September 20, 2020

Lexmark Opinion Available

The Court’s opinion in the Lexmark case is now available. Here’s a summary. (Caveat: I’m inferring some of the technical details, since all I have is the Court’s summary of what the expert witnesses said; but I’m fairly confident that my inferences are correct.)

Toner cartridges for certain Lexmark printers contain small computer programs that tell the printer how much toner is left in the cartridge. The Lexmark printers use cryptographic means to “authenticate” the cartridge program; if the program doesn’t pass the cryptographic test, the printer refuses to work with it.

Static Control’s cartridge chip contains a verbatim copy of the Lexmark cartridge program, a program which is about fifty bytes in length. The Court found this small program to be copyrightable. The Court also found, as a factual matter, that Static Control could have figured out by further reverse engineering how to write a different program that passed the cryptographic test. (Lexmark did not challenge Static Control’s right to reverse engineer any of the Lexmark products.) The Court therefore found that Static Control’s redistribution of Lexmark’s cartridge program was copyright infringement.

The Court also ruled that Static Control’s program was a circumvention device under the DMCA, since (the Court said) it circumvented Lexmark’s cryptographic handshake. The Court actually found that the handshake controls access to both the cartridge program and the printer’s software, therefore finding a double DMCA violation.

If the Court’s factual findings are correct, the copyright portion of the ruling seems pretty straightforward.

The DMCA portion is another story. According to the Court, the Lexmark software implements the access control measure; but the Static Control software which is completely identical to the Lexmark software is improperly circumventing the measure. In other words, circumvention is determined not by what a device does, but by whether the maker of some complementary product has approved it.

The other slightly puzzling aspect of the Court’s DMCA analysis is the finding that the cryptographic handshake controls access (by the user) to the printer’s software. Whether or not a valid toner cartridge is inserted, the printer’s software runs, and it provides services to the user. Thus the user has access to the printer software no matter what; so it’s hard to see how anything is controlling access. True, the printer software behaves differently when a conforming cartridge is inserted, but it seems like a real stretch to say that this change in behavior constitutes “access” to the printer.

It will be interesting to see what happens next. Perhaps the copyright ruling will render the DMCA issues moot; or perhaps the Court’s DMCA reasoning will be subject to review at some point.