Lexmark

Jason Schultz at Copyfight is blogging excerpts from today’s opinion on the DMCA and ink jet printer cartridges in Lexmark Int’l v. Static Control Components (pdf opinion here.), and there will surely be more analysis to come.

Three thoughts:

First, this represents a first-rate job of lawyering by Seth Greenstein at McDermott, Will & Emery and the Static Control team. This is obviously a very intense case, and a result like this gives the winning lawyers a burst of adrenaline for the next round.

Second, it’s great to see the majority make aggressive use of section 102(b), the merger doctrine, and even (briefly) Lotus v. Borland, all of which are sadly missing from the mess that is the Battle.net opinion, Davidson & Associates v. Internet Gateway.

Third, and importantly, the case implicitly refuses to enforce a shrinkwrap license, a point that’s made clear, ironically, in Judge Feikens’s partial dissent. Lexmark was trying to use its printer and toner cartridge programs to discipline buyers of discounted “Prebate” cartridges, who “agreed” (by using the cartridges) to use each cartridge only once. Neither copyright law nor the DMCA will help Lexmark keep Prebate cartridge buyers in the fold by denying them the ability to refill their cartridges. It’s unlikely that contract law will help Lexmark here, since Lexmark isn’t likely to sue a class of Prebate buyers, and a theoretical claim against Static Control for interference with contract strikes me as a loser, either because it is preempted or because the defendant’s actions would be too remote from the “contract” breach. So for all intents and purposes, the shrinkwrap is meaningless. Judge Merritt’s concurrence drives this point home, in a slightly different context: “[I]n the future companies like Lexmark cannot use the DMCA in conjunction with copyright law to create monopolies of manufactured goods for themselves just by tweaking the facts of this case . . . .”