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No. 0305400
United States Court of Appeals
for the Sixth Circuit
_______________
LEXMARK INTERNATIONAL, INC.,
Plaintiff-Appellee,
v.
STATIC CONTROL COMPONENTS, INC.,
Defendant-Appellant.
_______________
Appeal from the United States District Court
for the Eastern District of Kentucky
(Civil Action No. 02-571-KSF)
_______________
AMICUS CURIAE BRIEF OF
ELECTRONIC FRONTIER FOUNDATION
IN SUPPORT OF STATIC CONTROL
COMPONENTS, INC.,
SEEKING REVERSAL
_______________
Wendy Seltzer
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333
(415) 436-9993 (fax)
Attorneys for Amicus Curiae
CORPORATE DISCLOSURE STATEMENT
In accordance with Circuit Rule 26.1, counsel for amicus curiae
submit this corporate disclosure statement:
1. Amicus is a nonprofit organization with no parent corporation.
2. Amicus has no stock and hence no shareholders.
i
TABLE OF CONTENTS
I. Interest of Amicus.............................................................................. 1
II. Introduction and Summary of Argument ............................................ 1
III. Argument........................................................................................... 3
A. Reverse Engineering for Functional Interoperability Is
Privileged Under Copyright Law.............................................. 4
1. Reverse Engineering Is Often Necessary to Access Ideas,
Processes, and Functions................................................ 4
2. Any Expression in the Toner Microchips Merged with its
Lock-Out Function......................................................... 7
B. Replacement Microchips Do Not Circumvent Access Controls
................................................................................................10
1. "Access to Use" Misreads the DMCA...........................10
2. Interoperability is Preserved By the Reverse Engineering
Exception to Circumvention..........................................11
C. Leveraging Manufacture of Printers into Control of Cartridges
Is Anti-Competitive Copyright Misuse....................................12
IV. Conclusion ........................................................................................16
ii
TABLE OF AUTHORITIES
Cases
Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999)............15
Baker v. Selden, 101 U.S. 99 (1879)............................................................. 7
Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989).......... 4
Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451 (1992) .......... 3
In re Napster, Inc. Copyright Litigation, 191 F.Supp.2d 1087 (N.D. Cal.
2002).....................................................................................................14
Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974) ............................... 4
Lasercomb America, Inc. v. Reynolds, 911 F.2d 970 (4th Cir.1990)............14
Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995) ............. 7
Morton Salt Co. v. G.S. Suppinger Co., 314 U.S. 488 (1942) ......................13
Practice Management Information Corp. v. American Medical Ass'n,121
F.3d 516 (9th Cir. 1997)..................................................................14, 15
Sega v. Accolade, 977 F.2d 1510 (9th Cir. 1993)..................................passim
Sony Computer Ent. Inc. v. Connectix Corp., 203 F.3d 596
(9th Cir. 2000) ..................................................................................5, 12
Statutes
17 U.S.C. § 102(b) ....................................................................................... 4
Digital Millennium Copyright Act .......................................................passim
Other Authorities
House Commerce Comm., H. Rep. 105-551 pt. 2 (1998) ............................11
House Judiciary Comm., H. Rep. 105-551 pt.1 (1998) ................................11
Senate Judiciary Comm., S. Rep. 105-190 (1998) .......................................11
iii
Law Review Articles and Treatises
Brett Frischmann & Dan Moylan, The Evolving Common Law Doctrine of
Copyright Misuse: A Unified Theory and Its Application to Software,
15 Berkeley Tech.L.J. 865 (Fall 2000) ..................................................15
iv
I. Interest of Amicus
Electronic Frontier Foundation ("EFF") is a nonprofit public interest
organization dedicated to protecting civil liberties and free expression in the
digital world. Founded in 1990, EFF represents the interests of Internet
users in court cases and in the broader policy debates surrounding the
application of law in the digital age, and publishes a comprehensive archive
of digital civil liberties information at one of the most linked-to websites in
the world, .
In working to ensure that the public's traditional rights are preserved
as we move into the digital era, EFF has participated as counsel or amicus
curiae in virtually all of the leading cases testing the anticircumvention
provisions of the Digital Millennium Copyright Act ("DMCA").
EFF's system administrator was a declarant in the case below because
after purchasing a Lexmark printer, EFF was concerned by the license that
purported to govern use of its toner cartridge. EFF was unable to obtain a
non-"prebate" cartridge, but was also informed that there was no binding
agreement, nor any penalty for failure to return the "prebate" cartridge.
These representations appear to be inconsistent with Lexmark's description
of its policies in this case.
II. Introduction and Summary of Argument
Static Control Components enables "third parties [to] sell reused
Prebate cartridges containing the SMARTEK microchip to consumers in
direct competition with Lexmark's authorized remanufactured toner
1
cartridges ... at reduced prices to consumers...." Slip op. ¶¶ 111, 112. In
other words, Static Control brings competition to the aftermarket for printer
toner cartridges, lowering prices and increasing choice for customers.
Lexmark, objecting to this competition, attempts to use technological lock-
out, copyright, and the DMCA to block customers from using these less
expensive refilled cartridges. Yet copyright law and the DMCA do not
support Lexmark here. Instead of raising prices and enforcing consumer
lock-in, copyright law and the DMCA support access by the retail public to
any legitimately purchased devices; they do not lock consumers out of their
own printers.
Lexmark was able to convince the district court to adopt its theory that
Static Control's SMARTEK microchip, which allows competitors to
interoperate with Lexmark printers, infringed Lexmark's copyright and
circumvented a technological access control under the DMCA. This theory
misstates and misapplies the law. Even if Static Control copied a Lexmark
program into its microchips, such copying is legal and in fact encouraged as
fair use reverse engineering, both under traditional copyright law and under
the DMCA's reverse engineering exception. Both expressly permit copying
and reverse engineering for interoperability.
This case comes before the court as a dispute between two
competitors in a multi-billion dollar industry the market for printer toner
cartridges. Yet an equally important voice is that of the consumers the
people who buy Lexmark printers. These individuals and businesses will, if
2
the court sides with Lexmark, be deprived of choice, forced to buy toner
cartridges from Lexmark for the life of their printers at monopoly-based
prices; they will likely see less innovation than they would enjoy in a
competitive market for replacement cartridges. Copyright supports
innovation and competition; it is fully compatible with the public interest in
a vibrant, competitive market for printer toner cartridges, just as it supports
the markets for replacement auto parts, replacement photocopier parts and
repairs, computer peripherals (such as monitors and printers themselves),
and computer games. 1
III. Argument
Copyright strikes a careful balance between protection of expression
and disclosure of ideas to the public. "In no case does copyright protection
for an original work of authorship extend to any idea, procedure, process,
system, method of operation, concept, principle, or discovery, regardless of
the form in which it is described, explained, illustrated, or embodied in such
work." 17 U.S.C. § 102(b). "[F]ree exploitation of ideas will be the rule,"
except where they are protected by patent (having demonstrated the requisite
novelty and non-obviousness through disclosure). Bonito Boats, Inc. v.
1 Regarding photocopier replacement parts, see Eastman Kodak Co. v. Image
Tech. Servs., Inc., 504 U.S. 451 (1992) (holding Kodak could be liable
under the Sherman Act for monopolization of parts and service market for
Kodak photocopiers or for tying parts and service to photocopier purchase);
regarding computer games, see Sega Enters. Ltd. v. Accolade, Inc., 977 F.2d
1510 (9th Cir. 1993) and Sony Computer Ent. Inc. v. Connectix Corp., 203
F.3d 596, 601 (9th Cir. 2000), discussed infra.
3
Thunder Craft Boats, Inc., 489 U.S. 141, 151 (1989).
The availability of copyright protection for computer programs does
not change this fundamental principle. Although programs may be
copyrightable, their methods and processes are not, including the means of
interoperating with them. Thus reverse engineering to reach those methods
and processes has long enjoyed protection from copyright claims.
Reverse engineering is the time-honored practice of "starting with the
known product and working backwards to divine the process which aided in
its development or manufacture." Kewanee Oil Co. v. Bicron Corp., 416
U.S. 470, 476 (1974). Software engineers must often reverse engineer
computer programs to extract their uncopyrightable elements. The software
engineer then uses the functional understanding gained through this study to
create programs that interoperate with the original product or technology or
to create programs that compete with the original product. Such conduct is
entirely legal and often results in products better than the original.
A. Reverse Engineering for Functional Interoperability Is
Privileged Under Copyright Law
1. Reverse Engineering Is Often Necessary to Access Ideas,
Processes, and Functions
Computer programs often contain both "idea" and "expression."
While a program may be copyrightable based on its original expression, that
copyright does not give a monopoly over its functional ideas. Instead, the
law permits access to the function through reverse engineering, even when
that involves copying. That copying is lawful whether in study of the
4
original copyrighted work, disassembly of the original, or creation of a new
interoperable complement or substitute.
Thus in Sony Computer Ent. Inc. v. Connectix Corp., Connectix
engineers copied a program, the BIOS, from the Sony PlayStation console,
placed it into an emulator environment, and disassembled the code. 203
F.3d 596, 601 (9th Cir. 2000). From this foundation, Connectix produced
the "Virtual Game Station," a program for the personal computer capable of
playing PlayStation games, and hence of replacing the PlayStation.
Connectix advertised the Virtual Game Station as a PlayStation substitute,
telling users they could "play `their favorite PlayStation games' on a
computer `even if you don't yet have a Sony PlayStation console.'" Id.
Sony sued Connectix, claiming much as Lexmark does here, that
Connectix had illegally copied its BIOS program to build a competing
product that interoperated with Sony's after-market games. The Ninth
Circuit explicitly rejected Sony's attempt to extend market control from
games to consoles: "Sony understandably seeks control over the market for
devices that play games Sony produces or licenses. The copyright law,
however, does not confer such a monopoly." Id. at 607 (citing Sega v.
Accolade, 977 F.2d 1510, at 1523-24 (9th Cir. 1993)). The law was clear:
Connectix had legally reverse engineered its PlayStation emulator, so Sony
had no legal recourse to block its sale. Sony, 203 F.3d at 608.
The parallels between Sony's claims and Lexmark's are clear and as
the Sony court rejected Sony's attempt to lock consumers out of playing
5
lawfully purchased games on an emulator platform, this court should reject
Lexmark's attempts to lock consumers from using competing toner
cartridges with their lawfully purchased Lexmark printers. Like Connectix,
Static Control has lawfully reverse engineered a competing product; like
Sony, Lexmark has no legal claim.
Such principles apply with greater strength in the instant case. The
Toner Loading Program of which Lexmark complains is an interface
between the toner cartridge and the printer's Printer Engine Program,
mediating the interoperation or cartridge and printer. When copyright is
claimed on an interface between two products, fair use extends further than
intermediate copying. This is because reverse engineering to create an
interoperable product interface requires copying of the original interface into
the new product if the new product is to interoperate successfully. Thus, in
order for its remanufactured toner cartridges to interoperate with Lexmark
printers, Static Control had to emulate the Lexmark cartridges. When the
printer sends a signal expecting a certain response, the SMARTEK chip
must give the expected response (the same response as the Lexmark
"authorized" cartridge) in order for printing to proceed. Slip op. at pages 11-
14. The interface between printer and cartridge must match for the two to
interoperate.
Copyright law clearly permits the copying of elements necessary for
such interoperation, whether we classify the copying as non-infringing fair
use of copyrighted material or find that the entire program is function
6
"merged" with its form, and thus that there was no copying of copyrightable
expression at all. In other words, Lexmark cannot give the world a round
hole, then claim that it has copyrighted all circular pegs.
This pattern of permitting copying of functional interfaces is seen
from the earliest of "interface" cases, the pre-computer situation of Baker v.
Selden, 101 U.S. 99 (1879). Baker duplicated the accounting forms, with
minor variations, from Selden's work on dual-entry book-keeping. The
court found no infringement of copyright copyright would protect the
expression in Selden's description of the system's use, but would not protect
the forms required to implement it. "[I]n using the art, the ruled lines and
headings of accounts must necessarily be used as incident to it" i.e., they
served as interfaces to an operational method of accounting. Id. 101 U.S. at
104.
A more recent interface case reached the same conclusion that
copyright does not block copying of functional interfaces. Lotus Dev. Corp.
v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), aff'd without opinion by an
equally divided Court, 516 US 233 (1996). Thus Borland was permitted to
copy the menu commands of the Lotus 1-2-3 spreadsheet, through which
users accessed and programmed the spreadsheet functions, into its
competing spreadsheet program.
2. Any Expression in the Toner Microchips Merged with its
Lock-Out Function
Lexmark must concede that its microchip and Toner Loading Program
7
are functional. It claims, however, that Static Control copied copyrightable
expression as well as unprotectable function. Even if that is so, the
copyright law excuses as fair use the extra copying made necessary because
of Lexmark's own design.
It is no matter if Lexmark's Toner Loading Program serves dual
purposes, first as an interface to the Printer Engine Program, to announce
that it is a toner cartridge with which the printer should interoperate; and
second to monitor the level of toner in the cartridge. It is also no matter if
the second purpose has expressive content, or if there are alternative hidden
methods for measuring and communicating toner level that Static Control
did not discover. The possibility of "over copying" is immaterial where the
"expressive" purpose is merged with a first use that is entirely functional.
Lexmark's choice to merge the two functions is like Sega's choice to use its
trademark as part of a scheme to lock out competitors. Sega Enters. Ltd. v.
Accolade, Inc., 977 F.2d 1510 (9th Cir. 1993).
Sega had devised a "trademark security system" for its Genesis III
consoles, using the SEGA trademark as part of the access control system
required before game cartridges would interoperate with the console (similar
to Lexmark's use of its stock ticker symbol in the Toner Loading Program).
In order to make Accolade games run on the Sega console, Accolade copied
the TMSS initialization code into its games. Sega, 977 F.2d at 1516. The
Ninth Circuit rejected the claim that this use of the SEGA trademark
trumped the reverse engineering exception:
8
Sega's trademark security system (TMSS) initialization code
not only enables video game programs to operate on the
Genesis III console, but also prompts a screen display of the
SEGA trademark and message. ... The decision to use the
SEGA trademark as an essential element of a functional device
that regulates access and to cause the SEGA trademark and
message to be displayed whenever that functional device was
triggered compels us to place primary responsibility for
consumer confusion squarely on Sega.
Sega, 977 F.2d at 1528-29. Sega had forced Accolade to use the trademark,
so it could not shift blame for the false labeling.
The same principle applies directly to Lexmark's claimed copyrights.
Lexmark employs the microchip not only to measure printer toner levels, but
to prevent refilled cartridges from functioning in Lexmark printers. Static
Control emulates the microchip in order to enable refilled cartridges to
interoperate. Like Sega, Lexmark cannot be heard to complain when
interoperable replacement parts also measure toner levels, since this is a side
effect of Lexmark's decision to merge the two functions.
The district court further erred in holding that if Static Control could
have engineered around the Lexmark copyright, the microchip program was
non-functional and any copying was infringement. Copyright law's
protection of reverse engineering does not drive engineers to such lengths.
Holders of copyrights on functional products cannot use their copyrights as
arbitrarily high barriers to entry, with the claim that with just the right stroke
of luck, a would-be competitor could find an alternate interoperable
implementation. Such a standard would be grossly asymmetrical a creator
could always design a puzzle with two solutions, use one itself, and hold
9
competitors liable for not finding the hidden second. Indeed, the Sega court
rejected the test embraced by the district court here. A Sega expert proposed
that its initialization code was non-functional because different sequences
would also interoperate with the Genesis III console. The court noted:
"What is also needed is proof that knowledge of the alternate method exists
or is readily available to persons in the industry." Sega, 977 F.2d at 1531.
There is no such proof here.
B. Replacement Microchips Do Not Circumvent Access
Controls
1. "Access to Use" Misreads the DMCA
Lexmark has programmed microchips in its toner cartridges with the
express purpose of blocking interoperability of third-party or
remanufactured cartridges with its printers. Lexmark argued below, and the
district court accepted, that the microchip's authentication sequence
"controls the consumer's ability to make use of" programs in the printer and
the toner cartridge microchip. Slip op. at ¶ 71. Even if the chip does control
"access," Static Control's chip does not circumvent. Any user of a
remanufactured toner cartridge already has a Lexmark printer and a right to
use the code it contains. The SMARTEK chip gives the printer owner the
same access to his or her own printer as given by a Lexmark cartridge.
Lexmark is claiming, in essence, that its printer customers are violating the
law by purchasing third-party refilled cartridges.
Access to a printer you own is already "with the authority of the
10
copyright owner." 17 U.S.C. § 1201(a)(3). Holding a person liable for
helping owners access their own printers for purposes of replacing toner
cartridges is far from the theft of copyrighted content about which the
DMCA's Congressional drafters were concerned. Congress was focused on
the misappropriation of a password to an online information or
entertainment source or the use of "black boxes" to steal programming or
content.2 A remanufactured cartridge does not extract programs from the
printer no software is never copied outside the printer the
remanufactured cartridge simply interoperates with the printer
indistinguishably from the Lexmark cartridge.
2. Interoperability is Preserved By the Reverse Engineering
Exception to Circumvention
Academic commentators disagree on the scope of the reverse
engineering exception in 17 U.S.C. § 1201(f). If it means anything at all,
however, it must apply where the alleged access control measure blocks
interoperability. It provides:
Notwithstanding the provisions of subsections (a)(2) and (b), a
2 See Senate Judiciary Comm., S. Rep. 105-190 (1998) at 29 ("[Section
1201(a)(2)] is carefully drafted to target `black boxes' and to ensure that
legitimate multipurpose devices can continue to be made and sold."); House
Judiciary Comm., H. Rep. 105-551 pt.1 (1998) at 18 (same); House
Commerce Comm., H. Rep. 105-551 pt. 2 (1998) at 38 ("The Committee
believes it is very important to emphasize that Section 102(a)(2) is aimed
fundamentally at outlawing so-called ``black boxes'' that are expressly
intended to facilitate circumvention of technological protection measures for
purposes of gaining access to a work. This provision is not aimed at products
that are capable of commercially significant noninfringing uses....").
11
person may develop and employ technological means to
circumvent a technological measure, or to circumvent
protection afforded by a technological measure, ... for the
purpose of enabling interoperability of an independently
created computer program with other programs, if such means
are necessary to achieve such interoperability, to the extent that
doing so does not constitute infringement under this title.
§ 1201(f)(2) (emphasis added).
The district court apparently rejected 1201(f) because it believed
Lexmark's mistakenly broad view of Lexmark's copyrights. Once the
remanufactured chips are properly seen as non-infringing of any valid
copyright, it follows that they are permissible and mandatory subjects for the
reverse engineering exception of § 1201(f).
Since the fair use copying of functional elements "does not constitute
infringement under this title," the SMARTEK program qualifies as
"independently created," i.e., independent of the Printer Engine Program
with which it is designed to interoperate. This exception preserves Sony
and Sega even in the face of technological protection measures, to prevent a
manufacturer from using control over one device to monopolize
complementary markets.
C. Leveraging Manufacture of Printers into Control of
Cartridges Is Anti-Competitive Copyright Misuse
Finally, Lexmark is attempting to use a copyright in printer control
software not to prevent unauthorized reproduction of its printer's
copyrightable elements, nor even to prevent competitors from developing
functionally comparable software to monitor the level of toner in their print
cartridges, but to prevent competitors from developing any toner cartridges
12
interoperable with Lexmark's software-containing printers. Through the
joint hooks of copyright and anti-circumvention, Lexmark is attempting to
leverage its copyright-granted limited monopoly in reproduction of a short
computer program into a broad monopoly in the independent manufacture of
compatible toner cartridges. Seen in this light, Lexmark's behavior is similar
to that of the holder of a patent on canning machines who tries to
monopolize the market for salt tablets used in the canning trade. See Morton
Salt Co. v. G.S. Suppinger Co., 314 U.S. 488 (1942) (patent infringement
suit dismissed for misuse). See also Sega, 977 F.2d at 1523-24 ("In any
event, an attempt to monopolize the market by making it impossible for
others to compete runs counter to the statutory purpose of promoting
creative expression."); Miller v. Palazetti Imports & Exports, 270 F.3d 298,
319 (6th Cir. 2001) (trademark, like copyright, cannot be used to
monopolize a market for non-patented products a competitor has copied).
The anticompetitive effects of Lexmark's leveraging are clear.
Customers who have bought an expensive printer are locked in, by virtue of
a bit of access-controlled software that the printer contains, to buying only
branded or licensed replacement parts. As the sole licensor, Lexmark claims
freedom to charge monopoly prices, unconstrained by possible competition.
When the replacement is a consumable such as printer toner cartridges,
customers face a substantial increased cost over the lifetime of the machine,
rarely apparent at the time of purchase. Customers are also deprived of the
innovation pressure that competition often spurs.
13
Machinery manufacturers understandably prefer to control the market
for replacement parts. Yet the courts have consistently refused to permit
them this control, outside of limited circumstances such as patent, and with
good reason; the competition that develops is good for consumers.
Manufacturers should not now be able to maintain the fiction that
"unauthorized" replacement parts circumvent access control devices to
work their own circumvention of healthy marketplace competition. It is not
difficult to imagine automobile manufacturers, for example, extending the
district court's logic and Lexmark's tactics to force purchasers to buy only
brand-name tires, filters, and spark plugs. Or Lexmark itself, flush from
success in limiting toner purchases, might claim that only authorized paper,
with a watermark detectable by the Printer Engine Program, would
henceforth interoperate with its laser printers.
Copyright misuse doctrine "forbids the use of the copyright to secure
an exclusive right or limited monopoly not granted by the Copyright
Office." Practice Management Information Corp. v. American Medical
Ass'n, 121 F.3d 516 (9th Cir. 1997) (quoting Lasercomb America, Inc. v.
Reynolds, 911 F.2d 970, 977- 79 (4th Cir.1990)). The Ninth Circuit has
adopted a broad public policy version of the test that goes beyond the
doctrine's origins in the patent and antitrust context: "whether plaintiff's use
of his or her copyright violates the public policy embodied in the grant of a
copyright, not whether the use is anti-competitive." In re Napster, Inc.
Copyright Litigation, 191 F.Supp.2d 1087, 1103 (N.D. Cal. 2002)
14
(permitting discovery on misuse defense; citing Practice Mgmt., 121 F.3d. at
521). See generally Brett Frischmann & Dan Moylan, The Evolving
Common Law Doctrine of Copyright Misuse: A Unified Theory and Its
Application to Software, 15 Berkeley Tech.L.J. 865, 888-893 (Fall 2000).
In Alcatel USA, Inc. v. DGI Techs., Inc., the Fifth Circuit barred DGI
from doing with contract and copyright what Lexmark is attempting with
DMCA. 166 F.3d 772 (5th Cir. 1999). DSC had developed both an
operating system and a microprocessor card for a telecommunications
switch. Running the operating system required copying it into the
microprocessor's memory. DGI developed microprocessor cards compatible
with the DSC operating system. To test and use the DGI cards required
loading the DSC operating system into the cards' memory but the DSC
license agreement prohibited the running its operating system on non-DSC
cards. The jury found that DSC's license agreement constituted copyright
misuse, and the Fifth Circuit agreed with its finding: "DSC has used its
copyright to indirectly gain commercial control over products DSC does not
have copyright, namely its microprocessor cards." Id. 166 F.3d at 793.
Lexmark's minimal copyright in a program on the toner cartridge microchip
does not lessen its overreaching.
The same public policy that forbids use of a copyright monopoly to
control purchasers' use of third party materials by barring enforcement of
the copyright lever should block enforcement of the anticircumvention
provision when it is used to support use controls that go beyond the scope of
15
either copyright or access. Even if this Court finds the DMCA's operation
to be justified in the abstract, the restrictive leveraging Lexmark is engaging
in with respect to printer toner cartridges should deny it recourse to its
provisions.
IV. Conclusion
For the foregoing reasons, the judgments of the district court should
be reversed.
Respectfully submitted,
July 2, 2003 By:
____________________________
Wendy Seltzer
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333
(415) 436-9993 (fax)
Counsel for Amicus Curiae
16
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Fed. R.
App. P. 32(a)(7)(B) because this brief contains 3543 words, excluding the
parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2000 version 9 in Times New Roman, 14-point font.
July 2, 2003 By:
____________________________
Wendy Seltzer
Electronic Frontier Foundation
454 Shotwell Street
San Francisco, CA 94110
(415) 436-9333
(415) 436-9993 (fax)
Counsel for Amicus Curiae
CERTIFICATE OF SERVICE
I certify that, on this 2nd day of July, 2003, a true and correct copy of
Amicus Curiae Brief of Electronic Frontier Foundation in Support of Static
Control Components, Inc., Seeking Reversal was served via U.S. Mail,
postage prepaid, upon the following:
Charles E. Shivel, Jr.
Steven B. Loy
Hanly A. Ingram
Stoll, Keenon & Park
300 W. Vine Street
Suite 2100
Lexington, KY 40507-1801
Binal J. Patel
Christopher J. Renk
Jason S. Shull
Timothy C. Meece
Banner & Witcoff
10 S. Wacker Drive
Suite 3000
Chicago, IL 60606
Joseph M. Potenza
Banner & Witcoff
1001 G Street, N.W.
11th Floor
Washington, DC 20001-4597
William H. Hollander
Wyatt, Tarrant & Combs
500 W. Jefferson Street
Suite 2800 PNC Plaza
Louisville, KY 40202
W. Craig Robertson, III
E. Christine Lewis
Wyatt, Tarrant & Combs
250 W. Main Street
Suite 1600 Lexington Financial Center
Lexington, KY 40507-1732
M. Miller Baker
Carrie A. Shufflebarger
Seth D. Greenstein
Melise R. Blakeslee
McDermott, Will & Emery
600 13th Street, N.W.
Washington, DC 20005-3096
William L. London
Static Control Components, Inc.
3010 Lee Avenue
P.O. Box 152
Sanford, NC 27331
______________________________________
Counsel for Amicus Curiae