FC: EFF's Cindy Cohn on Lexmark DMCA case: Decision expected soon

From: Declan McCullagh (declanat_private)
Date: Fri Feb 07 2003 - 21:06:06 PST

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    Here's an article I wrote on Thursday about the case:
    http://news.com.com/2100-1023-983560.html
    
    Previous Politech message:
    http://www.politechbot.com/p-04300.html
    
    ---
    
    Date: Fri, 07 Feb 2003 18:50:13 -0800
    To: declanat_private
    From: Cindy Cohn <Cindyat_private>
    Subject: Lexmark 1201 case update
    
    Hi Declan,
    
    I thought you might appreciate an update about the Lexmark v. Static 
    Control 1201 case in Lexingon, KY federal court today.  You can put this on 
    Politech if you'd like.
    
    Seth Greenstein, the attorney for Static Control reports that they had a 
    day-long hearing on the motion for preliminary injunction.  At the end, the 
    Judge took it under submission and asked both sides to submit proposed 
    rulings to him next week.  He extended the temporary injunction the parties 
    agreed to earlier this month until February 28, 2003, to give himself time 
    to come to a decision, but increased the bond that Lexmark had to post to 
    $250,000 from $75,000.
    
    This the case where Lexmark is attempting to use 1201 of the DMCA to stifle 
    competition in the printer cartridge refill market. Essentially Lexmark is 
    claiming that the DMCA prevents reverse engineering of its printer 
    cartridge processes by those who wish to create competing cartridge refill 
    products for Lexmark printers.  It, along with the recent case concerning 
    the garage door opener, has set a new standard for ridiculous 1201 cases.
    
    EFF submitted a declaration by our systems administrator in the case that 
    illustrates Lexmark's attempt to lock purchasers into its cartridge 
    refills.  EFF bought a new Lexmark printer late last month.  When we 
    unpacked it, we found a piece of paper on top that claimed that the printer 
    cartridge was subject to a "license/agreement."  The paper said that by 
    using the cartridge we were agreeing to use it only once and return the 
    cartridge to Lexmark when we were done with it for a refill. It said that 
    if we didn't accept those terms, we could call a number and get a cartridge 
    that wasn't subject to them.  We tried to call the number, but it was a 
    nonworking number at Lexmark.  When our sysadmin finally got ahold of 
    someone in the sales department she said she had no idea what he was 
    talking about.  When we faxed the "license/agreement" to her, she said that 
    it was not binding and we shouldn't worry about it.
    
    But yet that same "license/agreement" is the basis for the claims against 
    Static Controls.  Lexmark argues that the
    
    I'm attaching a .pdf of the declaration.  We should have it up on the web 
    shortly.
    
    Does anybody seriously think that this was what Congress thought they were 
    doing when they passed the DMCA?
    
    Cindy
    
    
    
    
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