Advanced Copyright Issues on the Internet - Fenwick & West LLP

In United States v. Whitehead, 816 the Ninth Circuit affirmed the sentence for a man whowas convicted of selling over $1 million worth of counterfeit access cards that allowed hiscustomers to access DirecTV’s digital satellite feed without paying for it. The court found noabuse of discretion in the district court’s conclusion that a substantial amount of communityservice (1000 hours), a hefty restitution order ($50,000) and five years of supervised releasewere more appropriate than prison, even though the punishment was below that of the federalsentencing guidelines, which called for a range of 41 to 51 months in prison. 817Sword(15) Other Uses of the Anti-Circumvention Provisions as aThe RealNetworks and Reimerdes cases suggest how the anti-circumvention provisionsof the DMCA might be used as a “sword” in other ways. For example, the manufacturer of adatabase product that enables users to password protect data files might bring an action under theDMCA against the manufacturer of “cracking” software that enables third parties to bypass ordeactivate the password protection on such data files. The manufacturer of the database productmight, for example, allege “injury” from the “cracking” software in the form of damage to itsreputation as the manufacturer of a “secure” product. Alternatively, if a claim were made againstthe database product manufacturer by a user alleging injury resulting from the user’s data filebeing “cracked” by a third party, such claim would provide another basis for the databaseproduct manufacturer to allege its own injury from the “cracking” software.Other recent examples of attempts at creative use of the anti-circumvention provisions asa sword are the following:Components, Inc.(i)Lexmark International, Inc. v. Static ControlLexmark sold toner cartridges for use with its laser printers. The cartridges were of twotypes: “regular” cartridges that could be refilled and remanufactured freely by third parties, and“prebate” cartridges that could be used only once, and for which the consumer agreed, in theform of a shrinkwrap agreement placed across the top of every prebate cartridge box, to returnthe used cartridge to Lexmark for remanufacturing and recycling. Lexmark’s printers containedtwo computer programs – a Printer Engine Program that controlled various printer operationssuch as paper feed, paper movement, and motor control, and a Toner Loading Program of 37 to55 bytes, which resided within microchips attached to the toner cartridges and enabled Lexmarkprinters to approximate the amount of toner remaining in the cartridge. 818To protect the Printer Engine Programs and Toner Loading Programs, and to preventunauthorized toner cartridges from being used with Lexmark’s printers, Lexmark’s printers usedan authentication sequence that ran each time a toner cartridge was inserted into a Lexmarkprinter, the printer was powered on, or whenever the printer was opened and closed. The816817818532 F.3d 991 (9 th Cir. 2008).Id. at 992.Lexmark International, Inc. v. Static Control Components, Inc., 253 F. Supp. 2d 943, 948-49 (E.D. Ky. 2003).- 186 -