The largest manufacturer of aftermarket systems and components and the US association have asked for a modification of a law affecting remanufacturers.
The US Copyright Office’s headquarters
The I-ITC (International Imaging Technology Council) announced both it and Static Control have “filed comments with the US Copyright Office” regarding the Digital Millenium Copyright Act (DMCA), the law used by Lexmark in legal battles with Static Control from “more than 16 years ago”. Joint comments “addressed the incorrect use of the DMCA to lock out competition”, suggested “the adoption of a permanent exception for repair and reconditioning”, and were responses “to questions and issues posed” by the office last month.
The comments noted that “for more than 150 years, the right of businesses and consumers to repair equipment has been a central tenet of patent law”, but since the DMCA came in “the imaging products repair industry has been shrouded in a ‘cloud of uncertainty [that] discourages perfectly reasonable and legal activity’. Companies that repair products controlled by functional software, such as printers and printer cartridges […] have battled [OEMs] to re-establish their right of repair under the laws of patent exhaustion, copyright exhaustion, and DMCA Section 1201”.
While Static Control won against Lexmark over the DMCA in 2003, the law “remains a threat to all remanufacturers”, and Skip London, Vice President and General Counsel for Static Control, added that “If the DMCA law remains as-is, someday it could come back to haunt the aftermarket. The DMCA was never intended to prevent interoperability between toner printer cartridges and printers. The DMCA should be clarified by granting the exemptions we propose”.
The comments added that Static Control “was the first in the imaging industry to face litigation under the DMCA, and successfully defended against one of the most notorious attempts to use Section 1201 against aftermarket competition”. Despite its win, OEMs “continue to apply technological measures designed to shut out aftermarket competition”, which needs to ”be able to repair products and ensure that they interoperate with other devices, without fear of being hauled into court”.
Companies “should not be able to use the DMCA to restrict interoperability or competition, as they are necessary and lawful components for advancement and innovation of intellectual property”, both requesting the Copyright Office “adopt a permanent exemption for circumvention for the purpose of repair, and advocate legislative action to protect lawful repair against these types of claims”.
Both also provided new text for the exemption, which can be viewed at the link above, adding that “the cost of not allowing these exemptions could run in the billions per year, as all manufacturers could monopolise their consumables and repair parts businesses. The very concept of a free American market and the rights granted to a purchaser would be destroyed. The right of ownership and the right to repair and rebuild products hang in the balance of whether or not these exemptions are granted”.
Seth Greenstein, Attorney for Static Control, commented: “Congress intended the DMCA to protect internet e-commerce and distribution of new digital media, such as movies, music, and applications. It was never meant to prevent businesses from repairing consumer products. Failing to grant the exemption to the DMCA as described by I-ITC and SCC would directly affect over 500,000 people employed in remanufacturing. Including their customers, the total number of people affected would easily bring that number to many millions.”
Tricia Judge, Executive Director of the I-ITC, commented: “Laws such as the DMCA, the Trans Pacific Partnership and many others must be constantly monitored to assure that they don’t inadvertently give the OEMs back intellectual property protection that the courts have justly taken away. That’s why the I-ITC exists, and why we work with industry-driven companies like SCC to keep the laws consistent and our industry free to compete.”
“Simple code in a computer chip that prevents competition should not be sanctioned as acceptable antitrust behaviour and it is by no means intellectual property that merits protection under copyright law. Lexmark’s use of the DMCA was inappropriate and had no relationship to the intent of the DMCA. Other OEMs could follow suit if we don’t secure that exemption.”