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Wednesday, October 29, 2003

Are You Exempt? (And Has The Media Read What It's Reporting On?)

Ernest Miller has a comprehensive run-down of links related to yesterday's DMCA Rulemaking. [Via Donna Wentworth]

For those of you following the Lexmark v. Static Control case (in which I and my firm have submitted an amicus brief), the Rulemaking (PDF; p. 25) denied Static Control's proposed exemption ("The Register concludes that an existing exemption in section 1201(f) addresses the concerns of remanufacturers, making an exemption under section 1201(a)(1)(D) unnecessary"), and the Register's Recommendation (PDF; pp. 182-83) notes the dispute between the parties about whether Static Control's conduct constitutes reverse engineering, resolved in Lexmark's favor by the trial court, but does not weigh in on the outcome of that dispute. Media statements that the Rulemaking puts "a stunning end" to the case between Lexmark and Static Control, or constitutes a favorable ruling at all for Static Control—which lost its bid for an exemption—thus fail to reflect a thorough or accurate analysis of the Rulemaking and the pending Sixth Circuit appeal. (See, "Copyright Office Rules For Toner Remanufacturer," and similar takes included here.)

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