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.

Lexmark is no Nintendo

[AKAImBatman]

It sounds like Lexmark thought they could pull a Nintendo [answers.com] 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. [harvard.edu] 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]

It's important to understand that Congress intended the DMCA to protect digital anti-theft devices

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

Re:Disposable printers - the solution?

[goldspider]

More trash, that's just what we need!

Re:Lexmark is no Nintendo

[nuggetboy]

Perhaps I'm reading it wrong, but doesn't para 3 specifically allow the person who has acquired the information in paras 1 and 2 to publish those findings? From what you've pasted here, I see hardly any prohibitve language except the "as long as it does not constitute infringement" stuff.

Re:Lets hear it for the Supremes

[dreamchaser]

Of course, if you read the actual article and paid attention to the summary, it was the Supremes that denied the recent petition for a writ of centorari...but that's probably asking too much of someone who has nothing positive to add to the thread so instead decides to nitpick (and get it wrong to boot).

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?).

"Monpoly"

[Anonymous Coward]

There's nothing monopolistic about what Lexmark did. You people sure like to throw that term around though - it doesn't mean what you think it does.

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.

Re:So, that's it, then

[xiando]

"instead of buying new cartridges that cost O(new printer)." You make a very interesting point. The last time I bought a printer I almost bought two because I noticed that the printer cost less than the color and black cartridges it came with when sold separately. I almost feel stupid I didn't buy two printers, but then again I know that printers will still be cheaper than two ink cartridges the next time I go empty anyway. Why? They are all doing it. Canon, HP, Lexmark and all other major brands for that matter are selling printers cheaper than the ink now and are defendant on revenue from their original ink to make an overall profit. The problem for them is that this model fails because of all the third party ink vendors who are also making a profit from them giving away printers, but printer vendors not liking competition does not make it fair to use "what ever dirty means they can" (like Lexmark did) to stop it. It is very good that the Supreme court for once put the foot down for the usual Big Corporations "if you can not beat them, sue and threaten them"-tactic.

Re:Disposable printers - the solution?

[Greyfox]

If I were in the market for a printer I'd go the laser route. Toner's dry so it doesn't dry up and clog if you print something every 3 years like I do. I seem to recall that lasers are a lot less expensive per page to print than inkjets are, too, though I forget where I heard that. Last time I checked (About a year ago) you could get a PostScript level 3 laser printer starting around $500. PostScript is an easy set-up with Linux, is a nifty language and you don't have to worry about your printer manufacturer not supplying a driver for the next version of Windows if that's your OS of choice.

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.

OT: Rehnquist and O'Connor

[sconeu]

The recent medical marijuana decision was interesting because of the dissenters.

O'Connor, Rehnquist and Thomas dissented on the ground of States Rights.

The others, including Scalia(!) ruled that medical marijuana (grown for one's self, in one's home, not taken out of state) can be regulated under the Interstate Commerce Clause.

Just thought it was an interesting side note, given the parent post.

Re:OT: Rehnquist and O'Connor

[tweek]

One of the interesting points that each book I mentioned makes is that appointees almost never tow the presidential party line.

They cite a few reasons:

1) Rule of Law and the Constitution defies party lines. Or at least it should. It's the difference between a democracy and a republic. In a democracy, majority rules but in a republic, the law rules. I'm sure there are plenty of judges out there who don't and won't ever get this difference and will use SCOTUS as an attempt to make laws but they soon learn that it won't fly with SCOTUS. I get worried when I hear the Supreme Court mentioning public opinion as a basis for a ruling because it means that we inch closer to a doomed democracy.

2) SCOTUS justices are beholden to no man and they will long outlive the president who appointed them. W.H.R. cites several examples of this in his book and makes a grand point about it. He himself was appointed by Nixon and has long outlived that man's career.

Re:OT: Rehnquist and O'Connor

[hawk]

I wasn't surprised to see Thomas and Scalia split on this one.

Scalia's knee tends to jerk right on anything involving "police safety." That's a bit of a stretch here, but not a huge one.

I am surprised to see O'Connor in the dissent, though. Rehnquist isn't surprising, and Scalia was expected.

hawk, esq.

Guess they didn't write enough checks

[saleenS281]

So basically lexmark didn't buy off enough people to get their way is what this is saying? Because this lawsuit has just as much merit as every other one that "went down without a fight".