Refilling Ink Cartridges Now a Crime? 769
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."
Read the opinion please. (Score:5, Informative)
Lexmark discounts certain cartridges with the understanding that the user will return the spent cartridges to Lexmark. Lexmark recycles the cartridges and sells them again. Lexmark got their panties in a bunch because another company was taking their prebated cartridges and recycling them, causing Lexmark to lose money. Lexmark isn't being quite as evil as they are made out to be, in this case.
That being said, Lexmark makes my pants sad.
Re:Read the opinion please. (Score:2, Informative)
Read the EFF article on it. http://www.eff.org/deeplinks/archives/003951.php [eff.org]
RTFA (Score:1, Informative)
James on September 4, 2005 02:24 PM writes...
Those of you who are excoriating Lexmark and the Ninth Circuit have apparently NOT read the decision. (Isn't it a prerequisite to informed debate that you actually INFORM yourself before criticizing?)
The Ninth Circuit's opinion concerns Lexmark's "Prebate" program, in which customers are given a $30 discount on their printer cartridge in exchange for their agreement to return the used cartridge to Lexmark when they are done with it. That's an enforceable contract, plain and simple. Customers had the option of paying $30 more for a cartridge, without being obligated to send it back to Lexmark when they were finished with it.
The Ninth Circuit simply held that, in exchange for paying less for the cartridge, customers could be contractually bound to return it to Lexmark.
Now that you understand, tell me: is that so evil?
You folks might want to educate yourself on the concept of "freedom to contract."
Re:Mattress Tags Anyone? (Score:5, Informative)
In other words, the "do not remove under penalty of law" on furniture tags were there for the protection of the consumer; shrink-wrap licenses and this variant are all about limiting the rights of the consumer.
Re:Read the opinion please. (Score:3, Informative)
Lexmark discounts certain cartridges with the understanding that the user will return the spent cartridges to Lexmark. Lexmark recycles the cartridges and sells them again. Lexmark got their panties in a bunch because another company was taking their prebated cartridges and recycling them, causing Lexmark to lose money. Lexmark isn't being quite as evil as they are made out to be, in this case.
Lexmark should take a lesson from the auto parts industry. If I have the water pump on my car die and want to replace it myslef, my choices are:
Surprisingly enough there is no option called "Pay discounted price and take it on faith the customer will later return the faulty part." People are lazy/stingy. If there is no monetary incentive to actually do something, they won't.
Nothing to see here (Score:5, Informative)
I'm not sure there's anything to see here folks. TFA doesn't mention what seems to be a crucial fact: Lexmark offers consumers a choice. They can buy the cartridge at the regular price without any restrictions on what they do with it or they can buy it at a discounted price, in return for which they agree to return the cartridge to Lexmark. The boxes are marked differently. There are "prebate" boxes, which carry a notice explaining that these cartridges are to be returned to Lexmark, and there are "regular" boxes.
It seems to me that this is perfectly fair, so long as the purchaser knows what the deal is up front. Its clear that he or she has a choice as to whether or not to accept the deal since Lexmark is offering both arrangments. You can't say that Lexmark is using monopoly power to force people to buy its products whether they like the contract or not if it explictly offers two different deals. It's possible, of course, that Lexmark or the dealers that sell its products are not up front about the two deals, but the Ninth Circuit, which is known, generally, for its "left-wing" slant and is hardly anti-consumer, didn't find evidence of that. Here's the decision [eff.org] Am I missing something?
Misleading and misunderstood, as usual (Score:5, Informative)
The case is not about not being able to refill your ink cartridge, but about the fact that customers were given an option of a cheaper cartridge, with the contractual agreement that, in compensation for the lower price, they would return the cartridge to Lexmark after a single use. Customers had a choice to agree to the contract or not. They could have bought the same exact ink cartridge for a higher price, and not been under any obligation to return it or not refill it.
Me, personally, I'll never own a Lexmark product, ever, and neither will the company I work for as long as I can help it, thanks to the crap they've pulled in the past. Having said that, in this particular case, I am on their side. Why should a consumer get a benefit, and then complain that they have to actually uphold their end of the deal that gave them the benefit?
Anyway, the article linked, and the initial post, really have absolutely no bearing on the actual facts. Typical slashdot.
Re:Read the opinion please. (Score:5, Informative)
That does not make everything good, but at least it's not the same thing as the inflamatory
Re:I OWN the cartridge, not RENT / LEASE it (Score:3, Informative)
You could probably also understand the ruling if you read it, which is something the story submitter obviously did not do.
Here is what the Court actually said:
So, basically this ruling is saying that's it's OK for Lexmark to pay people to agree to return the cartridges.
Note, by the way, that Lexmark did not bring this action. Lexmark was sued by ACRA, who was upset that Lexmark's program to pre-buy back used cartridges was successful.
Re:Only a matter of time. (Score:5, Informative)
The "Right to Repair Act"
Your pickup engine has a minor problem, but the only clue is a cryptic "Check Engine" idiot light on the dash. The trouble could be as simple as a stuck PCV valve or faulty plug wire. It might be something more serious (read "costly") such as a confused computer control module, but without a way to read the engine diagnostic codes from the computers--and more importantly, to translate what the codes mean--even diagnosing the defect let alone performing do-it-yourself cost effective repair is impossible, and vehicle makers are downright stingy with the information. Even your local mechanic cannot get the information he needs; it is sealed inside the dealership repair shop--probably in a cipher lock safe.
There ought to be a law.
Well, they are working on one--the Motor Vehicle Owners Right to Repair Act.
Since the Act, HR2048, was reintroduced in Congress on May 3 by Rep. Joe Barton (R-TX), Rep. Edolphus Towns (D-NY), and Rep. Darrell Issa (R-CA), and 22 additional congressmen have signed on as co-sponsors in support of the bill.
HR2048 has garnered support and praise from many quarters, especially from the American Aftermarket Industry Association (AAIA).
"We want to thank Representatives Barton, Towns, and Issa for spearheading this crucial piece of legislation that affects everyone who works in the aftermarket," said Kathleen Schmatz, President and CEO of AAIA. "The momentum in support of this bill is incredible as evidenced by the support of 22 additional congressmen. However, our work is just beginning. Based on the strong opposition that the car companies have been expressing on Capital Hill, we will need many more legislators signing on the bill to get it through during the current Congress."
The Motor Vehicle Owners Right to Repair Act is truly a bi-partisan bill. Of the 25 congressmen who currently support it, 12 are Democrats, 12 are Republicans, and one is Independent.
The legislation would that require car companies make the same service information and special tools available to independent repair shops as they provide to franchised dealer networks. Architects of the Right to Repair Act added new language to clarify that car company trade secrets are protected unless that information is provided to the franchised new car dealer. New language also provides more detail on the role of the Federal Trade Commission in enforcing the legislation.
"It's not about taking trade secrets and proprietary information from the car companies. These are clearly protected in the legislation," Schmatz said. "It is about fair trade and protecting consumer choice."
Independent repair shops and aftermarket accessory makers are not the only or even the targeted beneficiaries of HR2048. The language of the bill is clear that vehicle *owners* should have access to information whereby to affect repairs. One section states emphatically that vehicle owners should have access to information for "making, or having made, the necessary diagnosis, service, and repair of their motor vehicles in a timely, convenient, reliable, and affordable manner."
Here are some facts from AAIA:
Why This Bill Is Needed
Current automotive technology is being used to successfully "lock out" car owners from being able to repair and maintain their own vehicles. Modern automobiles contain many computers that control virtually every component such as the braking system, steering mechanism, air bags, ignition, and the climate control system.
Lacking the ability to "talk" to the car's computers, owners or their auto technicians cannot accurately diagnose and repair mechanical problems.
This means that later model cars will only be serviced and repaired at automobile dealerships, which makes shopping around for the best prices and most convenien
Re:Read the opinion please. (Score:5, Informative)
Myabe you should actually read the ruling. The business model is working, and Lexmark doesn't need nor did they seek legal recourse.
It was Lexmark that was sued, because the people that want to sell third-party remanufacturered cartridges are having their business hurt by Lexmark's success with this program.
Re:CVS 'disposable' digital cameras and camcorders (Score:2, Informative)
Hardly. To quote this article [boston.com]:
"CVS bounced my inquiry to San Francisco-based Peer Digital, which makes the disposable camcorders. Spokeswoman Wynne Ahern chuckled when she learned that Peer's super-secret technology had been tampered with. [...] 'Do-it-yourselfers,' she said,'are not our target audience. It's sort of a nonissue.'"
DMCA Doesn't Apply (Score:3, Informative)
Lexmark already lost their DMCA case... that's why they moved on to patents, where they apparently won. (that parts in TFA)
Please read the decision before freaking out (Score:4, Informative)
Re:How exactly is this patent infringment? (Score:3, Informative)
On Slashdot, the Fox News of Patents, that is the $64,000 question. To anybody who works in the patent system, the answer is clearly not patent infringement.
Patents are published to provide disclosure to the public. You are perfectly free to perform any patented method or build any patented machine. You are not free, however, to use them to engage in business. You're even free to improve them and patent those improvements.
Please read ruling before commenting on it. (Score:5, Informative)
Re:How exactly is this patent infringment? (Score:4, Informative)
Actually, patents do prohibit merely making or using the patented item/process regardless of whether it's for profit or not.
From 35 USC 271(a): "Except as otherwise provided in this title, whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States or imports into the United States any patented invention during the term of the patent therefor, infringes the patent." (emphasis mine)
Re:I signed up for this deal with Dell (Score:5, Informative)
http://en.wikipedia.org/wiki/Contract_of_sale [wikipedia.org]
http://en.wikipedia.org/wiki/Contract [wikipedia.org]
some quotes of interest:
Contract formation: Generally, formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange and a consideration
Contrary to common wisdom, an informal exchange of promises can still be binding and legally as valid as a written contract. A spoken contract is often called an "oral contract", not a "verbal contract." A verbal contract is simply a contract that uses words. All oral contracts and written contracts are verbal contracts. Contracts that are created without the use of words are called "non-verbal, non-oral contracts" or "a contract implied by the acts of the parties."
If a contract is in a written form, then generally, you are bound by its terms regardless of whether you have read it or not (L'Estrange v. F Graucob Ltd [1934] 2 KB 394). However, this is tempered by the exception that if the terms of the contract are misrepresented, then the plaintiff is unable to rely on the terms of the contract; in addition, the document must be contractual in nature (Curtis v. Chemical Cleaning and Dyeing Co [1951] 1 KB 805).
An implied contract can either be implied in fact or implied in law. A contract which is implied in fact is one in which the circumstances imply that parties have reached an agreement even though they have not done so expressly. For example, by going to a doctor for a physical, a patient agrees that he will pay a fair price for the service. If he refuses to pay after being examined, he has breached a contract implied in fact.
A contract which is implied in law is also called a quasi-contract, because it is not in fact a contract; rather, it is a means for the courts to remedy situations in which one party would be unjustly enriched were he or she not required to compensate the other. For example, an unconscious patient treated by a doctor at the scene of an accident has not agreed (either expressly or by implication) to pay the doctor for emergency services, but the patient would be unjustly enriched by the doctor's services were the patient not required to compensate the doctor.
And if that isn't enough, consider the situation when lexmark gives you a prebate. They are paying you (via a discount) for a service (the return of the empty cartridge) by taking the discount and failing to do so, you are doing the same thing as if a vendor took your money and didn't give you the product.
I code Lexmark replacements chips (Score:5, Informative)
First, nowhere is it stated clearly, but I'm fairly sure they're not talking about inkjet cartridges but laser toners. These are the ones I code replacements for.
The chip in question is the Dallas-Maxim DS2432 [maxim-ic.com]. It's an EEPROM with a twist: it uses some cryptography to perform authentication.
The idea is that the master (in this case the printer) and the memory can negotiate a shared key, which is done in the factory or during testing -- the chip doesn't use public key encryption, so it requires a key exchange `in the open' which must obviously be done before the chip reaches the customer. (Lexmark has done some ugly implementation mistakes in some printers but nothing THAT bad.)
So this key allows authentication of both the printer and the memory. After an authenticated read, the memory must compute a hash of some data (including a nonce and the last page read) and send it to the printer. If the hash matches what the printer was expecting, the printer is sure that the memory knows the shared key. (Unless stupid implementation mistakes are made that open the way for replay attacks.)
Conversely, when the printer asks the memory to commit a write, the memory requests a hash as well, to authenticate the printer. You may ask, `what's the point?' This memory holds data on how many copies were made, serial number and so on. If the memory just blindly wrote what it was told, remanufacturers could keep resetting the contents and reselling the cartridge.
So how do you build a replacement chip? Easy, get the key somehow and implement the protocols used by this memory on a microcontroller. Using an off-the-shelf DS2432 is impossible because these things have serial numbers with a fixed byte (the `family code') which is different from the same byte in Lexmark's DS2432s -- they probably buy so many of them that they were in a position to ask Dallas-Maxim to make batches of chips with modified family codes. A little bit of security by obscurity, but that wasn't a barrier to us -- it took less than a week to reimplement (in assembly) the DS2432 protocols on my favorite microcontroller architecture, the Texas MSP430.
Now, I don't like to get into the politics of this thing. Myself, I believe what I'm doing is perfectly fine and in fact the right of the consumer, EULAs and contracts and patents be damned. I wouldn't do it otherwise. Some people complain that Lexmark sold a discounted toner (called Prebate), on the basis that you would return it to them, and you didn't, and that's unfair. What they don't take into account is that your printer comes loaded with a Prebate cartridge, and with a small amount of toner to boot. Many if not most people just use this one cartridge that came with their printer, and keep remanufacturing it. The customer didn't have a choice in this -- if Lexmark offered a regular toner, or no toner at all, when the customer bought the printer, the situation might be less clearcut. As it stands, I see this as Lexmark forcing everyone to pay for a crippled toner, giving them no choice in the matter, and so they're perfectly justified to remanufacture it. (This might not be considered ethical by some, and is most probably illegal, but I don't care.)
Moreover, the prices they charge are completely absurd. I know this is standard practice in the industry, but I consider this highly immoral. Very few companies possess the technology to make a printer, but many possess the technology to remanufacture toners and cartridges. By imposing legal and technical hurdles on remanufacturing, printer makers are effectively enforcing a monopoly, and the worst thing is, some courts are sanctioning this monopoly. The traditional analogy with auto parts holds very well, and many other frightening scenarios haven't been explored -- what if the printer makers agree on a policy of no longer manufacturing toners and cartridges for printers older than 1 year so as to force everyone to upgrade and m
In Brasil, (Score:5, Informative)
(*) == trademarks + patents
Re:How exactly is this patent infringment? (Score:3, Informative)
I would have been more accurate in saying, "You can infringe any patent you like for personal use." I'm well aware of the statute, and "personal use" is indeed infringing.
However, if it's not profitable, then there are no damages to be won in a courtroom. If I make it for my personal use, all you can argue is that I saved money, but you can't prove that I would have otherwise spent it on the patented product or service.
Re:Contract law... (Score:5, Informative)
I posted a little more info about this here, [slashdot.org] or you can google for more info.
Re:using other containers have same 'crime'? (Score:4, Informative)
Re:using other containers have same 'crime'? (Score:3, Informative)
Lexmark can sue me...But they aren't going to, because it's absurd, frivilous, and there's no chance of success.
Every heard of slapp lawsuits [google.com]? They don't have to have a case to cause major trouble, especially with a small, shallow pockets individuals and companies. And since they went to court to get this absurd ruling, it is clear they don't like people refilling.
Re:using other containers have same 'crime'? (Score:3, Informative)
As more and more people wise up to the "loss leader" system of selling cheap printers with expensive ink, they'll lose more and more cash until they have to quit the nonsense.
Infringement is not a Crime (Score:3, Informative)
Re: New printers (Score:3, Informative)
Re: New printers (Score:1, Informative)
Re:using other containers have same 'crime'? (Score:1, Informative)
"Spunk" is British slang for