Advanced Copyright Issues on the Internet - Fenwick & West LLP

a technological measure that effectively controlled access to a copyrighted work. The courtadopted a plain dictionary meaning of “access” as the “ability to enter, to obtain, or to make useof.” 825 The court held that the authentication sequence was an effective technological measurerestricting access under this definition, because it required application of information and theapplication of a process to gain access to Lexmark’s copyrighted Toner Loading Programs andPrinter Engine Programs for use. 826 Accordingly, SCC’s manufacture, distribution and sale of itsSMARTEK microchips violated the DMCA. 827 The court held that the exemption under Section1201(f) for circumvention for reverse engineering “solely for the purpose of enablinginteroperability of an independently created computer program with other programs” wasinapplicable. The court ruled that SCC’s SMARTEK microchips could not be considered tocontain independently created computer programs, since they were exact copies of Lexmark’sToner Loading Programs and the “SMARTEK microchips serve no legitimate purpose other thanto circumvent Lexmark’s authentication sequence.” 828Finally, the court ruled, consistent with the Reimerdes case, that a plaintiff thatdemonstrates a likelihood of success on the merits of a claim for violation of the anticircumventionprovisions of the DMCA is entitled to a presumption of irreparable injury forpurposes of a preliminary injunction. Accordingly, the court entered a preliminary injunctionagainst the distribution of the SMARTEK microchips. 829The Sixth Circuit’s Ruling. On appeal, the Sixth Circuit reversed and remanded. 830Turning first to the issue of copyright infringement, the Sixth Circuit found the district court’sruling erroneous with respect to whether the Toner Loading Program constituted a “lock-outcode.” The court noted generally that “[t]o the extent compatibility requires that a particularcode sequence be included in [a] component device to permit its use, the merger and scenes afaire doctrines generally preclude the code sequence from obtaining copyright protection.” 831The court noted that the Toner Loading Program served as input to a checksum operationperformed each time the printer was powered on or the printer door was opened and closed fortoner cartridge replacement. Specifically, after downloading a copy of the Toner LoadingProgram to calculate toner levels, the Printer Engine Program ran the checksum calculation usingevery data byte of the Toner Loading Program as input. The program then compared the resultof the calculation with a checksum value located elsewhere on Lexmark’s toner cartridge chip.825826827828829830831Id. at 967.Id. at 967-68.Id. at 969-70.Id. at 971Id. at 971, 974.Lexmark Int’l v. Static Control Components, Inc., 387 F.3d 522 (6 th Cir. 2004), reh’g denied, 2004 U.S. App.LEXIS 27,422 (Dec. 29, 2004), reh’g en banc denied, 2005 U.S. App. LEXIS 3330 (6 th Cir. Feb. 15, 2005).Id. at 536.- 188 -