A Victory for Third Party Maintenace Providers

Published on: November 10, 2011

Extra, Extra, Extra!!!!!!
A victory for third party maintenance providers!

, New York (November 07, 2011, 7:47 PM ET) -- A New Jersey federal judge on Friday pared down Avaya Inc.'s digital copyright claims against defendants (third party maintenance providers) in an antitrust and intellectual property dispute over who can service Avaya's computerized telephone systems.

U.S. District Judge Garrett E. Brown Jr. partially granted a summary judgment to the defendants in Avaya's suit on the claims over the Digital Millennium Copyright Act's ban on circumventing effective technological safeguards controlling access to protected works.

Avaya maintains that the companies have improperly used proprietary information to access and perform maintenance on its telephone exchanges, while the defendants claim that the plaintiff "aggressively sought and maintained a monopolistic stranglehold" on nationwide businesses by not allowing anyone but itself and its selected business partners the right to access hundreds of thousands of private telephone systems.

On Friday, Judge Brown nixed the bulk of Avaya's DMCA circumvention claims, ruling that while the defendants may have circumvented the plaintiff's security measures, the protections were not strong enough to meet the "effective" requirement under the law.

"In the ordinary course of operation, Avaya’s login combinations, activation/deactivation mechanisms and its ASG Key authentication system do not prevent all forms of access to the protected work," the judge wrote.

While those measures limit access to the functions of Avaya's exchange system — such as keeping unauthorized servicers from performing maintenance — a login is not required to get to the source and object code of the company's software, which is the only copyrighted part of the technology, according to the opinion.

"A technological measure, in order to be effective, must prevent all forms of access to a work," Judge Brown wrote, citing a 2004 decision from the Sixth Circuit. "Just as one would not say that a lock on the back door of a house ‘controls access’ to a house whose front door does not contain a lock ... it does not make sense to say that this provision of the DMCA applies to otherwise readily accessible copyrighted works."

The judge also noted that while the defendant’s use of logins from customers, the Internet or elsewhere to provide maintenance services might be unauthorized, they do not amount to circumvention under the DMCA.

Some of the defendants efforts to restore back-up data in order to reactivate software permissions Avaya had turned off, however, does amount to circumvention, according to the opinion. Nonetheless, Avaya's failure to show it had effective controls in place still led Judge Brown to grant summary judgment on two of the three alleged DMCA circumvention violations.

But the court refused to nix the third type of alleged violations from the case, concluding that there were still factual disputes that needed to be resolved by a jury.

Avaya maintains that it has security measures in place to guard against reproductions of its copyrighted software, which it says the defendants violate by making a copy of its code during maintenance, according to the opinion.

The defendants claim that this routine maintenance act should fall under legal protections from copyright infringement claims for upkeep activities, but the judge concluded that the companies had not provided enough evidence to back up their claims that the copy is destroyed afterward to win summary judgment.

Many of Avaya's other assorted fraud and tortious interference claims also still remain in the case, according to court documents.

The defendants applauded the decision Monday, calling it a vindication of its rights and vowed to pursue its antitrust counterclaims against Avaya on to trial.  We are pleased that the heart of Avaya's DMCA claims has been dismissed. This is all about choice; the case is clearly about the customers’ ability to choose who to hire to maintain equipment they've purchased.  Avaya's behavior is clearly anti-competitive and monopolistic; a win by the defendants will be a win for all owners of Avaya telephone systems, freeing them to hire the maintenance and support vendor of their choice.

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