Page:Fair Circumvention.djvu/21

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FAIR CIRCUMVENTION

enjoined SCC’s distribution of its chips.[1] On SCC’s appeal, a fractured panel of the Sixth Circuit reversed.[2] The three panel judges wrote three separate opinions, although they agreed unanimously that Lexmark could not show a likelihood of success on its DMCA claim.[3]

The panel first expressed doubt that Lexmark’s Toner Loading Program (“TLP”), which was largely dictated by functional concerns and occupied only 37 to 55 bytes of memory, was eligible for copyright protection at all—a necessary prerequisite to any claim under the DMCA.[4]

Lexmark’s longer and more complex Printer Engine Program (“PEP”), SCC conceded, was protected by copyright.[5] The panel, however, reasoned that the printer’s authentication sequence failed to “effectively control access” to that program. The PEP, the panel observed, was built into every Lexmark printer and existed, unencrypted, in printer memory, where a sufficiently technologically knowledgeable user could access it at any time without needing to employ Lexmark’s authentication sequence. For that reason, the court wrote:

It is not Lexmark’s authentication sequence that “controls access” to the Printer

Engine Program. It is the purchase of a Lexmark printer that allows “access” to the program. Anyone who buys a Lexmark printer may read the literal code of the Printer Engine Program directly from the printer memory, with or without the benefit of the authentication sequence, and the data from the program may be translated into readable source code after which copies may be freely distributed. No security device, in other words, protects access to the Printer Engine Program and no security device accordingly must be circumvented to

obtain access to that program code.[6]

Because any user could copy the PEP without using the authentication sequence, the court continued, that sequence could not be said to “control

  1. See Lexmark Int’l, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943 (E.D. Ky. 2003).
  2. Lexmark, 387 F.3d at 551.
  3. See id. at 545-51; id. at 551-53 (Merritt, J., concurring); id. at 562-65 (Feikens, J., concurring in relevant part).
  4. Lexmark, 387 F.3d at 529, 537-44. The familiar general rule is that copyright protection does not extend to words and short phrases, on the grounds that some minimum threshold amount of expressive content must be present. See, e.g., 37 C.F.R. § 202.1(a) (2007) (listing examples of uncopyrightable subject matter including “[w]ords and short phrases such as names, titles, and slogans”). The functional characteristics of computer programs also impose limits on the scope of copyright protection that they receive. See, e.g., infra note 129. On remand from the Court of Appeals for the Sixth Circuit, the district court held Lexmark’s Toner Loading Program uncopyrightable. Static Control Components, Inc. v. Lexmark Int’l, Inc., 2007 WL 1485770, at *6 (E.D. Ky. Apr. 18, 2007).

    In the court of appeals, one of the panel members (a district judge sitting by designation) dissented from this portion of the panel majority’s opinion. See Lexmark, 387 F.3d at 553-61 (Feikens, J., dissenting in part). Judge Feikens nevertheless agreed with the majority’s rejection of Lexmark’s DMCA claim based on the Toner Loading Program, however, on the grounds that Lexmark could not show that SCC’s “chip was primarily designed or produced for the purpose of accessing the TLP.” Id. at 562.

  5. Id. at 546.
  6. Id. at 546-47 (citations omitted).