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U.S. Supreme Court Refuses to Hear Lexmark Case

Zonk posted more than 9 years ago | from the tough-break dept.

The Courts 220

wallykeyster writes " The U.S. Supreme Court has rejected Lexmark's petition for certiorari in its long and bitter battle against North Carolina-based Static Control Components (SCC). For those out of the loop on this one, Lexmark tried to lock in consumers and lock out competition by adding code to their printers and toner cartridges so that only Lexmark toners would work. SSC defeated their monopolist technology and began selling the off-brand chips to aftermarket toner cartridge makers. As discussed here earlier, in mid-February Lexmark was dealt a defeat by the United States Court of Appeals for the Sixth Circuit, who denied Lexmark's request for a rehearing. Other related threads here, here, here, here, and here." The story is on the AP Newswire as well.

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220 comments

Lexmark is no Nintendo (5, Insightful)

AKAImBatman (238306) | more than 9 years ago | (#12746795)

It sounds like Lexmark thought they could pull a Nintendo [answers.com] with their authorization chip. Only, there happens to be a few things wrong with their approach:

  • Nintendo had a patent on their authentication chip. This afforded them significantly more protection than the DMCA clauses that Lexmark is attempting to use.
  • Nintendo licensed the chip to third parties, thus negating a need for reverse engineering. Lexmark is attempting to erect an artificial barrier against competitors, which a court is unlikely to find very sporting. (That's why you *always* look to be in a market with a set of *natural* barriers. Then no one can claim that you're being anti-competitive.)
  • The DMCA does not completely rule out reverse engineering. [harvard.edu] It just reigns it in to a razor thin line. The specific clauses actually work against Lexmark due to the issue that no other method has been made available for interoperability.


The specific clause from the DMCA is thus:
(f) Reverse Engineering. -

* (1) Notwithstanding the provisions of subsection (a)(1)(A), a person who has lawfully obtained the right to use a copy of a computer program may circumvent a technological measure that effectively controls access to a particular portion of that program for the sole purpose of identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs, and that have not previously been readily available to the person engaging in the circumvention, to the extent any such acts of identification and analysis do not constitute infringement under this title.
* (2) Notwithstanding the provisions of subsections (a)(2) and (b), a person may develop and employ technological means to circumvent a technological measure, or to circumvent protection afforded by a technological measure, in order to enable the identification and analysis under paragraph (1), or for the purpose of enabling interoperability of an independently created computer program with other programs, if such means are necessary to achieve such interoperability, to the extent that doing so does not constitute infringement under this title.

* (3) The information acquired through the acts permitted under paragraph (1), and the means permitted under paragraph (2), may be made available to others if the person referred to in paragraph (1) or (2), as the case may be, provides such information or means solely for the purpose of enabling interoperability of an independently created computer program with other programs, and to the extent that doing so does not constitute infringement under this title or violate applicable law other than this section.

* (4) For purposes of this subsection, the term ''interoperability'' means the ability of computer programs to exchange information, and of such programs mutually to use the information which has been exchanged.


I'm not a lawyer (duh), but my reading of this says that the case of Compaq reverse engineering the PC BIOS would have also been legal, as long as they didn't publish their findings. (Which I believe that they did.)

It's important to understand that Congress intended the DMCA to protect digital anti-theft devices, not stop users from using their own software. The issue at hand is that the law was written before the full implications of computer technology and copyrights were fully understood. The bright side is that the actions of the MPAA, RIAA, and Adobe have gone quite a ways toward demonstrating how the market planned to abuse the law. While I doubt that we'll see the DMCA repealed, I seriously doubt we'll be seeing any new restrictions any time soon.

Re:Lexmark is no Nintendo (0)

Anonymous Coward | more than 9 years ago | (#12746877)

Reverse engineering is totally legal in the EU and NZ and other countries. To prevent monopolistic tactics and promote interop and openness.

Re:Lexmark is no Nintendo (1, Insightful)

Anonymous Coward | more than 9 years ago | (#12746904)

It's important to understand that Congress intended the DMCA to protect digital anti-theft devices

Nonsense, they intended to trouser large sums of cash; the consequences for the public was never their concern.

Re:Lexmark is no Nintendo (5, Insightful)

AKAImBatman (238306) | more than 9 years ago | (#12747433)

Nonsense, they intended to trouser large sums of cash; the consequences for the public was never their concern.

Have you ever watched a game show where you look at the contestants and yell, "I could do WAY better! This guy's an idiot! Where do they find these people!" I'm willing to bet, however, that you yourself wouldn't do much better if you were in their place. You have the benefit of your comfortable living room, no pressure, and nothing at stake. But put you up on stage and you may have the same difficulties that you found so offensive in the contestant.

It's the same with Congress-critters. Believe it or not, many of them really are trying to do the right thing. That doesn't mean that they don't occasionally abuse their position (*cough*Post Stamps Scandal*cough*), but it does mean that they're not as inherently evil as everyone makes them out to be. They're just people trying to make the best decision they can on the limited information they have. That's why it can help a lot if you write your congress-person. An overwhelming degree of well thought out, public opinion can sway the opinion of a representative. Similarly, regular letters about a topic can sway opinion if a relevant bill hits the floor. These letters can also provide your representatives with insight that can be very helpful during debates.

So, instead of complaining like a backseat driver, write your congress-critter and help them to understand your opinions.

Re:Lexmark is no Nintendo (0)

Anonymous Coward | more than 9 years ago | (#12747829)

Have you ever watched a game show where you look at the contestants and yell, "I could do WAY better! This guy's an idiot! Where do they find these people!" I'm willing to bet, however, that you yourself wouldn't do much better if you were in their place. You have the benefit of your comfortable living room, no pressure, and nothing at stake. But put you up on stage and you may have the same difficulties that you found so offensive in the contestant.

Being "up on stage" won't make me forget basic facts and logic.

Re:Lexmark is no Nintendo (4, Interesting)

Anonymous Coward | more than 9 years ago | (#12746932)

The scope of the DMCA appears to have been substantially narrowed by a case decided by the Federal Circuit. I'm not a lawyer (2 more months to go), but I think the Chamberlain Group case is a more important decision in terms of DMCA law, than Lexmark. Though the concurrence by Judge Merritt in the 6th Circuit decision in Lexmark goes much farther than the majority opinion did.

The Chamberlain Group, Inc. v. Skylink Technologies, Inc., 381 F.3d 1178 (Fed. Cir. 2004). at Findlaw: http://caselaw.lp.findlaw.com/scripts/getcase.pl?c ourt=fed&navby=case&no=041118 [findlaw.com]

Lexmark Int'l, Inc. v. Static Control Components, Inc. at findlaw: http://caselaw.lp.findlaw.com/data2/circs/6th/0354 00p.pdf [findlaw.com]

Re:Lexmark is no Nintendo (2, Insightful)

nuggetboy (661501) | more than 9 years ago | (#12746942)

Perhaps I'm reading it wrong, but doesn't para 3 specifically allow the person who has acquired the information in paras 1 and 2 to publish those findings? From what you've pasted here, I see hardly any prohibitve language except the "as long as it does not constitute infringement" stuff.

Re:Lexmark is no Nintendo (1)

AKAImBatman (238306) | more than 9 years ago | (#12747003)

Again, I'm not a lawyer, but I believe that paragraph 3 is a very tricky restriction to meet. The information you provide to others may violate standard copyright law (e.g. The PC BIOS calls may have been considered a unique work unto themselves, thus a copyrightable thing.), or may violate other restrictions of the DMCA, especially as they relate to the details of the encryption device.

Re:Lexmark is no Nintendo (1)

megalomang (217790) | more than 9 years ago | (#12747461)

I am not sure the patent on the authentication chip had anything to do with it whatsoever.

Don't forget these other important facts:

* Nintendo is using their DRM technology to protect copyrighted software. Lexmark is using it to lock out competitors from using ink, which is not copyrightable.
* A gaming console is a mechanism for playing games. The value of a game is contained on the copyrighted media. The game console checks for violations prior to playing the game. A printer is not simply a mechanism for using ink. The value of the printer is not in the ink, and there is no reason for the printer to check for copyright violations prior to using ink.

Oh that's classic (1)

hubang (692671) | more than 9 years ago | (#12746807)

Let's hear it for the courts!

Not many times You'll ever be able to say that in your lifetimes.

Re:Oh that's classic (0)

Martin Blank (154261) | more than 9 years ago | (#12747048)

I say it quite often. Even in things like the medical marijuana case, I applauded the stance of Justices O'Connor, Rehnquist, and Thomas, who felt that allowing this to be upheld meant that Congress could justify anything under the Commerce Clause.

The courts are the one branch that I generally trust to do the Right Thing, though I am on occasion dismayed by their actions. Can't win all the time.

Yay! (1)

Benanov (583592) | more than 9 years ago | (#12746809)

Well, that's another tooth pulled from the DMCA. Unfortunately the process of judicial review is slow...

Re:Yay! (0, Informative)

Anonymous Coward | more than 9 years ago | (#12746935)

SYDGSG8S98TD9D6 S9GSDGDGFD

SG8DTD9297GSBISIDFIDSGFUDGFD

Re:Yay! (1)

Pakaran2 (138209) | more than 9 years ago | (#12747081)

Note that this does not say anything about the DMCA. The DMCA has not been struck down or restricted. The Court refused to hear an appeal, thereby letting a decision stand which prevented a specific company from collecting in a specific lawsuit about its toner cartridges.

The Court refuses the vast majority of petitions it gets. It may simply feel that it is too busy, and the case was likely decided correctly. This does not mean that any other parties can ignore the DMCA, and I hope the slashdot population realizes that.

It would be nice if the DMCA were struck down, but that did not happen here.

Re:Yay! (1)

MindStalker (22827) | more than 9 years ago | (#12747414)

Well it does create a standing the you cannot be successfully sued due to reverse engineering for interoperability to sell a competing product that does not break copyright.

Re:Yay! (1)

Pakaran2 (138209) | more than 9 years ago | (#12747518)

True. But the point is that the Court gave no information about exactly what grounds it refused cert on. It could be that the case looked correct, and they had a big backlog (they always do, and hear maybe 1% in general).

That said, this should give confidence to refurbished cartridge manufacturers, and maybe printer makers will have to move to a new business model (such as selling both printers and cartridges at a reasonable profit margin, or accepting cartridges for recycling themselves).

Re:Yay! (1)

eyegone (644831) | more than 9 years ago | (#12747786)


Well it does create a standing the you cannot be successfully sued due to reverse engineering for interoperability to sell a competing product that does not break copyright.

The word you're looking for is "precedent," and it only applies in that circuit.

Re:Yay! (0)

Anonymous Coward | more than 9 years ago | (#12747931)

The word you're looking for is "precedent," and it only applies in that circuit.

I am not a lawyer, but my understanding of the USA's common law is that precedents from other jurisdictions and circuits do have some weight, so long as there aren't conflicting native precedents. Although, less than one a native one would, of course.

Nay! (3, Informative)

BlueUnderwear (73957) | more than 9 years ago | (#12747099)

Well, that's another tooth pulled from the DMCA. Unfortunately the process of judicial review is slow...

But eventually it will reach its end. And then the DMCA is gone. That's because your (the US) constitution in on your side. Indeed, the US clearly states that authors and inventors should only be granted "exclusive rights" if that promotes the Progress of Science and useful Arts. That's a good thing.

Now imagine you had a constitution which would grant intellectual property owners unconditional protection. Imagine, that instead of saying ... to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. it just said intellectual property shall be protected period!

In that case, you'd be up shit creek without a paddle fighting the DMCA.

Now imagine you had a choice. Imagine you were asked to either accept such a flawed constitution or to reject it. Would you accept it?

Now, imagine that Bush threatened to resign if the constitution containing such a paragraph was rejected, saying in no uncertain terms that it would be a matter of common political decency to resign rather than be president of a country where intellectual property would not be protected 100%. Would you still reject the constitution? Or would you be cowed into accepting such a flawed document, for fear of losing your beloved president? Or would you rather rejoice at the prospect of having an easy way to ditch that village idiot ;-)?

In the next couple of months millions of EU citizens will be offered this choice. Millions of others won't be asked. If you are among the lucky ones that have a referendum, chose wisely. The EU constitution does indeed say, in article II.77.2, that intellectual property shall be protected. Nothing else. No limits to institutional greed. Some still think that it is in their best interest to say yes. Don't be fooled, and read the treaty before you sign it. The French and Dutch already have made up their mind.

Europe yes, but not with this constitution!

Lets hear it for the Supremes (0)

tomhudson (43916) | more than 9 years ago | (#12746817)

Lexmark: All your printers are belong to us!

The Supremes: p0wned!

For once, the men in dresses get it right! Too bad it takes so long for them to bitch-slap someone.

Re:Lets hear it for the Supremes (1)

_Sharp'r_ (649297) | more than 9 years ago | (#12746903)

Of course, if you read the summary above, it was a District Court of Appeals, not the Supremes.... but that's probably asking too much of the slashdot audience, and it's not like you were the only one to make that mistake.

Re:Lets hear it for the Supremes (3, Insightful)

dreamchaser (49529) | more than 9 years ago | (#12746946)

Of course, if you read the actual article and paid attention to the summary, it was the Supremes that denied the recent petition for a writ of centorari...but that's probably asking too much of someone who has nothing positive to add to the thread so instead decides to nitpick (and get it wrong to boot).

Re:Lets hear it for the Supremes (1)

_Sharp'r_ (649297) | more than 9 years ago | (#12746968)

Was just about to reply to myself.

The summary conflicts with the headline and the article.

The Court of appeals rejected the appeal and the Supremes just refused to hear the case at all, ending it.

Re:Lets hear it for the Supremes (1)

wallykeyster (818978) | more than 9 years ago | (#12747279)

As the submitter, I'm curious where you see conflict. I'm not above making mistakes, and I've certainly had the editors mangle my submissions, but I don't see anything wrong with this one.

Re:Lets hear it for the Supremes (2, Informative)

dcsmith (137996) | more than 9 years ago | (#12746972)

Of course, if you read the summary above, it was a District Court of Appeals, not the Supremes....

Yeah, I'd agree with you if it weren't for that inconvenient first sentence in the actual news article...

"The United States Supreme Court has rejected Lexmark's petition for certiorari, upholding Static Control's position against the Digital Millennium Copyright Act (DMCA) and copyright issues raised by Lexmark in connection with Static Control's sale of Lexmark compatible chips.

Re:Lets hear it for the Supremes (1)

tomhudson (43916) | more than 9 years ago | (#12747073)

When SCOTUS refuses to hear a case, that's the end of it. Their decision to not hear the case is a legal decision.

So, no arguing in other courts that there is an appeal to SCOTUS pending ...

Most of us here "get it". We've been following SCO vs IBM, and snacking on GrokLaw for a few years now, if we didn't have a legal background before.

Disposable printers - the solution? (5, Funny)

guyfromindia (812078) | more than 9 years ago | (#12746819)

Perhaps someone could manufacture a disposable printer? Then, they dont have to worry about cartridges, etc.. In fact, I find it cheaper to buy a new printer than mess with cartriges (i.e. if I use the Manufacturer's cartridge - not after marktet fillers, etc).. Just a thought...

Re:Disposable printers - the solution? (2, Informative)

defkkon (712076) | more than 9 years ago | (#12746874)

Buy Canon. I love their printers. In reviews, they typically fair better than most and are consitantly high performers.

Combine that with the fact that their cartridges are cheap. My S540 is an awesome printer for normal documents as well as borderless picture printing. The black ink cartridge is a mere $10. Can't beat it.

Re:Disposable printers - the solution? (2, Interesting)

Satan Dumpling (656239) | more than 9 years ago | (#12747018)

I agree, I love my Canon F60.
http://consumer.usa.canon.com/ir/controller?act=Mo delDetailAct&fcategoryid=124&modelid=7174 [canon.com]
Lexmarks clog if you look at them funny. My Canon don't. Four separarate cartridges with no electronics in the cartridges, so cheap to replace.

Re:Disposable printers - the solution? (1)

compro01 (777531) | more than 9 years ago | (#12747214)

i love my i320. cheap printer ($79.99 with the $20 instant rebate) but it does a nice job of text (my normal use for it) and doesn't a pretty good job on photos (no one i'm shows one to can tell the differance between the copy and the original photo without looking at the back)

ink is $34 for both cartrages. much better than the lexmark piece that came with my old computer. fourty-five fracking dollars per cartrage. $90 for colour and black. robbery!

Re:Disposable printers - the solution? (1)

bhtooefr (649901) | more than 9 years ago | (#12747514)

That's not too bad for an inkjet...

I have a friend who really does treat inkjets like disposable printers. Whenever she runs out of ink, she simply goes to WalMart and buys a $30 Lexmark...

I tried telling her to go to Canon for inkjets, or get a laser, but that didn't work...

Myself, I've got a Minolta-QMS PagePro 1250W (B&W laser) and a Konica Minolta (build quality is better than the Minolta-QMS unit (same model) that it replaced after two days, but firmware quality is a LOT worse) magicolor 2300DL (color laser).

Re:Disposable printers - the solution? (4, Insightful)

goldspider (445116) | more than 9 years ago | (#12746933)

More trash, that's just what we need!

Re:Disposable printers - the solution? (0)

Anonymous Coward | more than 9 years ago | (#12746960)

Not necessarily. There'll probably be a number of thriving third-party services that will buy back disused printers for refurbishing.

Admittedly, it's not a perfect solution, but what are the chances that they'll go back and start producing high quality printers that don't break?

Re:Disposable printers - the solution? (1)

NerdConspiracy (858939) | more than 9 years ago | (#12746943)

If buying a new printer is indeed cheaper than buying cartriges, then you can turn any printer disposable by a very simple act of magic: toss it into the trash can after the ink runs out.

Re:Disposable printers - the solution? (0)

Junta (36770) | more than 9 years ago | (#12747021)

There is a reason why it appears that way, they ship with an ink cartridge that is far from full.

Re:Disposable printers - the solution? (0)

JPriest (547211) | more than 9 years ago | (#12747080)

Some day some company is going to come out with a $300 printer that uses $5 ink cartrages and take over the market.

Re:Disposable printers - the solution? (1)

KrancHammer (416371) | more than 9 years ago | (#12747129)

I was going to comment that this will probably make the price of Lexmark (and other brands as well) printers rise... but I don't know about you, I would very much rather pay more for the hardware (infrequent purchase) and much more less for the consumables (frequent purchase. This ruling, IMO, is a step in the right direction.

Re:Disposable printers - the solution? (1)

BlueUnderwear (73957) | more than 9 years ago | (#12747124)

In fact, I find it cheaper to buy a new printer than mess with cartriges

That's why nowadays, the cartridges that are in new printers are only one third full...

Re:Disposable printers - the solution? (2, Insightful)

Greyfox (87712) | more than 9 years ago | (#12747311)

If I were in the market for a printer I'd go the laser route. Toner's dry so it doesn't dry up and clog if you print something every 3 years like I do. I seem to recall that lasers are a lot less expensive per page to print than inkjets are, too, though I forget where I heard that. Last time I checked (About a year ago) you could get a PostScript level 3 laser printer starting around $500. PostScript is an easy set-up with Linux, is a nifty language and you don't have to worry about your printer manufacturer not supplying a driver for the next version of Windows if that's your OS of choice.

Re:Disposable printers - the solution? (1)

tritonic (801760) | more than 9 years ago | (#12747703)

I'm going to go out on a limb here and say I actually like the overpriced cartridges printer manufacturers try to flog you. Why?

1. I can buy a very cheap injet printer, subsidised by the manufacturer.

2. I can then buy extremely cheap third party cartridges.

The thing about overpriced original cartridges is they really open up the market for competitors to produce cheap compatibles (if they can get around the lock-in code, of course). Do you really think Epson compatibles would be as ridiculously cheap as they are now if Epson had charged a sane price for their cartridges in the first place?

Sounds legal.... (1)

timtwobuck (833954) | more than 9 years ago | (#12746835)

I don't see a reason this won't be uphelp, it doesn't seem reasonable that a company can say "you have to use my product x with my product y or use neither at all" and then try to quash a fair-market solution...

Granted, Apple says you have to use OSX on genuine or certified fake (wtf is that??) but if a solution comes up like PearPC does that mean that its against what Lexmark is fighting, or just violating the EULA?

Re:Sounds legal.... (1)

m85476585 (884822) | more than 9 years ago | (#12746893)

Just tell buyers if voids the warranty to not use their ink.

Re:Sounds legal.... (1)

AKAImBatman (238306) | more than 9 years ago | (#12746944)

Granted, Apple says you have to use OSX on genuine or certified fake (wtf is that??) but if a solution comes up like PearPC does that mean that its against what Lexmark is fighting, or just violating the EULA?

You have to be careful here, because the law is full of interesting nuances. For example, when you purchase an ink cartrige you are purchasing the entire product, lot, stock, and barrel. No one can tell you what to do with it as long as you did not sign a contract and are not using it to break the law. This means that Lexmark cannot successfully sue you if you find a way to use the ink in a competitor's printer. Nor can they sue you if you want to take it apart and see what makes it tick.

Software, OTOH, is never sold in its entirety. The law recognizes that it is not a physical thing that can be taken away, and that copies can be made with impunity. As a result, all software is licensed. (Slight oversimplification, but hang with me here.) The basic terms amount to those provided by copyright law. But a software provider may optionally request that you sign/accept a license that places further restrictions on your ability to use the software. As long as those terms are not considered unilateral (i.e. only in the favor of one party) and that the user is considered to have agreed to the terms, the license is legal. This is the mechanism that allows Apple to prevent someone from running OS X on hardware other than Apple-sanctioned Macs.

Re:Sounds legal.... (1, Informative)

ifwm (687373) | more than 9 years ago | (#12747111)

"lot, stock, and barrel"

LOCK, stock and barrel. Used to refer to guns, as they were often sold piecemeal.

Now you know.

Re:Sounds legal.... (1)

Frank T. Lofaro Jr. (142215) | more than 9 years ago | (#12747133)

How are EULAs not unilateral?

They don't grant me anything that copyright law does not.

Copyright law allows me to install and run the program, so I can fail to agree to the EULA and still have that right. Making the program run without clicking the button could mean you never agreed and the contract is unilateral anyway. A contract can't give you something you already have and use that to say it is not unilateral. "Consideration" (the legal term for what a party gets) must be something given to you that you didn't already have. I can't write a contract which requires you to pay me $50, gives you the right to live, and say you agreed by walking on the sidewalk in front of my house. EULAs try to do something equally ridiculous.

Unfortunately, some courts are ignoring the law.

Now the GPL, does give one extra rights not allowed by copyright. One need not agree to it to run GPL software (sane open source people will agree - some zealots will dispute this statement), but then one can't distribute or do anything not otherwise allowed by copyright law and fair use.

Re:Sounds legal.... (1)

AKAImBatman (238306) | more than 9 years ago | (#12747298)

How are EULAs not unilateral?

They don't grant me anything that copyright law does not.


Yes, they do. They grant you the right to use the software. Copyright law allows a copyright holder to determine the circumstances under which he will distribute his work. Simply adding terms such as, "I won't let you use this software unless you promise not to reverse engineer it and promise not to sue me," is not considered unilateral conditons. After all, the copyright holder doesn't have to distribute his work to you at all.

That being said, many court procedings are finding many common EULA terms to be unenforcable. For example, the bit of the contract that states that you will pay all legal costs in any court proceding is unlikey to be upheld by a judge if it's the copyright holder who's found to be in error.

Unfortunately, some courts are ignoring the law.

Nonsense. You just don't understand the law. Yes, sometimes courts make a bad decision. But that's why there are appeals courts and higher courts. Checks and balances. It may take a while, but most bad decisions are usually overturned.

For things that you personally consider bad decisions (but in all actuality are the law), may I suggest that you look to your nearest congress-critter for blame?

Re:Sounds legal.... (1, Informative)

Anonymous Coward | more than 9 years ago | (#12747526)

They grant you the right to use the software.

They already granted you that right at the cash register. If they had other arrangements in mind, they should have presented their contract up front. No license is necessary to use a piece of software once you own the physical medium it is contained on. If it were, then how could you legally run setup.exe (which is also copyrighted) and read the EULA in the first place? What about your motherboard's BIOS or the embedded software in your microwave or any number of other programs that you use without agreeing to anything special?

Re:Sounds legal.... (1)

Random832 (694525) | more than 9 years ago | (#12747545)

They don't grant me anything that copyright law does not.

Yes, they do. They grant you the right to use the software.


Last I checked, 17USC117(a)(1) was still in effect.

Re:Sounds legal.... (1)

Frank T. Lofaro Jr. (142215) | more than 9 years ago | (#12747828)

One has a right to do something by default, a law needs to take that away (or allow a contract to take it away - if you AGREED to it).

You have the right to USE software by default. Copyright can take it away due to the RAM copy being made - but not only is thier fair use - there is an explicit provision in the law allowing copying which is an essential part of USING the software.

Copyright law contains an explicit exemption to prevent it from restricting USE or any steps necessary for such use, including copying.

Anything not prohibited is permitted is the way the US law is structured. I don't need a law saying I am allowed to do something for it to be legal.

There is no contract or law granting you the right to reply to my comment - but you what you did is legal - by default. I couldn't sue you and win even if I wanted to (let's say I had a no-reply license on my post). The First Amendment just affirms rights we already have - and (in theory) prevents any laws from being passed or enforced which would infringe that right.

Re:Sounds legal.... (1)

AKAImBatman (238306) | more than 9 years ago | (#12747996)

What are you people blathering on about? I really, really don't understand why you've jumped into the "make a copy in RAM" argument when it was never even once addressed in my post. All I addressed was that copyright law allows a copyright holder to control the distribution of his works. That means that he has the right to not give it to you if you do not wish to agree to his terms.

Re:Sounds legal.... (1)

nagora (177841) | more than 9 years ago | (#12747700)

As long as those terms are not considered unilateral (i.e. only in the favor of one party)

Putting aside any issues I might have with the rest of your post (and much of that is down to the variations in laws between countries), can you name an instance of an EULA which is not wholy in favour of one party? The Apple example you cite is a classic case of one-sided restrictions.

TWW

Supreme Court rejects Lexmark petition? (0, Flamebait)

LegendOfLink (574790) | more than 9 years ago | (#12746839)

Wow. Go Supreme Court!

Make a printer with a large cartidge (2, Interesting)

dextroz (808012) | more than 9 years ago | (#12746865)

It seems to me that everytime you buy 4 printer cartridges, you've already paid the price for a new printer (inkjets). So why not just build a printer with a really large cartridge size and then expect people to throw the entire printer away. Make the cartidge non-removable of course... but then again I am not in the printer business and last I heard HP is still chugging along...

Re:Make a printer with a large cartidge (1)

m85476585 (884822) | more than 9 years ago | (#12746923)

Then consumers would always have the latest model. No more 5 year old printers printing at 1 ppm.

Re:Make a printer with a large cartidge (4, Insightful)

tlhIngan (30335) | more than 9 years ago | (#12747013)

Because that would ruin the Gilette business model. Printer manufacturers are subsidizing the cost of the printer with the cost of the ink (more expensive than Dom). That's why they deliberately package half-tanks in with the printers.

Inkjet printing is a subscription business. You pay a small amount upfront ("printer cost", though if you get it on special, usually nil). Periodically, you "renew" your subscription by buying ink. Refilling used to be a problem, but with chips like these, well, it's not a simple 5-minute job anyone can do with a syringe anymore.

Same goes with most consoles and games. Razors and blades. Cable TV boxes. Cell phones. etc.

That doesn't mean there aren't options. Besides 3rd parties, there are companies that make modified ink tanks that draw their ink from external reservoirs (with half-liters of ink). Slightly big and unwieldy, but works for those poster-prints printer manufacturers always want you to do. (Do those ink cartridges contain enough ink to do a regular poster print without running out halfway through?).

SCOTUS Pulls Head Out of Ass to Make Ruling (0)

Anonymous Coward | more than 9 years ago | (#12746870)

Well, so it wasn't actually a ruling. But still, they had to have their heads out of their asses for at least a few seconds to dismiss this claim. After how far up they were for yesterday's state's rights fiasco, that is an impressive feat!

Certiorari? (1, Offtopic)

leathered (780018) | more than 9 years ago | (#12746896)


Surely there is a better time for them to be ordering Italian pasta dishes?

Seriously, IANAL and I have no idea what this means.

Re:Certiorari? (3, Informative)

Anonymous Coward | more than 9 years ago | (#12746965)

Certiorari: A writ from a higher court to a lower one requesting a transcript of the proceedings of a case for review.

Re:Certiorari? (1)

Orgazmus (761208) | more than 9 years ago | (#12747012)

Some things you know, for everything else there is google [google.com]

Re:Certiorari? (1)

whimdot (591032) | more than 9 years ago | (#12747778)

Well, I thought it was funny. Sorry no points today.

please understand SCOTUS better (5, Informative)

supernova87a (532540) | more than 9 years ago | (#12746941)

The Supreme Court gets probably 100x more petitions per year than it could ever choose to hear. So being denied a hearing by the Supreme Court is not in itself particularly revealing about the merit of any one case.

However, you can be sure that when the court does take a case, that it involves all of the following: 1) a fundamental question of law, 2) that is being inconsistently decided by lower courts, and 3) that is ripe for adjudication by the Court (based on sufficient instances of the problem to guide them).

So, this particular case could have failed for any number of reasons. It probably does not involve any spectacular question of law -- the lower courts are well-equipped to decide the issue. So it is not so much a stinging defeat for this company, as it is a final forclosure of legal options in a matter that was already practically resolved.

Any lawyer who tells you that "we'll take this all the way to the Supreme Court" and expects to even get it heard, is full of it.

Re:please understand SCOTUS better (4, Informative)

tweek (18111) | more than 9 years ago | (#12747037)

I would suggest that everyone pick up a copy of Sandra Day O'Connor's book "The Majesty of the Law" as well as William H. Rehnquist's "The Supreme Court". These are some really amazing insights into the opertation of SCOTUS.

The W.H.R. book especially covers the process and how cases actually get before the court. He also covers some of the background of the cases he was involved in. Amazingly enough both books are fairly non-partisan and Rehnquist makes the point that many a president has made the mistake of thinking an appointee would be a backdoor into the Supreme Court when it has rarely turned out that way. He discusses court packing attempts as well which seems pretty relevant.

OT: Rehnquist and O'Connor (3, Insightful)

sconeu (64226) | more than 9 years ago | (#12747873)

The recent medical marijuana decision was interesting because of the dissenters.

O'Connor, Rehnquist and Thomas dissented on the ground of States Rights.

The others, including Scalia(!) ruled that medical marijuana (grown for one's self, in one's home, not taken out of state) can be regulated under the Interstate Commerce Clause.

Just thought it was an interesting side note, given the parent post.

Re:OT: Rehnquist and O'Connor (3, Insightful)

tweek (18111) | more than 9 years ago | (#12748024)

One of the interesting points that each book I mentioned makes is that appointees almost never tow the presidential party line.

They cite a few reasons:

1) Rule of Law and the Constitution defies party lines. Or at least it should. It's the difference between a democracy and a republic. In a democracy, majority rules but in a republic, the law rules. I'm sure there are plenty of judges out there who don't and won't ever get this difference and will use SCOTUS as an attempt to make laws but they soon learn that it won't fly with SCOTUS. I get worried when I hear the Supreme Court mentioning public opinion as a basis for a ruling because it means that we inch closer to a doomed democracy.

2) SCOTUS justices are beholden to no man and they will long outlive the president who appointed them. W.H.R. cites several examples of this in his book and makes a grand point about it. He himself was appointed by Nixon and has long outlived that man's career.

Re:OT: Rehnquist and O'Connor (2, Insightful)

hawk (1151) | more than 9 years ago | (#12748025)

I wasn't surprised to see Thomas and Scalia split on this one.

Scalia's knee tends to jerk right on anything involving "police safety." That's a bit of a stretch here, but not a huge one.

I am surprised to see O'Connor in the dissent, though. Rehnquist isn't surprising, and Scalia was expected.

hawk, esq.

Re:please understand SCOTUS better (1)

fishbowl (7759) | more than 9 years ago | (#12747659)


"However, you can be sure that when the court does take a case, that it involves all of the following: 1) a fundamental question of law, 2) that is being inconsistently decided by lower courts, and 3) that is ripe for adjudication by the Court (based on sufficient instances of the problem to guide them)."

You left out (4) States are getting uppity and the Bush Administration wants to put them down.

Re:please understand SCOTUS better (0)

Anonymous Coward | more than 9 years ago | (#12748009)

Not that this always works. The second time Bush tried to get the Supreme Court to tell Florida's Court they were "wrong, try again", they just ignored him.

It's my printer, isn't it? (4, Insightful)

xiando (770382) | more than 9 years ago | (#12746988)

It's my printer, I want to use what ever ink I want.. With a chip that prevents me from using the type of products I want together with their products they make me feel like I am renting their printers under some very rude terms, not buying them with the rights that normally follow a purchase. It is almost as bad as a DVD player not wanting to play any kind of DVD you put into it.. oh wait, that IS the case with zone-enabled DVD players..

Re:It's my printer, isn't it? (0, Troll)

AutopsyReport (856852) | more than 9 years ago | (#12747453)

On the flip side, do you expect Ford parts to work in your Acura? No, because they won't. You are basically binded to the product you purchased (Ford) unless you sell it. But do you see anyone crying about Ford making their vehicles unsupportive of aftermarket and/or other company's parts? No.

I don't see how this is any different from Lexmark printers, and as such, I cannot find all this concern and uproar warranted.

Re:It's my printer, isn't it? (2, Interesting)

greed (112493) | more than 9 years ago | (#12747776)

But Fram oil filters work on your Ford and his Acura and my Honda. NGK spark plugs work on all of them. I'm able to hook up power to my Garmin GPSes and Cobra CB from the Honda 12V accessory circuit. I can use a ClearView, Rifle or Laminar windshield if I don't like the standard Honda one. I can put a Corbin or Russell seat on it, or a Givi top-box. I can put Mobil, Quaker State, Motul, or many other oils in the engine or final drive. I can put gasoline from any decent refinery into the fuel tank.

In fact, the only thing that is a bit odd is the headlamp bulbs are a little weird; but they are easily adaptable to standard H4 bulbs, so that's no big deal either--and Honda isn't trying to sue anyone for making H4 adapter rings or telling people how to modify the headlamp assembly or an H4 bulb to fit it.

And, finally, I do NOT expect all components from my older Honda (VF700C) to fit the new one (ST1100A); even wearables--I can't use the same brake pads, oil filter, fuel filter, water thermostat, fan thermostat, cylinder head gaskets, valve shims, and so on.

I also can't use ink tanks from my Epson Stylus Color 740 in my Stylus Photo R200.

But I can use the same paper....

Re:It's my printer, isn't it? (1)

Yavi (538405) | more than 9 years ago | (#12747859)

I see a slight flaw in your analogy. If Ford required you to only use Ford branded gasoline, then we would be dealing with the same issue. Nobody is up in arms about buying an additional paper tray or automatic duplexer from Lexmark, as those are integral parts of the device. However, a consumable such as ink or gasoline has no bearing on the proper functioning of the device, assuming it is formulated properly.

So, that's it, then (3, Funny)

RealProgrammer (723725) | more than 9 years ago | (#12746992)

This will start us down a dangerous, slippery slope: first SSC will start making cartridges for all Lexmark and other printers. Then people will start using those $9 refill kits instead of buying new cartridges that cost O(new printer).

The next generation of our youth will think nothing of using free software instead of paying for the commercial kind. People may even start bicycling or - brace yourself - walking to work. Civilization will come to a halt.

</irony>

Every once in a while, my faith in The System gets a little boost.

Re:So, that's it, then (2, Insightful)

xiando (770382) | more than 9 years ago | (#12747100)

"instead of buying new cartridges that cost O(new printer)." You make a very interesting point. The last time I bought a printer I almost bought two because I noticed that the printer cost less than the color and black cartridges it came with when sold separately. I almost feel stupid I didn't buy two printers, but then again I know that printers will still be cheaper than two ink cartridges the next time I go empty anyway. Why? They are all doing it. Canon, HP, Lexmark and all other major brands for that matter are selling printers cheaper than the ink now and are defendant on revenue from their original ink to make an overall profit. The problem for them is that this model fails because of all the third party ink vendors who are also making a profit from them giving away printers, but printer vendors not liking competition does not make it fair to use "what ever dirty means they can" (like Lexmark did) to stop it. It is very good that the Supreme court for once put the foot down for the usual Big Corporations "if you can not beat them, sue and threaten them"-tactic.

Re:So, that's it, then (1)

s.d. (33767) | more than 9 years ago | (#12747240)

i remember a few years ago seeing someone at best buy or circuit city (can't remember which offhand) buying 5 printers at the friday after thanksgiving sale. the printers, with black and color cartridges, were on sale for something like $20 or $30 each. i asked him why he wanted 5 printers, and he told me that it was just so much cheaper to pay $30 for a printer and 2 cartridges than $30 each for 1 cartridge. the printers were pretty much disposable/one-time-use.

Problem with that (1)

tacroy (813477) | more than 9 years ago | (#12747633)

Many new printers come with half filled ink carts. "To stop possible ink spillage that could damage the printer." Granted its just another money grab. But wanted to let you know before you blew a bunch o cash on new printers.

Wow! (-1)

Anonymous Coward | more than 9 years ago | (#12747000)

This is exactly why I voted for Bush to replace those evil, soon to retire judges!

whew (0)

Anonymous Coward | more than 9 years ago | (#12747002)

Thank god...though anyone who buys a Lexmark deserves what they get - a paper-eating pile of shit.

Refuse to hear? (-1)

Anonymous Coward | more than 9 years ago | (#12747010)

I think it is juvenille for all 9 Supreme Court justices to cover their ears and shout, "La la la, I don't hear you!" to Lexmark.

That said, good news from the Court.

Re:Refuse to hear? (1)

SatanicPuppy (611928) | more than 9 years ago | (#12747413)

Ahhh, you're thinking of it the wrong way.

When they refuse to hear it, what they're really doing is saying: "Biznotch you KNOW you ain't got no case, so don't be frontin here or we'll be throwing down a majority opinion that yo punk ass needs some compton air conditionin. Fo shizzle."

"Monpoly" (2, Insightful)

Anonymous Coward | more than 9 years ago | (#12747017)

There's nothing monopolistic about what Lexmark did. You people sure like to throw that term around though - it doesn't mean what you think it does.

Woo hoo. End the monopoly. (2, Interesting)

JustNiz (692889) | more than 9 years ago | (#12747065)

Lets just hope this signals the ultimate end of putting chips to artificially limit lifetime and comaptability in ink cartridges.

HP do the same thing just to enable ludicrous overpricing on their ink cartridges. I'd love to see HP get forced to charge fair prices because of now legalised fair competition.

No, the monopoly won't be ended. (1, Informative)

CyricZ (887944) | more than 9 years ago | (#12747406)

Did you even bother to read the article? The Supreme Court has refused to hear the case. Therefore no action will be taken against Lexmark. Therefore their monopoly on the cartridges for their own printers will not be ended.

Re:No, the monopoly won't be ended. (0)

Anonymous Coward | more than 9 years ago | (#12748017)

What are you thinking? Lexmark brought the suit against the SSC for reverse engineering, SSC can now go ahead and sell the chip they made to enable other cartridge makers' cartridges to work in Lexmark printers.

In other news... (0)

Anonymous Coward | more than 9 years ago | (#12747799)

Printer prices were marked up today 400%.

Obligatory Nelson Quote (-1, Offtopic)

Illserve (56215) | more than 9 years ago | (#12747071)

"Ha Ha"

*lameness add on........*

Lexmark, the Printer Industry & cartridge cont (5, Insightful)

eniac79 (767137) | more than 9 years ago | (#12747091)

What Lexmark is trying to do is protect their revenue stream. Replacement cartridges have always been the money-maker for printer manufacturers. IMO, Lexmark also makes inferior products, so their products themselves are unlikely to bite into HP's large marketshare.

Printer companies HATE aftermarket cartridges. Lexmark wants to kill that competition via lawsuits. HP does it a smarter (albeit similarly devious) way. Make your cartridges incompatible by constantly releasing new printer models with new cartridge interfaces. The latest HP inkjet models with the HP 94/95/96/97 cartriges are just the latest example of this tactic.

Re:Lexmark, the Printer Industry & cartridge c (1)

compro01 (777531) | more than 9 years ago | (#12747353)

Printer companies HATE aftermarket cartridges.

it ain't just printer makers. car makers hate aftermarket parts makers too. hell, just about any manufacturer hates aftermarket parts makers. it cuts into their bussiness.

Re:Lexmark, the Printer Industry & cartridge c (1)

Rich0 (548339) | more than 9 years ago | (#12747892)

HP does it a smarter (albeit similarly devious) way. Make your cartridges incompatible by constantly releasing new printer models with new cartridge interfaces.

All that does is delays the onset of generic competition. Unless they put serious levels of obfuscation into the cartridges (smartcards with challenge/response designed to resist reverse-engineering, for instance) it won't take long to duplicate any design. Sure, the generic company now has to support 100 models of cartridges instead of 10, but that works against HP as well. If HP has to raise their prices to support all those cartridges, then the generic companies can raise their prices to recover their costs and not lose market share. The only result of HPs decision would be more people buying from Epson since the entire cartridge market is cheaper (unless Epson does the same thing).

Unless they want to spend $40 per cartridge on smartcard technology, there are only so many limits manfuacturers can put on reverse-engineering. It is always cheaper to copy something than it is to design in the first place. Even smartcards can be defeated - they're made of matter and so they can be taken apart by somebody with sufficient determination...

Its really sad... (0, Redundant)

MrLint (519792) | more than 9 years ago | (#12747125)

I'm glad this is over. And I'm saddened and sickened by Lexmark trying to go to the SC to force user lock in.

There was not only no need for them to have implemented this in the first place, but there was no need to try and kick a dead horse as far as they did.

I expect in the long run this will benefit the consumer any, however its a step in the right direction. Hopefully a few more cases like this and we'll be able to reclaim our equipment from the robber barons that want to control our every action.

An organized boycott of Lexmark? (1)

CyricZ (887944) | more than 9 years ago | (#12747130)

Has anybody organized a boycott of Lexmark due to their use of these anti-competitive and anti-consumer policies?

Re:An organized boycott of Lexmark? (0)

Anonymous Coward | more than 9 years ago | (#12747838)

Has anybody organized a boycott of Lexmark due to their use of these anti-competitive and anti-consumer policies?

No, but many of us have been boycotting Lexmark for years, due to their crap quality printers.

D;ol]l (-1, Troll)

Anonymous Coward | more than 9 years ago | (#12747141)

So what? You have always had a choice. (1)

pandrijeczko (588093) | more than 9 years ago | (#12747151)

Yes, Lexmark are a bunch on scum-sucking bottom-feeders just like almost every other money-grabbing corporation out there.

But the fact is that any idiot that goes to his local PC store and buys a printer without doing some research first deserves all he/she gets, quite frankly.

In these days of the Internet, there is no excuse for getting ripped off as the number of sites out there reviewing hardware, software, movies, CDs, etc, etc, means that it's quite easy to get good information prior to making any purchase. So if you've bought a printer without researching the prices of cartridges and the quality/prices of third-party cartridges, that's your fault.

The fact is that photo-printing to any reasonable quality is *hugely expensive* on a home use printer & PC combination and it's still much cheaper to drop a CD into a shop or a memory card into a machine and get the photos printed that way. Even much cheaper third party cartridges suffer from quality issues - it really is a case of "you get what you pay for".

No, I'm not justifying Lexmark's price-rigging, I bought one of their printers once and never will again unless their prices for cartridges come down.

But ignorance is no excuse - if the majority of people are too stupid to see beyond the glossy adverts that they are constantly bombarded with, then more fool them.

S.Ct.--Lexmark, Upgrade! Federalism, Downgrade! (1, Troll)

ysaric (665140) | more than 9 years ago | (#12747375)

I'd be a lot happier with the S.Ct.'s refusal to hear the Lexmark case (for as meaningless a gesture as it is), if it hadn't just yesterday taken a crap all over the principles of federalism in their Gonzales vs. Raich decision.

I also believe that while they declined to hear Lexmark today, they will take a similar case sometime in the next decade, likely after multiple Appellate courts establish inconsistent positions on the subject.

Could Apply to Mod Chips (0)

Anonymous Coward | more than 9 years ago | (#12747423)

Wonder if this could apply to mod chips that do not permit circumvention of the copy protection. That is, ones that allow you to boot linux or games from other regions on the console. But still don't allow you to play without the disk.

fly my pretty-printer... (3, Funny)

inmate (804874) | more than 9 years ago | (#12747546)

i have just one thing to say,

NEVER BUY A LEXMARK!

in addition to being an inferior printer, they also don't fly very well. i threw mine out of our 3rd story window and was quite dissapointed by its aerodynamics.

It's Only Toner Folks. (1)

writerjosh (862522) | more than 9 years ago | (#12747611)

Who cares about Lexmark. If you don't want to use their monopolistic machines, buy another brand. It's called free market, deal with it. Plus, Lexmark machines aren't that great to begin with. There are better brands on the market.

I say, have the courts leave Lexmark alone. After all, it's only toner, folks.

FUCK LEXMARK AND THEIR 40 DOLLAR CARTRIDGES.... (0, Troll)

doctorjay (860762) | more than 9 years ago | (#12747721)

read the above

Why is this different? (2, Interesting)

JoelMC (877117) | more than 9 years ago | (#12748011)

Look at the posts yesterday about DVD Decrypter being shut-down...then compare that the supreme court not hearing this case on Lexmark's behalf. It seems that DVD Decrypter isn't even as bad as SSC, but they've been bullied literally to death. SSC found a way to "crack" Lexmark's trade secret, and then sold it off to Lexmark competitors. How can that not stand up, but "some company" can attack on the grounds of DRM violation?

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