The DMCA has been used in many egregious ways, one of which we first reported in early 2003 when Lexmark attempted to use the DMCA's anti-circumvention provisions to eliminate competition in the aftermarket toner industry. As you may know, third party companies routinely reverse engineer toner cartridge designs for printers made by the likes of Lexmark, HP, and Brother (just to name a few). By doing so, they keep the market competitive, and they keep the printer companies from utterly gouging consumers for toner.

Lexmark sought to put an end to this by incorporating on-chip technology that checks for the validity of the toner cartridge (read: if it's made by Lexmark), and refuse to use anything else. Static Control Components (SCC hereafter) called Lexmark's bluff, and reverse engineered the chip so that their generic toner products could still be used with Lexmark printers. Lexmark responded by filing suit, using the DMCA as an attack dog. Lexmark was granted an injunction in March of 2003, but by late October, the courts ruled against them. Lexmark vowed to appeal, and here we are today.

In a word, the appeal failed. The US Court of Appeals for the Sixth Circuit ruled against Lexmark (decision here), and offered future guidance relating to the use of the DMCA. As you may recall, the DMCA is all about copyright, and it was Lexmark's (necessary) argument that their copyright was infringed upon by SCC when they reverse engineered the chip. The court, however, sided with the view that access controls are not typically eligible for copyright protection.

Generally speaking, "lock-out" codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner cartridges, or automobiles and replacement parts may employ a security system to bar the use of unauthorized components. To "unlock" and permit operation of the primary device (i.e., the computer, the game console, the printer, the car), the component must contain either a certain code sequence or be able to respond appropriately to an authentication process. To the extent compatibility requires that a particular code sequence be included in the component device to permit its use, the merger and sc?s ?aire doctrines generally preclude the code sequence from obtaining copyright.