Page:Fair Circumvention.djvu/24

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[Vol. 74:1

insisting, as Reimerdes does, that users must remain ignorant of the capabilities of the electronic products they have purchased.[1]

Nevertheless, despite its normative appeal, Lexmark ultimately articulates an interpretation of the DMCA that is not readily squared with the statutory text. The court’s stated assumption that any purchaser of a product containing unencrypted software code is necessarily allowed to extract that code from the product and make copies[2] surely has the general rule backwards. Although the court’s analysis would be correct as to uncopyrighted code (or, what is the same thing, the uncopyrightable functional characteristics of code that is nominally subject to copyright[3]), purchasers enjoy no general right to copy and distribute unencrypted copyrighted works.[4] Audio compact discs (“CDs”), for example, ordinarily omit any form of encryption to protect the musical works recorded thereon,[5] but no one (and certainly not the Lexmark court) believes that purchasers are generally immune from liability if they copy and distribute the unencrypted content of a music CD.[6] Although it is true (indeed, it is tautological) that a plaintiff cannot prevail under the DMCA where there is no technological measure protecting the work in question (and therefore nothing to “circumvent”),

  1. Although Lexmark took pains to distinguish Reimerdes as not involving “a situation where the access-control measure left the literal code or text of the computer program or data freely readable,” id. at 547, Lexmark’s own analytical framework seems to be far enough removed from anything the Reimerdes court said to raise the question whether the decisions are ultimately irreconcilable. The point is thrown into sharp relief by redrafting the “access control” discussion in Lexmark to describe instead the technological measure that was at issue in Reimerdes:

    It is not [CSS] that “controls access” to the [DVD video stream]. It is the purchase of a

    [DVD player] that allows “access” to the [video stream]. Anyone who buys a [DVD player] may read the literal code of the [player key] directly from the [player], with or without the benefit of [CSS], 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 [video stream] and no security device accordingly

    must be circumvented to obtain access to that program code.

    Cf. id. at 546-47.

  2. See supra note 122 and accompanying text.
  3. As the Court of Appeals for the Second Circuit has suggested, computer programs commonly contain elements that derive from sources other than the original creative expression of the programmer. These elements are ipso facto outside the scope of any copyright subsisting in the program as a whole, and must be “filtered out” of any infringement analysis. See Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 705 (2d Cir. 1992) (copyright protection does not extend to “those elements of a computer program that are necessarily incidental to its function”); id. at 707-10 (in considering scope of copyright protection for software, courts must “filter out” any components thereof that were “dictated by efficiency,” “dictated by external factors,” or “taken from the public domain”).
  4. See 17 U.S.C. § 106(1), (3) (2006).
  5. The official specifications governing the format of digital audio information on music CDs do not include any provision for the use of access or copy controls, and efforts to add such systems to audio CDs have to date been mostly unsuccessful—even occasionally resulting in damage to customers’ electronic equipment. See Deirdre K. Mulligan & Aaron K. Perzanowski, The Magnificence of the Disaster: Reconstructing the Sony BMG Rootkit Incident, 22 Berkeley Tech. L.J. 1157 (2007). See generally Armstrong, supra note 11, at 61-62.
  6. See, e.g., Zomba Enters., Inc. v. Panorama Records, Inc., 491 F.3d 574, 577-78, 584-85 (6th Cir. 2007).