This article looks at how the DMCA provides a super-monopoly that is a viable method of doing business and bypasses the inconveniences of copyright and patents by protecting things that were once allowed. The article analyzes current court cases and shows how they have yet to rule out the so-called super-monopoly that the DMCA allows. The first section of the article explains the DMCA and what it does. It also explains how companies use the first part of section 1201 (1201 (a)) as a means of monopolizing their market. The first case that the paper examines is Lexmark v. Static Control. Lexmark makes their money through the after market sales of their toner cartridges and replacement parts. However, there are many companies that sell toner cartridges that are Lexmark compatible. Lexmark created a Printer Engine Program to combat this and make their cartridges the only ones that work with their printers. This copyrighted software works with a chip in the toner cartridge and prevents the printer from working with any other cartridge or with an empty cartridge. Static Control is a company that sold chips to companies that refurbished Lexmark Cartridges. These chips allowed the cartridges to be accepted by Lexmark’s software control program. The courts first ruled that Static Control violated the DMCA. The appeal overturned this decision because of failures with Lexmark’s software and the fact that they were not encrypted or necessarily copyrightable. The programs that Lexmark used only protected one type of access, and left other methods open. The second legal example is The Chamberlain Group vs. Skylink. Chamberlain wanted to control the garage door remote control market and sued Skylink over a remote control that opened doors with a digital security feature. The court ruled in favor of Skylink because the unauthorized copying that Chamberlain sued under did not involve copyright infringement, so it was not covered by the DMCA. The next section of the paper outlines how you can effectively create a super-monopoly. The first strategy is to copyright the software for the product and its replacement pieces. A part of this software has to contain a secret code that unlocks the main software. The second tip is to write long and inefficient programs. These programs are more likely to be copyrightable because they have original expression. They are also harder to reverse engineer and cannot be used because they are the most efficient. The third suggestion is to include non-functional code in the program so there is evidence if another company directly copies your program. The fourth way is to encrypt copyright programs. This prevents people from accessing the program itself. Fifth is not making the “key” dependent on the entire program in the parts. Code inputs should be stored elsewhere on the chip. The sixth and seventh methods are avoid licensing that allows continued use of copyright programs and sell the main unit and main program separately. The article concludes that the DMCA allows companies to monopolize their aftermarket.
This article is a good example of how the DMCA can be manipulated in a very effective manner. The DMCA is a tool that creates a new business model of monopolization, and this article is evidence of that. The court cases show how the courts have not ruled on the DMCA itself, they have only applied it to situations. The paper outlines how to avoid loopholes and make your business plan sound under the DMCA in order to create a monopoly. The DMCA has clearly created a new way of doing and controlling business that is contrary to the original intentions of copyright law.