As many predicted, companies may now try to use the DMCA to thwart competition. Lexmark just won a court ruling that prevents a competitor from reverse engineering the chips placed in Lexmark ink cartridges."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." No matter what Lexmark marketeers may say, those chips are there for one purpose: to prevent third-party vendors from offering cheaper replacements. Epson also equips its printers with chipped cartridges. These companies will tell you the purpose is to "ensure quality" and always claim that use of third-party supplies will create problems and, in some cases, void your warranty. But shouldn't a consumer be able to decide whether any quality issues are acceptable to them?Ink-jet printers follow the old Gillette razor business model: give away the razors, then make a killing on blades that won't fit anything else. That's why you can pick up an ink-jet of astounding technical quality that costs under $100. Now go buy some photo paper, print a few 8x10s and visit your local store to renew your ink and paper supplies. You'll likely spend more than you did on the printer itself. Okay, so what's the big deal? It's just ink-jets and you don't use those anyway, right? But some critics warn the DMCA tactics will spread to other industries. And what industry doesn't use a chip these days? Take your car, for example. "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. And it's not just cars. Another company recently used the DMCA to bring a suit against a competitor who made garage door openers.In another case, Skylink, a company that makes universal garage-door openers, is being sued by Chamberlain under the DMCA."In our case, there is no copying of content going on," said David Djavaherian, an attorney representing Skylink. "You cannot use Skylink's devices to copy or otherwise infringe Chamberlain's rights in its garage- door-opening software." "If the DMCA is applied to block the types of activities which Skylink enables then it could also be applied to block all sorts of seemingly innocuous activities," Djavaherian said. The DMCA was ostensibly about protecting copyright. As usual, businesses have turned this purpose around in an attempt to squash competition, using a law for an unintended purpose. Chillingly, there are similarities between these initial examples of DMCA abuse and those prophesied by opponents of the PATRIOT Act and TIA.
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