Tuesday, November 2, 2004

Anticompetitive Uses of Copyright

The Sixth Circuit's decision in Lexmark v. Static Control Components last week did not deal with antitrust law, but is relevant to competition policy. In overruling the grant of preliminary injunction to Lexmark, who was attempting to prevent the marketing of remanufactured toner cartridges that mimicked the microchip in Lexmark cartridges, the Sixth Circuit effectively prevented an attempt to limit competition in the toner cartridge market. What is worth noting is that the court reached this result without an appeal to antitrust law or to the doctrine of copyright misuse. Instead, the decision rested on a judicious application of the Copyright Act and the Digital Millennium Copyright Act. According to the court, the remanufactured cartridges were not the product of copyright infringement, and the remanufacturer's construction of the cartridges did not violate the anit-circumvention provisions of the DMCA. The court also found that the remanufacturer was protected by the DMCA's interoperabilty defense.

The Lexmark case provides a nice example of how competition policy informs intellectual property law. Although the court did not rely on copyright misuse, it is useful to keep thinking of how this defense could apply in other cases. For a discussion, see Dan Burk's article Anticircumvention Misuse at 50 UCLA Law Review 1095 (2003) and Judge Posner's opinion, Assessment Technologies v. WIREdata , 350 F.3d 640 (7th Cir. 2003).


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