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The Sixth Circuit today reversed a district court’s holding in Lexmark v. Static Control Components that copying a 55-byte program that enabled aftermarket toner cartridges to work in Lexmark printers was a copyright infringement. This could have been a small win, but it turned out to be a big win. Jason Schultz has one of the choicest quotes; my observations are below.

• It’s quite clear that Lexmark saw this coming when it was designing the system, and that there was a copyright lawyer at the elbow of the programmer designing the authentication system. They very carefully designed a system in which it was impossible to make replacement cartridges without copying a small computer program, and they deliberately included a little bit of non-functional, original expression (the letters “LXK”, the company’s stock symbol) in that computer program in hopes that courts would find the program copyrightable. While the court saw right through it, I’ve got to hand it to Lexmark: were I attempting to pervert copyright law into a tool to enforce tying (which seems to be a popular pastime these days), this is just how I’d do it.
• The court noted that the copied code in this case has two uses. First, it is functional, incorporating an algorithm for figuring out how much ink is left in the tank based on sensor readings. Second, it is a key. The printer will only work if the program on the chip has a certain checksum. This means that the only practical way to get the printer to work is to make a verbatim copy of the program, so the checksum turns out the same. So, even though the program may or may not be copyrightable as an ink-level-sensing program, it is purely functional as the only key that allows the printer to work. The court rightly inquired whether Static Control had any other practical options and found that, while in theory some other program with the right checksum might exist, finding that program was so impractical that the program itself merged with its function (as in cases like Brandir).
• In the court’s fair use analysis, they get the relevant-market analysis really right. The district court ruled that the “effect on the market” fair use factor weighed against Static Control because their copying had a negative effect on Lexmark’s ability to sell its printer cartridges, since the copying destroyed Lexmark’s monopoly. The Sixth Circuit rightly reversed, noting that the relevant market is the market for the copyrighted work, not any market affected by the copying. The court found that to the extent there was a market for 55-byte toner-fill-level-sensing programs (the existence of which the court doubted), Lexmark had made no showing that the market had been harmed.
• In the court’s DMCA analysis, they interpret the statute’s “effectively controls access” language perfectly. Lexmark had claimed that Static Control was selling a method of gaining unauthorized access to a program stored in the printer’s ROM, since that program was accessed when the printer operated and non-Lexmark ink cartridges were not authorized for use in the printer. But the court saw that “access” to the program stored in the printer’s ROM occurs when the consumer buys the printer as well as every time the printer prints something. The program was not encrypted or otherwise protected, and could be read off the chip by any consumer with the appropriate equipment. To use the court’s analogy, it’s as if Lexmark claims that locking the front door while leaving the back door open prevents access to the house, since people can’t come in the front door. The idea that access occurs upon purchase when no encryption is involved is likely to prove a useful precedent.

If courts keep on restoring sanity to the DMCA, we might just be able to live with it.