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The Intellectual Property StrategistKickerSectionsNewsLJN Newsletters

The Digital Millennium Copyright Act: A Potent New Weapon in the Aftermarket Wars

By Paul Dennis Connuck
September 02, 2004

For more than a century, original equipment manufacturers (“OEMs”) have sought, with only limited success, the aid of the courts to enforce restrictions against competitors' sales of products designed to complement or replace components of their proprietary technologies. At stake in each of these cases was a lucrative aftermarket for products directed to the OEM's patented technology and a “razor-and-blades” business model by which the OEM strove to attain a large installed user base for its equipment in hopes of “locking-in” customers to that aftermarket.

The products involved in these commercial skirmishes have been many and varied, and the restrictions at issue have been similarly diverse. See, e.g., Aro Mfg. Co. v. Convertible Top Co., 365 U.S. 336 (1961) (prohibitions of the repair or replacement of perishable components); Hewlett-Packard Co. v. Repeat-O-Type Stencil Mfg. Corp., 123 F.3d 1445 (Fed. Cir. 1997), cert. denied, 523 U.S. 1022 (1998) (single-use requirements); Surfco Hawaii v. Fin Control Sys. Pty, Ltd., 264 F.3d 1062 (Fed. Cir. 2001) (bars against modification or replacement of unused parts). Almost invariably, however, the OEM's claim of right arose under the patent laws, the notable exception being, in more recent years, the assertion of software copyrights to block the sale of competitors' compatible playback equipment, platforms or other interoperable products. See, e.g., Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772 (5th Cir. 1999).

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