Lexmark Int'l V. Static Control Components - The Appellate Ruling - Concurring/dissenting Opinion

Concurring/dissenting Opinion

Judge Feikens also wrote an opinion, agreeing with many of the majority opinion's results (though sometimes for different reasons), but disagreeing with its conclusion on the Toner Loading Program.

Concerning the copyrightability of the Toner Loading Program, Judge Feikens found that the record supported Lexmark's claim that the program could have been implemented in any number of ways, and therefore Lexmark's implementation was creative and copyrightable. Judge Feikens agreed that the record was inadequate for the district court to conclude that the Toner Loading Program was a "lock-out code". But he noted that Lexmark's expert had testified that the entire Toner Loading Program process could be turned off by flipping a single bit in the chip's code, and that it should have been possible for SCC to discover this; so copying the program may not have been practically necessary to.

On the DMCA counts, Judge Feikens agreed that Lexmark had not established a violation with regards to the Toner Loading Program, but for a very different reason than that found by the majority opinion. Judge Feikens noted that SCC had testified that it had not even been aware that the Toner Loading Program existed; it had copied the data on the Lexmark printer chip (including the Toner Loading Program) purely in an attempt to bypass the protection on the Printer Engine Program. Since the DMCA requires that an infringer knowingly circumvent access controls on the protected program, SCC could not have knowingly circumvented protections on a program it did not know existed. With regards to the Printer Loading Program, Judge Feikens agreed with the majority opinion, but also noted his belief that the consumer had acquired the rights to access this program by purchasing the printer, and therefore the DMCA would not apply to attempts to access it.