March 04, 2003
Antitrust vs. Copyright...or, Using the DMCA to Your Best Advantage

Static Control has filed an antitrust suit against Lexmark for $100 million in damages from a "rival it alleges engaged in monopolistic practices." This follows last Friday's injunction where, in Lexmark's case against Static Control invoking the DMCA, Static Control was ordered to stop manufacturing the disputed chip that allows their toner cartridge to work in Lexmark's printer.

Last Saturday at the DRM conference, Emery Simon, of the Business Software Alliance, said this about the case, and the DMCA law used by Lexmark to protect it's printers from interoperability with other toner cartridges: "about Lexmark, whether it is an unintended situation or an unanticipated one, I don't know. ...the DMCA is focused on ... piracy issues, and so it was based on relationships between companies, competitors and the marketplace. So it was certainly an unanticipated situation. Whether the DMCA should be used in that way or not, I personally think it should not, but whether it will or not, the courts will decide ... if the courts decide this thing erroneously, there will be a role for coming back and looking at this thing again."

Zoe Lofgren, who gave a speech at the DRM conference just before the panel discussion where Simon said those words, has introduced a bill into the current Congress that is apparently the same as HR 5562 from the last session, which "permits bypassing copy protection mechanisms if the purpose is to 'to make a noninfringing use.'" At the end of the BSA press release, they say they oppose the bill because, "Any weakening of the laws that promote continued innovation and needed protections for copyright owners will ultimately stifle industry growth and limit consumer choices."

Is it really promoting innovation when copyright owners like Lexmark protect themselves from competition by putting a chip in their printer to keep away toner cartridge manufacturing competition? The BSA admits that much of the proposed legislation to change provisions of the DMCA doesn't apply to software, but they are worried that any piracy, or anti-circumvention for fair use, (which may include Static Control's case) would be legal if the "intent" of the action were legal, and therefore they oppose the bill.

I guess we have to wait on the answer to the question about whether Lexmark, and Chamberlain (of the garage door opener case), are engaging in anti-competitive behavior. The BSA should figure out what they really think, and then work with Lofgren and others to fix the DMCA mess so that copyright owners are reasonably protected, and innovation and fair use are still on the table.

Posted by Mary Hodder at March 04, 2003 09:57 AM
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