Advanced Copyright Law on the Internet

(iv) Bose v. Zavala

In this case, the defendant sold Bose Lifestyle Media Centers in auctions on eBay. In his
auctions, he offered to unlock the region coding within the Media Center’s DVD player by
altering Bose’s firmware in the device or to give the purchaser directions on how to do so.
Unlocking the region code would permit the Media Centers to play DVDs distributed anywhere
in the world. Bose brought claims against the defendant under Section 1201 of the DMCA and
the defendant moved to dismiss them under Fed. R. Civ. Pro. 12(b)(6) on the ground that Bose
lacked standing to assert the claims because it was not the type of party protected by the DMCA,
since it did not sell digital media or region code-changing services. The court rejected this
argument, ruling that a party who controls the technological measures that protect copyrighted
works is a “person injured” by the circumvention of the measures within the meaning of Section
1203(c).^830 The court concluded, “Bose controls region coding, a technological measure that
protects copyrighted DVDs. This is sufficient to allege that it is a ‘person injured’ within the
meaning of the DMCA.”

(v) MGE UPS Systems v. GE

In MGE UPS Systems Inc. v. GE Consumer & Industrial Inc.,^831 the Fifth Circuit ruled
that mere use of a copyrighted work subsequent to an illegal circumvention does not violate
Section 1201(a). The plaintiff distributed uninterruptible power supplies (UPS’s), some of which
required the use of MGE’s copyrighted software programs during servicing. The software
required connection of a security dongle to a laptop serial port during servicing. Software
hackers had published information on the Internet disclosing general instructions on how to
defeat the external security features of the dongle, thereby rendering the hacked software
accessible for use without limitation. The defendant’s employees obtained a hacked copy of
MGE’s software and used it to service the plaintiff’s UPS’s. The Fifth dismissed the plaintiff’s
claim that such use violated Section 1201(a). The court ruled that because Section 1201(a)(1) is
targeted at circumvention, it does not apply to the use of copyrighted works after the
technological measure has been circumvented. There was no evidence showing that a
representative or employee of the defendant had altered the software such that a dongle was not
required to use it, and hence the defendant had not itself engaged in any circumvention.^832

(vi) Granger v. One Call Lender Services

In this case, the plaintiff was the owner of a computer program that estimated the rate or
cost of real estate title insurance sold by title insurance agents. The defendants placed an
infringing version of the rate calculator program on their website, though later took it down upon
receipt of a demand letter from the plaintiff. The plaintiffs had embedded within the computer
program copyright tag lines and a watermark that, if not removed carefully, could leave a tell-
tale sign as to the origin of the work. The plaintiff argued that removal of the watermark

(^830) Bose BV v. Zavala, 2010 U.S. Dist. LEXIS 2719 at *1-5 (D. Mass. Jan. 14, 2010).
(^831) 622 F.3d 361 (5th Cir. 2010).
(^832) Id. at 364-66.