FC: EFF's Cindy Cohn on Lexmark DMCA case: Decision expected soon

[Declan McCullagh <declan () well com>]

Here's an article I wrote on Thursday about the case:
http://news.com.com/2100-1023-983560.html

Previous Politech message:
http://www.politechbot.com/p-04300.html

---

Date: Fri, 07 Feb 2003 18:50:13 -0800
To: declan () well com
From: Cindy Cohn <Cindy () eff org>
Subject: Lexmark 1201 case update

Hi Declan,

I thought you might appreciate an update about the Lexmark v. Static 
Control 1201 case in Lexingon, KY federal court today.  You can put this on 
Politech if you'd like.

Seth Greenstein, the attorney for Static Control reports that they had a 
day-long hearing on the motion for preliminary injunction.  At the end, the 
Judge took it under submission and asked both sides to submit proposed 
rulings to him next week.  He extended the temporary injunction the parties 
agreed to earlier this month until February 28, 2003, to give himself time 
to come to a decision, but increased the bond that Lexmark had to post to 
$250,000 from $75,000.

This the case where Lexmark is attempting to use 1201 of the DMCA to stifle 
competition in the printer cartridge refill market. Essentially Lexmark is 
claiming that the DMCA prevents reverse engineering of its printer 
cartridge processes by those who wish to create competing cartridge refill 
products for Lexmark printers.  It, along with the recent case concerning 
the garage door opener, has set a new standard for ridiculous 1201 cases.

EFF submitted a declaration by our systems administrator in the case that 
illustrates Lexmark's attempt to lock purchasers into its cartridge 
refills.  EFF bought a new Lexmark printer late last month.  When we 
unpacked it, we found a piece of paper on top that claimed that the printer 
cartridge was subject to a "license/agreement."  The paper said that by 
using the cartridge we were agreeing to use it only once and return the 
cartridge to Lexmark when we were done with it for a refill. It said that 
if we didn't accept those terms, we could call a number and get a cartridge 
that wasn't subject to them.  We tried to call the number, but it was a 
nonworking number at Lexmark.  When our sysadmin finally got ahold of 
someone in the sales department she said she had no idea what he was 
talking about.  When we faxed the "license/agreement" to her, she said that 
it was not binding and we shouldn't worry about it.

But yet that same "license/agreement" is the basis for the claims against 
Static Controls.  Lexmark argues that the

I'm attaching a .pdf of the declaration.  We should have it up on the web 
shortly.

Does anybody seriously think that this was what Congress thought they were 
doing when they passed the DMCA?

Cindy




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Like Politech? Make a donation here: http://www.politechbot.com/donate/
Recent CNET News.com articles: http://news.search.com/search?q=declan
-------------------------------------------------------------------------