Earlier this week I noted that the Supreme Court would not be hearing the Lexmark v. Static Control case (Supreme Court Rejects Lexmark's DMCA Appeal). Lexmark had been hoping to the use the Digital Millennium Copyright Act's anti-circumvention provisions to prevent third-parties from refilling used toner cartridges. A similar case, Chamberlain v. Skylink, involving third-party garage door opener remotes has also been rejected by the courts (this one on quite flimsy grounds - Judge Asserts Pseudo Distinction to Preserve DMCA).
Where is the outrage from DMCA proponents?
Many of the arguments for supporting the DMCA seem exceedingly applicable to the world of Lexmark and Chamberlain. So why isn't there a big movement on their behalf?
For example, one often hears the argument that DRM allows different business models to flourish, such as those based on price discrimination (This Summer's Horror Flick: "It's from the Federal Government, and It's Coming to Help Us"):
Imagine three customers. A wants a CD for his home stereo. B wants an extra copy to play in his car as well. C wants both of those uses, plus another copy on his iPod. A logical structure that would benefit all would be three different prices, say, $12 for A, $14 for B, and $16 for C.
Under the theory of H.R. 107, [an anti-DMCA bill] this structure is not possible. All three customers must receive the same package of rights, and all must be charged the same price. This means the price will wind up somewhere in the middle, probably around $14. A is not allowed to say: "Hey, I only want one use; how about giving me a price break?" C is happy, of course, since he gets subsidized by A, which may show that the constituents for this bill are rich yuppies who can afford $500 iPods and like being subsidized by those who are less well off.
Of course, as a result, some As will be priced out of the market, so the cost of the CD will rise further, which will price some Bs out, and so on. Price will reach an equilibrium, but at the cost of significant loss of consumer benefit.
Okay. Let's assume
arguendo that this is a valid argument. Why isn't it valid for Lexmark as well? Wasn't this precisely what Lexmark was trying to achieve with its pricing structure for toner cartridge refills? Why isn't this argument valid for Chamberlain? Some people don't need to buy replacement garage door opener remotes. Without a DMCA that protects Chamberlain's business model, these people will have to pay more for their garage door openers.
How many business models are being squelched because the supporters of the DMCA don't seem to care about the Lexmarks and Chamberlains of the world?
Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School.
Ernest Miller's blog postings can also be found @
1. Rolo Timassie on June 10, 2005 01:14 AM writes...
It's because your opponents are all cynical hypocrites, of course. But if you don't buy that explanation, then it's because the 6th Circuit's Lexmark decision is easily distinguishable from the typical case the DMCA was intended to address. For one thing, the 6th Circuit held that one of the two underlying works at issue was not even copyrightable. Whatever your opinion of the 6th Circuit's analysis on that point, or of the quality of major motion pictures for that matter, that's not a holding that's likely to applied to your average DVD. Second, the court held that the protection scheme did not actually protect either of the copyrighted programs because they were not encrypted. Rather, there was an authentication routine that as a matter of ordinary practice controlled whether either program would execute properly. The court in effect held that a "gate" on usability, in the form of an authentication routine, does not "effectively control access to the work," where the work itself is in the clear behind the gate. Again, this holding may be subject to criticism, but it simply doesn't apply to the archetypal DMCA case. The core purpose of the DMCA remains intact.
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