Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/3

No. 08-10521 software is cracked and the security key is defeated, the software can be accessed and used without limitation.

PMI is a critical power service company servicing a variety of brands of UPS machines, including MGE UPS machines. PMI initially subcontracted MGE to perform software service on MGE UPS machines, but sometime before June 2000, a group of PMI employees obtained at least one copy of MGE’s software from an unknown source. GE acquired PMI in 2001.

In December 2004, MGE filed suit against GE/PMI for, inter alia, copyright infringement, misappropriation of trade secrets, unfair competition, conversion, and DMCA violations. GE/PMI does not dispute liability, inasmuch as it admits to recovering a laptop from a former PMI employee that contained hacked MGE software, and admits to five instances of this software’s use from June 2000 through May 2002. MGE alleges that GE/PMI used the software a total of 428 times, including uses after the district court granted MGE a preliminary injunction against GE/PMI’s use of MGE’s software and trade secrets.

During the proceedings for this action, GE/PMI moved, renewed, and re-urged motions for summary judgment and judgment as a matter of law pursuant to Federal Rules of Civil Procedure 50(a) and (b) arguing, inter alia, that MGE could not sustain a DMCA cause of action against GE/PMI. After initially denying GE/PMI’s pretrial motion for summary judgment and its Rule 50(a) motion on MGE’s DMCA claim, the district court dismissed the DMCA claim during an off record jury charge conference. The jury found that GE/PMI had infringed MGE’s copyrights, misappropriated MGE’s trade secrets, and committed unfair business practices. The jury awarded MGE the following damages: 3