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| Supreme Court Refuses Lexmark a Hearing |
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Tuesday, June 07 2005 @ 03:21 PM EDT
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Could you use some good news? Here you go -- Lexmark's attempt to stretch the DMCA to control the aftermarket in printers has failed. The Supreme Court has turned down their request for a hearing.
Arstechnica reports it like this: The US Supreme Court has rejected Lexmark's petition for certiorari in its long and bitter battle against North Carolina-based Static Control Components (SCC). Lexmark filed a petition for writ of certiorari in the hopes that the ruling of the previous trial court would be reconsidered. In mid-February Lexmark was dealt a seemingly insurmountable defeat by the United States Court of Appeals for the Sixth Circuit, who denied Lexmark's request for a rehearing. . . .
With a giant "No!" coming down from the Supreme Court today, it's safe to say that this ridiculous debacle can be retired to the history books, at least as far as the DMCA is concerned. . . . Lexmark's attempt to use the poorly-written and ill-conceived DMCA has been appropriately censured, and should hopefully cause other companies to seriously think twice before trying to such antics in the future. That is probably overly optimistic, in my opinion. The Lexmark case was about printers. Lexmark set it up so no other manufacturer's toner could work with Lexmark printers, and it came up with the idea to "protect" this scheme with some software code and then sue a rival under the DMCA for reverse engineering so its own toner would work with Lexmark's. The appeals court found that the DMCA is about preventing piracy, not enabling a large company to enforce its will on a smaller rival. The Court of Appeals decision is here, if you want to review it or just enjoy reading an opinion from a judge who gets it. He even quotes from Larry Lessig's "Free Culture." Had the Court of Appeals ruled differently, the whole copyright world would have turned dark in the US. But now the Supreme Court has refused to hear anything further about this, so that is the end of that episode. That's the trouble with writing bad laws. Inventive ways to use that law get thought up, and then everyone has to spend time and money dealing with all that legal creativity. So, that means Lexmark will realize it made a mistake, misunderstood the DMCA, and will now give control-the-aftermarket dream up, right? Ha ha. Lexmark must belong to the Boies, Schiller school of lawyering. Here's their reaction, quoted in BusinessWeek, which also says they were turned down because they filed too late: "We will continue to ask the courts to enforce existing laws governing contracts and intellectual property so that our laser cartridge customers can get the benefit of full and fair competition," Lexmark said in a statement. That sounds a bit like the Microsoft school of marketing, doesn't it? "Full and fair competition." I wonder how they define "fair"? Or "full", for that matter. What a combination. Microsoft marketing and BSF lawyering. Lexmark has it all. Forbes quotes Lexmark's ominous explanation: "Due to an error in calculating the filing deadline by the law firm responsible for filing the Petition for Certiorari, the petition was filed late and therefore rejected," Lexmark said in a statement. Sniff. Do I smell trouble for that law firm? Lexmark folk sound like such pleasant fellows and all. And they clearly are not internalizing the defeat as being an indication that they were in the wrong. No, in their minds, no doubt they think they would have won, if only... It's those if-only dreams that find it so hard to die. Shall we let SCC speak about their victory? "I could not be any happier that justice is being served," said Ed Swartz, CEO of Static Control. "For nearly 900 days we have fought tooth and nail with this multibillion dollar company. We vowed at the outset that we would not back down or waiver, and we will see this battle to its very end." The case continues on other fronts. Swartz again: "We have secured two victories in Ohio in the 6th Circuit, two victories in Washington, D.C. with the Copyright Office and Supreme Court and a victory in North Carolina's legislature. We are looking forward to going back to Kentucky with five victories under our belt."According to SCC General Counsel William London, the impact of the Supreme Court's decision is significant.
"This decision should greatly simplify what is left of the Lexmark lawsuit. At the trial Lexmark will be forced to defend their anti-competitive activities without the distraction of Lexmark's baseless DMCA claims."
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 04:06 PM EDT |
They think it is fair to control the full aftermarket.
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 04:13 PM EDT |
| (sigh) Lexmark used to make good stuff. Anyone remember old Lexmark keyboards? [ Reply to This | # ]
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| Authored by: ray08 on Tuesday, June 07 2005 @ 04:17 PM EDT |
Lexmark was spun off from IBM! Where did Lexmark's upper management come from?
It all boils down to one thing only, GREED! Doesn't matter if it's M$ IBM,
Kodak, Sun....
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Caldera is toast! And Groklaw is the toaster! (with toast level set to BURN)[ Reply to This | # ]
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| Authored by: dkpatrick on Tuesday, June 07 2005 @ 04:34 PM EDT |
You have to assume that Lexmark's business model was sell the printer with
marginal profits and make the big bucks on cartridges. It's the old Gillette
model: give away the razor and sell the blades. For Gillette, stainless steel
blades caused an enormous shift in their business.
So what will Lexmark do? The razor companies protected their market by creating
new styles of blades, putting a patent on them, and then selling them against
the competition's patented blades.
Unfortunately Lexmark and the other printer manufacturers can't bring a lot of
patentable technology to a commodity market (ink). Unless the cartridge
contains technology that can be protected under patent law, they're kind of
stuck.
How many of you have found it cost less to buy a new printer than buy the
replacement cartridges :-)
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"Keep your friends close but your enemies closer!" -- Sun Tzu[ Reply to This | # ]
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| Authored by: je_fro on Tuesday, June 07 2005 @ 04:41 PM EDT |
| The
title says it all.
You guys use .pdf's all day, perhaps the link will help.
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 04:47 PM EDT |
What weight does the concurring opinion have in future decisions involving
DMCA?
I got the impression that any manufacture of a device, even when it involved the
reverse engineering of encrypted material, was permissable if the intent was a
usability issue.
Maybe I'm wrong, but it seems to me the illegality of watching DVD movies on a
Linux computer, and the assembling of a Linux-based computer for that purpose,
was neutralized with that decision.
Maybe I should read it more thoroughly...
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| Authored by: NZheretic on Tuesday, June 07 2005 @ 04:49 PM EDT |
| From my
blog
When you purchase an instance of a copy of a copyrighted work,
you own
that particular instance of a copy of a copyrighted work.
When I
purchase a car, I own that car. I have the right to that
particular instance of
that car to use,modify ( pimp my ride ),combine,
dispose or resell without
having to seek permission from the car
builders, vendors etc. Therefore the
following is self evident that
copyright legislation should grant the following
rights under the
concept of fair use:
- Acknowledge the supremacy of the
doctrine of
first sale
: When you purchase an instance of a copy of copyrighted work,
your
rights to view,use,modify,combine,inter-operate with, dispose or
resell
that one instance should not be impeded by either legislation
or
technology. This fact has been recognized time and again by the
US
courts.
- The doctrine of first sale applies to both physical
media and
digital content where the receiver pays a transaction for
particular instances
of a copyrighted works: When you purchase an
instance of a copy of copyrighted
work that involves the buyer making a
choice for that instance of copyrighted
work and entering into a
transaction with the seller, then the buyer has the
rights to that
instance under the doctrine of first sale. Sellers of instances
of
copyrighted work cannot hide behind "provision as a service": when you
pay
for an instance, you own that instance.
- You do not have
the right to
record content without permission of the copyright holders
of a live performance
( play, concert etc ) or private performance (
film theater ) held on private
property or performance venue. You pay
to attend a performance at a physical
venue, not for a copy of an
instance of that performance.
- Instances
of copyrighted works
broadcasted ( as apposed to downloaded ) and received by a
device held
by individual person or on that person's property, may not
be
redistributed outside of that person's household to anyone who does
not
receive the content though the same service. You may record an instance
of
copyrighted work for later viewing ( timeshifting ) and distribute a
copy along
to any person whos household also receives that same
broadcast service (
samaritan clause ). You many not redistribute or
resell content recorded from a
broadcast service to anyone not
receiving that same broadcast service
content.
- Although you
may not redistribute recorded copies of
broadcasted copyrighted content
outside of the terms of (4), there should be no
limit to what you may
do with instances of those works within your household.
You should have
the right to modify the works, combine with other works
and
inter-operate with other works. You should also have the right to
transform
the instances of the copyrighted work so that it operates or
can be viewed on
other devices (mediashifting).
- Copyright
protection extends only to
the particular work copyrighted. The
copyright holder's exclusive rights should
not extend to the right to
deny others combining a legally acquired instance of
a copyrighted work
with other works. You should have the right to distribute
and/or sell,
patches, recipes and add-on components that refer and link to
the
content of the copyrighted work, as long as the distributed items do
not
contain content from the original copyrighted work. The resulting
combined
and/or transformed work that contains content from the
copyrighted work sources
can not be legally redistributed without the
permission of all the copyright
holders.
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 04:55 PM EDT |
In Swartz's comments, waiver s/b waver. It's that way in the yahoo copy also.
Sorry I'm anon; maybe someone logged in can create a better corrections thread.[ Reply to This | # ]
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- correction - Authored by: PJ on Tuesday, June 07 2005 @ 05:29 PM EDT
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| Authored by: ray08 on Tuesday, June 07 2005 @ 04:59 PM EDT |
| SJV-N has this
article
Seems to me that most everyone was just blasting Dvorak for having
the same message! I happen to agree with both Dvorak and SJV-N on the threat OSX
gives to Linux. It's "move it or lose it" time.
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Caldera is toast!
And Groklaw is the toaster! (with toast level set to BURN) [ Reply to This | # ]
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| Authored by: blacklight on Tuesday, June 07 2005 @ 05:15 PM EDT |
| I guess I'll just have to stop buying printers from Lexmark. [ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 05:34 PM EDT |
| To recope the cost of proving they did nothing wrong? [ Reply to This | # ]
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| Authored by: geoff lane on Tuesday, June 07 2005 @ 05:36 PM EDT |
| This is just another example of a business based on an artifical scarcity of a
resource. When another company jumps in with an equivalent product at a lower
price the business model fails and as there is no way to invent or innovate out
of the problem (the huge number of printers already sold mean you can't change
the product) the only solution is the law, but's always a high risk path to
take.
Just because the disposable razor blade business worked, it doesn't
mean the same model will always work.
Sometimes a new dog needs new tricks
:-)
---
I'm not a Windows user, consequently I'm not
afraid of receiving email from total strangers.
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 06:33 PM EDT |
| Jini technology has a new licensing model. Sun originally released Jini
technology under the Sun Community Source License (SCSL), but recently opened
the licensing model and began releasing their specifications and implementations
under Apache 2.
Does this mean that Sun is starting to "get it"?
more info [ Reply to This | # ]
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| Authored by: julian on Tuesday, June 07 2005 @ 08:17 PM EDT |
As soon as I read about Lexmarks suit I stopped buying or installing Lexmark
products. I didn't like their printers but I would install and support them when
a client wanted one. Not any more. If a client insists on a Lexmark product he
can support it himself.
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John Julian[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 10:12 PM EDT |
I wonder how this will affect Epson and the chips on their cartriges. The chips
are to prevent reinking which is one of the major reasons I haven't bought one
of the later epson printers.[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 10:15 PM EDT |
I still use the old IBM clicker keyboard. In fact, when a local school got rid
of their old IBM 300GLs, I picked up about a dozen in perfect shape. Of course,
since the lifetime of these battleships is about 200 years each, I doubt that I
will ever go through the stack.
By the way, they work with a kbd/usb converter so if you get a motherboard with
no keyboard, they will still work - assuming that they don't play games with the
bios.
KRF[ Reply to This | # ]
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| Authored by: Anonymous on Tuesday, June 07 2005 @ 11:33 PM EDT |
to take advantage of DRM. (Big Multiplayer Internet Games cost real money to
develope although they are cheap to host).
Or will Games be the last
application left to the mercy of M$ and their version of DRM?
Will games
be ported to Linux with DRM? Brian S. [ Reply to This | # ]
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| Authored by: cheros on Wednesday, June 08 2005 @ 02:45 AM EDT |
It's disappointing to see how many companies feel they have to resort to
abandoning normal healthy eceonomic competition in favour of sponsoring the
local legal community (RIAA and MPAA inclusive).
Well, Lexmark, you're on my "do not buy" list - unfair trading
practices mean I as consumer am paying more than market forces would suggest.
Plenty of other companies, but where will it stop?
Maybe an idea: compile a list of companies and where they went 'creative' with
law. I guess MS would be first on that list ;-)
= Ch =[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, June 08 2005 @ 02:49 AM EDT |
Is it any surprise that they will keep pushing the boundaries and testing what
the limits are ?
"I sometimes think that the price of liberty is not so much eternal
vigilance as eternal dirt. "
George Orwell
but then, more optimistically:
"it is a happy talent to know how to play"
Ralph Waldo Emerson
(ironically illustrated in (free) Larabie's Kleptocracy font)
http://www.fontplay.com/images/kleptocracy.jpg
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| Authored by: Anonymous on Wednesday, June 08 2005 @ 03:55 AM EDT |
I'm curious what the assembled folks think about this:
I beleieve the Lexmark ruling may make it acceptable for corporate software
developers to incorperate GPL'ed code into their products without being required
to release their additional source code.
Imagine a package that you download, tell it where your GPL'ed sources are (lets
use 'gcc' as an example) and where you want to do the install. The package
installer automatically patches the sources and runs a build and then installs
the resulting patched binary. In the end you have a customized 'gcc' with an
IDE. Lets say something like Visual Studio but with gcc running underneath.
IMO, this scenario is not far different from the cartridge scenario. 'gcc' is
the printer, the patches are the cartridge. Would there be any obligation by the
3rd party vendor to release their sources?
Discuss. :-)
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| Authored by: Anonymous on Wednesday, June 08 2005 @ 04:02 PM EDT |
If you are late to the court you never get to having the court decide whether
you are right or wrong.
But if you then spin it to the press like ew are in the right but the court just
slammed the door in our face, then we get suspecious and tend to think
contrarywize...[ Reply to This | # ]
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| Authored by: Anonymous on Wednesday, June 08 2005 @ 11:07 PM EDT |
I've got a little bit of a problem here: No one that I've seen so far has
actually quoted the ruling. Even SCC, who would have every reason to do so, has
not, anywhere I've looked.
In other words, though our first inclination is to dismiss Lexmark's claim that
the late filing was what doomed the rehearing as spin, no one has yet
definitively contradicted them.
Or have I just missed it?
Certainly their claim about "full and fair" competition cause me to
reflect on the tendency of public spokespeople to say the exact opposite of the
truth, as though saying it makes it so.
Or as though the official definition of truth has now devolved to "that
which I earnestly want you to believe"...
But I'd like to see a clear contradiction of Lexmark's claims as to the reason
the SC turned them down.
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