Copyrighting competition

Lexmark International Inc., a major manufacturer of computer printers, recently filed what promises to be a landmark copyright case that could have a broad impact on all business, government and individual consumers.

In order to prevent its customers from using replacement printer cartridges manufactured by other companies, Lexmark has designed printers that will not operate unless the machine confirms that a Lexmark brand cartridge is present. One printer cartridge manufacturer, however, recently designed a replacement cartridge that emulates Lexmark's cartridge and is accepted by Lexmark printers. In response, Lexmark filed suit in Kentucky federal court to prevent the other company from employing this technology and selling its product to the public.

If Lexmark prevails, it will eliminate competition for replacement cartridges for its printers and make it much easier for other companies to limit competition in different product lines as well.

Lexmark owns several copyrighted computer programs used to control certain operations in some of its printers and to monitor the operational characteristics of its toner cartridges, such as toner level. In addition, the company has included software on the cartridge chip that establishes a "secret handshake" between the printer and the toner cartridge, preventing the use of unauthorized cartridges. According to Lexmark, the defendant manufactures and sells products that replicate Lexmark's secret handshake in violation of the Digital Millennium Copyright Act of 1998.

The law was intended to address the growing use of the Internet to distribute digital sound and video recordings by making it easier for copyright holders to protect their works from unauthorized copying.

Under the act, it is illegal for anyone to circumvent a "technological measure" a copyright holder uses to protect a covered work or to manufacture, sell or distribute to others the means to do so, unless covered by one of the specific exceptions set forth in the law.

Lexmark claims that the chip in its toner cartridges is such a technological measure and that the defendant's products illegally circumvent it. For its part, the defendant argues that its products are the result of traditional reverse engineering, one of the copyright act's exceptions.

The reverse engineering of Lexmark's secret handshake software would seem to be the exact thing that Congress was trying to authorize in this statutory exception to the copyright act. Such conduct is entirely different from the unauthorized copying of video and audio recordings the act was intended to curtail.

Moreover, the very concept of preventing consumers from using replacement components manufactured by third parties is troublesome. Consumers should be free to choose replacement parts based on quality and price. They should not be forced to buy from a single source components that are traditionally available in a competitive market.

Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.