a work protected under this title.” The Federal
Circuit’s decision seems to add a clause at the end of this provision reading “and which
circumvention results in copyright infringement.” As discussed in Section II.G.1(n)(1) above,
the separate opinions of two of the judges in the Lexmark case expressed similar views about
what the proper scope of the anti-circumvention prohibitions should be interpreted to be.
On remand, StorageTek asserted an additional anti-circumvention claim against the
defendants, based on the defendants’ alleged circumvention of GetKey in order to access and
copy StorageTek’s Run Time Diagnostics (RTD) code, which diagnosed troubles in the
hardware. Unlike the rest of the Maintenance Code, the RTD code was not automatically loaded
(^1283) Id. at 1314.
(^1284) Latin for “wrong in itself.”