decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books

Gear

Groklaw Gear

Click here to send an email to the editor of this weblog.


You won't find me on Facebook


Donate

Donate Paypal


No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Lexmark's Request for Re-Hearing Denied
Tuesday, February 22 2005 @ 09:51 AM EST

You may remember that back in October, I told you about the Lexmark case. It, along with the Skylink case (the garage door opener case), was an attempt to stretch the DMCA. The 6th Circuit US Court of Appeals ruled against the company. Lexmark asked for a re-hearing, and it has just been denied. That leaves them with the choice of trying to get the US Supreme Court to give them a hearing on the relevant issues or to face the reality that their effort to control the aftermarket using the DMCA failed. The case isn't over, but the DMCA issue is, barring a Supreme Court review.

Here's what Static Control Components, SCC, the company on the other side of the case, said in its press release:

"This is a very gratifying decision," said SCC CEO Ed Swartz, on the latest setback for Lexmark. "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."

On December 30, 2002, Lexmark filed a lawsuit against SCC. In the suit Lexmark claimed that SCC's Smartek 520/620 chips violated the Digital Millennium Copyright Act of 1998.

"We have asserted from the outset that this is a blatant misuse of the DMCA. The Sixth Circuit's ruling and the court's decision not to hear Lexmark's request for another hearing solidifies and supports our position that the DMCA was not intended to create aftermarket electronic monopolies," said Swartz, who pointed out that such monopolies could cost consumers billions of dollars each year.

According to SCC General Counsel William London, "The case is scheduled for trial in December of 2005 on what remains of Lexmark's claims, and on Static Control's claims against Lexmark for violating several state and federal antitrust and anticompetitive statutes.

The Lexmark case was about printers, about toner. Lexmark set it up so no other manufacturer's toner could work with Lexmark printers except its own, and it "protected" this scheme with some software code and then sued a rival under the DMCA for reverse engineering so its own toner would work with Lexmark printers. This court found that the DMCA is about preventing piracy, not enabling a monopolist seeking to enforce its will on a smaller rival.

I see a link to the SCO fiasco, because of what the Court of Appeals said in their ruling. I viewed SCO as also trying to extend copyright to cover ideas, and the Lexmark ruling says you can't. Of course, SCO never gives up, so they now claim it's all about contract control, but at the beginning, that wasn't the song they sang. Contract control is a separate analysis, because you can contract away your rights, if you are dumb as a rock, but when they began, I believed they intended to extend the reach of copyright. The trouble with flawed laws like the DMCA is, flawed individuals try to bend them to their flawed wills. Happily, we have a judiciary to block the worst and most egregious attempts.

Here's what the case was about, in the words of the judge who wrote the opinion for the Court of Appeals:

SUTTON, Circuit Judge. This copyright dispute involves two computer programs, two federal statutes and three theories of liability. The first computer program, known as the “Toner Loading Program,” calculates toner level in printers manufactured by Lexmark International. The second computer program, known as the “Printer Engine Program,” controls various printer functions on Lexmark printers.

The first statute, the general copyright statute, 17 U.S.C. § 101 et seq., has been with us in one form or another since 1790 and grants copyright protection to “original works of authorship fixed in any tangible medium of expression,” id. § 102(a), but does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery,” id. § 102(b). The second federal statute, the Digital Millenium Copyright Act (DMCA), 17 U.S.C. § 1201 et seq., was enacted in 1998 and proscribes the sale of products that may be used to “circumvent a technological measure that effectively controls access to a work” protected by the copyright statute.

These statutes became relevant to these computer programs when Lexmark began selling discount toner cartridges for its printers that only Lexmark could re-fill and that contained a microchip designed to prevent Lexmark printers from functioning with toner cartridges that Lexmark had not re-filled. In an effort to support the market for competing toner cartridges, Static Control Components (SCC) mimicked Lexmark’s computer chip and sold it to companies interested in selling remanufactured toner cartridges.

Lexmark brought this action to enjoin the sale of SCC’s computer chips and raised three theories of liability in doing so. Lexmark claimed that SCC’s chip copied the Toner Loading Program in violation of the federal copyright statute. It claimed that SCC’s chip violated the DMCA by circumventing a technological measure designed to control access to the Toner Loading Program. And it claimed that SCC’s chip violated the DMCA by circumventing a technological measure designed to control access to the Printer Engine Program.

On the issue of ideas and whether they can be copyrighted:

But even if a work is in some sense “original” under § 102(a), it still may not be copyrightable because § 102(b) provides that “[i]n 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 [its] form.” 17 U.S.C. § 102(b). This provision embodies the common-law idea-expression dichotomy that distinguishes the spheres of copyright and patent law. “[U]nlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself.” Mazer v. Stein, 347 U.S. 201, 217 (1954); see also Baker v. Selden, 101 U.S. 99, 101–02 (1880) (explaining that while a book describing a bookkeeping system is worthy of copyright protection, the underlying method described is not); Computer Assocs. Int’l, Inc. v. Altai, Inc., 982 F.2d 693, 703 (2d Cir. 1992) (“It is a fundamental principle of copyright law that a copyright does not protect an idea, but only the expression of the idea.”). While this general principle applies equally to computer programs, id.; see also House Report at 5667 (extending copyright protection to computer programs only “to the extent that they incorporate authorship in programmer’s expression of original ideas, as distinguished from ideas themselves”), the task of separating expression from idea in this setting is a vexing one, see Altai, 982 F.2d at 704 (“The essentially utilitarian nature of a computer program further complicates the task of distilling its idea from its expression.”); Sega Enters., Ltd. v. Accolade, Inc., 977 F.2d 1510, 1524 (9th Cir. 1992); see also Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 819–20 (1st Cir. 1995) (Boudin, J., concurring). “[C]ompared to aesthetic works, computer programs hover even more closely to the elusive boundary line described in § 102(b).” Altai, 982 F.2d at 704.

In ascertaining this “elusive boundary line” between idea and expression, between process and nonfunctional expression, courts have looked to two other staples of copyright law—the doctrines of merger and scènes à faire. Where the “expression is essential to the statement of the idea,” CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 68 (2d Cir. 1994); see also Lotus Dev., 49 F.3d at 816 (“If specific words are essential to operating something, then they are part of a ‘method of operation’ and, as such, are unprotectable.”), or where there is only one way or very few ways of expressing the idea, Warren Publ’g, Inc. v. Microdos Data Corp., 115 F.3d 1509, 1519 n.27 (11th Cir. 1997), the idea and expression are said to have “merged.” In these instances, copyright protection does not exist because granting protection to the expressive component of the work necessarily would extend protection to the work’s uncopyrightable ideas as well. See Gates Rubber Co. v. Bando Chem. Indus., Ltd.,, 9 F.3d 823, 838 (10th Cir. 1993); see also Murray Hill Publ’ns, Inc. v. Twentieth Century Fox Film Corp., 361 F.3d 312, 319 n.2 (6th Cir. 2004) (noting that where idea and expression are intertwined and where non-protectable ideas predominate, expression is not protected); see generally Nimmer § 13.03[B][3]. For computer programs, “if the patentable process is embodied inextricably in the line-by-line instructions of the computer program, [ ] then the process merges with the expression and precludes copyright protection.” Atari I, 975 F.2d at 839–40; see, e.g., PRG-Schultz Int’l, Inc. v. Kirix Corp., No. 03 C 1867, 2003 WL 22232771, at *4 (N.D. Ill. Sept. 22, 2003) (determining that copyright infringement claim failed because expression merged with process in computer software that performed auditing tasks).

For similar reasons, when external factors constrain the choice of expressive vehicle, the doctrine of “scènes à faire”—“scenes,” in other words, “that must be done”—precludes copyright protection. See Twentieth Century Fox Film, 361 F.3d at 319–20; see generally Nimmer § 13.03[B][4]. In the literary context, the doctrine means that certain phrases that are “standard, stock, . . . or that necessarily follow from a common theme or setting” may not obtain copyright protection. Gates Rubber, 9 F.3d at 838. In the computer-software context, the doctrine means that the elements of a program dictated by practical realities—e.g., by hardware standards and mechanical specifications, software standards and compatibility requirements, computer manufacturer design standards, target industry practices, and standard computer programming practices—may not obtain protection. Id. (citing case examples); see Sega Enters., 977 F.2d at 1524 (“To the extent that a work is functional or factual, it may be copied.”); Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1473 (9th Cir. 1992) (affirming district court’s finding that “[p]laintiffs may not claim copyright protection of an . . . expression that is, if not standard, then commonplace in the computer software industry”). As “an industry-wide goal,” programming “[e]fficiency” represents an external constraint that figures prominently in the copyrightability of computer programs. Altai, 982 F.2d at 708.

Generally speaking, “lock-out” codes fall on the functional-idea rather than the original-expression side of the copyright line. Manufacturers of interoperable devices such as computers and software, game consoles and video games, printers and toner cartridges, or automobiles and replacement parts may employ a security system to bar the use of unauthorized components. To “unlock” and permit operation of the primary device (i.e., the computer, the game console, the printer, the car), the component must contain either a certain code sequence or be able to respond appropriately to an authentication process. To the extent compatibility requires that a particular code sequence be included in the component device to permit its use, the merger and scènes à faire doctrines generally preclude the code sequence from obtaining copyright protection. See Sega Enters., 977 F.2d at 1524 (“When specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to infringement.”) (quoting National Commission on New Technological Uses of Copyrighted Works, Final Report 20 (1979)) (emphasis added); Atari Games Corp. v. Nintendo of Am., Inc., Nos. 884805 & 89-0027, 1993 WL 207548, at *1 (N.D. Cal. May 18, 1993) (“Atari III”) (“Program code that is strictly necessary to achieve current compatibility presents a merger problem, almost by definition, and is thus excluded from the scope of any copyright.”).

In trying to discern whether these doctrines apply, courts tend to “focus on whether the idea is capable of various modes of expression.” Mason v. Montgomery Data, Inc., 967 F.2d 135, 138 (5th Cir. 1992) (quoting Franklin Computer, 714 F.2d at 1253); Atari I, 975 F.2d at 840 (“The unique arrangement of computer program expression which generates [the] data stream does not merge with the process so long as alternate expressions are available.”). The question, however, is not whether any alternatives theoretically exist; it is whether other options practically exist under the circumstances. See Altai, 982 F.2d at 708 (“While, hypothetically, there might be a myriad of ways in which a programmer may effectuate certain functions within a program . . . efficiency concerns may so narrow the practical range of choice as to make only one or two forms of expression workable options.”); Atari I, 975 F.2d at 840 (noting that “no external factor dictated the bulk of the program” and finding the program copyrightable). In order to characterize a choice between alleged programming alternatives as expressive, in short, the alternatives must be feasible within real-world constraints. . . .

One last principle applies here. Even if the prerequisites for infringement are met—the copyright is valid and SCC copied protectable elements of the work—Congress has established a fair use defense to infringement claims to ensure that copyright protection advances rather than thwarts the essential purpose of copyright: “[t]o promote the Progress of Science and useful Arts.” U.S. Const. art. I, § 8, cl. 8; see also Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 577 (1994). Congress has permitted others to use copyright-protected works, “including . . . by reproduction,” when courts determine the use to be “fair” according to a non-exhaustive list of factors: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. 17 U.S.C. § 107. With respect to computer programs, “fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs.” Sony Computer Entm’t, Inc. v. Connectix Corp., 203 F.3d 596, 603 (9th Cir. 2000).

SCO wanted this not to be so, I believe, and hoped to use their case to try to establish that ideas in software can be copyrighted. Of course, their copyright position crumbled underneath their feet, but I have always believed that was part of their strategy and their goal. If so, that dream has died.


  


Lexmark's Request for Re-Hearing Denied | 149 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here
Authored by: Erwan on Tuesday, February 22 2005 @ 10:40 AM EST
If any...

---
Erwan

[ Reply to This | # ]

OT here please...
Authored by: seanlynch on Tuesday, February 22 2005 @ 10:42 AM EST
OT here please...

[ Reply to This | # ]

Lexmark's Request for Re-Hearing Denied
Authored by: amabes on Tuesday, February 22 2005 @ 11:28 AM EST
Not trying to be trollish here, but am I the only one that finds it a little bit
interesting that Lexmark is a spin-off of IBM?

Anthony

[ Reply to This | # ]

Ironic
Authored by: Anonymous on Tuesday, February 22 2005 @ 11:29 AM EST
This whole case is a bit ironic when you consider that
Lexmark was spun off from IBM.

[ Reply to This | # ]

  • Ironic - Authored by: amabes on Tuesday, February 22 2005 @ 11:30 AM EST
    Which reminds me, another item to add to the list of SCOG BS
    Authored by: Anonymous on Tuesday, February 22 2005 @ 11:32 AM EST
    I had completely forgotten about SCOG's DMCA threat. I guess we can just lump
    that lie / broken promise along with such goodies as

    AIX audits
    Linux invoices

    and promises to sue
    Cluster users
    Hollywood
    Weta
    Hosting providers

    etc ...

    [ Reply to This | # ]

    2005 is staring out to be a good year
    Authored by: seanlynch on Tuesday, February 22 2005 @ 11:45 AM EST
    2005 is staring out to be a good year.

    The DMCA not being extended into a new tool to reduce competition.

    SCOX facing delisting because its business practices are questionable and not at
    all succsessfull.

    Microsoft announcing IE7 to ship before Longhorn. Did something light a little
    fire(fox) under Microsoft to get them moving?

    Wow, companies might actually have to strat competing with viable products in
    order to earn customer dollars, instead of relying on lawmakers to ensure
    monopolies. We can hope can't we?

    [ Reply to This | # ]

    Lexmark's Request for Re-Hearing Denied
    Authored by: evbergen on Tuesday, February 22 2005 @ 12:00 PM EST
    Of course I'm very happy with this ruling. Let manufacturers make money the good
    old way, without resorting to business models that turn consumers into the
    hapless monopoly slave variety.

    However, it will also be an excellent case in point for those forces
    (*cough*sapmicrosoftintelphilips*cough*) that go around Europe
    blackmailing^Wlobbying^Wexplaining that copyright is insufficient protection for
    information-based industrial products, and that therefore patent protection is
    needed.

    The next thing that will happen once patents are firmly in place, AdTI-like
    shills will start writing white papers on how the industry would flourish better
    without copyrights on software, that there is no artistic freedom in
    mathematics, which source code essentially is, and so on. Some confused BSD folk
    will join the choir.

    And then, kaboom, instant annexation of all Free and Open Source software, even
    driving the original developers off their turf. Because the cheap and automatic
    copyright will not protect the creations of SMEs and individuals anymore, the
    businesses with large patent portfolios get to dictate what products are allowed
    and who gets to run what.

    The only competition will be among those large firms that control the software
    trade with their patent farms, and the money they'll have to spend on their
    patent battles, together with the tax that comes with any monopoly, will drain
    the consumer and drag innovation to a standstill.

    A return to the feudal system: you need to be a member of the guilds for you to
    practice your art.

    Oh sure, a free software developer or his customers won't be sued immediately as
    long as he doesn't capture too big a market share and the guilds can profit from
    his unprotected work, but as soon as he becomes a nuisance, a nice sunglasses
    & suit type comes along with that "nice outfit you've got
    here"-line.

    Mark my words; as soon as a stronger patent regime is in place, you'll start to
    hear voices from the proprietary world to abolish copyright on pure computer
    code.

    The best to all,


    Emile.

    [ Reply to This | # ]

    Yes, there are parallels...
    Authored by: Groklaw Lurker on Tuesday, February 22 2005 @ 12:04 PM EST

    Hopefully, SCO will soon be de-listed from NASDAQ. After their inevitable losses
    in the IBM and Novell cases, they will fade away into the dust bins of history,
    their notoriety remembered by a few attorneys and electronics industry
    historians.

    Sadly, many earnest, skilled and dedicated employees of SCO will be (and some
    already have been) left hanging out to dry as a result of the extortionist bids
    of the SCO management team. I hope they will be remembered and will enjoy
    success in their search for employment. It is unfair to paint them with the
    brush we have reserved for McBride, Stowall and the others.

    GL

    ---
    (GL) Groklaw Lurker
    End the tyranny, abolish software patents.

    [ Reply to This | # ]

    dumb as a rock?
    Authored by: Anonymous on Tuesday, February 22 2005 @ 12:10 PM EST
    Contract control is a separate analysis, because you can contract away your
    rights, if you are dumb as a rock,


    I take issue with this sentence, because even very smart people can contract
    away their rights. If EULAs are legal and enforcable in your jurisdiction, then
    it's extremely easy--owning a Windows box to play games on is enough.

    [ Reply to This | # ]

    A rather sad Apple story
    Authored by: Anonymous on Tuesday, February 22 2005 @ 12:14 PM EST
    <a
    herf="http://www.drunkenblog.com/drunkenblog-archives/000473.html">
    Here</a>

    [ Reply to This | # ]

    Lexmark's Request for Re-Hearing Denied
    Authored by: fb on Tuesday, February 22 2005 @ 12:14 PM EST
    SCO...hoped to use their case to try to establish that ideas in software can be copyrighted...

    David Boies is supposed to be strongly motivated by the cases that change where the legal boundaries are drawn. Just to prove he can, I guess.

    Getting paid tens of millions can't hurt either.

    [ Reply to This | # ]

    Other applications of this ruling?
    Authored by: Anonymous on Tuesday, February 22 2005 @ 12:16 PM EST
    It would be good to have a competent view of other areas this ruling would
    affect. e.g. attempting to run Linux on 'protected' hardware such as xbox.

    [ Reply to This | # ]

    From the Lexmark ruling
    Authored by: Anonymous on Tuesday, February 22 2005 @ 12:34 PM EST
    "Anyone who buys a Lexmark printer may read the literal code of the Printer
    Engine Program directly from the printer memory, with or without the benefit of
    the authentication sequence, and the data from the program may be translated
    into readable source code after which copies may be freely distributed."

    Perhaps to invoke the DMCA you need to have the code in memory encrypted also.
    Anyone care to comment?

    --

    MadScientist

    [ Reply to This | # ]

    Trying to understand the ruling
    Authored by: Anonymous on Tuesday, February 22 2005 @ 12:37 PM EST
    At one point the judge says that the end user, not the copyright holder, is the
    final arbitor over who can access the legally purchased product.

    Doesn't that put a hole in using the DMCA for things like CSS or trusted
    computing?

    Or does that mean that the DMCA only has effect when you are licensing
    something, but not purchasing a product which happens to have some access
    mechanism in the firmware?

    And finally, PJ, you say that the judge said the DMCA is about piracy, meaning
    copyright violations.

    But the courts have ruled that the DMCA applies (in the 2600 case and the CSS
    case) even when no copyright infringements take place (any actual copying or
    temporary cpoies made to RAM or whatever) are protected under fair use. Was
    this an offhand comment or was it based on something like precident, the text of
    the law, or the intent of Congress. If it was based on the intent of Congress,
    I'd be curious to hear about how that works (how often it is used, other
    interesting uses, etc.).

    Thanks in advance.

    [ Reply to This | # ]

    Protected idea, or the idea of protection?
    Authored by: Anonymous on Tuesday, February 22 2005 @ 01:12 PM EST

    Note: I'm writing this from a European perspective, and I'm not particularly versed in the specifics of U.S. law, so please bear with me for any factual inaccuracies. I hope you can relate to what I write anyway.

    I see a link to the SCO fiasco, because of what the Court of Appeals said in their ruling. I viewed SCO as also trying to extend copyright to cover ideas, and the Lexmark ruling says you can't.

    I have two issues with this. First, it's a pretty weak link, as it's not clear what constitutes an "idea" here. Lexmark doesn't (to my knowledge) claim that copyright is supposed to cover the idea of replacing a toner cartridge; that's merely one way of interpreting their lawsuit. Second, the DMCA (to my knowledge) prohibits circumventing access control pertaining to the protected work only, not access control in general (such as controlling access to the mechanics of a printer, as Lexmark would perhaps like us to believe).

    I think the crucial issue at stake in this case is what constitutes "circumvention", not whether copyright covers "ideas". The anti-circumvention provisions in the DMCA and copyright legislation of other countries are a fairly recent phenomenon, and I would argue they don't form a natural part of copyright protection. Rather, these provisions have been added as a supplement to copyright; they offer legal armor to technical protection to be used where copyright protection is deemed insufficient. If the anti-circumvention provisions were removed, it would still be illegal to copy legally protected computer programs or other works of art, and it would neither affect your ability to implement the same idea in your own products.

    If Lexmark wants a monopoly on the mechanism they use to interface a toner cartridge with a printer, they should look at patent law, not copyright. And I think they would still find it difficult to enforce a patent, even if they could get one. Just as copyright was never meant to prevent burglars from entering someone else's house by copying his keys, neither were patents. And in this case, Lexmark had already sold the house, thereby allowing the buyer to use whatever keys he liked.

    [ Reply to This | # ]

    "Happily, we have a judiciary..."
    Authored by: llanitedave on Tuesday, February 22 2005 @ 01:39 PM EST
    "...to block the worst and most egregious attempts."

    A FLAWED judiciary, unfortunately. These cases that make lawyers rich also make
    justice and fair play dependent on decisions involving only wealthy players.
    The judicial system that we have dispenses justice ONLY to those that can afford
    to pay -- the great majority have to be happy with the crumbs that fall from the
    corporate table.

    This is absolutely an unsatisfactory and unjust system, which is threatening to
    collapse under its own weight.

    ---
    Of course we need to communicate -- that goes without saying!

    [ Reply to This | # ]

    Lexmark's Request for Re-Hearing Denied
    Authored by: Anonymous on Tuesday, February 22 2005 @ 02:24 PM EST
    One thing in this ruling caught my eye.

    'The second federal statute, the Digital Millenium Copyright Act (DMCA), 17
    U.S.C. § 1201 et seq., was enacted in 1998 and proscribes the __sale__ of
    products that may be used to “circumvent a technological measure that
    effectively controls access to a work” protected by the copyright statute.'

    May I assume a judge would use the exact wording ? If so it appears that the
    DMCA prevents you selling a mechanism that bypasses copy protection but would
    not prevent you from offering such for free ... would someone who actually knows
    what they're talking about care to comment ?
    Greg.

    [ Reply to This | # ]

    What really needs to be fixed ..
    Authored by: Anonymous on Tuesday, February 22 2005 @ 03:15 PM EST

    is not this judicial argument. This was the wrong fight.

    Company A creates unusable product, company B makes it useable, and we want
    company B to win in a fight with company A, so that we can continue using an
    unusable product.

    The right way to have fixed this was by consumers not buying Lexmark printers
    with these toner restrictions. That would have been a far more powerful verdict
    than anything the court could handout.

    That requires an informed consumer, bit too much to ask nowadays.

    As a matter of clarifying law, this case was good. As an aid to making an
    unusable product survive in the market, this is terrible. I understand that the
    product could die out as a result of this case (because of cheap toners). But I
    really wish it would have been by direct consumer reaction than this roundabout
    mechanism.

    [ Reply to This | # ]

    Possible Compromise?
    Authored by: Anonymous on Tuesday, February 22 2005 @ 11:20 PM EST
    Working for a facility that uses a large number of Lexmark printers, I see
    departments "economizing" by buying non-Lexmark cartridges, and then
    expecting me to "fix" the printer when the output is smeared,
    inconsistent, or just otherwise sub-standard.

    I would rather see Lexmark license the "code" to toner cartridge
    manufacturers that agree to meet "OEM" standards, or at least SOME
    standards above total crap.

    Sure would save a lot of printer techs a lot of work, and a lot of time arguing
    with PHB's about what the problem with their printouts REALLY is.

    I do not believe by any means that ALL non-Lexmark carts are sub-standard, there
    are brands that are even superior. It just seems like my employer buys the
    crappy ones every time.

    [ Reply to This | # ]

    The crumbling of the DMCA?
    Authored by: Anonymous on Wednesday, February 23 2005 @ 02:47 PM EST
    While I agree with SCC's Ed Swartz that this was "a blatant misuse of the
    DMCA," I couldn't help but smile when I read this part of judge's last
    paragraph:

    Congress has established a fair use defense to
    infringement claims to ensure that copyright protection
    advances rather than thwarts the essential purpose of
    copyright: “[t]o promote the Progress of Science and
    useful Arts.” U.S. Const. art. I, § 8, cl. 8;

    In fact, throughout this document, the judge references many
    "lock-out" systems, and points out that the company doing the locking
    out can't control the people who come up with ways of circumventing it. The
    reference to Nintendo of America really threw me, as I remember vividly all that
    crap with Tengen on the old NES and Game Genie on the SNES.

    So while it disturbs me greatly that our leaders, elected or appointed, can be
    bought out (or at least swayed) to pass crap like the DCMA into law, the
    judicial system of our government is not so easily persuaded. Maybe in a few
    years (10? 20?) we'll see the DMCA heavily neutered. And if so, we can look
    back to this case as one of the many small sparks that lit the fire.

    [ Reply to This | # ]

    Groklaw © Copyright 2003-2013 Pamela Jones.
    All trademarks and copyrights on this page are owned by their respective owners.
    Comments are owned by the individual posters.

    PJ's articles are licensed under a Creative Commons License. ( Details )