The Law of Unintended Consequences

Was the DMCA created to regulate replacement printer cartridges, garage-door openers and autoparts? I think not my friends.

The Lexmark printer case is causing a lot of people to wonder if auto replacement parts are next:

some businesses unrelated to Internet piracy are using the legislation to stifle their competitors, critics say.

“There definitely are vendors who are designing their products to take advantage of the DMCA so they can threaten their competitors with it,” said Fred von Lohmann, senior staff attorney with the Electronic Frontier Foundation. “Anything that reduces market competition should worry consumers.”

In a case that’s being closely watched by DMCA critics, Lexmark is suing Static Control Components, a company that remanufactures toner cartridges to make them compatible with Lexmark printers.

The printer company says Static Control reverse-engineered a chip on laser toner cartridges meant for Lexmark printers, in violation of the DMCA. Static Control announced on Monday that it is countersuing Lexmark; it alleges unfair trade practices and seeks more than $100 million in damages.

“Cases like Lexmark’s scare us,” said Aaron Lowe, vice president of government affairs for the Automotive Aftermarket Industry Association, an organization of manufacturers, distributors, retailers and installers of automobile parts and accessories. “Our concern is that something like this could be used to try to prevent us from producing or remanufacturing parts for vehicles and that would prevent competition in the repair market.

“Once there’s no competition, you can just see where those parts prices are going to go, and it’s not going to be down,” Lowe said.

Lowe said that about 75 percent of cars (after warranty) are repaired by independent repair facilities that regularly use aftermarket parts, many of which are computerized.

“Right now, onboard computers monitor and control virtually every system on the vehicle,” Lowe said.

….”The bottom line is that we think there is potential for abuse if Lexmark is permitted to do what they’re doing,” Lowe said.

….Critics of the DMCA say there is reason to be concerned about the way the law is interpreted.

“As written, it’s certainly possible that you could whip up a little piece of software, use some sort of rudimentary authentication to provide access to that bit of software, and then invoke the DMCA,” said the EFF’s von Lohmann. “And if that’s the case, the DMCA poses a serious threat in competitive markets for lots of technology.”

He added, “I don’t think that’s what Congress had in mind.”