Several writers on Slashdot and in blogland have applauded IEEE’s new position on the Digital Millennium Copyright Act. (IEEE is a professional society for electrical engineers.)

It’s good to see that IEEE is finally waking up to this issue. Other professional societies, including ACM and CRA, have been on top of it for a long time; but we can use all the help we can get.

Let’s see if IEEE backs off from the rest of its expansionist approach to intellectual property policy.

I wrote previously about the lawsuit filed by printer maker Lexmark against Static Control, a maker of toner cartridge remanufacturing parts. Lexmark claims that Static Control is violating the DMCA by making toner cartridges that do what is necessary to work in Lexmark printers.

The Copyright Office has allowed Static Control to file a late request for a DMCA exemption. Here is the request.

U.S. District Court Judge John D. Bates has ordered Verizon to turn over to the RIAA the identity of a Verizon customer who allegedly used Verizon’s ISP service to infringe copyrights on recorded music. Verizon had argued that they should not be compelled to reveal this information.

More to come, once I have had a chance to read the opinion.

UPDATE (3:16 PM): The Court’s ruling depended on a detailed question about how to construe certain language in the DMCA. The DMCA created a special protocol whereby copyright owners could compel ISPs, via special subpoenas, to reveal the identity of ISP customers. The question was whether that special protocol applied to the facts of this case; the parties agreed that if it did apply then Verizon had to turn over the customer’s identity.

The Court ruled that the DMCA language did apply to these facts, so Verizon had to comply with the RIAA’s subpoena. The Court noted that Verizon had not raised any Constitutional issues, so the only issue before the Court was how to interpret the DMCA. The Court did say in passing, quoting the Supreme Court’s Eldred opinion, that it would be skeptical of any Constitutional challenges to the special subpoena protocol.

Chamberlain Group, a maker of garage door openers, has brought a DMCA suit against Skylink Technologies. Chamberlain makes garage door openers; Skylink makes remote controls that can interoperate with Chamberlain systems, i.e., if you have a Chamberlain opener, you can operate it with a Skylink remote.

Chamberlain’s complaint is short on details, but their summary judgment memo is more informative.

According to Chamberlain, its systems use a special security code designed to prevent burglars from recording the systems signals and playing them back later to trick the door into opening. Skylink’s openers can interoperate with openers that use this code, and Chamberlain claims that violates the DMCA. Chamberlain says that the security code system is a technological measure that effectively controls access to the software in its door-opening device, and that Skylink is circumventing that system.

This case differs from the Lexmark/Static Control case, because Chamberlain claims that Skylink, rather than using the full security code algorithm, uses some kind of alternative “resynchronization” protocol that opens up the customer to more risk. The technical details of this are redacted in the documents I have seen, so I can’t conclude anything more about this argument.

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.