Page:Fair Circumvention.djvu/22

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[Vol. 74:1

access” to the program, and certainly could not be said to do so “effectively”:

Because the statute refers to “control[ling] access to a work protected under this

title,” it does not naturally apply when the “work protected under this title” is otherwise accessible. 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 and just as one would not say that a lock on any door of a house “controls access” to the house after its purchaser receives the key to the lock, it does not make sense to say that this provision of the DMCA applies to otherwise-readily-accessible copyrighted works. Add to this the fact that the DMCA not only requires the technological measure to “control[ ] access” but also requires the measure to control that access “effectively,” and it seems clear that this provision does not naturally extend to a technological measure that restricts one

form of access but leaves another route wide open.[1]

The panel denied that its interpretation of “effectively controls access” precluded application of the DMCA unless the plaintiff had created “an impervious shield to the copyrighted work.”[2] The panel insisted that the DMCA’s protection did not turn upon “the degree to which a measure controls access to a work.”[3] But for the DMCA to apply, the court maintained that “the challenged circumvention device must indeed circumvent something. . . .”[4] Because any user could read the Printer Engine Program directly from the printer, there was nothing to circumvent.

The two concurring opinions offered other avenues to the same destination. One judge concurred separately on the grounds that every purchaser of a Lexmark printer “acquire[d] an implied license to use the Printer Engine Program for the life of that printer,”[5] and accordingly, the DMCA could not be found to protect any “right of the copyright owner to prevent the consumer from using” that program.[6] Another judge would have gone even farther, concluding that extending the protections of the DMCA to Lexmark would be incompatible with

  1. Id. at 547 (citation omitted). But see Pearl Investments, LLC v. Standard I/O, Inc., 257 F. Supp. 2d 326, 350 (D. Me. 2003) (“The question of whether a technological measure ‘effectively controls access’ is analyzed solely with reference to how that measure works ‘in the ordinary course of its operation.’ The fact that [defendant] had alternative means of access to the works is irrelevant. . . .”) (citation omitted).
  2. Lexmark, 387 F.3d at 549.
  3. Id.
  4. Id. (emphasis omitted). Cases testing the boundaries of the DMCA’s definition of “circumvention” may represent the next frontier in DMCA litigation. See, e.g., Healthcare Advocates, Inc. v. Harding, Earley, Follmer & Frailey, 497 F. Supp. 2d 627, 644-45 (E.D. Pa. 2007) (malfunction of online archive’s system to limit archival storage of web pages did not constitute “circumvention” of the system); I.M.S. Inquiry Mgmt. Sys., Ltd. v. Berkshire Info. Sys., Inc., 307 F. Supp. 2d 521, 532-33 (S.D.N.Y. 2004) (defendant’s unauthorized use of another party’s valid password did not constitute “circumvention” of plaintiff’s password-protection mechanism). The DMCA’s definition of “circumvention” may do more to complicate the courts’ task in these cases than to simplify it. See generally infra notes 211-215 and accompanying text.
  5. Lexmark, 387 F.3d at 564 (Feikens, J., concurring in part).
  6. Id. at 563.