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Refilling Ink Cartridges Now a Crime?
Eric Smith writes "The Ninth Circuit has created box-wrap patent licenses. Now the label on the box that says "single use only" is given force of law, and if you refill the cartridge you are liable for patent infringement."
"you're suddenly a patent infringer. More importantly, Lexmark can sue cartridge remanufacturers for "inducing" patent infringement by making and selling refills."
How is that patent infringement? Does that cover if I, personally, refill my cartridge at home rather than buying one someone else refilled?
I feel that if I see a better value in a product, I will tend to buy it. If I can reuse a product, the product has more value. Therefore, if this policy will prevent me from refilling a certain brand of ink cartridge, I will simply buy a different brand.
Getting down to ownership; if I buy something, I guess it's not really mine, eh? Stop me.
The dangers of knowledge trigger emotional distress in human beings.
Apparently the Ninth Circuit thinks that the labelling "single use only" on the box is a legally binding contract, and thus the sale of the product to a consumer is not an "unrestricted sale".
If this is upheld, we can expect that soon all patent holders will be asserting all sorts of control over consumer products that they currently cannot. For instance, when you buy a new cell phone, it might have a label on the box stating that it is only for use with headsets from the same manufacturer. Up until now they've only been able to try to lock you in by putting a proprietary connector on the phone, and that only works until other manufacturers start producing headsets or adapters with that connector, but under the box-wrap precedent they may be able to use force of law to keep you from using an Ericsson headset with a Nokia phone.
Ah, Lexmark is at it again... Gotta love that company - maybe next they'll just send out beefy guys with baseball bats to break the kneecaps of anyone who sells refilled cartridges...
I'll never buy their products anyway, and I'll make sure that everyone I know is well-informed about their business practises...
N.
"Nothing strengthens authority so much as silence." - Charles de Gaulle
I assume this will effect the hacked disposable digital cameras and camcorders?
"We were half way to Rivendell when the drugs began to take hold."
-- Hunter S. Tolkien
So basically at some point in time we can expect the car dealerships to enforce a policy that you are only allowed to use Ford brand oil in your car? Or that only they can change the oil for $75 a pop? or that you are only allowed to use manufacturer certified parts which may or may not be marked up 100%? Things are just continuing to go down hill and with George Bush being allowed to put another justice on the Supreme Court we're as good as screwed untill the next presidential elections.
Umm, yes you can, you just cannot distribute it in its new form. Anyway, the one-time-use is fine, you cannot remanufacture their cartridges. But you can refill them, as long as you keep the cartridge in your printer, right? I mean, you're only using the ink once, and you are only using the plastic container once, it's just a very continuous use, as long as you do not let it empty completely.
Video Production Support
I think it's time to remove Lexmark from CUPS. It's clear they don't want to play nicely anymore, so I think it's only fair that from now on the Linux community will no longer support their printers. I know this is only a token gesture, and will likely not hurt their bottom line, but I think we need to make it clear that this sort of behavior is not appreciated and should have consequences.
Conservatives have been screaming for about a decade about hot the 9th circuit is insane.
Most of the people who repeat that the Ninth Circuit has the most overturned decisions per year forget that the Ninth also has the most decisions period per year, simply because it has the most people given that heavily populated California is within its borders. I have read that the percentage of overturned Ninth Circuit cases is comparable to that for other circuits.
I'm not a lawyer, but I am a law student.
The 9th circuit decisions are some of the most overturned in the history of our nation. Seriously, the judges appointed there are completely out of touch with reality, and this will likely be another case that bites it. I wouldn't worry.
From the actual decision (http://www.eff.org/legal/cases/ACRA_v_Lexmark/ACR A_v_Lexmark_9th_circuit_ruling.pdf), "The key issue here is whether Lexmark misleads consumers and engages in unfair competition when it advertises cartridges for sale at a reduced price but with restrictions on their use."
The issue here is not whether you own the cartridge. The issue is whether you can return the cartridge to a third party manufacturer. Lexmark with this program is saying "We'll give you a rebate on ink if you promise to return the cartridge only to us." (Lexmark argued before the court that they do not require that the user return the cartridge to them when it is empty, only that if they give the empty cartridge to any company, they give it to Lexmark.)
This "Prebate" license was clearly listed on the outside of the box of the reduced cost toner refills.
So the question is: can a company say "We'll give you a discount on our product if you don't go ahead and use it in this specific way."? And if so, is it "deceptive business practice" to actually attempt to enforce that agreement? Remember, shrinkwrap licenses on the outside of the box have been deemed enforceable contracts by law. You may not like this, but it has been upheld time and again, and the court, like it or not, rules based on precedent and law (no matter what the varied partisan yahoos think).
Seems a lot less draconian now doesn't it? I don't think it's a step in a good direction, necessarily, but to all the people shouting "We own nothing!!!" -- that's not what this is about. Really. Read the decision. It's only 14 pages long.
All that said, it would surprise me if this stood up to appeal (though the makeup of the SCOTUS is enough up in the air that nobody can say anything for sure right now). There is a reason why the 9th Circuit is the most overturned circuit in the country, after all. This is quite an odd restriction to be placed upon the consumer, and though I don't know CA law, it wouldn't surprise me if it was eventually considered an undue and unlawful burden and hence the contract isn't valid. However, whether or not the contract is valid, it may be upheld that Lexmark's business practices weren't deceptive, which is what's actually contended here. So we'll have to see if there's an appeal, who ends up on SCOTUS in the coming months, and where it ends up.
But it really isn't the end of the universe guys . . .
It is unlikely that Lexmark will bring a patent infringement suit against an individual end user for refilling his or her printer cartridge, but that does not mean that they are unable to do so.
They participated in the program to get cheaper cartrages in exchage to send the empty ones back but failed to do so.
"Slashdot, where telling the truth is overrated but lying is insightful."
Which is why I don't believe in shrinkwrap licences.
Look. If you provide a physical object for me to take into my possession, and I didn't sign a contract expressly giving someone rights to re-obtain it, vis-a-vis a lease or rental agreement...
Screw off. It's mine.
Caveat Vendor.
there is NO contract and you don't need a license to use what you bought.
this is criminal and unethical business is what it is.
people MAY choose to return them to lexmark but they are under no obligation. putting up more reasonably priced ink on store shelves and then trying to deceive people with a pseudo-legal notice that reminds them they are under a contract... what utter bullshit.
and as we can clearly see, the ninth-circuit is obviously not competent enough to realize you don't enter into contracts simply because you open a package. who gives a crap what it says on the outside of the box. you didn't sign anything and are under no obligation to return it.
Science : Proprietary , Knowledge : Open Source
their business model requires the circumvention of property rights and the tainting of contract law.
opening up a package does not constitute a binding contract no matter how much the briber^H^H lobbyists moan and bitch.
they're just words on a package unless you specifically signed the agreement with an employee of lexmark.
business models are of no concern to customers, legally or morally.
Science : Proprietary , Knowledge : Open Source
What if the non-contract version was sold for $1,000,000 each? Is it still a fair agreement, or was the agreement forced?
It's better to vote for what you want and not get it than to vote for what you don't want and get it.
- E. Debs
And the 9th Circuit has also been upheld more times than any other federal circuit court. This is because the 9th Circuit is huge, and has more cases go to the Supreme Court than any other circuit. In terms of actual percentage of reversals, which is the important thing, they're actually quite average.
If you really want to badmouth the 9th Circuit, can you at least complain about something real, instead of your latest delusion?
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Lexmark can sue me for killing the CEO's dog, regardless of whether the CEO has a dog or whether I've ever been in the same time zone as the dog. But they aren't going to, because it's absurd, frivilous, and there's no chance of success.
You're perfectly free to infringe a patent for personal use. The instant you engage in business, however, you're going to be in hot water.
At this rate, soon you won't be able to own anything.
Could be agood thing:
Dear (manufacturer:
I am returning your (5 year old and large hard to recycle device full of toxic material sthat can't be put in a landfill) to you as I am no longer able to comply with the original license.
Sincerely,
So for 10 bucks or so of shipping your disposal probkem becomes theirs.
I'm a consultant - I convert gibberish into cash-flow.
Its pretty blantant that 'refilling an ink cartridge' is also an issue that does not meet any of the requirements of a patent application ( no prior art, non-obviousness, etc ). So Lexmark are committing patent fraud, and the USPTO and the Ninth are colluding with them in this fraud.
Furthermore purchasing the product confers upon the buyer all of the rights of ownership, including the right to do whatever they damn well want with the item. Eat it, refill it, use it in a religious ritual, give it away, lease it to others - all of these are perfectly ok. The box and the 'open this package and u r a stupid head hahahaha' so called 'contract' is also the property of the buyer, they can do whatever they please with this as well. The Ninth should be well aware of this.
Why is the Ninth committing fraud against consumers?
Actually I think they would probably go for the maximum number of times that you could have refilled it. In the case of laser toner this would be limited by the drum to no more than 3-5 times, but in case of ink refill kits I suppose it could be 50 or even 100 times. That could be alot of money. Like the RIAA, Lexmark would probably say that refilling their cartridge is indistinguishable from robbing them at gunpoint.
The score is
Gigantic Corporations: 1
Everyone Else: 0
Quite an experience to live in fear, isn't it? That's what it is to be a slave.
1/I take the nice package
...
2/I Biff the "1 use only" mention
3/I put my initials on the correction
4/I open the package
Voila !
I didn't accept this part of the contract, I dutifuly notified the other party the same way they notified me, put in the correction I wanted and authenticated it...
Now, when I open this pack, Lexmark is legaly bound to the notification I made
(Yeah, I know, this is stupid, but if it works in one direction, it should work in the other...that's the beauty on the juridic system : you can be two playing at being idiots...)
Also, if they just put a patent on the "one use only" system, I'm sure the Condoms industry can come up with some prior art...
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Punitive damages? Idiot.
If it's in you sig, it's in your post.
Ya know, that's a damned good point - "One Time Use" in this case means that you are only allowed to use it until it's empty. So, refill it before it gets that low :)
If I haven't stopped using it yet, then my first use isn't over...
help me i've cloned myself and can't remember which one I am
When I bought a printer recently, chose between Cannon which allow refilable cartridges and Epson which dont. Even though Epson was a little cheaper, I went for the Cannon.
Don't buy Epson or Lexmark or any other non-refilable brand. Badmouth them to your non-geek friends and family. Let the marketplace speak.
So is Lexmark going to pay for my shipping costs to get my used cartrigdes back to them? I assume that they are going to be recycling all of the used Lexmark cartridges in the world. Oh wait, that's not profitable?
Tough. You asked for it, you'll get it.
Perhaps the EPA needs to contact Lexmark about the enviromental damage that their used cartridges are doing...
If there is no way to legally recycle, then lexmark is creating waste. More than likely toxic waste if you want to get down and dirty with your definitions.
In my fantasy world, some company (perhaps a new entrant) will come up with a printer where they find the correct balance of printer cost vs. ink cost that works for ma and pa kettle and accept something less than an absurd profit margin. This has to be coupled with an aggressive advertising campaign. Obviously this won't be HP because they have a completely fucked business model that depends on milking the golden goose of ink jet cartridges (why people buy HP enterprise servers knowing the viability of the entire company is built on the fickle and irrational willingness of consumers to buy list price HP ink carts at Worst Buy perplexes me to this day - I suppose this is because I didn't get an MBA which would have masked absurdity from my mind).
Such a company would assume that people are willing to pay an extra five bucks per cartridge (as I am) for a "safe" alternative to avoid getting completely fucked and also willing to pay an extra 50 to 75 bucks for a printer (perhaps based on advertising that emphasises the "per page cost") that has reasonable 'per page costs' and will last for 4+ years.
Everyone feels vaguely fucked (or even visibly angry) when they buy their ink jet (or, for the less insightful, their first full-price cartridges) - just like people used to (before cars.com and similar sites) when they bought a car (of course, on those, you can do a little better by negotiating if you figure out which dealers are cars.com dealers and which are not and bypass cars.com and keep the negotiations REALLY crisp with the fleet manager - give me another "$200 off and the deal is closed - else, NO deal and "have a nice day" - my experience is that fleet managers get this and have no problem with it [but, if they can't do it, you MUST walk and use the pricing information you learned on another local dealer -- of course this is useless if you're in a rural area where there is one zzz dealer within 100 miles], unlike the idiots on the retail sales floor)
I suspect that the $200 (and ultimately less) color laser printers will eventually be the death of the absurd ink jet prices. Printing a yahoo map on a color laser works fine. No, you probably won't print hard-copy pictures of the new baby on the laser for your two geriatric relatives (you will send these to snapfish.com and wait three days or two hours at WalMart), but ultimately what we want is a bit of color for productivity - which is only available at at rational price w/color laser
Oh well, back to reality...
Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading
Even if your legislative system is only moderately functional, provoking unreasonable laws into having ridiculous consequences (as suggested here) can be a viable way of getting the original law amended to something more reasonable.
As it stands, it wold probably suffice to hire in someone to do your software installation for you (aka "outsourcing") and thereafter claim that _you_ did not agree to any EULAs. You will have a receipt proving that someone else did the job. When they are dragged to court, they have a reasonable defense in that helping other people install software should be a legal business activity.
sigs are hazardous to your health