Page Printed From:
Who Does the Digital Millennium Copyright Act Protect?
Does digital protection against would-be pirates apply only to intellectual property or to all products? What about circumventing an authentication protocol for toner cartridge software? What about a copyrighted computer program needed to open a garage door? Attorney Alan J. Hartnick examines
, two recent cases that address the application of the 1998 Digital Millennium Copyright Act to such products.
February 24, 2005 at 12:00 AM
1 minute read
By Alan J. Hartnick |
Updated on February 24, 2005
The original version of this story was published on Law.Com
The concurrence by Judge Gilbert S. Merritt provides a warning:
We should make clear that in the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case: by, for example, creating a Toner Loading Program that is more complex and ‘creative’ than the one here, or by cutting off other access to the Printer Engine Program. The crucial point is that the DMCA forbids anyone from trafficking in any technology that ‘is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [protected] work.’ 17 USC �1201(a)(2)(A). The key question is the ‘purpose’ of the circumvention technology. The microchip in SCC’s toner cartridges is intended not to reap any benefit from Toner Loading Program — SCC’s microchip is not designed to measure toner levels — but only for the purpose of making SCC’s competing toner cartridges work with printers manufactured by Lexmark.
By contrast, Lexmark would have us read this statute in such a way that any time a manufacturer intentionally circumvents any technological measure and accesses a protected work it necessarily violates the statute regardless of its ‘purpose.’ Such a reading would ignore the precise language — ‘for the purpose of’ — as well as the main point of the DMCA — to prohibit the pirating of copyright-protected works such as movies, music, and computer programs. If we were to adopt Lexmark’s reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes. Automobile manufacturers, for example, could control the entire market of replacement parts for their vehicles by including lock-out chips. Congress did not intend to allow the DMCA to be used offensively in this manner, but rather only sought to reach those who circumvented protective measures ‘for the purpose’ of pirating works protected by the copyright statute.
Judge Merritt concludes:
On remand the first question should be whether Lexmark can show the requisite ‘primary purpose’ to pirate a copyrighted work rather than to ensure that their own cartridges work with Lexmark’s printer. If not, its case against SCC should be dismissed.
Law Offices of Gary Martin Hays & Associates
75 Ponce De Leon Ave NE Ste 101Atlanta
Law Offices of Mark E. Salomone
2 Oliver St #608Boston
Smith & Hassler
1225 N Loop W #525Houston
Presented by BigVoodoo
More From ALM
With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
Dynamically explore and compare data on law firms, companies, individual lawyers, and industry trends.
Law.com Compass includes access to our exclusive industry reports, combining the unmatched expertise of our analyst team with ALM’s deep bench of proprietary information to provide insights that can’t be found anywhere else.
Law.com Compass delivers you the full scope of information, from the rankings of the Am Law 200 and NLJ 500 to intricate details and comparisons of firms’ financials, staffing, clients, news and events.
December 11, 2023 - December 12, 2023
Join the industry's top owners, investors, developers, brokers and financiers for the real estate healthcare event of the year!
January 29, 2024
New York, NY
Recognizing innovation in the legal technology sector for working on precedent-setting, game-changing projects and initiatives.
January 29, 2024 - February 01, 2024
New York, NY
Legalweek New York explores Business and Regulatory Trends, Technology and Talent drivers impacting law firms.
Shipman & Goodwin LLP is seeking two associates to expand our national commercial real estate lending practice. Candidates should have ...
Apply Now ›
Duane Morris LLP seeks a highly motivated junior associate to join its dynamic and growing Labor and Employment Class Action group in Chicag...
Apply Now ›
Duane Morris LLP has an immediate opening for a mid-level, highly motivated associate to join its dynamic and growing Employment, Labor, Ben...
Apply Now ›
New Jersey Law Journal
ShapiroCroland Attorneys at Law Take Pleasure in Announcing that VALERIE A. VLADYKA HAS JOINED THE FIRM AS COUNSEL Valerie concentrates her practice in Insurance coverage, Commercial Litigation and Probate Matters 411 Hackensack Avenue, Hackensack, New Jersey 07601 Telephone: (201) 488-3900 | Telecopier: (201) 488-9481 |www.shapiro-croland.com November 2023
View Announcement ›
Daily Business Review
Congratulations to our Partner Richard Segal on becoming Chairman of the Miami Beach Chamber of Commerce
View Announcement ›