Page:Fair Circumvention.djvu/19

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the “clear language” of the DMCA,[1] the Chamberlain court may have limited the persuasive reach of its own decision, for the actual language of the DMCA may as readily support a conclusion opposite the one the Chamberlain court reached.[2]

This is particularly true with respect to the court’s treatment of the pivotal issue of authorization. The DMCA, as the court correctly observed, “defines circumvention as an activity undertaken ‘without the authority of the copyright owner.’”[3] The court concluded, however, that the copyright owner’s denial of authorization was not dispositive, based on the court’s conclusion that other provisions of the Copyright Act provide an alternative source of “authority.”[4] This latter interpretation, to be sure, finds support in sources outside the statutory text.[5] A court more inclined to focus on the text of the statute itself, however,[6] might as readily conclude that the phrase “authority of the copyright owner[7] necessarily implies that such authority is for the “copyright owner” to grant or withhold at its election.[8]

b. Lexmark International v. Static Control Components

The court in Lexmark International, Inc. v. Static Control Components, Inc.[9] avoided the Chamberlain court’s entanglement in the thicket of “authorization,” relying instead on the dubious notion that the purchase of a product containing unencrypted software code necessarily conferred on consumers the right to extract and copy that code.[10]

Lexmark involved a DMCA claim brought by a manufacturer of computer printers against a supplier of aftermarket refilled toner cartridge components.[11] Lexmark, the printer manufacturer, sought to avail itself of the protections of the DMCA by embedding a piece of copyrighted software, the “Printer Engine Program,” in its printers, and another software program, the “Toner Loading Program,” in its toner cartridges.[12] One purpose of these programs was to limit consumers’

  1. See supra note 87 and accompanying text.
  2. See Efroni, supra note 96, at 106 (suggesting that “Chamberlain performed a considerable deviation from the textual and contextual framework of the law in order to promote a certain policy”).
  3. Chamberlain, 381 F.3d at 1193 (quoting 17 U.S.C. § 1201(a)(3)(A)) (emphasis added).
  4. See id.
  5. See supra notes 68-71 and accompanying text.
  6. See, e.g., infra note 194.
  7. 17 U.S.C. § 1201(a)(3)(B) (2006) (emphasis added).
  8. See supra notes 48-49 and accompanying text.
  9. 387 F.3d 522 (6th Cir. 2004).
  10. Id. at 546-47.
  11. See id. at 529.
  12. See id. at 529-30.