ARStechnica has it wrong.

Usually... I regard ARStechnica as having their "stuff" together. However, I learned today that they don't seem to understand the United States government. In their article on Lexmark's failed petition for the Supreme Court to issue a writ of certiorari, they seem to think that this is a major victory for SCC (the competitor company to Lexmark's proprietary printer cartridges for replacement of toner/ink). However, they have failed to recognize the actual significance: this is not a constitutional issue.

In fact, in the article ARStechnica says, "Lexmark's attempt to use the poorly-written and ill-conceived DMCA has been appropriately censured, and should hopefully cause other companies to seriously think twice before trying to such antics in the future." The issue with this statement... is that the opposite actually occurred. By the SCOTUS rejecting this petition, they are saying one of two things:

1. The DMCA and this lower court's reading is constitutional.
2. The case does not carry enough merrit to stir the hornet's nest and defeat the DMCA.

Routinely, SCOTUS rejects petitions because the cases as presented are simply not strong enough to sway SCOTUS to overturn a law.

Unfortunately, DMCA will likely never be overturned by SCOTUS because the "spirit" of the law is constitutional (Article 1, Section 8 of the US Constitution is where Congress is granted their powers). Please don't get me wrong. I don't like the DMCA. I think it should be repealed. However, the only two ways for the DMCA to be removed from the legal landscape is for Copyright reform to take place or for Congress to repeal the DMCA. Since there is so much corporate money that pushed the DMCA into existance... it isn't likely to be repealed anytime soon. So... it then becomes an issue of Copyright reform. Again, this is a difficult concept because of corporate money.

What truly needs to happen is that artists and others that may hold copyrights... subscribe to the concepts and precepts of the Creative Commons. If authors rely upon moral copyright instead of the legal instrument that has been developed, copyright will begin to lose it's legitimacy. That's a different blog post though.

Specifically... ARS seems to think that Lexmark is doing something wrong by trying to make sure that they are the only ones that can make replacement parts (refills, etc) for their printers. What they *should* have done... is patented the design of their cartridge. Instead, they tried a new way of protecting intellectual property. Honestly, I'm more afraid of the implications that such a finding would have long term... what happens when a large piece of software... let's' take SAP has portions of it "borrowed". The purpose of fair-use is "I bought it, I can use the creative instrument that I purchased how I want." It is *not* that once you purchase something, you're free to create the same thing. If this was the case, it would be okay to "cover" someone else's music if you have simply purchased the CD. The concept is silly.

Honestly... I don't see what the big deal is in the first place. While it is true that Lexmark has made in-roads in the market... who really *wants* a Lexmark printer? Yes, I have one. However, the only reason that I have one is because it cost less than the new ink cartridge that I needed at the time. I've since switched to an HP Laserjet 1012 for B/W and I take my digital photos to Wally-world to get them printed. While it seems to be more expensive to print at Wally-world at first... when you take into account... the time that it takes to maintain the printer, the cost of the printer, the cost of the supplies for the printer... and the frequency with which I actually print out pictures... eh, not worth having a color printer at home.

Alright... gotta clean house.