"We never contemplated" cases such as Lexmark's when the DMCA was written, Rep. Howard Berman (D-Van Nuys) said last week at a Silicon Valley panel that examined the law. But he said that didn't mean the company couldn't legitimately use it. "Let some of these things play out in court decisions," Berman said.
Another panelist, Rep. Zoe Lofgren (D-San Jose), took a more critical view of Lexmark, saying she didn't intend to buy any of its printers. "There is a marketplace role in this," Lofgren said, suggesting consumers "march with their feet."
This month, the fight gained an additional arena. The Copyright Office, which was given some authority over the DMCA by Congress, is looking into the issue.
The Copyright Office has the power to create DMCA exemptions, but they tend to be limited. It's unclear whether an exemption in this case would completely shield Static Control.
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Hewlett-Packard Co., the largest printer maker, says it wouldn't use the DMCA to defend its turf the way Lexmark is doing. "Normal copyright law and normal patent law is enough," said HP senior vice president Pradeep Jotwani. "Remanufacturers and refillers have a valid space in this market. All of our printers accept remanufactured cartridges and will print with them."
But HP, as Jotwani acknowledges, is not quite so welcoming as this might seem. It puts chips in cartridges for its high-end 4600 color printer, for instance. If the chip is then deactivated by a remanufacturer, the toner display shows a question mark rather than the level of ink. When the toner will run out becomes a matter of guesswork.
The DMCA has other useful features for companies that want to pursue certain types of complaints.
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There's a Catch
One provision of the law protects Internet service providers from liability in copyright infringement cases. Just as a phone company is not liable for illegal conversations conducted over its network, a service provider, search engine or bulletin board isn't accountable for posted material that violates a copyright.
The catch is, as soon as the site is told it is harboring offending material, it must be removed immediately.
This aspect of the DMCA came into play in mid-November, when the Web site FatWallet.com said Wal-Mart, Target Stores Inc., Best Buy Co., Staples Inc., OfficeMax Inc., Jo-Ann Stores Inc. and Kmart Corp. all were asserting that it had posted their copyrighted material.
