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Now is the time to make your voice heard. The remanufacturing industry and our customers have the chance to support Static Control's petition to exempt computer programs that are embedded in printers from the 1998 Digital Millennium Copyright Act (DMCA). The Copyright Office Web site is currently accepting written comments at www.copyright.gov/1201/. See the suggestions below for tips on adding your remarks.
The DMCA could be critical to the ongoing lawsuit against Static Control Components and is the basis for part of Lexmark's case. "Static Control has argued that the Digital Millennium Copyright Act (DMCA) does not apply to the use of chips that allow the interoperability of a toner cartridge with a printer," Static representatives said in a statement. "Static Control has filed a petition with the copyright office expressing that view asking the Copyright Office to agree. Static Control has also, in that petition, requested the Copyright Office exempt replacement chips from the DMCA if the DMCA does in fact apply."
The DMCA specifically prohibits the "circumvention of technological measures that control access to copyrighted works." In the lawsuit, Lexmark alleges that Static circumvented the authentication sequence to access the T520/620 cartridge's "Toner Loading Program," thus allegedly violating the DMCA.
Static petitioned to have three areas (or "classes" of products) exempted from the DMCA. The first deals specifically with our industry's concerns, and the other two extend the same protection to similar classes of products that have embedded software. The main request is to exempt "Computer programs embedded in computer printers and toner cartridges and that control the interoperation and functions of the printer and toner cartridge."
The comment period ends March 10 at 5 p.m. EST. Following this, the comments will be posted on the Copyright Office Web site. This spring, Congress will review the materials and decide whether to exempt the proposed classes of products from the DMCA.
"If you agree with Static Control's position we (Static) urge(s) you to tell the Copyright Office that the DMCA does not apply to this type of application, and ask the Copyright Office to make that point," Static's statement said.
Charles Taylor of Static Control pointed out that this is also an excellent opportunity for remanufacturers to ask their customers to comment at the Copyright Office Web site. Taylor said that he hoped the industry would be able to take the message to the end users, so they can help preserve their right to choose remanufactured products by submitting comments. "This puts a face on the end user " for the Copyright Office, Taylor said.
Tips for Making Comments on the DMCA Petition
• Visit the Copyright Office Web site's "Reply Comment Form" at www.copyright.gov/1201/comment_forms/index.html before March 10 at 5 p.m. EST. Don't wait until the last moment, as the Copyright Office needs time to make sure your submission meets its guidelines. It is possible to submit comments by mail, but is strongly discouraged.
• You are required to give your name with the comment. When the comment period ends in March, your name and comments will be available to the public on the Copyright Office Web site. Please note that small print the bottom of the form points out that you do not need to give your address, telephone number or e-mail, even though the text at the top of the form says that the items "in bold" are required. If you submit that information on the form, your address, etc., will also be listed on the Web site.
• You will also need to type a short summary of your argument into the Web-based form.
• Your full comments must be in a separate file that you attach when you visit the Copyright Office Web site. The files must be saved in one of the allowed formats.
The easiest of these to use is probably the text (.txt) format. You can save a file in text format from any word processing program. Choose "Save As" and pull down on the file type to change it to "Text Only" (which gives it the .txt extension). Note that this format will not allow any bold, italics, etc.
To make the most of your opportunity to comment, make sure you focus on what the Copyright Office is looking for. This includes:
• Reasons why the DMCA has had "a substantial adverse effect on noninfringing uses of a particular class of works." Note that reverse engineering and allowing interoperability are both noninfringing uses in this case.
• "Actual instances of verifiable problems occurring in the marketplace are necessary ... a compelling case will be based on first-hand knowledge of such problems." So give any examples that you, as a remanufacturer, have had that are related to not being able to access a printer cartridge's embedded software.
• The Copyright Office "must also consider whether works protected by technological measures that control access are also available in the marketplace in formats that are unprotected." This is a good opportunity to point out the high percentage of cartridges (almost all cartridges for new printers) that have these embedded programs (on chips). In addition, Lexmark itself admitted that more than 90 percent of cartridges for the 520/620 are Prebate, and therefore protected by its authentication sequence. Thus, there are not many "unprotected" cartridges available in the marketplace.
• Also, the Copyright Office needs reasons why exempting embedded printer software "is likely to benefit the public." Clearly, it benefits the public to have the added consumer choice that is afforded by interoperable cartridges. Members of the public should not be forced to pay more for brand-name cartridges unless they choose to do so.
For more information on the Lexmark case, see "Chips to Stay off the Shelves Through Feb. 28 Decision" or "Static Control Sued by Lexmark over T520/620 Chips".
