Advanced Copyright Issues on the Internet - Fenwick & West LLP

execution.” 838 Those cases finding liability based on a technological measure that restricted“use” of the work were ones in which consumers were restricted from making use ofcopyrightable expression in the work, such as a video game. 839“The copyrightable expression in the Printer Engine Program, by contrast,operates on only one plane: in the literal elements of the program, its source andobject code. Unlike the code underlying video games or DVDs, ‘using’ orexecuting the Printer Engine Program does not in turn create any protectedexpression. Instead, the program’s output is purely functional. … Presumably, itis precisely because the Printer Engine Program is not a conduit to protectableexpression that explains why Lexmark (or any other printer company) would notblock access to the computer software that makes the printer work. BecauseLexmark’s authentication sequence does not restrict access to this literal code, theDMCA does not apply.” 840The Sixth Circuit’s holding that, to qualify for DMCA anti-circumvention protection, atechnological measure for a computer program must block either the ability to copy the code orto read the literal code, at least where that code does not create any separately protectableexpression such as a video game, is potentially very significant. Many computer programsperform only “invisible” functions and do not generate copyrightable expression as output to theuser. The Sixth Circuit’s ruling that technological measures which merely restrict use of suchprograms, and do not prohibit copying or reading of the code (such as passwords andhandshaking or other authentication sequences), do not qualify for anti-circumvention protectionunder the DMCA, if adopted by other courts and applied widely, may significantly narrow thescope of protection the DMCA affords to computer programs. Under the Sixth Circuit’sdefinition of “access control,” it may be that only those measures that encrypt or otherwiseprotect a program against copying or the ability to read it will be sufficient to qualify purely“functional” programs for anti-circumvention protection under the DMCA.Concerning the Toner Loading Program, the court ruled that the defendant’s chip did notprovide “access” to the Toner Loading Program, but rather replaced the program, and thereforedid not circumvent any access control. In addition, to the extent the Toner Loading Program wasnot copyrightable, it would not constitute a “work protected under [the copyright statute]” towhich the DMCA protections would apply. 841Finally, the court turned to the interoperability defenses asserted by the defendant. TheSixth Circuit rejected the district court’s ruling against the defendant’s argument that itsmicrochip constituted a “technological means” that it could make available to others under §1201(f)(3) solely for the purpose of enabling interoperability of an independently createdcomputer program with other programs. The district court rejected the defense on the ground838839840841Id. at 548.Id.Id.Id. at 549-50.- 190 -