Advanced Copyright Issues on the Internet - Fenwick & West LLP

that the defendant had copied the Toner Loading Program and thus had not created anindependently created computer program. 842The Sixth Circuit noted that, even if the Toner Loading Program had been copied, thedefendant’s microchips contained other independently developed computer programs thatinteroperated with the Printer Engine Program, and those other programs were sufficient to allowthe defendant to benefit from the interoperability defense. 843 The implication of this ruling isthat every computer program on a device need not qualify for the interoperability defense inorder for the device itself to be able to benefit from the defense.The court also rejected Lexmark’s argument that the independently created program musthave existed prior to the reverse engineering – holding that they can be created simultaneously –and its argument that the circumvention means must be necessary or absolutely needed forinteroperability – ruling that the statute is silent as to whether there is any necessity requirementat all, but there was necessity in this case because the Toner Loading Program was used in achecksum calculation. Finally, the defendant’s copying of the Toner Loading Program did notdestroy the interoperability defense (§ 1201(f)(3) conditions its defense on a requirement that thecircumvention not violate other “applicable law”) because the Sixth Circuit had concluded thatthe Toner Loading Program was not copyrightable on the preliminary injunction record. 844Accordingly, the Sixth Circuit vacated the district court’s grant of a preliminary injunction andremanded the case. 845The depth of the court’s concern about the policy implications of Lexmark’s proposedbroad reading for the scope of the anti-circumvention provisions is further illustrated bycomments made by two members of the panel in separate opinions. One judge, in a concurringopinion, noted that the main point of the DMCA is “to prohibit the pirating of copyrightprotectedworks such as movies, music and computer programs. If we were to adopt Lexmark’sreading of the statute, manufacturers could potentially create monopolies for replacement partssimply by using similar, but more creative, lock-out codes.” 846 He further stated that “Congressdid not intend to allow the DMCA to be used offensively in this manner, but rather only soughtto reach those who circumvented protective measures ‘for the purpose’ of pirating worksprotected by the copyright statute.” 847Another judge, in an opinion concurring in part and dissenting in part, stated, “We agreethat the DMCA was not intended by Congress to be used to create a monopoly in the secondarymarkets for parts or components of products that consumers have already purchased.” 848 This842843844845846847848Id. at 550.Id.Id. at 550-51.Id. at 551.Id. at 552.Id.Id. at 553. The judge also noted a link in the legislative history between the anti-circumvention prohibitionsand the facilitation of copyright infringement. He quoted a House Report to the DMCA stating that Section- 191 -