DMCA Used to Prevent Interoperation

Declan McCullagh at CNet news.com reports on a lawsuit filed by printer manufacturer Lexmark against Static Control (SC), a maker of toner cartridges for Lexmark printers. Lexmark wants to stop SC from making toner cartridges that work in Lexmark printers. The suit makes a novel and disturbing use of the DMCA anti-circumvention law.

Here are the facts, as gleaned from Lexmark’s complaint. Lexmark-brand printers and Lexmark-brand toner cartridges use a cryptographic “secret handshake” to recognize each other. Lexmark printers refuse to work with toner cartridges that don’t know the secret handshake. SC figured out the secret handshake and built cartridges that can do it; so SC-brand cartridges now work in Lexmark printers.

Lexmark’s DMCA theory is as follows. The secret handshake is a “technological measure” that “effectively controls access” to the copyrighted printer software. By doing the secret handshake, SC-brand cartridges circumvent that technological measure. So the SC cartridges are circumvention devices that are illegal under the DMCA.

(Lexmark also accuses SC of old fashioned copyright infringement. I’ll ignore the infringement accusation here, since it is less novel legally and since the right decision on it might be obvious one way or the other once the evidence is in.)

There are at least two interesting issues here.

First, Lexmark claims that the secret handshake “controls access” by the cartridge to the printer’s copyrighted software. It follows from this that the cartridge must be “accessing” the printer software. But the cartridge does not “see” any copyrighted material, all it does is to send messages to a program whose code is copyrighted.

A web server program sent you this page, and the code for that program is copyrighted. When your browser downloaded this page, was the browser “accessing” the copyrighted text of the program that sent the page? It seems like a stretch to argue that it was; but that’s essentially what Lexmark is saying.

The second interesting claim is that the SC cartridge is “circumventing” the secret handshake. In fact, it is carrying out the secret handshake exactly as the handshake was designed. Is this a circumvention?

Suppose I build a special door on my house that opens only for people who are wearing blue shirts; and suppose that you walk up, wearing a blue shirt, and open the door. Did you “circumvent” my blue shirt requirement? It seems hard to argue that you did; yet that is essentially what Lexmark is claiming.

Clearly, Lexmark is being creative in their interpretation of the DMCA. But their arguments are not ridiculous. The purpose of the DMCA was to ban certain types of interoperation. And the DMCA intentionally did more than just to strengthen the traditional rights of copyright holders – it created new categories of rights. Lexmark will not be laughed out of court.

This is a scary case. If Lexmark wins, many, or even all, makers of interoperable products will be at risk, and end users will lose even more control over their technological devices.