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Mge V Ge Amicus Brief
Mge V Ge Amicus Brief
Mge V Ge Amicus Brief
No. 08-10521
____________________________________________________________________________________
Plaintiff-Appellant,
v.
Defendants-Appellees,
Defendants-Appellees.
_____________
TONY WEST
Of Counsel: Assistant Attorney General
TABLE OF CONTENTS
Page
ARGUMENT. .............................................................................................. 4
CONCLUSION.......................................................................................... 14
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES
Cases: Page
Statutes:
17 U.S.C. § 701............................................................................................ 2
Regulations:
ii
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Legislative Materials:
iii
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No. 08-10521
Plaintiff-Appellant/Petitioner,
v.
Defendants-Appellees,
Defendants-Appellees/Respondents.
_____________
impression in this Circuit,” slip op. 5, the scope of the prohibition in the
United States has authority to file this brief under Rule 29(a) of the
owner would not otherwise have a remedy under the Copyright Act.
3
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appeal: the panel also held, in the alternative, that plaintiff MGE UPS
urges the Court to grant panel rehearing and withdraw its discussion of
ARGUMENT
modifies the noun “work,” not “access”; it defines the types of works to
the Copyright Act otherwise affords copyright owners.” Slip op. 6. The
panel thus held that MGE’s claim under section 1201(a)(1) failed
5
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because “MGE has not shown that bypassing its dongle infringes a
Copyright Act,” slip op. 7, then the DMCA only prohibits what the
1
The Act further defines the phrase “effectively protects a right of
a copyright owner under this title” to mean that “the measure, in the
ordinary course of its operation, prevents, restricts, or otherwise limits
the exercise of a right of a copyright owner under this title.” 17 U.S.C.
§ 1201(b)(2)(B).
6
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Act otherwise affords copyright owners,” slip op. 6, the panel collapsed
Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522,
controls under the DMCA); Universal City Studios, Inc. v. Corley, 273
affect[]” the ability of users “to make noninfringing uses under this
that “infringe[] a right protected by the Copyright Act.” Slip op. 7. The
2
Similarly, the panel’s decision essentially obviates the six
specific statutory exemptions that Congress enacted in section 1201 for
types of conduct that would generally be recognized as noninfringing
fair uses. See 17 U.S.C. § 1201(d)-(g), (i)-(j). Those exemptions would
be unnecessary if, as the panel believed, the basic prohibition in section
1201(a)(1) did not encompass circumvention to engage in noninfringing
acts.
8
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would not by itself violate the copyright laws. Congress was concerned
9
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the panel called “mere use or viewing.” Yet the ability of copyright
4. The panel relied for its ruling on the Federal Circuit’s decision
in Chamberlain Group, Inc. v. Skylink Techs., Inc., 381 F.3d 1178 (Fed.
Cir. 2004). See slip op. 6. But that decision, too, was incorrectly
decided for the reasons already discussed. The panel quotes the
under this title” in section 1201(a) defines the types of works to which
Like the panel here, moreover, the Federal Circuit appears to have
court concluded that the plaintiff had failed to show how the alleged
3
Moreover, Chamberlain involved a violation of the anti-
trafficking prohibition in section 1201(a)(2), not the anti-circumvention
prohibition in section 1201(a)(1). Cf. Chamberlain, 381 F.3d at 1195
(acknowledging that defendants who use devices that are sold in
violation of the trafficking provisions of the DMCA “may be subject to
liability under § 1201(a)(1) whether they infringe or not”).
11
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copyrights, as the jury found and the panel affirmed. Slip op. 15-16.
for en banc review. But the panel’s discussion of the types of “access”
DMCA claim, the panel held that MGE failed to carry its burden to
12
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well, see Pet. 12-13, MGE cites no authority for its argument on this
Assuming the Court does not grant further review of the panel’s
Court grant panel rehearing and revise its opinion to rely on this
and respect the finality of the panel’s decision, while at the same time
avoiding the need for en banc or Supreme Court review of the panel’s
4
The United States expresses no view regarding whether and in
what circumstances the use of software that has been modified by
another party to bypass a security technology may itself violate section
1201(a)(1).
13
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CONCLUSION
rehearing.
Respectfully submitted,
TONY WEST
Of Counsel: Assistant Attorney General
September 2, 2010
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I hereby certify that this amicus brief complies with the type-face
Federal Rules do not provide a type volume limitation for amicus briefs
version 14.
s/ Mark R. Freeman
_______________________
Mark R. Freeman
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CERTIFICATE OF SERVICE
foregoing amicus brief to be filed with the Court via the CM/ECF
system, which constitutes service under the Court’s ECF rules on all
s/ Mark R. Freeman
________________________
Mark R. Freeman
Case: 08-10521 Document: 00511223011 Page: 21 Date Filed: 09/02/2010
25.2.13 have been made; that the electronic version of this document is
an exact copy of any paper copies required to be filed with the Court,
s/ Mark R. Freeman
_________________________
Mark R. Freeman