U.S. Supreme Court Refuses to Hear Lexmark Case

wallykeyster writes " The U.S. Supreme Court has rejected Lexmark's petition for certiorari in its long and bitter battle against North Carolina-based Static Control Components (SCC). For those out of the loop on this one, Lexmark tried to lock in consumers and lock out competition by adding code to their printers and toner cartridges so that only Lexmark toners would work. SSC defeated their monopolist technology and began selling the off-brand chips to aftermarket toner cartridge makers. As discussed here earlier, in mid-February Lexmark was dealt a defeat by the United States Court of Appeals for the Sixth Circuit, who denied Lexmark's request for a rehearing. Other related threads here, here, here, here, and here." The story is on the AP Newswire as well.

Comments

Lexmark is no Nintendo

[AKAImBatman]

It sounds like Lexmark thought they could pull a Nintendo with their authorization chip. Only, there happens to be a few things wrong with their approach:

• Nintendo had a patent on their authentication chip. This afforded them significantly more protection than the DMCA clauses that Lexmark is attempting to use.
  
• Nintendo licensed the chip to third parties, thus negating a need for reverse engineering. Lexmark is attempting to erect an artificial barrier against competitors, which a court is unlikely to find very sporting. (That's why you *always* look to be in a market with a set of *natural* barriers. Then no one can claim that you're being anti-competitive.)
  
• The DMCA does not completely rule out reverse engineering. It just reigns it in to a razor thin line. The specific clauses actually work against Lexmark due to the issue that no other method has been made available for interoperability.

The specific clause from the DMCA is thus:

(f) Reverse Engineering. -

* (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
* (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

* (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

* (4) For purposes of this subsection, the term ''interoperability'' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.

I'm not a lawyer (duh), but my reading of this says that the case of Compaq reverse engineering the PC BIOS would have also been legal, as long as they didn't publish their findings. (Which I believe that they did.)

It's important to understand that Congress intended the DMCA to protect digital anti-theft devices, not stop users from using their own software. The issue at hand is that the law was written before the full implications of computer technology and copyrights were fully understood. The bright side is that the actions of the MPAA, RIAA, and Adobe have gone quite a ways toward demonstrating how the market planned to abuse the law. While I doubt that we'll see the DMCA repealed, I seriously doubt we'll be seeing any new restrictions any time soon.

Re:Lexmark is no Nintendo

[Anonymous Coward]

The scope of the DMCA appears to have been substantially narrowed by a case decided by the Federal Circuit. I'm not a lawyer (2 more months to go), but I think the Chamberlain Group case is a more important decision in terms of DMCA law, than Lexmark. Though the concurrence by Judge Merritt in the 6th Circuit decision in Lexmark goes much farther than the majority opinion did.

The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004). at Findlaw: http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=fed&navby=case&no=041118

Lexmark Int'l, Inc. v. Static Control Components, Inc. at findlaw: http://caselaw.lp.findlaw.com/data2/circs/6th/0354 00p.pdf

Re:Lexmark is no Nintendo

[AKAImBatman]

Nonsense, they intended to trouser large sums of cash; the consequences for the public was never their concern.

Have you ever watched a game show where you look at the contestants and yell, "I could do WAY better! This guy's an idiot! Where do they find these people!" I'm willing to bet, however, that you yourself wouldn't do much better if you were in their place. You have the benefit of your comfortable living room, no pressure, and nothing at stake. But put you up on stage and you may have the same difficulties that you found so offensive in the contestant.

It's the same with Congress-critters. Believe it or not, many of them really are trying to do the right thing. That doesn't mean that they don't occasionally abuse their position (*cough*Post Stamps Scandal*cough*), but it does mean that they're not as inherently evil as everyone makes them out to be. They're just people trying to make the best decision they can on the limited information they have. That's why it can help a lot if you write your congress-person. An overwhelming degree of well thought out, public opinion can sway the opinion of a representative. Similarly, regular letters about a topic can sway opinion if a relevant bill hits the floor. These letters can also provide your representatives with insight that can be very helpful during debates.

So, instead of complaining like a backseat driver, write your congress-critter and help them to understand your opinions.

Disposable printers - the solution?

[guyfromindia]

Perhaps someone could manufacture a disposable printer? Then, they dont have to worry about cartridges, etc.. In fact, I find it cheaper to buy a new printer than mess with cartriges (i.e. if I use the Manufacturer's cartridge - not after marktet fillers, etc).. Just a thought...

Re:Disposable printers - the solution?

[goldspider]

More trash, that's just what we need!

please understand SCOTUS better

[supernova87a]

The Supreme Court gets probably 100x more petitions per year than it could ever choose to hear. So being denied a hearing by the Supreme Court is not in itself particularly revealing about the merit of any one case.

However, you can be sure that when the court does take a case, that it involves all of the following: 1) a fundamental question of law, 2) that is being inconsistently decided by lower courts, and 3) that is ripe for adjudication by the Court (based on sufficient instances of the problem to guide them).

So, this particular case could have failed for any number of reasons. It probably does not involve any spectacular question of law -- the lower courts are well-equipped to decide the issue. So it is not so much a stinging defeat for this company, as it is a final forclosure of legal options in a matter that was already practically resolved.

Any lawyer who tells you that "we'll take this all the way to the Supreme Court" and expects to even get it heard, is full of it.

Re:please understand SCOTUS better

[tweek]

I would suggest that everyone pick up a copy of Sandra Day O'Connor's book "The Majesty of the Law" as well as William H. Rehnquist's "The Supreme Court". These are some really amazing insights into the opertation of SCOTUS.

The W.H.R. book especially covers the process and how cases actually get before the court. He also covers some of the background of the cases he was involved in. Amazingly enough both books are fairly non-partisan and Rehnquist makes the point that many a president has made the mistake of thinking an appointee would be a backdoor into the Supreme Court when it has rarely turned out that way. He discusses court packing attempts as well which seems pretty relevant.

It's my printer, isn't it?

[xiando]

It's my printer, I want to use what ever ink I want.. With a chip that prevents me from using the type of products I want together with their products they make me feel like I am renting their printers under some very rude terms, not buying them with the rights that normally follow a purchase. It is almost as bad as a DVD player not wanting to play any kind of DVD you put into it.. oh wait, that IS the case with zone-enabled DVD players..

Re:Make a printer with a large cartidge

[tlhIngan]

Because that would ruin the Gilette business model. Printer manufacturers are subsidizing the cost of the printer with the cost of the ink (more expensive than Dom). That's why they deliberately package half-tanks in with the printers.

Inkjet printing is a subscription business. You pay a small amount upfront ("printer cost", though if you get it on special, usually nil). Periodically, you "renew" your subscription by buying ink. Refilling used to be a problem, but with chips like these, well, it's not a simple 5-minute job anyone can do with a syringe anymore.

Same goes with most consoles and games. Razors and blades. Cable TV boxes. Cell phones. etc.

That doesn't mean there aren't options. Besides 3rd parties, there are companies that make modified ink tanks that draw their ink from external reservoirs (with half-liters of ink). Slightly big and unwieldy, but works for those poster-prints printer manufacturers always want you to do. (Do those ink cartridges contain enough ink to do a regular poster print without running out halfway through?).

Lexmark, the Printer Industry & cartridge cont

[eniac79]

What Lexmark is trying to do is protect their revenue stream. Replacement cartridges have always been the money-maker for printer manufacturers. IMO, Lexmark also makes inferior products, so their products themselves are unlikely to bite into HP's large marketshare.

Printer companies HATE aftermarket cartridges. Lexmark wants to kill that competition via lawsuits. HP does it a smarter (albeit similarly devious) way. Make your cartridges incompatible by constantly releasing new printer models with new cartridge interfaces. The latest HP inkjet models with the HP 94/95/96/97 cartriges are just the latest example of this tactic.