Hopefully a Sign of Future Rulings

Ars Technica has a good article on the Supreme Court's rejection of Lexmark's request for a hearing regarding their extreme bastardization of copyright law. I've ranted on the horrible piece of legislation known as the DMCA before. This is an example of how a company will go to great lengths to usurp the intent of a law in the name of profit.

Lexmark had written two programs, one residing on a printer and one residing on a toner cartridge, that would force consumers to buy their proprietary cartridges. Another company, Static Control Components (SCC), wrote their own program and sold it to vendors that would allow other cartridges to interact with the program on the printer. I.e., SCC wrote software intended to circumvent Lexmark's access control mechanisms. So Lexmark got creative, claiming that the programs were copyrighted works. To see how this is a stretch, read the U.S. Patent and Trademark Office's explanation of what patents, trademarks, and copyrights are. According to the DMCA, "No person shall circumvent a technological measure that effectively controls access to a work protected under this title." So if the program on the printer was a copyrighted work and the program on the cartridge was the technological measure to control access to said work, SCC has created an illegal circumvention. In the end, all levels of the courts agreed that the program on the printer was not copyrightable.

This does lead to some interesting discussions, though. If a software program is not copyrightable (though it is an original work of intellectual authorship), what protections can it have? If Lexmark had really thought ahead, they could have tried to patent the method of accessing the code on the printer. Then, of course, you get into the question of what is a program? It is a series of 1s and 0s. What is data? Also, a series of 1s and 0s. How can one set be copyrightable and the other not be? As a programmer, it's offensive to imply that software is not creative. So I understand (though strongly disagree with) Lexmark's argument. How can you balance the protections of the song, movie, etc., with the right of individuals to create software? Or to create a new device? Another part of the DMCA states that it is prohibited to create a product that "has only limited commercially significant purpose or use other than to circumvent a technological measure" to control access to copyrighted works. That goes back to the DVD jukebox that I discussed before. That device has a significant purpose other than circumventing the DRM technologies of DVDs. It is to allow consumers to create a central repository of movies where they can watch any of them without fiddling with discs.

The DMCA simply does not provide adequate protection to consumers or innovators. Instead, as is the case with most industry-sponsored legislation, it gives big businesses legal leverage to keep the status quo to preserve profits based on outdated business models. Though I strongly disagree with Lexmark's case, I secretly hope for more such lawsuits. Perhaps enough of them will result in a court striking down the DMCA. Or it will raise the visibility enough to force Congress to act and revisit this poorly written law.