Static Releases Statement on Lawsuit
Editor’s Note: The following statement was released by
Static Control on Feb. 11, following the preliminary injunction hearing.
SANFORD, N.C. — On Feb. 7, in Lexington, Ky., federal
district court, Judge Karl Forester stated he would reach a decision on a
motion for preliminary injunction by Lexmark by Feb. 28. Judge Forester
indicated he needed time to review the case and directed the parties in the
case to submit additional information for his consideration by Feb. 14.
William London, Static Control VP and general counsel,
summarized the case in light of Judge Forester’s ruling, “Really,
little happened that we didn’t expect. There are two key issues —
determining the copyrightability of Lexmark’s Toner Loading Programs and
the applicability of the Digital Millennium Copyright Act (DMCA). Lexmark
presented its case and its expert software witness and we in turn did the same.
It was very obvious to all present that there are some significant
discrepancies between what Lexmark stated in its original complaint and what
its expert witness stated, and I would surmise those are some of the issues
Judge Forester will be considering.”
Reflecting on the overall merits of the case, London remains
confident, “Our legal team is utterly confident that we will ultimately
prevail in this case. The copyright issues of lockout codes have been
definitively decided in previous cases in our favor, and the attempt of Lexmark
to attempt to invoke the Digital Millennium Copyright Act is unprecedented.
Even Lexmark’s primary competitor, Hewlett-Packard, which could
conceivably reap billions of dollars in additional profits if the DMCA could be
used in this fashion, concluded it could not and stated it would not be going
down this path with Lexmark.”
Overwhelming opposition has been mounting in this case due
to the potentially catastrophic results for free trade that could occur if
Lexmark was successful in its attempts to use the Copyright Act and the DMCA as
a means to lock-out competition. Multiple amicus curiae (friend of the court)
legal briefs have been filed by parties who could be impacted by such a
decision. The Automotive Aftermarket Industry Association, representing a $250
billion industry employing 3.7 million people in the United States, stated,
“Lockout devices could be used to destroy the market for motor vehicle
replacement parts produced by the independent automotive aftermarket.”
An amicus curiae brief filed by a group of 38 law professors
specializing in copyright law pointedly summarizes the potential impact of such
an expansion of the scope of the DMCA:
“If the (DMCA) could be applied to such functional
software (as Lexmark’s Toner Loading Programs), then it could be
susceptible to widespread abuses across a plethora of industries. It could
enable automobile manufacturers to prevent competitors from selling replacement
oil filters, or tires, that did not have a compatible semiconductor chip.
Photocopy machine manufacturers could prevent use of paper that does not bear
the correct watermark. Floppy drive manufacturers could prevent use of computer
floppy disks that do not have their authenticating chip.”
Ed Swartz, CEO and founder of Static Control, commented on
the efforts of his staff since Lexmark filed suit on Dec. 30, “I would
like to thank all of our people who have worked tirelessly to help inform
dozens of groups, associations and parties who could be negatively impacted by
the outcome of Lexmark’s attempts to misuse copyright law. I believe
these efforts led Hewlett-Packard, the No. 1 printer manufacturer in the world,
to make a public statement regarding Lexmark’s use of copyright law and
the DMCA to restrict competition in the market for Lexmark toner cartridges. On
Feb. 5, HP Senior Vice President Pradeep Jotwani held a media briefing to state
that in HP’s analysis, what Lexmark is doing is wrong and that HP will
not be following Lexmark down the same path. He further stated that HP supported
the right of aftermarket toner and inkjet cartridges to exist in the
marketplace as a matter of customer choice.
“This is absolutely huge for the American public and
our industry,” Swartz said. “I’ve worked 17 years building
this company and this industry, and there are some 34,000 people employed in
the United States as part of this industry whose livelihoods are at stake. I
would like to publicly express my appreciation and admiration that in this age
of corporate greed typified by companies like Enron and WorldCom, HP had the
guts to do what was right. I would like to encourage anyone and everyone that
the next time you purchase a printer, remember what HP has done to help ensure
your right of choice and buy HP. I believe it is the American thing to
do.”
Contact Static Control at (800) 488-2426 or visit
www.scc-inc.com.
This article originally appeared in the March 2003 issue of Recharger.