MPAA to Fifth Circuit: Now rehear this

Copyright The danger lurking in an opinion last month by the Fifth Circuit Court of Appeals in an otherwise obscure DMCA case has apparently landed hard on the radar of the major copyright groups. Last week, the MPAA, RIAA, ESA, BSA and SIIA filed a pair of amicus briefs, the latter four jointly, the MPAA on its own, urging a rehearing en banc, the likely prelude to an eventual Supreme Court petition for cert.

The case, MGE UPS Systems v. Power Maintenance International (a company now owned by NBC Universal-parent GE), involved the use of a hardware security dongle to gain access to diagnostic software embedded in MGE’s uninterpretable power supply systems. PMI is a service company that performs maintenance on MGE’s systems on behalf of MGE customers. Somewhere along the way, PMI technicians obtained a working copy of the diagnostic software (from a source or sources unidentified), which they were able to use to service MGE systems without the use of the dongle.

MGE brought a DMCA action (among other charges), claiming the PMI technicians had illegally circumvented a technical protection measure (the dongle) that was protecting MGE’s copyrighted diagnostic software. The trial court dismissed the DMCA claim (though found for MGE on other charges). MGE appealed the dismissal, while PMI appealed other aspects of the verdict.

The three-judge panel of the Fifth Circuit, not typically a hotbed of DMCA or copyright actions, took all of three and half pages to dispense with MGE’s DMCA appeal, noting that “Merely bypassing a technological protection that restricts a user from viewing or using a work is insufficient to trigger the DMCA’s anti-circumvention provision. The DMCA prohibits only forms of access that would violate or impinge on the protections that the Copyright Act otherwise affords copyright owners.”

In this case, the court said, “MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act.”

That, apparently, set off alarm bells within the studios. Leveraging the anti-circumvention provisions of the DMCA to restrict the use of works beyond what the Copyright Act expressly provides for is at the heart of many a studio business model, from regulating the design of DVD and Blu-ray playback devices through the DRM licenses, to the restriction on analog outputs in the upcoming premium VOD window.  While the Fifth Circuit is not the first court to suggest that strategy could be problematic, its opinion frames the issue about as starkly as it can be framed, prompting an unusually frank retort from the MPAA.

The DMCA “focuses exclusively on unauthorized access to copyrighted works,” the MPAA wrote in its brief. “Contrary to the Opinion, bypassing a technological measure that restricts viewing or using the work – even absent a copyright violation – is precisely the type of conduct [the DMCA] prohibits.”

I’ll leave it to the lawyers to judge the legal merits of the MPAA and other amici’s briefs. But reading them, you can almost smell the fear.

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