Wednesday, February 23, 2005

Printer & IT manufacturers and copyright protection

I've had a lot of trouble with printers and printer manufacturers since I first began using desktop machines way back in the 70s. If it hasn't been poor performance, the 'Buy this $100 print cartridge and receive a new printer free' mentality, it's been weird schemes like pre-programmed expiration dates for cartridges. My last Canon printer ($100) stopped working entirely on the 365th day of ownership. I found that a little weird to be a mere coincidence.

Just last night I was prompted by my HP printer's management software, to participate in a "survey". When I read the fine print I basically found out that if I agreed, it would give them the right to access my machine's information including files I printed for any computer I installed the printer on for the next 5 years. In the words of one of my Scottish friends "Shaft You!"

A Georgia woman is suing HP over the way they use smart chips in their printers to force expiration dates on the cartridges regardless of their fill status.

Lexmark tried to use the DMCA of all things, as a sort of low rent patent mechanism.

Lexmark lost their assertion in court, that use and access protection IRT their toner cartridges should be protected under the DMCA as being copyrighted.

It seems to me that what Lexmark was trying to do was use copyright as a sort of poor man’s patent. The two protections mean very different things and the court recognized that Lexmark was trying to exploit artistic protections under the DMCA to create a monopoly on toner cartridges for their machines. Copyright was never intended to be used in this way, and the sense of the court was expressed as “…the main point of the DMCA [is to] prohibit the pirating of copyright protected works such as movies, music, and computer programs. If we were to adopt Lexmark's reading of the statute, manufacturers could potentially create monopolies for replacement parts simply by using similar, but more creative, lock-out codes.”

Furthermore the court decided that "fair use doctrine preserves public access to the ideas and functional elements embedded in copyrighted computer software programs.” And they also observed that while the software engines of such applications and machines may in fact be copyrighted, consumer access to them cannot be denied since such access is implied in the purpose of the purchased product. The 'reasonable person' reading of this is that you can come up with create new ways of accessing and using an electronic product within certain limits, and that this is no violation of copyright.

I'm curious now whether this means you could create original works for use in machines that use copy-protected media. Could I legally create new games on disk for Game Cube, provided that I didn't copy anybody else's code, material, characters etc and did not reveal any copy protection schema to potential pirates? Would I not merely be creating new creative things for which people could use their Game Cube? I don't see a difference between this and somebody like X-Gaming creating a different kind of controller that can be used unobtrusively on different consoles.

In the short run companies can sometimes make a marginal improvement in their bottom line by using tactics like these. But in the long run the technologies that consumers continue to use are the ones that have the greatest range of compatibility and flexibility. Given the choice between a fancy MP3 player with a non-replaceable proprietary (but supposedly long-lived) battery, and a simpler machine that uses AA batteries - most of us would choose the latter. The same thing goes for fancy toilet scrubbers that use a certain shaped wet applicator attachment or just a plain old brush and a bottle of cleaner. The market usually corrects things like this in the long run. In the short term, while companies are playing their little mind games, be sure you don't spend too much on your fancy device. If an ink cartridge is going to cost me $34, and a new printer with the same ink cartridge will cost me $39 at Target. I'll take the risk on that printer over the $100 machine. Meanwhile the companies doing this stupid stuff will continue to be challenged not only in court, but in the marketplace.

If you do something stupid and tyrannical to consumers for the sake of short-term profit, you can rest assured that eventually some company will exploit that as a weakness and steal your customers.