Copyright Office Asked for Another DMCA Exemption

In the latest battle over the Digital Millennium Copyright Act, Static Control Components Inc. is asking the U.S. Copyright Office to provide an exemption that would allow it to incorporate another company's computer chip design. Since the DMCA's passage, a slew of suits have challenged the scope of the anti-circumvention provision that bans individuals from circumventing technology intended to block the copying of protected works.

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In the latest battle over the Digital Millennium Copyright Act, a company is asking the U.S. Copyright Office to provide an exemption to the law that would allow it to incorporate another company’s computer chip design. Faced with a lawsuit claiming it violated the 1998 law, Static Control Components Inc. has asked the U.S. Copyright Office to exempt computer programs that are embedded in computer printers and toner cartridges — and control their interoperation and functions — from the anti-circumvention provision of the DMCA. The Copyright Office is mulling over numerous proposed exemptions to the provision, which prohibits individuals from circumventing technology intended to block the copying of copyrighted works. Since its passage, a slew of suits have challenged the scope of the provision, with some companies contending that the legislation is being used to block competition rather than protect copyrighted material. That’s what Static Control argued when the Sanford, N.C.-based company was hit with a lawsuit by Lexmark International Inc. in December. Lexmark claims in U.S. District for the Eastern District of Kentucky that Static Control infringed its copyright and violated the DMCA by copying a Lexmark semiconductor chip, which allows Lexmark toner cartridges to work only in certain printers and prevents cartridge reuse. In its petition to the Copyright Office, Static Control contends that Lexmark should not be able to use the DMCA to monopolize the used toner-cartridge market. The activity targeted by the legislation “is circumvention for the purpose of obtaining a copy of a copyrighted work having an independent market and economic value,” the company wrote. “The Lexmark technological measure, by contrast, does not protect an analogous type of separately marketed copyrighted work. The toner cartridge routine has no market independent of the hardware in which it is embedded, and its functions are inseparable from that of the hardware.” As required under the DMCA, the librarian of Congress must advise Congress as to what, if any, works should be exempt from the anti-circumvention provision. The Copyright Office took comments through December and last month agreed to consider Static Control’s petition, which was submitted after the comment period closed. Copyright office senior attorney Robert Kasunic said the office would make its recommendations to the librarian of Congress, who will issue his decision by Oct. 28. The librarian previously considered the issue three years ago. It’s unclear whether the Lexmark litigation will be affected if the librarian decides to exempt computer programs such as those included in the Lexmark toner cartridge. “We’re not able to comment specifically on the litigation,” said Roger Rydell, Lexmark’s vice president of corporate communications. “A judge has already ruled on many of the comments.” On Thursday, Lexmark announced that Kentucky federal Judge Karl Forester issued a preliminary injunction against Static Control. Forester ordered the company to cease making and selling its infringing microchip used in the remanufacture of laser-toner cartridges. In addition to Static Control’s request, the Copyright Office received comments from 50 organizations and individuals as to the types of works that should be exempted from the DMCA’s anti-circumvention provision. The San Francisco-based Electronic Frontier Foundation seeks exemption for sound recordings released on CDs that are protected by measures that malfunction to prevent access on certain playback devices. Among other things, the group also seeks exemption for audiovisual works released on DVDs that contain measures that interfere with the ability to control private performance, including the ability to skip promotional materials. Objecting to copyright holders’ efforts to bundle copyrighted works with other products, the Computer & Communications Industry Association seeks an exemption for sound recordings and audiovisual works that can only be accessed with the use of a computer operating system, media player, codec or digital rights management system.

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