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Lexmark’s DMCA aspirations all but dead

Lexmark's attempt to buoy sales of their own toner products by using the DMCA' …

Lexmark, Lexmark, when will they learn? The company's request for a re-hearing of their case against North Carolina-based Static Control Components (SCC) has been denied. SCC's CEO Ed Swartz hailed the ruling as a major victory for consumers.

"We feel that the public interest has been served by a knowledgeable court to not allow a greedy OEM to use the law to perpetuate an electronic monopoly. Consumers and justice have been served," he said in a press release.

Nevertheless, additional litigation is scheduled for December of this year, to address SCC's allegations against Lexmark's business practices, and the few remaining unaddressed issues raised by Lexmark. Insofar as their abuse of the DMCA is concerned, Lexmark is without legal remedy, barring intervention from Supreme Court.

Back in December 2002, Lexmark International filed a complaint against SCC alleging that their Smartek chips violated the anti-circumvention protections provided by the DMCA. Lexmark had designed their printers to use a proprietary toner cartridge technology which had the result that only Lexmark branded toner cartridges would work in some of their printers. Lexmark?s general tactic was to sell discounted toner cartridges with this technology under the assumption that consumers would have to return their cartridges to Lexmark to be refilled or recycled. However, the technology used to make Lexmark?s cartridges proprietary in this manner was defeated by SCC, who then designed and sold their Smartek chips to aftermarket toner cartridge makers. This made it possible for consumers to acquire toner cartridges from channels other than Lexmark. As Scooby would say, ruh-roh.

Things got inventive from there. Lexmark argued that two computer programs—one residing on a chip in the printer and another residing in the toner cartridge—were copyrighted works. SCC?s actions were argued to constitute infringement of copyright per 17 U.S.C. § 101, via violating the anti-circumvention statue at § 1201 et seq.. Additionally, Lexmark argued that SCC had copied the Toner Loading Program in violation of §106.

In October of 2004, the 6th Circuit US Court of Appeals found that the Toner Loading Program was not a copyrightable work, as it was less a work of expression than of function. Copyright is not available merely to ?any idea, procedure, process, system, method of operation, concept, principle, or discovery,? but Lexmark?s use falls exclusively on the idea side of the fence. ?[I]nteroperable devices? may use proprietary security systems to lock out unauthorized interoperability, but a technology developed solely for this functional purpose is not copyrightable. Furthermore, the court noted that even if these programs were copyrightable, SCC?s copying of protected portions of the work would likely still enjoy fair use protections, because the courts have ruled that ?fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs.? Additionally, while the court ruled that the Toner Loading Program is not copyrightable, it agreed that the Printer Engine Program was a copyrighted work. However, the argument that SCC?s Smartek chip provided unauthorized access to the Printer Engine Program was dismissed on the basis that it was the consumers? purchase of the printer that established such access, and the program in question was freely available to read electronically in memory. SCC?s actions thus constitute a legal replacement of Lexmark?s Toner Loading Program. The court?s ruling vacated an earlier injunction and remanded the case for further proceedings.

Judge Merritt in his concurring opinion spoke out strongly against the use of the DMCA as a monopolist?s tool.

By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its ?purpose.? Such a reading would ignore the precise language ? ?for the purpose of? ? as well as the main point of the DMCA ? to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark?s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes.

Lexmark?s actions are at once understandable and objectionable. The company?s hope to buoy a discount toner cartridge program by locking customers into doing business with Lexmark is not an entirely new business strategy, once one looks past the abuse of the DMCA. However, the sum of Lexmark?s actions was really nothing other than an overt attempt to lock out competition in a viable, strong aftermarket toner industry, via the use of a law that was clearly not conceived to provide such opportunity. Lexmark exploited what is essentially a weak defense against copyright infringement, namely the anti-circumvention provisions of the DMCA. By merely claiming that their Toner Loading Program was a copyrighted work, and that it had been copied by the competition in order to circumvent access controls, Lexmark was able to gain an injunction on their competition from the period in which it was granted (Feb 2003) to when it was vacated (October 2004).

Some day, the DMCA needs to go away.

Channel Ars Technica