FC: Robert Ellis on how DMCA is "chipping away at competition"

[Declan McCullagh <declan () well com>]

Previous message:
http://www.politechbot.com/p-04300.html

---

Date: Fri, 31 Jan 2003 16:15:18 -0500
To: declan () well com, politech () politechbot com
From: "Robert L. Ellis" <rellis () internet-attorneys com>
Subject: Chipping away at competition

Declan,

Lexmark's recently-filed DMCA complaint against an aftermarket toner 
cartridge manufacturer is a seminal (and infamous) event in the evolution 
of the DMCA, but it's only the camel’s nose in the tent.

Yes, there used to be a thing called "competition" in the office supply 
market.  For years we could buy cheap aftermarket toner cartridges for our 
printers and copiers.  Now in my office, for example, have a crappy little 
digital copier that automatically shuts down when it decides its toner 
cartridge is empty -- whether it's empty or not.  We can't refill it.  We 
can't buy an aftermarket toner.  Hell, we can't even shake it and get a few 
more copies out of it.  Our toner cartridge has an encrypted chip in it, so 
we no longer actually run out of toner, we run out of chip.  The machine 
will work only if we put in a new, "genuine" replacement toner that 
likewise has an encrypted chip.  And guess what -- the "genuine" 
replacements cost about twice as much as similar toner cartridges for 
unchipped products.

But there is absolutely no reason to think that chipping will stop there.

With RFID chips, it’s possible that most consumables and spare parts will 
eventually be chipped with encrypted RFIDs to completely freeze out 
aftermarket products. Manufacturers of all types ­ not just printer 
manufacturers, but auto makers, appliance manufacturers, stapler companies, 
everything ­ will chip all their items with encrypted code to prevent 
competition and enforce price fixing.  Cars will “reject” windshields and 
tires that are not “genuine” or "approved" (on-board computers will prevent 
the car from running) and of course manufacturers will call it a safety, 
liability, and quality issue.  I wouldn’t be surprised if oil and 
windshield washer fluid eventually come packaged in special chipped 
cartridges like printer toner now does, preventing the user from pouring in 
non-"genuine" refills.  Coffee makers won't work if unapproved brands of 
coffee are used.  Dishwashers won’t work if unapproved detergent is not 
used.  Light sockets won’t work if unapproved bulbs aren’t used.  The 
initial acquisition of a product will cease to be a purchase, and instead 
will serve two purposes: (1) to add to the national dossier of information 
about the purchaser, especially if consumer products start requiring 
product activation, and (2) to lock in a market for overpriced supplies and 
parts.

The term “disposable printer” has already been coined for a printer that is 
cheaper than the ink cartridges it uses.   Other disposable products are 
sure to follow, shifting the profit to captive parts and consumable 
sales.  Think it can't happen?  What is there to stop it?

Just as technical DRM measures were imposed to trump copyright fair use, 
the DMCA is now being used to trump laws against unfair competition, 
price-fixing, and deception.

- Bob Ellis


~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Ellis & Venable LLP, Attorneys & Counselors at Law
33 N. High Street, Suite 1000  Columbus OH 43215   USA
+1  614-221-2422 voice   -5244 fax  www.internet-attorneys.com




-------------------------------------------------------------------------
POLITECH -- Declan McCullagh's politics and technology mailing list
You may redistribute this message freely if you include this notice.
To subscribe to Politech: http://www.politechbot.com/info/subscribe.html
This message is archived at http://www.politechbot.com/
Declan McCullagh's photographs are at http://www.mccullagh.org/
-------------------------------------------------------------------------
Like Politech? Make a donation here: http://www.politechbot.com/donate/
Recent CNET News.com articles: http://news.search.com/search?qÞclan
-------------------------------------------------------------------------