authentication sequence. The court rejected this argument, because the binary content of the
Toner Loading Program was not used as an input to the hashing algorithm of the authentication
sequence, and copying of the Toner Loading Program was therefore not necessary for a valid
authentication sequence to occur.^1194 The court also rejected SCC’s arguments that its copying
was a fair use, noting that “[w]here the accused infringer’s copying is part of the ordinary
operation of the accused product, fair use does not apply,”^1195 and that the Toner Loading
Program was an uncopyrightable formula or constant, noting that there were a number of ways
the Toner Loading Program could have been written to approximate toner level.^1196 Because
SCC had engaged in verbatim copying of the Toner Loading Program, it had committed
copyright infringement. The court also rejected a copyright misuse defense, ruling that
“Lexmark’s efforts to enforce the rights conferred to it under the DMCA cannot be considered an
unlawful act undertaken to stifle competition.”^1197
Turning to the DMCA claim, the court found that the SMARTEK microchips violated the
anti-circumvention provision of Section 1201(a)(2) in that its primary purpose was to circumvent
a technological measure that effectively controlled access to a copyrighted work. The court
adopted a plain dictionary meaning of “access” as the “ability to enter, to obtain, or to make use
of.”^1198 The court held that the authentication sequence was an effective technological measure
restricting access under this definition, because it required application of information and the
application of a process to gain access to Lexmark’s copyrighted Toner Loading Programs and
Printer Engine Programs for use.^1199 Accordingly, SCC’s manufacture, distribution and sale of
its SMARTEK microchips violated the DMCA.^1200 The court held that the exemption under
Section 1201(f) for circumvention for reverse engineering “solely for the purpose of enabling
interoperability of an independently created computer program with other programs” was
inapplicable. The court ruled that SCC’s SMARTEK microchips could not be considered to
contain independently created computer programs, since they were exact copies of Lexmark’s
Toner Loading Programs and the “SMARTEK microchips serve no legitimate purpose other than
to circumvent Lexmark’s authentication sequence.”^1201
Finally, the court ruled, consistent with the Reimerdes case, that a plaintiff that
demonstrates a likelihood of success on the merits of a claim for violation of the anti-
circumvention provisions of the DMCA is entitled to a presumption of irreparable injury for
(^1194) Id. at 950, 958-59.
(^1195) Id. at 960.
(^1196) Id. at 962.
(^1197) Id. at 966. The court further noted that an “antitrust claim cannot succeed under an after-market antitrust theory
when the accused party has not changed its policy and has been otherwise forthcoming about its policies.” Id.
at 966 n.3.
(^1198) Id. at 967.
(^1199) Id. at 967-68.
(^1200) Id. at 969-70.
(^1201) Id. at 971