• Software Copying for Maintenance or Repair Purposes Can Be Protected by Copyright Act "Safe Harbor"
  • September 14, 2005 | Author: John F. Easton
  • Law Firms: Pillsbury Winthrop Shaw Pittman LLP - Houston Office ; Pillsbury Winthrop Shaw Pittman LLP - San Francisco Office
  • In a case of first impression, the Federal Circuit Court of Appeals recently held that the "safe harbor" provision of Section 117(c) of the Copyright Act applies to conduct that constitutes "maintenance or repair" of a machine, even if the repair activity results in some copying of source code. See Storage Technology Corporation v. Custom Hardware Engineering & Consulting, No. 04-1462 (Fed. Cir. 2005). The court reasoned that section 117(c) was enacted to protect the "class of companies that fix and maintain computer systems, as opposed to those that would make other commercial use of copyrighted material." Further, a claim under the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. ยง 1201(a)(1), fails unless the conduct in question constitutes actual infringement or facilitates such infringement. Thus, the court made clear that the protection of section 7(c) can apply even in circumstances where the repair or maintenance company circumvents software protection protocols.