New Chips Can Keep a Tight Rein on Consumers

[Trei, Peter]

> John S. Denker[SMTP:jsd at monmouth.com] wrote:
> 
> 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).
> 
There's related legal precedent, but I'm too lazy to look up the
details. Over 10 years ago a game console manufacturer 'Foo'
(Nintendo? Atari?) sued an independent game cartridge
manufacturer, claiming copyright infringement in that the 
console checked that a specific location in the cartridge
contained the string "Copyright (c) Foo Inc."

The console maker lost; the judge ruled that including the
string was neccesary for perfectly legal compatibility 
reasons. (I note that it was also only visible to the console,
not to the consumer). This seems quite appropos to the
printer cartridge situation, but IANAL.

Peter Trei



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