turned to separate analyses of Lexmark’s anti-circumvention claims with respect to the Printer
Engine Program and the Toner Loading Program.
Concerning the Printer Engine Program, the court held that Lexmark’s authentication
sequences did not “control access” to the Printer Engine program sufficiently to trigger the
applicability of the anti-circumvention provisions because anyone could read the literal code of
the Printer Engine Program directly from the printer memory, with or without the benefit of the
authentication sequence.^1209 “The authentication sequence, it is true, may well block one form of
‘access’ – the ability to ... make use of’ the Printer Engine Program by preventing the printer
from functioning. But it does not block another relevant form of ‘access’ – the ‘ability to []
obtain’ a copy of the work or to ‘make use of’ the literal elements of the program (its code).”^1210
The court rejected Lexmark’s argument that several cases had embraced a “to make use
of” definition of “access” in applying the DMCA. The court noted that “[i]n the essential setting
where the DMCA applies, the copyright protection operates on two planes: in the literal code
governing the work and in the visual or audio manifestation generated by the code’s
execution.”^1211 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 of
copyrightable expression in the work, such as a video game.^1212
“The copyrightable expression in the Printer Engine Program, by contrast,
operates on only one plane: in the literal elements of the program, its source and
object code. Unlike the code underlying video games or DVDs, ‘using’ or
executing the Printer Engine Program does not in turn create any protected
expression. Instead, the program’s output is purely functional. ... Presumably, it
is precisely because the Printer Engine Program is not a conduit to protectable
expression that explains why Lexmark (or any other printer company) would not
block access to the computer software that makes the printer work. Because
Lexmark’s authentication sequence does not restrict access to this literal code, the
DMCA does not apply.”^1213The Sixth Circuit’s holding that, to qualify for DMCA anti-circumvention protection, a
technological measure for a computer program must block either the ability to copy the code or
to read the literal code, at least where that code does not create any separately protectable
expression such as a video game, is potentially very significant. Many computer programs
perform only “invisible” functions and do not generate copyrightable expression as output to the
user. The Sixth Circuit’s ruling that technological measures which merely restrict use of such
programs, and do not prohibit copying or reading of the code (such as passwords and
(^1209) Id. at 546.
(^1210) Id. at 547 (quoting from Merriam-Webster’s Collegiate Dictionary’s definitions of “access”).
(^1211) Id. at 548.
(^1212) Id.
(^1213) Id.