customers’ installations by means of diagnostic software, called the “Maintenance Code,” that it
used to identify malfunctions and problems in its customers’ storage systems. In order to protect
its service market, StorageTek restricted access to the Maintenance Code with a proprietary
algorithm called GetKey.^1266
When activated, the Maintenance Code ran a series of diagnostic tests and provided
information concerning the nature of existing or potential problems. It was programmed to be
set at different levels between 0 and 9. At the 0 level (the usual setting), the Maintenance Code
was disabled. Above 0 the Maintenance Code activated specific diagnostic functions at different
levels. To enable the Maintenance Code for a particular system, a technician was required to
contact StorageTek’s technical support staff, provide the serial number of the equipment being
serviced and identify the desired level of the Maintenance Code. The technician would then be
given a GetKey password specific to the request that the technician was required to enter in order
to reset the maintenance level. During the process of accessing the Maintenance Code and
changing the level, a complete copy of the code was made in the RAM memory of the
system.^1267
The defendants competed with StorageTek for servicing StorageTek systems. They
figured out how to circumvent the GetKey algorithm to gain access to the Maintenance Code and
to reset its maintenance level in order to run diagnostics that would generate information needed
to service a particular system. StorageTek sued for both copyright infringement and violation of
the anti-circumvention provisions.^1268
The district court held that the defendants had infringed StorageTek’s copyright in the
Maintenance Code by virtue of the copy thereof made in RAM each time the GetKey process
was circumvented and the maintenance level reset.^1269 The court held that such copying was not
permitted under Section 117(c) of the copyright statute, which provides that it is not an
infringement for the owner or lessee of a machine to authorize the making of a copy of a
computer program if the program is copied solely by turning on the machine for the purpose only
of maintenance and repair and the copy is used in no other manner and is destroyed immediately
after the maintenance and repair is completed. The court ruled that Section 117(c) was not
available because, although the defendants copied the Maintenance Code by turning on the
machine, they did not do so just for repair, but also for the express purpose of circumventing
StorageTek’s security measures, modifying the maintenance level, and intercepting the
diagnostic messages, and they did not destroy the copies they made immediately after
completion of repairs.^1270
(^1266) Storage Technology Corp. v. Custom Hardware Engineering & Consulting, 2004 U.S. Dist. LEXIS 12391 (D.
Mass. July 2, 2004) at 3-4.
(^1267) Id. at 7-8.
(^1268) Id. at 9-11.
(^1269) Id. at 11-12.
(^1270) Id. at *12-13.