Property Rights

Static Controls

Copyright and Printer Cartridges

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The Digital Millennium Copyright Act (DMCA) was intended to thwart music and software piracy. But the printer manufacturer Lexmark has found a novel use for the law: They've sued to prevent a competitor from making cartridges that work in Lexmark printers.

Lexmark offers two kinds of cartridges for its printers: a more expensive one that anyone can refill and a cheaper version that must be sent back to Lexmark once it's exhausted. The second model is protected not only by a licensing agreement but by a technological barrier: The company's machines contain a chip that prevent them from printing from an unauthorized cartridge.

But when Mark Perkel of the Electronic Frontier Foundation (EFF) bought one of their printers, no one mentioned the licensing agreement until the product arrived. The document declared that merely by using the already-purchased product, Perkel had agreed to the license, and it provided a phone number to call if he didn't want to accept the terms.

Four times he dialed that number, and four times he reached a message saying that the extension did not exist. Perkel ended up calling the sales department instead, where a representative informed him that the license was not, in fact, a binding agreement.

Enter Static Control Components, a North Carolina company that put one of those Lexmark printers to a rather different use: It took out the chip, figured out how it worked, and started offering "Smartek" chips of its own. Armed with this product, its customers were able to forgo sending Lexmark $144 or more for a new cartridge. Instead they could refill and reuse their old cartridges—an outcome that is not merely cheaper but more environmentally benign.

Lexmark sued Static Control for violating the DMCA, which declares, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." For Static Control and the EFF, which filed an amicus brief in the case, this was mission creep: The language in the law was meant to prevent software piracy, they argued, not efforts to make different companies' hardware compatible with each other. Indeed, they claimed, the latter are exempt from the law's restriction. Lexmark disagreed, and in March a U.S. district court ruled in its favor.

Static Control has appealed the decision, while simultaneously filing an antitrust suit against its rival for trying to "monopolize the market for toner cartridges that are used in Lexmark printers." Meanwhile, no one has been sued for violating the agreement that comes shipped with each printer. Lexmark has, however, restored the errant phone extension.