FatWallet is a site that enables consumers to calculate the best deal on a toy, video game or computer. But FatWallet was providing information not only about current deals but also, thanks to sources it declined to reveal, future ones. By Nov. 15, for instance, it had posted Wal-Mart's Thanksgiving ad.
Wal-Mart complained that its intellectual property -- the prices it assigned to each item -- was being violated.
FatWallet attorney Megan Gray said the charge was ridiculous. "Facts like price tags cannot be copyrighted. Any court would have said that. But the DMCA allows companies a shortcut where they don't have to prove their case to get action," she said.
Tim Storm, FatWallet's founder, removed the offending material to spare himself the expense of a long court case. "It's pretty expensive to be right," Storm said.
The group behind a Web site devoted to attacking Dow Chemical also decided it would be easier to surrender. The parody site was concerned mostly with the 1984 leak of gas from Dow subsidiary Union Carbide's plant in Bhopal, India, a disaster that lead to thousands of deaths.
Dow said the site was "blatantly violating" its intellectual property rights under the DMCA by using "trademarks, images, texts and designs" taken directly from Dow's own site. Once again, merely making the charge was sufficient. The parody site's Internet service provider pulled the plug immediately.
All these uses of the DMCA are "kind of screwy," said intellectual property lawyer Bob Ellis. "The DMCA was designed to protect things that deserved to be protected. A toner cartridge is not intellectual property."
Nevertheless, the cases keep coming. Chamberlain Group, a manufacturer of automatic garage-door openers, is suing a competitor, Skylink Technologies. Chamberlain says Skylink violated the DMCA by producing a remote control device that works with Chamberlain's doors.
"No one is stealing Chamberlain's software and using it to build their own garage doors," said Skylink lawyer David Djavaherian. "We're just allowing the purchaser to access their own garages."
For Lexmark, at least, the DMCA issue may soon be moot. It has patented a monitoring and disabling device, one that it says will take care of the remanufacturers once and for all.
The patent, awarded in 2000, is for an apparatus that fits into an inkjet cartridge. When a processor determines that the ink supply has run out, capacitors send an electrical jolt through the ink nozzles, frying them.
Suppose a remanufacturer tried to refill the cartridge before the sensors detected it was empty and destroyed it? Lexmark thought of this too. Merely opening the cartridge causes it to self-destruct.
