"Box-Wrap" Patent Infringement - Lexmark

[RoyGBiv]

One of the leaders in cheap (and by that I don't necessarily mean inexpensive) printers is at it again. Lexmark was made infamous in the recent past by its attempts to use the Digital Millennium Copyright Act, that "wonderful" piece of legislation that supposedly protects the little guy, to control use of its printer cartridges after the sale. That is, Lexmark wanted to make sure that once its cartridges were dry, or more precisely when their proprietary software that measured the levels of ink told you it was dry (which sometimes meant it was still 25% full), that you had to go out and buy another Lexmark cartridge, no questions asked. Try to refill it, and you've broken the law and can be sued for damages.

Well, they failed, but then they found something else.

According to this article, Lexmark is now using copyright and patent law to do the same thing, invoking the use of so-called "shrink wrap" licenses that state once you open the package, you are in effect agreeing to terms of use, and one of those terms is that you won't attempt to refill the cartridge. What's more damaging is that we won't be able to refill it on the sly despite such agreements. The companies that sell compatible cartridges and refill kits are now open to prosecution as well.

The problem this time is that the courts are buying the argument. In a ruling in ACRA v. Lexmark, the 9th Circuit has held that once a consumer opens a package offered by Lexmark, or any company with a "shrink-wrap" license, the consumer is bound by those terms.

As troubling as this decision is, what is on the horizon should be enough even to make the most ambivalent consumer take notice. Without even extending the logic of this decision anywhere else, the ruling opens the path for all companies that produce pretty much anything to enforce terms on the use of their products. As it applies to the technology sector, in the future, when you buy a computer from, for example, Dell, you will not be allowed to modify it in any way without Dell's permission, i.e. without Dell doing the work and providing the parts and charging you whatever they want. Companies like Compaq and Dell have been notorious for attempting to enforce such restrictions using proprietary hardware and restrictive software licenses, but now, with this ruling, they don't even need that. If a company sets the terms of use to include a prohibition against upgrades from third party vendors, you're just out of luck unless you want to buy it from the original company and pay its prices.

Learn to build your own computers now, people, before the legality of such a thing is brought into question.

[CBGLuthier]

1. Lexmark is overpriced crap anyway

I had a Lexmark and about 3 years ago I went to get new ink, two cartridges, color and B&W.

It would have cost $90.00.

Instead I got a Canon printer for $80 and the ink for it is less than half the cost.

[fedsron2us]

2. Simple solution

Do not buy from Lexmark, Dell or any of the other companies that employ these tactics. There are plenty of other people in the market place only too willing to have your business with fewer strings attached.

[RoyGBiv]

3. I don't buy from either ...

Lexmark printers are crap, imo, and almost universally incompatible with Linux. Dell ... well, I don't do Dell or any major computer manufacturer simply because I'd rather build my own.

But there's more to this than simply avoiding certain companies. The intent of Lexmark's lawsuit is to put 3rd party companies out of business by holding them criminally liable for "encouraging" the use of products that, by the terms of their argument, violate their patent rights. None of these 3rd party companies produce products only intended to replace Lexmark products. An ink company, for example, that produces re-fill kits for Lexmark will also produce them for every other major printer on the market because it is basically the same product, but with Lexmark having put them out of business entirely for producing a product that can be used with their printers, you can no longer purchase their products for those other printers either.

So, when Dell sues a company for producing a graphics card that can be used to replace its proprietary card, arguing that the company cannot legally produce such products, using this ruling as precedent, the company either stops producing altogether or only produces proprietary products for sale to manufacturers of computer systems. In this case, it doesn't matter what company you buy from; you're stuck with that company indefinitely and cannot legally upgrade your own system and cannot find products to purchase to do so even if you are willing to break that law.

Logically extended, this ruling removes the idea of computer hardware ownership and turns it into something very much like the licensing system of ownership used for software, a low-noise concept that assemblers and software manufacturers have been pushing since the first PC. You don't really "own" Windows. You purchased a license for the right to use it. You cannot modify it. You cannot purchase products that allow you to modify it. Applied in such a manner, this ruling could declare that you no longer own your computer. You simply have purchased a right to use that computer under terms set by the manufacturer.