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The Courts Government News

Lexmark Invokes DMCA in Toner Suit 530

Rhyas writes "Seems as though Lexmark has decided it wants all the pie when it comes to the printing world, as they are suing a company that does reselling of chips that allow third party toner cartridges to work in Lexmark printers. Cindy Cohn, an attorney at the Electronic Frontier Foundation, said she expected more cases like the one brought by Lexmark. 'We have long said that the DMCA's potential use as an anti-competitive tool has been great,' Cohn said. 'Now we're seeing it happen.'" The European Union is taking action against the practice of embedding chips in printer cartridges which make it difficult for third parties to sell refills.
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Lexmark Invokes DMCA in Toner Suit

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  • Hmm (Score:5, Interesting)

    by ( 637314 ) on Thursday January 09, 2003 @09:07AM (#5046356) Homepage Journal
    This is very reminding of the recent article [] on Xbox keys, and how it restricts others from develping games without the MS overhead.

    Lexmark, I dub thee the MS of printers!
    • Re:Hmm (Score:4, Insightful)

      by Anonymous Coward on Thursday January 09, 2003 @09:20AM (#5046436)
      All the consoles have security measure to prevent just anybody from writing code on them. At least all the way back to the days of NES, where you needed to have a special chip in the cartrige for it to work. So Microsoft isn't any more evil than Nintendo, Sega, or Sony in this issue.

      Plus, toner is a diffierent type of product than a video game. With toner, it is a consummable. Once you use the toner, its gone, and you have to buy new toner to continue using the printer. With video games, they last forever (well, assume proper care and the lifespan of the media they are on). You are never forced to buy new games to continue using the console.
      • Re:Hmm (OT) (Score:5, Informative)

        by dissy ( 172727 ) on Thursday January 09, 2003 @12:07PM (#5047678)
        Off the origonal topic here, but just wanted to give you some more information about the consoles.

        The NES had no protection. I used to write code for it (amature) and if you feed it asm it will run it.

        The only 'special' chips used are the (many many) different memory bank controllers.

        But there is nothing from stopping one from making their own (As each game company seemed to have done) or even not using one if your ROM needs are small.

        Im also pretty sure the SNES had no protection either, but wont swear to this.

        The first sega console (The Master System) had no protection either.

        The first system from Nintendo I saw with protection was the gameboy.
        Its protection was the nintendo logo bitmap was not only in your code, but in the firmware of the gameboy itself.
        It would display the logo in your rom image, and then the firmware would compare that bitmap with its copy. It would only continue to run if they matched.

        What this means is to make playable gameboy software, you had to put nintendo's logo in it. The logic is doing so is a copyright violation or something.

        Even systems as recent as the dreamcast and PS1 only used this form of protection, which is a Good thing (tm) because once the systems are discontinued and not cared for, hobbiest can write code, infringe on the copyright, and Nintendo not really care.

        Only with Really recent systems such as the PS2, xbox, etc are there actual real technical measures and special data needed to even get code to run.

        • Sega vs. Accolade (Score:4, Interesting)

          by Effugas ( 2378 ) on Thursday January 09, 2003 @01:53PM (#5048459) Homepage
          If I remember correctly, Sega used a similar system with bitmaps to enforce their ability to control who could make games for the Genesis. Accolade copied the bitmap, and was thusly sued by Sega.

          The court ruled that since Sega had intentionally placed their mark in the way of Accolade's legally protected right to interface with Sega hardware, Sega couldn't turn around and sue Accolade for infringement on that trademark.

          Sega played with fire -- and got rather burned.

          Caveat: IANAL, and it's been a long time since I read about this case.

        • Re:Hmm (OT) (Score:5, Informative)

          by delus10n0 ( 524126 ) <> on Thursday January 09, 2003 @02:58PM (#5048923) Homepage
          Sorry, but you're wrong on both the NES and SNES protection. They did have protection, and it was circumvented (as usual):




 h. htm
        • Re:Hmm (OT) (Score:4, Interesting)

          by WNight ( 23683 ) on Thursday January 09, 2003 @04:38PM (#5049674) Homepage
          Supposedly some company was told recently, and I think it was Sony, that you can't use this trademarked requried string protection.

          The theory is that trademarks aren't descriptive or functional. You can't trademark "camera", or "press play". If you make your trademark either descriptive (let people use it for the generic class of product like kleenex or escalator) you will lose it, if you make it functional, you lose it as well.

          Doing anything that requires use of your trademark makes it functional, so requiring it in the boot code of a CD or ROM means you'll lose it as a trademark.

          So the company was told by the judge how the same would come out... "If you continue to push this, you'll succeed in making your trademark a functional part of the spec. And _Sony_ and _Playstation_ won't be trademarks anymore. You choose."

          And supposedly companies now rely on trade secrets they can sue over having released, or cryptography, because of this trial and the fairly obvious outcome, if you think about it.
    • by Baki ( 72515 ) on Thursday January 09, 2003 @09:57AM (#5046669)
      More and more car brands can/could be maintained and repaired only with proprietary equipment and electronics. Only selected dealers can rent this equipment, shutting out competition.

      Thus the car makers could make extra profits on car maintenance (inderectly through their dealer network) and make cars a bit cheaper to lock in/tempt the buyer.

      The EU also has forbidden this practice, and forces car makers to open the specifications of electronic and computer interfaces to the diagnostics subsystems. Also a new law enables each dealer to represent and repair any brand of car, i.e. it has become illegal for car makers to restrict the number of dealers (such as only those that do not do business with others) or to set up their own dealer network.

      I think it is the same tactics, one that has been prevented now, shall be prevented too for the print cartidge market and hopefully too for video consoles and the like.

      In general, the business model to almost give away some piece of equipment and then afterwards cash in on the required consumables or assecoires should be prevented, since it is misleading for the public and unethical.
      • by esme ( 17526 ) on Thursday January 09, 2003 @10:44AM (#5046987) Homepage
        In general, the business model to almost give away some piece of equipment and then afterwards cash in on the required consumables or assecoires should be prevented, since it is misleading for the public and unethical.

        Just one quibble: this is a tried and true business model. It's also a model that works very well for consumers since it allows them to spread the cost of the purchase over the lifetime of the base unit that's sold as a loss-leader.

        In the traditional razor-and-blades model, there's no reason why you need to buy blades from the same company you bought your razor from. Many people do, so it generally is a good buisness model. But you can only charge so much, or people defect to off-brand blade makers.

        The problem is that makers of consoles and inkjet printers are using technological measures to artificially inflate the profit they can make from the consumables. That's the problem, not the business model itself.


      • What if car manufacturer inserted a digital chip in the opening to the fuel tank such that it would ONLY accept fuel if you used say a "Shell" fueling nozzle? Could they then claim that filling your tank at any other service station but the "approved" was an attempt to "circumvents the technological measure that controls access to the" fuel tank?
      • by homer_ca ( 144738 ) on Thursday January 09, 2003 @12:53PM (#5048025)
        It's illegal in the US too. They can't void your car warranty solely because you used aftermarket parts or did not get your car serviced at a dealer. It's called the Magnusson-Moss Act.

        They're also starting to crack down on manufacturers withholding service information like codes and tools from independant mechanics.
  • DMca (Score:4, Insightful)

    by Manhigh ( 148034 ) on Thursday January 09, 2003 @09:08AM (#5046358)
    I wasnt aware that toners were digital media.
    • Re:DMca (Score:5, Informative)

      by Quila ( 201335 ) on Thursday January 09, 2003 @09:11AM (#5046378)
      The chips attached to the cartridges are, and they authenticate with the printer to allow the cartridge to be used.
    • I wasnt aware that toners were digital media.

      The chips in the cartridges that mean they're 'authentic' Lexmark toner are digital though.

      Think about it.. what these rip-off toner companies are doing is equivalent to cracking smartcards on subscription digital TV.
      • by PhilHibbs ( 4537 ) <> on Thursday January 09, 2003 @09:18AM (#5046422) Homepage Journal
        Think about it.. what these rip-off toner companies are doing is equivalent to cracking smartcards on subscription digital TV.
        Nonsense! Accessing cable TV broadcasts that you haven't paid for is totally unrelated to putting new ink cartridges in your printer! You own the printer, you own (a copy of) the software that authenticates cartridges, so you can make that copy of the software do anything you want it to, so long as you aren't violating copyright by distributing or copying the software. It's exactly the same situation as if General Motors made their cars only to use GM-brand Motion Lotion (TM), and stopped anyone else making compatible fuel.
    • I wasnt aware that toners were digital media.

      RTFA. :-)

      "Lexmark claims that Static Control violated the DMCA by selling its Smartek chips to companies that refill toner cartridges and undercut Lexmark's prices."

      So I suppose the chips had code to refill the cartridges which in turn pissed off Lexmark.
    • Re:DMca (Score:2, Insightful)

      by RCO ( 597148 )
      I do believe anything that uses a digital chip (as opposed to analog circuitry) in it will fall under this law. I really don't think the government had a clue about the can of worM$ they were opening. And obviously M$ wasn't the only worm in the can.

      Three cheers for the American government for bringing this three ring circus to town;)

  • Hang on a minute... (Score:5, Interesting)

    by wackybrit ( 321117 ) on Thursday January 09, 2003 @09:09AM (#5046366) Homepage Journal
    Seems as though Lexmark has decided it wants all the pie when it comes to the printing world

    Isn't this fair? I don't know if it's a fair lawsuit under the DMCA, but it's fair for Lexmark to try and protect their interests. Lexmark is not a printer monopoly, and it certainly does not have 'all the pie' in the printing world.

    The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges.

    This is not new. All console makers do the same thing. The XBox costs more than $149 to make, but MS sells them as loss leaders so they can make money on the games. Sony does the same. Nintendo does the same.

    Yet most people would agree that hacking/chipping consoles so you can play stolen games is illegal, even if you don't think it's unethical.

    What's different about the printer industry? They're just trying to make their money in the best way possible. After all, it's consumers who have forced them to offer printers as loss leaders rather than having expensive printers and cheap ink.
    • Yet most people would agree that hacking/chipping consoles so you can play stolen games is illegal, even if you don't think it's unethical.

      But how about hacking/chipping your console to play unlicensed - but not illegally copied - games, which is more equivilent to what we have here?
    • by Anonymous Coward
      Perhaps it's the business model that's at fault here.
    • by Anonymous Coward on Thursday January 09, 2003 @09:22AM (#5046448)
      "Isn't this fair?"

      No it isn't, here's why:
      1. It stiffles competetion and takes away basic freedom from the consumer (you can't buy part 1 from manufacturer A and part 2 from manufacturer B).
      2. It produces huge amount unnecessary waste.
      3. It misleads customers and it makes almost impossible to compare costs of printers during their lifetime.

      Luckily, starting from 2006 this kind of practice will be illegal in EU and manufacturers will use standard cartiges.

      "The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges."

      That's not an excuse, nobody is forcing Lexmark or anybody else to sell things at loss.

      "This is not new. All console makers do the same thing. The XBox costs more than $149 to make, but MS sells them as loss leaders so they can make money on the games. Sony does the same. Nintendo does the same."

      Sony and Nintendo doesn't sell their consoles at loss. But price dumping should be illegal also in console market.

      "What's different about the printer industry? They're just trying to make their money in the best way possible. After all, it's consumers who have forced them to offer printers as loss leaders rather than having expensive printers and cheap ink."

      LOL, "consumers forced"? You propably think that it's the consumers who forced MS to intergrate IE into Windows...

    • by Hangtime ( 19526 ) on Thursday January 09, 2003 @09:23AM (#5046455) Homepage
      So would it be fair for Ford to require you to purchase Ford-brand tires and the only thing that distiguishes Ford-brand tires from regular tires is a chip that "authenticates" the tires as being Ford. Also, these tires are $3000 for a change of four. Better yet, only being able to buy engine parts that were only Ford-brand and the only that thing distiguishes them is an authetication chip. This is why this law needs to die a bloody death.

      • Yeah, it's fair if you got the car for $1000.

        What I think may end up happening is that the printer companies will find that the public has a distaste for this sort of profit structure and change their ways. The end result? Printer prices will rise, and supply prices will drop. There is an equilibrium that can be reached by making a profit off of supplies and hardware.

        In a few years, I guarantee people start complaining that printers are too expensive. "They used to be cheap!" Tough, you can't have it both ways. Printing costs money.
        • by Badgerman ( 19207 ) on Thursday January 09, 2003 @09:43AM (#5046570)
          So, let printer prices rise. Then we can have some nice competition among printer makers, as opposed to this mess.

          And if people complain? Let them complain. At least the prices they'll deal with will be somewhat more honest, as will the business practices that involve dealing with the customer and the market, not the courts.
        • by aufait ( 45237 ) on Thursday January 09, 2003 @09:48AM (#5046608) Homepage
          Yeah, it's fair if you got the car for $1000.

          Only if you signed a contract with Ford that stated you would only buy their tires. Otherwise, you own the car and have the right to use whatever tires you want.

          I don't have a problem with Lexmark making it technically difficult for competitors. I do have a problem when they use copyright, a government enforced monopoly on the software, to extend that monopoly into another market, i.e. the ink cartridge replacement market.

          • I do have a problem when they use copyright, a government enforced monopoly on the software, to extend that monopoly into another market, i.e. the ink cartridge replacement market.

            I think this is the most succinct and lucid statement of the objection to Lexmark's conduct that I have seen. I'd mod you up if I had the points, but I don't so I'll just try to draw the attention of someone who does.

            -- MarkusQ

      • Let's say I have 20,000 pages to print. I buy a $200 printer. Let me guess and say 20,000 pages requires $1000 in ink. I just paid $1200 for the print job.

        Now let's say I buy the same printer for $400(which will allow the printer manufacturer to make a profit) and buy the more reasonable priced ink for $200. I just paid $600 and cut my costs in half.

        In other words, I sure as hell would rather pay full price for a printer than pay for ink that is marked up perhaps 500%. In the long run, I'll save money. The printer companies are ultimately making MORE money by selling cheap printers and outrageously priced ink. They are gouging consumers.

      • by chefren ( 17219 )
        Yes. It's their product and they are not a monopoly. It's also fair for you to buy antoher brand of car instead if you don't like Ford's products.
      • Chips in tires (Score:5, Informative)

        by wiredog ( 43288 ) on Thursday January 09, 2003 @10:01AM (#5046702) Journal
        Like this? []

        Take, for example, an ugly, little wiggle-work of a thing that Michelin plans to implant in its tires, beginning in 2005. Gettys calls it a "radio frequency identification transponder," or an RFID.

        The RFID technology allows vital tire identification information-such as tire size, type, serial number, date of manufacture and speed rating-to be stored on a chip the size of a match head.

    • by curtisk ( 191737 ) on Thursday January 09, 2003 @09:25AM (#5046468) Homepage Journal
      The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges.

      This is not new. All console makers do the same thing. The XBox costs more than $149 to make, but MS sells them as loss leaders so they can make money on the games. Sony does the same. Nintendo does the same.

      Thats their choice as a manufacturer to set up their profit structure that way. If it doesn't work out for them, tough for them. Try a different structure!
      Holy shit, I'm gonna sell HDTVs, at a major loss to my company, then if you try to watch any other channel that doesn't generate Ad revenue for my company (so I can re-coup my losses, not your fault, and you OWN the TV and all) I'm gonna kick and scream and sue,SUE,SUE! :p
      Just because Sony,Nintendo,MS do it to, doesn't make it a sound model for everyone

    • by Shimbo ( 100005 )
      The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges.

      Fine. Let them be pissed, it's not my problem.

      This is not new. All console makers do the same thing. The XBox costs more than $149 to make, but MS sells them as loss leaders so they can make money on the games. Sony does the same. Nintendo does the same.

      This wouldn't be the same Nintendo that got recently bitchslapped by the EU for price fixing by any chance?

      Yet most people would agree that hacking/chipping consoles so you can play stolen games is illegal, even if you don't think it's unethical.

      A lot of people think chipping DVDs is in some way illegal or immoral. It doesn't make it so.

      If printer manufacturers want to make money on services, they can do it honestly like mobile phone telcos do by getting me to sign a contract. Otherwise they can take a hike.
    • by Marx_Mrvelous ( 532372 ) on Thursday January 09, 2003 @09:31AM (#5046503) Homepage
      First of all, MS is the *only* console vender that loses money on its consoles: both Nintendo and Sony made profit for each unit sold.

      Secondly, if Lexmark let consumers know that only their toner cartridges worked with Lexmark printers, it wouldn't be such a big deal. But they don't. In fact, I'd bet they even tried to supress the lawsuit beacuse of the bad publicity it causes them.
      Finally, consumers haven't forced them to do anything. They chose their own business model, and now they have to lay in it.
      • Just to nitpick, but Sony loses money on like thier first generation of a console, but more than make it up on the subsequent iterations.
    • by tigress ( 48157 ) <> on Thursday January 09, 2003 @09:32AM (#5046504)
      "Hacking/chipping" a console is not (should not be) illegal. If I own the hardware, I should have the right to do what I want with it. If I want to install third party equipment in my console, car, printer or llama, that's my choice, not the choice of the manufacturer.

      Making and distributing pirate copies of software (read: console games) is illegal though. If I run an illegal copy in my (legally) modified console, I'm committing a crime. I'm not disputing that. However, it's important to know where the crime lies; not in modifying your equipment, it's in using an illegal copy.

      Similarily, using and making third party ink cartridges is not (should not be) illegal. The fact that the ink cartridge may identify itself as something it's not is should not prevent it from being used. If that was the case, consider the vast majority of webbrowsers, what do they identify themselves as?

      I for one think it's a Good Thing(tm) that this is being tried in a court of law. Hopefully, reason will win and ensure that we'll be able to use whatever ink cartridge we want in our printers, just as we can use any brand of tires on our cars, any kind of toast in our toasters or any kind of software on our Microsoft Windows based computers.

    • wackybrit wrote:

      They're just trying to make their money in the best way possible. After all, it's consumers who have forced them to offer printers as loss leaders rather than having expensive printers and cheap ink.

      Seems that the idea of giving away the printers and hoping to recover the costs with toner isn't so clever after all.

      Seems that those people inventing that scheme weren't so clever after all.

      Seems that this isn't the best possible way to make money with printers after all.

      And instead of fixing the problem of selling at a loss, Lexus added some copy^H^H^H^H refill-protection to their cartriges. And, as with most copy protection schemes, they get broken sooner or later. What a big surprise!

      By the way, are those the same chips that tell you that the toner cartrige needs to be changed, because the alotted number of pages has already been printed, even if the print quality is still perfectly fine and there is still enough toner left in the cartrige?

      And are those the same cartriges, where half the printer is thrown away only because the toner runs out?
    • by micromoog ( 206608 ) on Thursday January 09, 2003 @09:39AM (#5046545)
      Your comparison between printer cartridges and XBox titles is flawed because
      • XBox games are software. The licensing involved is for the intellectual property on the disc.
      • A printer cartridge is a can of ink with some circuitry on it. It is well understood and many manufacturers are capable and legally allowed to make it (i.e. there is no intellectual property involved). Lexmark has essentially added unnecessary intellectual property to the can of ink, and now claims that it is being violated (even though it is not the actual product).
      This is a clear case of Lexmark abusing this law for competitive gain. We will see much much more of this until the law is changed.
      • by MtViewGuy ( 197597 ) on Thursday January 09, 2003 @10:28AM (#5046874)
        If I remember correctly, didn't the US Government successfully sue IBM during the 1950's to stop the practice where IBM said the ONLY paper punch cards that could be used on IBM-branded punch card readers were made by IBM? I think the DoJ's Antitrust Division or the FTC should sue Canon, Epson, HP and Lexmark to stop this practice and require that all printer manufacturers allow approved third parties to make inkjet cartridges and laser toner cartridges.
    • by zmooc ( 33175 ) <> on Thursday January 09, 2003 @09:42AM (#5046565) Homepage
      The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges.

      Which is ofcourse not fair at all. Those printing a lot will pay way too much compared to those using a mere one cartridge a year. Lexmark wants to have a monopoly in Lexmark print cartridges. And it's using the free-market-crippling DMCA to get there (if it doesn't already have that monopoly). The choice to sell printers as a loss leader, is theirs. So are the consequences. The error you are making is assuming that Lexmark doesn't have a monopoly while it does (or at least will if they win) have a Lexmark Printer Cartridge monopoly. That market may be smaller, but it's still a small-scale-monopoly. What these guys are doing is using the DMCA in the same way as a patent can be used, except there's no way to get a patent on their ink-cartridges probably.

      The only fair way to make this market-model work is if they just don't sell the printers but provide them under a contract that also forces you to use only their cartridges. That's the right way; it forces Lexmark to be clear about their demands (only use their cartridges), the customer knows what is going on (it does not now) and there's no need to use the DMCA or whatever.

      • by uradu ( 10768 )
        > What these guys are doing is using the DMCA in the same way as a patent can be used,
        > except there's no way to get a patent on their ink-cartridges probably.

        That's so right, you should win a medal. Essentially there's no limit to the applications of this approach. Any sort of consumer behaviour that is completely legal can be curbed by grafting on some IP that would result in abuse of the IP from that behaviour.
    • by aufait ( 45237 )
      The reason Lexmark is pissed is because it sells its printers as a loss leader, and then makes money on the ink cartridges.

      Maybe its time for them to change their business model. Lexmark may not have a monopoly in the printer market; but, it sure wants one in the "ink Cartridges for the Lexmark printer" market. They are trying to use copyright law, which gives them a government enforced monopoly on the software they write,to extand that monopoly into the cartridge replacement market.

      Yet most people would agree that hacking/chipping consoles so you can play stolen games is illegal, even if you don't think it's unethical.

      I don't think the console makers are worried about priated games directly. They are concerned about making sure the game developer pays them a cut of every game they sell. If mod chips become commonplace, game developers can sell games without paying the console maker its royalty.

    • by Savage-Rabbit ( 308260 ) on Thursday January 09, 2003 @09:43AM (#5046567)
      Hell yes this is a monopoly! But monopoly is a beast with may faces. The situation of being the only supplyer to a market is only one form of monopoly. One can create a virtual monopoly on a free market with numerous competitors. In this case one suckers people into buing a certain product, in this case Lexmark printers and then suck the consumers dry by forcing them to use only Lexmark cartridges. You compare this to the business practices of Nintendo, PS2 and the rest of that lot and say it is unfair to Lexmark to forbid them to do the same. But you are ignoring the lager issue of how fair/moral the whole business model of creating a virtual monopoly is to begin with.

      I for one have never used a game console and I never will. Why you ask? Because on the game console market, once I have committed myself to a certain brand of console, there either is only one source for software or the soruces of software are controlled by one party. Ergo no competition. If I buy a PS2 I am limited to one source and that source is the only one selling PS2 games and can therefore control the price at will, a monopoly. I will also never buy a printer from somebody who forces me to use only brand products. And I will continue to do so until there is no manufacturer left who allows third party manufacturers to clone his cartridges. I would rather pay more for the printer and get the cartridges cheaper because it is guaranteed to cost me less money in the long run.

      Nobody obligates me, the consumer, to get warm fuzzy feeling about some corporation wanting to max its profits by lashing up artificial trade barriers. I refuse to live in a marketplace where there are serveral "theoretical competitors" but in reality I am simply choosing which virtual monopoly I am going to be fleeced by. There is a lot to be said for free trade, but free trade ends where the holy quest to create artificial trade barriers begins!
    • by DrXym ( 126579 )
      Well perhaps they shouldn't sell their printers as loss leaders... Such printers are junk anyway and hopefully news exposure like this will make consumers more selective before they plonk down cash for a seemingly cheap printer. There really should be a law requiring all printers to state how much ink is in each cartridge, the average number of pages it will print and the average cost per page. And no chips either.

      I bought a Canon inkjet recently precisely because they don't screw me for refills. There are no chips, prices for official cartridges are reasonable, and there is a large selection of 3rd party inks. Better yet there is one refill per colour so if I run out of cyan, I don't have to throw out my magenta, yellow or black.

      Personally I'd love to see some standardization too. There really is no need for so many cartridge formats except to lock in consumers.

  • Too bad (Score:3, Interesting)

    by Daengbo ( 523424 ) <daengbo@g[ ] ['mai' in gap]> on Thursday January 09, 2003 @09:09AM (#5046367) Homepage Journal
    It's really sad to hear, because Lexmark's history of supplying Linux drivers is pretty long []
    Now I have to balance the ethics of supporting them.
    • Re:Too bad (Score:2, Insightful)

      by YDdraig ( 302234 )
      It is disappointing.

      For some time now Lexmark has been my first choice for printers and the one I recomend to friends/clients. I won't support a company who tries to pull this sort of stunt though.
  • Herein lies another reason for me to continue to buy HP printers and to recommend them to many others. I for one will counter Lexmarks suit with my voice!
  • I thought I had heard the name before, and it turned out she was same (and sane) person that said:

    "Bnetd developers engaged in legal reverse engineering without circumvention or any illegal activity."
  • by Anonymous Coward
    just don't buy Lexmark any more. This is what I did - tossed my old crappy, slow, EXPENSIVE to operate printer and got a high-quality Cannon. With seperate ink carts. In the two months I've had it, just now to the point where I'm using up the black (the rest look to have another two months!), and the replacement cart is $2.95 - big whoop. Compare to $39.95 if on sale from Lexmark.
  • by slipgun ( 316092 ) on Thursday January 09, 2003 @09:12AM (#5046387)
    The European Union is taking action against the practice of embedding chips in printer cartridges which make it difficult for third parties to sell refills.

    While passing its own version of the DMCA, ironically enough.
    • dmca wouldnt be bad if companies woulddnt abuse it and customer rights would be taken care of.

      the current printer system is just stupid and gotten way out of hand anyways, you buy 1 black, and 1 color cartridge and that sums up to the price of the whole printer.. making the refill market more free would cut it back to make some sense..
  • This one really takes the cake.

    How on earth can they believe that such silliness will not backfire?

  • by altgrr ( 593057 ) on Thursday January 09, 2003 @09:15AM (#5046404)
    If the court ruling goes in favour of Lexmark, rather than in favour of common sense (you can put whatever toner you like in your printer, right? It's your printer after all), then the extension of the ruling to other cases is inevitable.

    This means that there is the potential for manufacturers of other products that have consumables associated with them (your car, say) to put methods (a funny-shaped fuel filler, say) in to ensure that you can only use their consumables (fuel), and that a circumvention device (plastic funnel) so that you can use other consumables (fuel) will be ruled illegal.
    • That doesn't involve software, and they are playing with words by saying that the fake chips circumvent a mechanism that protects access to their copyright material, to wit the toner authentication code. The flaw in their theory, IMO, is that it does not provide access to their IP. It doesn't cause the code to be printed out or loaded up the cable into the PC, all it does is cause it to execute an operation that is necessary to the functioning of the printer. It accesses the functionality, not the copyright material. This should be a no-brainer in court.
      • by MeNeXT ( 200840 ) on Thursday January 09, 2003 @10:26AM (#5046856)
        That doesn't involve software

        Software is a set of instructions and the explanation provided above is a set of instructions, therefore making it illegal because it has now become evident how to bypass the car manufacturers anty piracy protection.

        Your argument makes no sense. We the consumer are loosing our legal rights. We are no longer sure if we purchased or rented a product. We have completed our legal obligation (PAYMENT) only to find out after the FACT that the terms of the contract were not those which were presented upon the sale of the product.

        Could you imagine having to pay the architect who designed your house a royalty when you sell it because you have sold his intellectual property. Or that the builder of the car you just sold claims that you infringed on ther Copyrights because you painted the car Pink when that car does not originally come in pink.

        Everything we build is based on a set of instructions (software) therefore your argument applies to all and everything.

        Once the SALE, and note I did not say RENTAL, is finalized, the manufacturer of the product no longer has a say in what I do with his product.

    • by Hangtime ( 19526 ) on Thursday January 09, 2003 @09:28AM (#5046479) Homepage
      This is actually a good case and I hope a lot of the groups like the EFF jump into it for this reason. This is much easier case to frame for a judge then a "mod" chip and running games on a system. This is something a judge can get their head around and see "Hmmm, does this law make sense applied in this situation." Common sense dictates that it doesn't and this is such an incredibly powerful case to demonstrate what is so bad about this law.
  • by Giant Ape Skeleton ( 638834 ) on Thursday January 09, 2003 @09:17AM (#5046416) Homepage
    Is there any kind of EULA to which a user must agree before using the printer?
    Something such as "By using this printer I agree to only use Lexmark toner etc etc..."?
    That's the only way Lexmark's attitude would make sense.
    I think unless you prohibit certain potentially anti-DMCA activities at the outset, it's pretty cheesy to go after people later....
    • by YDdraig ( 302234 )
      The Lexmark warranty mentions that...

      Service does not include repair of failures caused by: misuse, neglect, accident, modification, operation outside the specified operating environment, improper maintenance by the Customer , failure caused by service of the printer by non-authorized servicers, or
      failure caused by a product, including supply products, for which Lexmark is not responsible.

      (My italics)

      So if they decided that a copycat cartridge stuffed up your printer they may try to wriggle out of fixing it.
    • by squiggleslash ( 241428 ) on Thursday January 09, 2003 @09:36AM (#5046527) Homepage Journal
      Believe it or not, yes!

      I bought a Lexmark a few months ago, a E-320 (it's at home, I may have the last digit wrong, it's basically a low-end sub-$300 laser.) There was a seal on the supplied cartridge itself, which was in the printer but not installed (if that makes sense) with a note to the affect that if I broke the seal I would be agreeing to return the cartridge in the supplied box once I'd finished with it. Apparently Lexmark have two types of toner cartridge, one for users to keep and one "recyclable" that's "owned by Lexmark" that's cheaper. The one bundled with the printer is the latter.

      As Lexmark hadn't actually supplied a box, I took the EULA to be nonsense and broke it anyway. If anyone at Lexmark reading this would like to contact me and send me a toner cartridge box as required per your licence, I'll happily return this 50c bit of plastic once I'm done with it. I don't do that much printing, so this'll be in a few years I guess, but you can wait that long can't you? ;-)

      • You got a prebate cartridge somehow. That was a goof by Lexmark.

        In case anyone else is wondering, Lexmark has a 'prebate' program where you can buy cartridges cheaper than 'non-prebate' cartridges. When you buy one of these, you have to agree to mail the cartridge back. When we would order them for the computer lab I worked in, they always came with a UPS label to mail it back. I'm pretty sure a printer is supposed to come with a regular cartridge.
  • I for one am glad that I'm not a Kentucky citizen, ie. my taxes are being spent in part to entertain this trial.
    Under section 1201 of the DMCA, it is generally unlawful to circumvent technology that restricts access to a copyrighted work.
    Generally unlawful? Thats what they're hoping will win them this case? A broad general is the unlawfullness? LOL
    the company claims the Smartek chip mimics the authentication sequence used by Lexmark chips
    Is this something the consumer is aware of when purchasing the printer? That only Lexmark© carts will be "allowed"? Its amazing what the technology market can get away with as far as trying to control what the consumer, who owns the product, can do "lawfully" with it. This shiznit is out of control.
  • heh, if they keep going like this you'll be unable to have children, because under the DCMA you'll be infringing upon the rights your partner has to her DNA...

    Is this how the internet and all that was once free will come to it's end?

    isn't there a master document we can cast into a mount doom to stop the madness?

    and people wonder why I prefer fiction to reality, in fiction, you might actually win!

  • WTF? (Score:4, Interesting)

    by MImeKillEr ( 445828 ) on Thursday January 09, 2003 @09:18AM (#5046427) Homepage Journal
    Didn't HP get sued for attempting to corner the market on toner sales? I'm pretty sure they were sued for selling 1/2 empty cartridges with their printers, but could swear they (and others) were sued for having a monopoly on toner cartridges.

    I like Lexmark printers, but knowing they're chipping their carts is going to keep me from buying or recommending them to others.

    I hope this gets thrown out of court and whoever passed the DMCA into being a law (so loosly written and obvious that it'd be used for the greater good of corporations) get voted out of office.

  • by HighOrbit ( 631451 ) on Thursday January 09, 2003 @09:20AM (#5046432)
    Lexmark claims that Smartek "mimics the authentication sequence" of Lexmarks printers. That is classic backward engineering by observing the effect and trying to re-create it. If Lexmark succeeds in this, what effect will it have on other backwards engineering efforts? Will Microsoft be able to sue the Samba project because it "mimics the authentication sequence" of NT/Win2000?
  • anticompetitive tool (Score:4, Interesting)

    by hysterion ( 231229 ) on Thursday January 09, 2003 @09:22AM (#5046445) Homepage
    'We have long said that the DMCA's potential use as an anti-competitive tool has been great,' Cohn said. 'Now we're seeing it happen.'
    Actually it's been happening since day one, and was one of the chief reasons for introducing Region Codes and the ensuing DRM arsenal.

    Notice how regioning makes it (for practical purposes) impossible for USians to mail-order e.g. European/region 2 movies, TV shows, etc., over the internet, for absolutely no good reason?

    • by radish ( 98371 ) on Thursday January 09, 2003 @10:18AM (#5046805) Homepage
      It's not impossible at all. I'm in the UK (R2) and I buy most of my DVDs from overseas, either US (R1) or Australia (R4). Why? Because it's cheaper - yes, even including shipping half way around the world, australian DVDs are considerably cheaper than I can get them from UK based suppliers. It's a mad world I tell ya :)

      All you need is a multi-region player, most of the cheapo non-brand ones are multiregion from the box, and most of the decent ones can be chipped or hacked for $0-$50. I'm currently on a Pioneer which came ready-chipped from the supplier - it's all totally legal over here as region coding has no actual basis in law. I'm under the impression that multi-region players like the Apex are popular in the US (even though the quality sucks) but I'm not sure how easy it is to get decent players chipped over there.
  • Uh-oh! (Score:2, Funny)

    by MImeKillEr ( 445828 )
    I guess this'll cut down on all those lexmark .ISO files I keep seeing on Kazaa and eDonkey. Blasted toner cartridge pirates are cutting into Lexmark's profits!

    How fscking utterly asinine.

  • by jlk_71 ( 308809 )
    Well, if they want to play that way, they may very well see the amount of printers they sell drop like a rock. I think a sort of boycott where nobody buys Lexmark printers would hopefully give them a kick in the butt that the computing public will not stand for moves like this.
    They RELY on people to buy their products to stay in business. If nobody does, OOPS, the revenues go down.
    Screw 'em I say, SCREW 'EM!!!

    Just my .02
  • The EU is doing it primarily so that users can refill the ink/toner cartridges they already own in a effort to decrease the amount of crap going into landfills or incinerators.

    They are not, at least on the surface, doing it to discourage competition in the marketplace.


    Wanna get pissed? []

  • Wow (Score:4, Informative)

    by finkployd ( 12902 ) on Thursday January 09, 2003 @09:39AM (#5046543) Homepage
    I would be concerned/offended/interested if it were a company that actually made GOOD printers that was doing this :)

    Lexmark printers are pretty much junk anyway (and their market share bears me out on that) so this will likely only hurt them.

    Now if HP or Epson try to pull this, I'll be alarmed.

    • Re:Wow (Score:3, Informative)

      by sacremon ( 244448 )
      Unfortunately, Lexmark engines are found in some special-use printers. An example that deal with are the Primera line of inkjet CD printers. They are all Lexmark engines, which means it's a crap shoot whether or not the print cartridge will actually work in your $1000+ printer.
  • by Badgerman ( 19207 ) on Thursday January 09, 2003 @09:41AM (#5046560)
    If you use coded digital media somewhere in a product, even if its ridiculous, you can sue competitors that provide things to work with or replace that product.

    I'm impressed. I never foresaw the DMCA protecting us from toner.
  • by release7 ( 545012 ) on Thursday January 09, 2003 @09:45AM (#5046580) Homepage Journal
    Imagine if Daimler-Chrylser, Ford, GM and others decided to implant devices in auto parts that communicated with the car's central processing unit. Then imagine your car not starting because you have a third party distributor cap or alternator. There would be an uproar and I'm sure it would be illegal. I think Lexmark thinks it can get away with this because it makes printers, designed to work with computers, and so might conceivably be covered by the DMCA. This is clearly a bunch of bullshit.
  • by zerofoo ( 262795 ) on Thursday January 09, 2003 @09:47AM (#5046593)
    Remember IBM typewriter ribbons? IBM tried to pull this a long time ago saying 3rd party ribbons would void IBMs warranty. Magnuson-Moss was the result of this.

    This warranty act allows for 3rd party consumable replacement parts, and, in the event of a warranty claim, it is the burden of the warranty provider to prove the 3rd party product caused the damage.

    • by red_dragon ( 1761 ) on Thursday January 09, 2003 @10:05AM (#5046728) Homepage

      Remember IBM typewriter ribbons?

      Yeah, I remember those. And, you know what happened to IBM's printer and typewriter division? That's right, it was spun off into (da da da dum)... Lexmark.

      It's not surprising, really.

  • by agentZ ( 210674 ) on Thursday January 09, 2003 @09:49AM (#5046613)
    If Lexmark can keep people from making discount printer cartridges, does this mean that I'll stop getting spam about people selling discount printer cartridges?
  • by MegaHamsterX ( 635632 ) on Thursday January 09, 2003 @09:49AM (#5046614)
    These products need to be labeled as "Non User Serviceable Supplies" when they are displayed for sale. This would inform the potential customer that they must purchase all replacement and support goods for this item through the manufacturer.

    I'm not saying I agree with them, just that if they wish to conduct business in an underhanded fashion, consumers should know about it upfront.

    I think I may go back to a dot matrix printer for most of my junk printing, yeah they can be slow with graphics (I don't print graphics too often), but you don't need to worry about paper for sometime if you buy the big box. A reinker for the cartages is fairly cheap as well.
  • by Kickasso ( 210195 ) on Thursday January 09, 2003 @10:05AM (#5046726)
    Please note that Lexmark alleges both DMCA violation and traditional copyright violation. I.e. the aftermarket chips contain identical unauthorised copies of Lexmark copyrighted code. If this is true then at least this part of the suit is bound to succeed.
  • by SamuraiiProgrammer ( 150280 ) on Thursday January 09, 2003 @10:12AM (#5046768)
    Many years ago I worked at a company that did large format inkjet printers/plotters. The ink bags (yes bags) had little Dallas Semi chips that we could identify and keep a count of ink usage.

    I suggested that we burn in "Copyright xxxxx corp" into the chips, and make the software look for it. If you weren't xxxxx corp and you made a copy chip, then you would have to copy a copyright notice that wasn't yours.

    As has been said by others, the printer companies don't make money on printers at $150 (or less) per unit. If you wan't to pay $1500 for the same printer (think of all those cartridges) and buy your ink just anywhere, that's a possibility. I wouldn't take bets on that as a viable business model, though. Can you imagine walking down the aisles at Comp USA, ... hmmm $100, $150, $1000, $1500. Which would you pick?
    • Since when was a statement "(c) 2001 ACME Ripoff Printer Company" itself copyright? If that was the string checked for, then sorry, you just read part of a rom string saying that this "Is not (c)....".
  • by Stalcair ( 116043 ) <stalcair&charter,net> on Thursday January 09, 2003 @10:17AM (#5046791)
    Besides the price and quality (dpi, ppm, actual quality of output, etc) I look at the cost of ink. I make it a rule to not buy any printer that the cost of black and white or color is more than 10 and 18 cents respectively. It is annoying when you have to buy the inflated prices of the ink cartridge's sold by that particular vendor. What's next, me only being able to buy official Iomega brand zip disks? The sad thing is that many refill kits cause more problems than they solve as they are watered down resulting in leakage and gumming up of the printer. However, it is also rather pathetic to look at how these printers all seem to have different shaped cartridges. Why is that? Seems to me that most printers still have plenty of clearance left over so space saving is not the issue and the other cartridges fit space wise but slot wise to not fit. Conspiracy theory suggests they do this on purpose... yet when Lexmark (or HP, Cannon, etc) sues those who make cartridges then I have to wonder.

    So in the end, I begin to wonder if the printer industry has a business model similar to that of the console gaming industry. (Although I would find it odd if they sold the printers at a loss as consoles often do initially)

  • by rmohr02 ( 208447 ) <mohr@42.osu@edu> on Thursday January 09, 2003 @10:27AM (#5046867)
    License Agreement


    The software programs including all fonts ("Software") contained in this package are copyrighted and owned by Lexmark International, Inc. ("Lexmark") and/or its vendors, and are licensed (not sold) to you by Lexmark for use only on a single personal computer at a time. You may also store or install a copy of the Software on a server used only to install or run the Software on your other computers over an internal network; however, you must acquire a license for each separate computer on which the Software is installed or run from the server. Software consists of machine- readable instructions, audio/visual content (such as images and recordings) and accompanying materials. You may make a single copy of the Software solely for backup purposes or installation. You may not alter, decrypt, reverse assemble, reverse compile or otherwise translate the Software. You may not copy the Software into any public network. You may not sublicense or rent this Software to any third party, but you may transfer all of your rights under this Agreement if you retain no copies and transfer all of the Software and this Agreement, provided that the recipient agrees to the terms of this Agreement.

    You agree that you will not use, run, manipulate, install or implement the Software, in whole or in part, in any manner that has the effect of overriding, modifying, eliminating, obscuring, altering or de-emphasizing the visual appearance of any trademark, trade name, trade dress or intellectual property notice that appears on any computer display screens normally generated by, or as a result of, the Software.

    Lexmark provides a three-month limited warranty, as measured from the date of delivery to the original customer, on the media (e.g., diskette or compact disk) on which the Software is furnished.


    Lexmark's entire liability, including that of its vendors, subsidiaries and resellers, and your exclusive remedy shall be as follows: Lexmark will provide the express warranty described above. If Lexmark does not remedy defective media as warranted, you may terminate your license and your money will be refunded upon the return of all of your copies of the Software.

    For any claim arising out of Lexmark's limited warranty, or for any other claim whatsoever related to the subject matter of this Agreement, Lexmark's liability for all types of damages, regardless of the form of action or basis (including contract, breach, estoppel, negligence, misrepresentation, or tort), shall be limited to the greater of $5,000 or the money paid to Lexmark or its Authorized remarketers for the license hereunder for the Software that caused the damages or that is the subject matter of, or is directly related to, the cause of action. This limitation will not apply to claims for personal injury or damages to real or tangible personal property caused by Lexmark's negligence.

    Some jurisdictions do not allow the limitation or exclusion of incidental or consequential damages so the above limitation or exclusion may not apply to you.


    You may terminate your license at any time by destroying all your copies of the Software or as otherwise described in these terms. Lexmark may terminate your license if you fail to comply with these terms. Upon such termination, you agree to destroy all your copies of the Software. Any attempt to sublicense, rent, lease or assign, or (except as expressly provided herein) to transfer any copy of the Software is void. You agree that you are responsible for payment of any taxes, including personal property taxes, resulting from this Agreement. No action, regardless of form, arising out of this Agreement may be brought by either party more than two years after the cause of action has arisen. This Agreement is governed by the laws of the country in which you acquired the Software. If you acquired the Software in the United States, the law of the Commonwealth of Kentucky shall govern.

    The Software has been developed entirely at private expense and is provided with RESTRICTED RIGHTS. Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 and in similar FAR provisions (or any equivalent agency regulation or contract clause).
    That only governs the software, but it's the only "agreement" I made with Lexmark, and it doesn't say a damn thing about having to buy marked-up ink cartridges.
  • by vaxer ( 91962 ) <sylvar&vaxer,net> on Thursday January 09, 2003 @10:39AM (#5046942) Homepage
    I bought my Optra E310 because their tech support has no problem dealing with Linux, and because it uses standard memory (so you can add 64MB for a pittance).

    Sorry to see that Lexmark has decided it no longer wants geeks' goodwill.
  • by morcheeba ( 260908 ) on Thursday January 09, 2003 @12:07PM (#5047684) Journal
    Static control has a section of their website [] devoted to descibing the obstacles they face. It features a whitepaper describing the technical challenges [] (some of these chips are full-custom and some are RF), a letter from their CEO [], and a whole lot of information on printer security chips.
  • Just buy Canon (Score:4, Informative)

    by mao che minh ( 611166 ) on Thursday January 09, 2003 @12:43PM (#5047948) Journal
    Canon doesn't try to restrict what cartridges can be used with their printers. All Canon does is refuse to honor the warranty for damages caused by non-approved material, and of course, they can't guarantee you that the third party products will operate to optimal unit specs.

    For example, let's say that you have a Canon ImageClass C2100 color laser copier. You go to CompUSA and buy some generic brand of high gloss paper that claims to be compatible. You pop a sheet in, and the third sheet melts in your fuser. Canon will not always honor the damage caused by that third party product, of course, because Canon has no way of testing the material beforehand, and they have no control over the third party's production techniques and claims. On the other hand, if you use approved Canon media and supplies, then you have nothing to fear under their very nice and expansive warranty.

    Furthermore, this is no secret, but Canon manufactures almost all HP engines. Almost all other manufacturers lease out many Canon patents to make their stuff work. Why bother going second-hand when you can just buy directly from the source?

    Yes, I am a satisfied Canon customer of three years. After dealing with Lexmark and HP for years at my past job, I couldn't dream of ever switching from Canon.

What is algebra, exactly? Is it one of those three-cornered things? -- J.M. Barrie