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

No. 08-10521 overwhelmingly in favor of the moving party. . . that reasonable jurors could not have arrived at a contrary verdict.” Id. (citation omitted).

GE/PMI argues that MGE’s dongle does not actually prevent copying of MGE’s software, but merely prevents access to the software. Once that access is breached, there are no barriers to copying the software. Accordingly, GE/PMI argues that MGE’s software is “freely accessible” within the meaning of the DMCA because the dongle does not block the type of “access” the DMCA is designed to prevent. Furthermore, though the MGE software in GE/PMI’s possession “was modified” to eliminate the need for a dongle, MGE has not presented evidence that a PMI employee initially modified the software.

One of Congress’ purposes behind enacting the DMCA was targeting the circumvention of technological protections. ''See Davidson & Assocs. v. Jung'', 422 F.3d 630, 639–40 (8th Cir. 2005). The DMCA’s anti-circumvention provision states, “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”. To “circumvent a technological measure” means to “descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A). “Effectively controls access to a work” means that “the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.” Id. § 1201(a)(3)(B). GE/PMI does not contest that MGE’s software was a work protected under Title 17 of the Copyright Act.

The DMCA does not describe the type of “access”-controlling technological measure required to invoke the DMCA’s protections, and this is an issue of first impression in this Circuit. MGE proposes a definition from a Fifth Circuit non DMCA case that discussed copyright issues and determined “access” to 5