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Supreme Court Refuses Lexmark a Hearing
Tuesday, June 07 2005 @ 03:21 PM EDT

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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