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DMCA Limited by Sixth Circuit Appeals Court
katharsis83 writes "Ars Technica and others are reporting that the Sixth Circuit Court has ruled against Lexmark in their lawsuit against a generic ink manufacturer. Here is a link to the ruling (EFF Website)."
It's about time the "give them the razors, sell them the blades" approach the printer companies have taken gets a kick in the shorts. They'll still make zillions from selling cartridges but at least one may have the option of refilling or buying 3rd party cartridges.
Think about it: why do some printer cartridges cost more than a cheap DVD player?
Trolling is a art,
If you could be told what you can see or read, then it follows that you could be told what to say or think - BoC
A judge with his head screwed on right?
What's next?
Dogs and cats living together?
North America having more than two presidential candidates?
Duke Nuken Forever going gold? And GPL'd?
"Nine times out of ten, starting a fire is not the best way to solve the problem." - my wife
When I heard about this ink/printer suit and the garage door opener I couldn't believe such a law would exist long. However, I'm concerned this ruling does not address the problems with the law itself, and possibly supports it. We need this law struck down, not just ruled against. Get out there and support the EFF and anti-dmca.org. We need the law repealed before they stick the law in your BIOS and linux becomes and outlaw OS.
Of course it's always pleasing when a ruling goes against the DMCA, but we do need to see this small victory in context. Personally I would see this as "one lawsuit too far" in DMCA terms, and the judge has (rightly) nipped it in the bud. But that's a far cry from stemming the tide and actually starting to reverse the creation of the DMCA, which is what we are ultimately pursuing, isn't it?
So Wahey for this result, and hopefully burning Lexmark's fingers should keep a few of their fellow printer manufacturers away from similar lawsuits. But nevertheless, let's be realistic: this is only a small step in the right direction.
apterous.org
This case is pretty clear, in my opinion, and I doubt the Supreme Court would hear it even if Lexmark does appeal, which I don't think they will.
But the DMCA won't really be tested until it's challenged in front of the Supreme Court, which has a tendency of leaning towards business interests in property disputes.
One glimmer of hope is that the sixth circuit is 2/3 conservative, more resembling the high court then the liberal Ninth or Neo-Con Fourth. That might explain why it has the second best overturn record in the past 10 years, and it might mean that there's hope for our cause after all.
This is one more reason the election next week matters. One more republican-appointed justice and you will see a sea change in our nations judiciary. Roe v. Wade (The right to have an abortion) gets most the press, but things like DCMA will be affected just as much.
Let's say I sell you a kitchen table. You pay me $200 for a piece of shiny wood with 4 legs, which I deliver to your house. I make no mention of restrictions, but AFTER the sale, you notice a piece of paper stapled to the bottom of the table. It says that you didn't really buy the table, you bought a table usage license. I have placed restrictions on how you can use the table, such as in the kitchen only and only for eating. If you wish to keep an electronic device on the table such as a TV, radio, or even your cellphone charger, you have to pay me $10 a month in additional royalties. If you fail to comply with the terms, under the power of the DMCA I can enter your house, sieze the table along with anything that may be sitting on it, and require you to pay me a $500,000 penalty. Does this sound reasonable? Would it hold up in court?
It looks like these judges have an exceptional grasp of the technology stifling possibilities inherent in the DMCA. If you look in the concurring opinion you will find this passage:
I write separately to emphasize that our holding should not be limited to the narrow facts surrounding either the Toner Loading Program or the Printer Engine Program. We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and "creative" than the one here, or by cutting off other access to the Printer Engine Program. The crucial point is that the DMCA forbids anyone from trafficking in any technology that "is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work." 17 U.S.C. 1201(2)(A) (emphasis added). The key question is the "purpose" of the circumvention technology. The microchip in SCC's toner cartridges is intended not to reap any benefit from the Toner Loading Program - SCC's microchip is not designed to measure toner levels - but only for the purpose of making SCC's competing toner cartridges work with printers manufactured by Lexmark.Not only did they smack down Lexmark in this abuse of the DMCA's (and copyright's) provisions, but they go so far as to state that the DMCA should be read to not apply to companies aiming to create a monopoly not supported by law.
I only wish this was a SCOTUS ruling instead of a Circuit ruling. Apparently there are now conflicts with other Circuit rulings.
Which means nothing in terms of the sales transaction. There is no contract executed during the purchase of a product at a store. Any further contract (besides sale of a product) between parties must include consideration; there is no additional consideration provided to a consumer after the software has been purchased. No consideration - no contract.
True - the judge in the bnetd case ruled that when purchasing software consumers are just buying a shiny box and a coaster, but that doesn't make any sense whatsoever - they are clearly buying the software for the purpose of using it. Hopefully, the ruling is cleared up on the appeal and the record set clear.
Disclaimer - IANAL.
The court ruled on the law. They decided that Lexmark was stretching the DMCA beyond what Congress intended. It has nothing to with being for or against "the people".
If Congress had written the DMCA to support this scenario, the court would probably have upheld it.
If you don't have a problem with low prices on ink cartridges while supporting a group of Catholic monks in Wisconsin, go here the next time you need to buy an ink cartridge. I've ordered a couple of times from them and haven't had any problems with the ordering process or with their products. With them, I get my Epson Stylus C60 cartridges for about 1/4-1/3 the price of the Epson OEM cartridges at local stores.
/., because they carry a /. banner at the bottom of their home page referring back to a thread about them here earlier this year (in which I had originally heard about them).
They also seem to think very highly of
Ad astra per aspera (A rough road leads to the stars)
I bought a car about a week ago. A couple of days later I went to fill up the tank and I found the following on the gas cap: (paraphrase)
- By removing this cover, you agree to the following:
- You agree that GM (Gates Motors) retains ownership of this vehicle, and you have only purchased the wheels on which it was delivered.
- You agree that you will only have this vehicle repaired by a GM authorized dealer.
- You agree that you will not attempt to disassemble, reverse engineer or repair this vehicle on your own.
- You agree that, should GM dictate, you will blindly accept any upgrade or modification to this vehicle they offer you.
- You agree that you will pay for any such upgrade whatever charge GM deems acceptable.
- You agree that, despite the forgoing, GM shall not be responsible for any malfunction or failure of the Vehicle, including malfunctions which cause death and/or dismemberment, even if GM has been informed of the likelihood of such such malfunction or failure.
- if you disagree with this license, please return the vehicle to your GM dealer for a full refund before removing this cap.
Is this license legally binding?(if you refuse such an upgrade, you agree that you will forfeit any right to use the vehicle).
Free Software: Like love, it grows best when given away.
Free Software: Like love, it grows best when given away.