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 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, 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.” Instead, Lexmark—while denying that it was doing so —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. 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. 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., 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