Page:Fair Circumvention.djvu/23

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FAIR CIRCUMVENTION

legislative intent because of its anticompetitive effects in the market. Congress, the concurring opinion emphasized, never “intend[ed] to allow the DMCA to be used offensively in this manner,” which in the concurring judge’s view allowed a manufacturer to “create monopolies for replacement parts. . . .”[1] A device that circumvented such a monopoly-creating mechanism, this opinion reasoned, could not be said to be “primarily designed or produced for the purpose of” accessing copyrighted works.[2] The concurrence expressed the fear that, in the wake of the panel’s decision, companies would still try to “use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case[,]” and believed a broader opinion was required to forestall such a result.[3]

Lexmark, like Chamberlain, differs markedly from Reimerdes in its reading of the DMCA. The most striking contrast between Lexmark and its predecessors, however, lies less in the court’s analytical approach and more in the attitudes and sympathies revealed in the judges’ opinions. The court in Reimerdes was openly hostile towards technologically sophisticated parties who wished to use their own consumer electronic products in a manner inconsistent with the desires of those products’ suppliers.[4] Lexmark is as bountifully indulgent towards such technology-savvy users as Reimerdes was unsparingly averse. It is scarcely possible to imagine the court in Reimerdes penning a sentence like this one from Lexmark:

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.[5]

One cannot, of course, take this sentence literally; it is likely that only a minuscule number of printer owners in fact possess the technological acumen to “read the literal code of the Printer Engine Program directly from the printer memory” as the panel somewhat breezily suggests.[6] Lexmark, however, remains significant insofar as it evaluates the plaintiff’s technological protection scheme from the perspective of a knowledgeable, sophisticated end-user, rather than

  1. Id. at 552 (Merritt, J., concurring).
  2. Id. (quoting 17 U.S.C. § 1201(a)(2)(A) (2006)).
  3. Id. at 551.
  4. See supra notes 56-61 and accompanying text.
  5. Lexmark, 387 F.3d at 546.
  6. Id. Ascertaining precisely how this might be accomplished with one’s own printer is left as an exercise for the reader.