Page:MGE UPS Systems Inc. v. GE Consumer and Industrial Inc. (5th Cir., 20 July 2010).djvu/7

No. 08-10521 form of access (printer function) but permitted free access from other avenues (for example, anyone who purchased that brand of printer could download a copy of the program)).

Here, MGE has not shown that bypassing its dongle infringes a right protected by the Copyright Act. MGE’s dongle merely prevents initial access to the software. If no dongle is detected, the software program will not complete the start-up process. However, even if a dongle is present, it does not prevent the literal code or text of MGE’s copyrighted computer software from being freely read and copied once that access is obtained; there is no encryption or other form of protection on the software itself to prevent copyright violations. Because the dongle does not protect against copyright violations, the mere fact that the dongle itself is circumvented does not give rise to a circumvention violation within the meaning of the DMCA.

Moreover, the DMCA’s anti-circumvention provision does not apply to the use of copyrighted works after the technological measure has been circumvented, targeting instead the circumvention itself. ''Universal City Studios, Inc. v. Corley'', 273 F.3d 429, 443 (2d Cir. 2001). MGE cites no evidence that a GE/PMI employee or representative was responsible for altering the Pacret and Muguet software such that a dongle was not required to use the software. Without proving GE/PMI actually circumvented the technology (as opposed to using technology already circumvented), MGE does not present a valid DMCA claim. See id. (“[T]he DMCA targets the circumvention of digital walls guarding copyrighted material (and trafficking in circumvention tools), but does not concern itself with the use of those materials after circumvention has occurred.”).

Because the DMCA does not apply to mere use of a copyrighted work, and because MGE has not shown that GE/PMI circumvented MGE’s software protections in violation of the DMCA, the district court did not err in granting GE/PMI’s Rule 50(a) motion dismissing MGE’s DMCA claim. 7