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Lexmark Abuses DMCA in Toner Suit
Posted by Ernest Miller on Thursday, January 09 @ 10:37:12 EST Digital Millennium Copyright Act
C|Net News' Declan McCullagh reports that Lexmark is attemption to use the Digital Millennium Copyright Act's anticircumvention provisions (17 USC 1201) to prevent third party toner ink cartridge vendors from providing alternate sources of toner for Lexmark's printers (Lexmark invokes DMCA in toner suit). Lexmark has been adding an identification chip to its toner cartridges so that Lexmark printers will recognize and accept the cartridges. This, of course, makes it very difficult for third party vendors to get a slice of the extremely lucrative toner cartridge pie.

Nevertheless, third party vendors have managed to get ahold of a supply of the chips. Under traditional copyright and commerce theories of law, it would be highly unlikely that Lexmark could successfully sue the third parties. However, the DMCA anticircumvention provisions give Lexmark a hammer with which to destroy traditional legal limitations. Since attaching chips to everything (and I mean everything) is becoming cheaper and cheaper, this sort of tactic is becoming increasingly common (even without the DMCA to back it up). Heck, C|Net also reports that Microsoft is adding DRM to wrist watches (Little things mean a lot to Gates). Hollywood, of course, delighted that DRM could be installed in everything and is calling for even stronger laws similar to the DMCA.

Read the complaint (Lexmark v. Static Control Components Complaint [PDF]). Slashdot readers decry the lawsuit (Lexmark Invokes DMCA in Toner Suit).

 
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· Lexmark invokes DMCA in toner suit
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· Little things mean a lot to Gates
· Lexmark v. Static Control Components Complaint
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"User Login" | Login/Create an Account | 4 comments | Search Discussion
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Re: Lexmark Abuses DMCA in Toner Suit (Score: 1)
by polkwagner on Friday, January 10 @ 10:59:30 EST
(User Info | Send a Message) http://polk.pennlaw.net/
Of course, manufacturers since the dawn of time have been trying various schemes to capture the market for complementary goods and services. There's been a fair amount of litigation on this front in the patent arena -- involving, typically, the sale or licensing of patented goods on terms that require the purchase of (unpatented) complementary goods. See, e.g., Morton Salt, 314 US 488 (1942). There's even a specific provision in the patent statute allowing this, as long as the market for the patented good is competitive. See 35 USC § 271(d)(5).

In any event, the complaint notes straightforward copyright infringement as the basic allegation, as well as the DMCA. So it's not like the DMCA is giving Lexmark much of an additional advantage here.

Furthermore, allowing Lexmark to dominate a complementary market for its printers is likely to be efficient (or at least not anticompetitive): lower initial prices, with the heavier users paying more over the life of the machine. And there can't be serious doubt that the printer market is quite competitive.

So I'm not sure why the DMCA should be blamed for (a) a time-honored (if unpopular and misunderstood) business strategy that (b) is more likely to be pro-consumer than anti-consumer.



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Re: Lexmark Abuses DMCA in Toner Suit (Score: 0)
by Anonymous on Friday, January 10 @ 13:44:04 EST
Three comments.

(1) If SC has "circumvented an access control" under 1201(a)(1)(A), then it is very likely to fall within the "reverse engineering exception" in section 1201(f), which reads as follows:

(f) Reverse Engineering. -
(1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
(2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or 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.
(3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.
(4) For purposes of this subsection, the term ''interoperability'' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

Lexmark must be aware of this.

(2) Neither section 1201(a)(2) nor 1201(b)(1) really appear applicable, the primary purpose of an ink cartridge isn't to circumvent an access control to the printer software but to print documents, has signifigant commercial non-infringing uses, and doesn't knowingly circumvent a protection that actually "protects a right of the copyright holder".

(3) Judge Newman knew exactly what he was doing in the Corley decision -- coming to the wrong result is not equivalent to ignorance. A close reading of the decision shows he is well aware of the gross damage the DMCA causes as well as the extensive criticism of Judge Kaplan's lower court decision. He intentionally bolster's Kaplan's decision, and Judge Newman himself "circumvents" the first amendment by holding that: (a) the DMCA is content neutral because it only regulates function, not content; and (b) any code being regulated is only due to function, not content.

The quick version of this 'two step shuffle' is that "to the extent the DMCA isn't content neutral, for software we'll just redefine content as -function- and avoid the first amendment analysis altogether."

Nonetheless, the law is grossly overbroad, and regulates a great deal of speech, as Jon Newman, a scholar of copyright law is well aware.

The true test of the DMCA is yet to come, though: When the first case is brought for pure speech, it will be much harder to apply this 'two step shuffle' anymore. Even Judge Kaplan, in the district court opinion, seemed to opine that the DMCA could not be extended to non-software, real, good old 1796 style speech.


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