Lexmark Imprisoning The Consumer Behind a Digital Firewall

[Anonymous]

Lexmark Imprisoning The Consumer Behind a Digital Firewall

Intellectual property misuse

Unlike in the case of a paper book that can be lent to a friend, an e-book will become accessible only to a user whose user name and password match — thus affecting the resale rights of the user. Further, in the United States, the use of DRM to protect materials that are in the public domain has led to a new line of cases cited for intellectual property (IP) misuse that has competition law impact. For instance, Lexmark Inc. equipped its printer refill cartridges with a DRM code that instructed the printer to only recognise Lexmark cartridges. It prevented customers from purchasing cheaper generic refill cartridges. Importantly, Lexmark held no IP rights over the printer cartridge and hence should be amenable to market competition. Competitors who broke the DRM code were sued for circumvention of technology — which is a violation in India under section 65B of the present Copyright (Amendment) Bill, 2012. Notably, in the U.S., it took years for the court to rule on Lexmark’s misuse of IPR because its DRM did not protect any intellectual property. In India, technology companies will get the same level of powers — and unfortunately, unlike the U.S., there are no NGOs like the Electronic Frontier Foundation to fight such misuse.

In the U.S., DRM measures have also been criticised as having a propensity to slow the pace of development — a move that the Joint Parliamentary Committee did not take full cognisance of.

For example, ReplayTV and TiVo were recording devices that allowed users to record TV programmes while automatically deleting advertisements. (Imagine the pleasure of recording a cricket match without the advertisements.) Turner Broadcasting (with other studios) sued the manufacturers, asserting copyright violation. The courts forced both device manufacturers to remove the record-by-removing-advertisements feature on the grounds that it altered the original programme. Consumers, of course, were the ultimate losers but so was the new technology.
The treaties

For countries like India, it is important to create research opportunities to promote competition and innovation in new technology. India is technologically still advancing and DRM measures are simply overenthusiastic efforts that can dangerously choke innovation. Indian economic conditions would further impose a huge burden when and if misuse occurs. Indeed, the World Trade Organisation (WTO)’s agreements do not mandate establishment of anti-circumvention (DRM) measures. Digital copyrights and DRM measures are addressed by the World Intellectual Property Organisation (WIPO)’s Treaties, namely, the WIPO Copyright Treaty (WCT), 1996 and the WIPO Performances and Phonograms Treaty (WPPT), 1996. But, India is not a signatory to either and hence the urgency to comply is perplexing and disappointing.

India’s amendments on DRM are clearly driven by industry. In fact, at a recent conference, an official of the copyright office acknowledged that they closely worked with the industry and seemed unaware of piling criticisms about DRM technology abroad.

The Parliamentary Standing Committee that made the recommendations for the amendment has not exhaustively examined the nexus between DRM and IPR misuse and its effect on the public domain. Nor is there any research in India — by the committee or otherwise — on the effect of such measures on the economy and innovation, especially given the Indian software industry’s current attempt to metamorphose into innovators. Last century’s technological revolution that spewed out savvy products for consumers depended on fair-use of lawfully obtained copyrighted materials. DRM thrives when the fair-use exception to copyright law is narrow. In India, unfortunately, these measures leave a gigantic burden on the judiciary to prevent any attempt to narrow fair-use of copyright laws.

[Author]

May 24, 2012 at 9:20 AM