handshaking or other authentication sequences), do not qualify for anti-circumvention protection
under the DMCA, if adopted by other courts and applied widely, may significantly narrow the
scope of protection the DMCA affords to computer programs. Under the Sixth Circuit’s
definition of “access control,” it may be that only those measures that encrypt or otherwise
protect 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 not
provide “access” to the Toner Loading Program, but rather replaced the program, and therefore
did not circumvent any access control. In addition, to the extent the Toner Loading Program was
not copyrightable, it would not constitute a “work protected under [the copyright statute]” to
which the DMCA protections would apply.^1214
Finally, the court turned to the interoperability defenses asserted by the defendant. The
Sixth Circuit rejected the district court’s ruling against the defendant’s argument that its
microchip 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 created
computer program with other programs. The district court rejected the defense on the ground
that the defendant had copied the Toner Loading Program and thus had not created an
independently created computer program.^1215
The Sixth Circuit noted that, even if the Toner Loading Program had been copied, the
defendant’s microchips contained other independently developed computer programs that
interoperated with the Printer Engine Program, and those other programs were sufficient to allow
the defendant to benefit from the interoperability defense.^1216 The implication of this ruling is
that every computer program on a device need not qualify for the interoperability defense in
order for the device itself to be able to benefit from the defense.
The court also rejected Lexmark’s argument that the independently created program must
have 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 for
interoperability – ruling that the statute is silent as to whether there is any necessity requirement
at all, but there was necessity in this case because the Toner Loading Program was used in a
checksum calculation. Finally, the defendant’s copying of the Toner Loading Program did not
destroy the interoperability defense (§ 1201(f)(3) conditions its defense on a requirement that the
circumvention not violate other “applicable law”) because the Sixth Circuit had concluded that
the Toner Loading Program was not copyrightable on the preliminary injunction record.^1217
(^1214) Id. at 549-50.
(^1215) Id. at 550.
(^1216) Id.
(^1217) Id. at 550-51.