The Digital Copyright Act And OEM Printer Ink Cartridges

2010-08-03

Inkjet printer manufacturers are not in the business of selling printers. They're in the business of making money by selling ink. OEM printer cartridges are expensive, and the ink they contain ends up being priced out to the consumer at around $8,000 dollars per gallon. This has led to a substantial and growing aftermarket for refilled printer ink cartridges, which can save the end user up to 75% on their ink costs. This has lead to a matching backlash from manufacturers discouraging reuse and refilling of their cartridges, or the use of cartridges made in the aftermarket, to protect their profits.

One path they've taken is the installation of microchips in each individual cartridge, which monitor the ink level and tell the printer that the cartridge is out of ink. These used to be called "killer chips" because they could not be reset or overridden after being refilled to say that the cartridge was again full and the printer could resume its operations, only this time with third-party ink. Eventually the aftermarket caught up with this, and now one can buy chip re-setters on the internet that will allow unlimited printer ink refills. In this ongoing game of Proprietary Ping-Pong, the manufacturers then fought back, this time using the Digital Millennium Copyright Act.

The Digital Millennium Copyright Act (DMCA) passed in 1998 protects copyright holders against infringement by digital means, or more commonly "internet piracy." Printer manufacturers have used the DMCA to prohibit refilled printer ink cartridges by law, arguing that the DMCA generally makes it illegal to override blocking technology designed to restrict access to a copyrighted work, or to traffic in devices that do. These are the "override provisions."

Lexmark, in 2002, brought suit against a manufacturer of aftermarket cartridges that used a chip mimicking those in the OEM printer cartridges and "fooled" the printer into thinking it was dealing with the real thing. Lexmark lost in a landmark decision in which the court held that because the code in the chip could be accessed by means other than the cartridge, there was no access control issue. It further criticized the suit as being "monopolistic" in its intent, attempting to eliminate competition.

So, in the aftermath of the Lexmark decision, the DMCA was by no means eliminated as a tool against printer ink refills, but the manufacturers have since tried other tactics to keep people buying their OEM printer cartridges, such as patent infringement suits, and collusion with retailers to keep remanufactured or third party cartridges off the shelf, and so on. In this technological range war, the last shots have certainly not yet been fired.