Page:Fair Circumvention.djvu/25

Lexmark’s broader suggestion of a general right to copy unencrypted digital works surely goes too far.

Lexmark also made no serious effort to parse and apply the statutory definition of the pivotal DMCA clause—“effectively controls access.” Although the court included a citation to the district court’s discussion of the statutory definition,^[1] absent from the court of appeals’ opinion is any analysis of whether Lexmark’s authentication sequence “in the ordinary course of its operation, require[d] the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.”^[2] Instead, Lexmark—while denying that it was doing so^[3]—applied an understanding of “effectively controls access” that expressly made the extent of statutory protection dependent upon the relative strength of the plaintiff’s technological protection measure.^[4] Is the Lexmark court’s effective revision of the DMCA preferable as a matter of policy? Perhaps. But it remains exceedingly difficult to shoehorn the court’s interpretation into the existing statutory language.^[5] The tension between the court’s reasoning and the binding text of the DMCA can only limit the decision’s precedential value—to the detriment of technology users who would benefit from a more robustly articulated set of limitations on the scope of the statute’s circumvention and trafficking prohibitions.

c. Storage Technology Corporation v. Custom Hardware Engineering

In Storage Technology Corporation v. Custom Hardware Engineering & Consulting, Inc.,^[6] the same court that decided Chamberlain sought again to borrow from ordinary copyright principles to limit the reach of the DMCA. Plaintiff Storage Technology Corp. (“StorageTek”) manufactured data tape storage libraries that included copyrighted maintenance software code that loaded automatically at

1. See Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522, 546 (6th Cir. 2004).
2. 17 U.S.C. § 1201(a)(3)(B) (2006).
3. See supra notes 124-125 and accompanying text.
4. See Lexmark, 387 F.3d at 547 (noting that “the DMCA not only requires the technological measure to ‘control[ ] access’ but also requires the measure to control that access ‘effectively’” (quoting § 1201(a)(3)(B))); cf. supra note 43 and accompanying text.
5. To be sure, the panel opinion in Lexmark did not, as the Chamberlain panel had, contend that its interpretation was commanded by the DMCA’s literal text, relying instead on a mix of arguments grounded in the legislative history and purpose of the statute. Compare Lexmark, 387 F.3d at 546-51, with supra note 87 and accompanying text. But cf. Lexmark, 387 F.3d at 552 (Merritt, J., concurring) (complaining that Lexmark’s “reading would ignore the precise language . . . as well as the main point of the DMCA”); id. at 564 (Feikens, J., concurring in part) (“[U]nder the plain meaning of the law, circumventing a technological measure . . . is only a violation of § 1201(a) if the device allows consumers access to a work that they are not otherwise permitted to have.”).
6. 421 F.3d 1307 (Fed. Cir. 2005), reh’g denied, 431 F.3d 1374 (Fed. Cir. 2005).