New Chips Can Keep a Tight Rein on Consumers

[John S. Denker]

Peter Gutmann wrote:
> 
> Actually I'm amazed no printer vendor has ever gone after companies who produce
> third-party Smartchips for remanufactured printer cartridges.  This sounds like
> the perfect thing to hit with the DMCA universal hammer.  I wonder if there's a
> good reason for this?  Why is this particular field immune?

I don't know the whole story, and I don't know anything for 
sure, but here's a hypothesis and a starting point:

Expand the acronym DMCA to discover the word "copyright".

IANAL but:  As a rule, copyrights aren't supposed to be used to 
protect functionality;  that's what patents are for.  Reverse
engineering in general remains legal ... not just laissez-faire 
legal, but actually protected by the fair-trade laws.  DMCA 
carves out an exception in the case of reverse engineering that
promotes violation of copyrights.  A micron-by-micron copy of
the smartchip would be a violation of somebody's plain-old 
non-DMCA copyright in the mask, but a clone that reproduces
the functionality is fair game.

You might wonder about a hypothetical next step:  printer vendors 
could put some crypto in the system (so that every smartchip would 
_need_ to have a copy of the key) and then invoke copyright on the 
key.

IANAL but that might be asking for trouble.
 0) Copyrights are not supposed to be used to protect functionality,
    as discussed above.
 1) Printer vendors aren't analogous to DVD vendors, because
    the latter have "intellectual property" rights in the content,
    long recognized by law, which they are allowed to protect.  
    Preventing piracy is a _perfectly legal_ limitation on
    trade.  In contrast, printer makers have far fewer recognized 
    rights in the ink.  Trying too hard to mess up the aftermarket
    in ink might be considered an _illegal_ restraint of trade.
 2) Related point:  The printer vendors claim that the chips
    are there "merely" to provide necessary functionality, which
    is legal.  Court action against somebody who didn't copy
    anything but the key would put the lie to this claim.  And 
    then you would have questions about the legality of the chips;
    see item (1).

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