the first program. A similar ambiguity is embedded in Section 1201(f)(2)’s reference to “other”
programs – can a program whose technological measure is circumvented by an independently
created computer program, both in the ordinary operation of the independently created computer
program and in the reverse engineering that was done to create such program, qualify as an
“other” program? The legislative history contains no guidance on the interpretation of “other” in
the exemption.
It appears that the Copyright Office agrees with an expansive reading of the Section
1201(f) exemption. After the district court’s decision in the Lexmark case came down, Static
Control submitted a proposed exemption to the Copyright Office in its 2003 rulemaking
proceeding under Section 1201(a)(1) to determine classes of works exempt from the anti-
circumvention prohibitions. In particular, Static Control asked for an exemption for the
following classes of works:
- Computer programs embedded in computer printers and toner cartridges and that
control the interoperation and functions of the printer and toner cartridge. - Computer programs embedded in a machine or product and which cannot be copied
during the ordinary operation or use of the machine or product. - Computer programs embedded in a machine or product and that control the operation
of a machine or product connected thereto, but that do not otherwise control the performance,
display or reproduction of copyrighted works that have an independent economic significance.^979
The Copyright Office set forth its analysis of Static Control’s requested exemptions,
among many other requested exemptions, in a lengthy memorandum issued on Oct. 27, 2003 by
the Register of Copyrights to the Librarian of Congress. Although it is not clear from the
memorandum whether the Copyright Office took a position with request to Static Control’s
second and third proposed exemptions, the Copyright Office determined that no exemption was
warranted for the first proposed exemption because “Static Control’s purpose of achieving
interoperability of remanufactured printer cartridges with Lexmark’s ... printers could have been
lawfully achieved by taking advantage of the defense found in §1201(f), the reverse engineering
exemption.”^980
The Copyright Office read the purpose behind Section 1201(f) broadly: “Not only did
Congress intend that ‘interoperability’ include the exchange of information between computer
programs; it also intended ‘for such programs mutually to use the information which has been
exchanged.’ Interoperability necessarily includes, therefore, concerns for functionality and use,
and not only of individual use, but for enabling competitive choices in the marketplace.”^981 The
(^979) Memorandum from Marybeth Peters, Register of Copyrights, to James H. Billington, Librarian of Congress,
“Recommendation of the Register of Copyrights in RM 2002-4; Rulemaking on Exemptions from Prohibition
on Circumvention of Copyright Protection Systems for Access Control Technologies,” Oct. 27, 2003, p. 172,
available as of Jan. 10, 2004 at http://www.copyright.gov/1201/docs/registers-recommendation.pdf.
(^980) Id. at 176.
(^981) Id. at 178 (quoting the House Manager’s Report at 14).