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Businesses Patents The Courts United States

Patents Are A Big Part Of Why We Can't Own Nice Things (eff.org) 243

An anonymous reader shares an EFF article: Today, the Supreme Court heard arguments in a case that could allow companies to keep a dead hand of control over their products, even after you buy them. The case, Impression Products v. Lexmark International, is on appeal from the Court of Appeals for the Federal Circuit, who last year affirmed its own precedent allowing patent holders to restrict how consumers can use the products they buy. That decision, and the precedent it relied on, departs from long established legal rules that safeguard consumers and enable innovation. When you buy something physical -- a toaster, a book, or a printer, for example -- you expect to be free to use it as you see fit: to adapt it to suit your needs, fix it when it breaks, re-use it, lend it, sell it, or give it away when you're done with it. Your freedom to do those things is a necessary aspect of your ownership of those objects. If you can't do them, because the seller or manufacturer has imposed restrictions or limitations on your use of the product, then you don't really own them. Traditionally, the law safeguards these freedoms by discouraging sellers from imposing certain conditions or restrictions on the sale of goods and property, and limiting the circumstances in which those restrictions may be imposed by contract. But some companies are relentless in their quest to circumvent and undermine these protections. They want to control what end users of their products can do with the stuff they ostensibly own, by attaching restrictions and conditions on purchasers, locking down their products, and locking you (along with competitors and researchers) out. If they can do that through patent law, rather than ordinary contract, it would mean they could evade legal limits on contracts, and that any one using a product in violation of those restrictions (whether a consumer or competitor) could face harsh penalties for patent infringement.
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Patents Are A Big Part Of Why We Can't Own Nice Things

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  • Conversely... (Score:5, Insightful)

    by BronsCon ( 927697 ) <social@bronstrup.com> on Wednesday March 22, 2017 @10:44AM (#54087827) Journal
    Patents are also why we can own nice things.
    • by davidwr ( 791652 )

      Patents are also why we can own^H^H^H use nice things.

      There, fixed that for you.

      Dear slashdot: Please add "strike" and "underline" HTML for insert-delete mark-up. Thank you.

      • Re:Conversely... (Score:5, Insightful)

        by BronsCon ( 927697 ) <social@bronstrup.com> on Wednesday March 22, 2017 @11:08AM (#54088041) Journal
        No. No, I was right the first time. You can't own something that doesn't exist; and patents do server the purpose of forcing dissemination of information in exchange for temporary protection. That, in turn, allows others to build on previous work and make nice things, many of which we actually can own. That a handful of unscrupulous assholes has found a way to circumvent that should not negate all of the good aspects of patents; we should, rather, amend patent laws in a way that prevents such abuse going forward.
        • by Kjella ( 173770 )

          No. No, I was right the first time. You can't own something that doesn't exist; and patents do server the purpose of forcing dissemination of information in exchange for temporary protection.

          If you had said "creation in exchange for a temporary monopoly" I'd at least be willing to discuss it. But the vast, vast majority of patented creations would be picked apart and reverse engineered in no time flat if patents didn't exist. I dare you to show me one patent made in the 21st century that you think contains a trade secret that would take more than 20 years to figure out given that it was actually used in a product, service or production process.

          • Are you saying it never happens that someone, inspired by someone else's patent, possibly even for a product or concept that hasn't been put into production, then comes up with their own novel, possibly even better, way of doing $thing? I, personally, know people who've done just that, who would not have had the resources to reverse engineer $thing in order to do so. In at least two of those cases, even having said resources would not have helped, absent the patent, as $thing was never in production and did
            • I can't conclusively say "never", since a single incident would fail that threshold, but it would be such a rare occurrence that it would make no sense to base your system on that.

              Let me be clear. Patents as a means of undermining trade secrets is ridiculous. If I have a trade secret that I can reliably keep secret, I would be an idiot to get a patent. Thus, the pool of ideas that are patented are filtered for those that CAN'T be kept secret.

              • It can't be that rare of an occurrence if I know, first hand, of multiple occurrences. I don't exactly work in a field where it's patent ownership is common.
                • Yes, it can. You are confusing anecdotes for data, and ignoring the possibility of any alternative venue for learning the same information.
        • What about wheels on a suitcase? That is patented.

          For people younger than 20...for the previous 1,000 years of travel, suitcases had handles and you had to carry them. This became rather inconvenient and a little painful carrying 20kg for 500m between terminals.

      • by mi ( 197448 )

        Patents are also why we can own^H^H^H use nice things.

        There, fixed that for you.

        Is that distinction making a difference, though? As long as I can use a shovel, do I care, whether I own it?

        If the manufacturer offers me a shovel, that can dig on its own, on the condition I do not attempt to disassemble it, am I not better off than I was without the option?

        • You are assuming that the shovel will not exist without patents, and are discounting the value that could come from people being able to disassemble and modify their own shovels.
        • As long as I can use a shovel, do I care, whether I own it?

          I can't speak for you, but I care very much whether I own it. If I don't own it, then my use is dependent on the whims of others.

          • by mi ( 197448 )

            If I don't own it, then my use is dependent on the whims of others.

            Well, the "whims" are all spelled-out for you and known before you pay for it, maybe it is not so bad...

            But, if anything is not to your satisfaction, you still have the option of buying an older, unencumbered, shovel.

            On the other hand, if the EFF has their way, my option of using the hypothetical "smart-shovel" without owning it may not exist... Because the EFF knows better, what's good for me...

            I wish, they stuck to fighting government's [eff.org]

            • Well, the "whims" are all spelled-out for you and known before you pay for it, maybe it is not so bad...

              That requires trusting that the terms that were all spelled out will never change. I think that we have a long history (in the US, anyway) that indicates such trust is not warranted.

            • Re:Conversely... (Score:4, Insightful)

              by Weaselmancer ( 533834 ) on Wednesday March 22, 2017 @01:59PM (#54089763)

              Well, the "whims" are all spelled-out for you and known before you pay for it, maybe it is not so bad...

              When is the last time you read an EULA?

        • You may be better off without the option.

          What if the options look like this:

          You can have unlimited use a self-digging shovel today for $20,000. A year from now, you have also have unlimited use of a self-digging shovel for $20,000.

          Or:

          You cannot have a self-digging shovel today. A year from now, you can have a self-digging shovel for $5,000.

          Which is the better option? The answer really depends on your needs.

          • Easy to evaluate.

            If having a self digging shovel for $20,000 can get me more than $20,000 worth of work, it is worth it. Future value of the shovel is always unknown, so I'll take option one if the conditions apply.

            • Assuming this pattern holds, th $20K adds up year after year, while the $5K does not. That means you have to weigh the costs of a year early versus $15K less in costs for year 2, and $20k less in costs in years 3+.
          • by mi ( 197448 )

            You may be better off without the option.

            I may be. All I am saying is, I'd like it to be my choice, not yours and not the EFF's.

            As long as I'm entering into the contract with the manufacturer voluntarily, there is really nothing justifying your (and the EFF's) concern about it...

        • If I own a shovel and I'm shoveling wet rocks, I'll drill holes in it so that I'm not scooping up water with the rocks (saving me a lot of work).. If I don't own the shovel, I'm not free to do that. Perhaps the shovel owner uses the shovel to scoop up water and would be very unhappy with the modifications
      • Dear slashdot: Please add "strike" and "underline" HTML for insert-delete mark-up. Thank you.

        I'd like to underscore the need for these capabilities - oh, wait...

    • Re:Conversely... (Score:5, Insightful)

      by mwvdlee ( 775178 ) on Wednesday March 22, 2017 @11:12AM (#54088065) Homepage

      Do you wish to claim that without patents, those nice thing would not be made?

      Perhaps it would take more time, effort and money to make those things, but that is debatable.

      Patents are also why we can't have nice things that share some property with a patented thing.
      Patents are also why those nice things are more expensive.

      • The real solution is to limit the number of IP lawyers. It's a growth industry that encourages this kind of distortion.

        Oh yes, and outlaw sociopaths from becoming lawyers, or even working as a paralegal, or as a janitor in a lawyer's office.

      • Patents only delay this for 20 years.
    • No, patents inhibit progress more than they promote it.
      • Re:Conversely... (Score:4, Insightful)

        by BronsCon ( 927697 ) <social@bronstrup.com> on Wednesday March 22, 2017 @11:24AM (#54088151) Journal
        As made evident by how far we progressed in the many decades which preceded patents, versus how little progress has been made since 1790, right?
        • Progress tracks MUCH more tightly to things like telecommunications, literacy, personal liberties, transportation, population, existing technological progress, and economy than patent law.

          If you don't believe me, put two groups of people on two separate islands. One has high speed internet access, a world class university, and access to modern technology. The other group has stone age tech and illiterate inhabitants, but has a really strong patent system. Which one do you think will produce more innova

  • by Anonymous Coward on Wednesday March 22, 2017 @10:46AM (#54087837)

    The more it governs non-commercial activity the more it will be ignored. We are two generations in raising kids that think copyright is a joke and patents are mere excuses to sue.

    • by mjwx ( 966435 ) on Wednesday March 22, 2017 @11:33AM (#54088231)

      The more it governs non-commercial activity the more it will be ignored. We are two generations in raising kids that think copyright is a joke and patents are mere excuses to sue.

      What do you mean "two generations away". I'm nearly two generations older than today's kids and I know copyright is an utter joke that is routinely ignored. When I was young, non-technical people were already using Napster.

      The problem with copyright isn't with age, its with lobbyists and an industry's refusal to accept change. The content industry thinks that it is still able to lock up content like the good old days before the internet. Those days are dead and gone but copyright laws are yet to change from the times when copyright infringement was an organised crime (because of the investment in investment needed to manufacture large amounts of VCR tapes). That died in the late 90's when anyone could set up a DVD burning farm on a few hundred bucks of commodity hardware, however the laws have not changed at all. This is entirely due to the content industry lobbying to prevent it and as such, we have outdated laws that are being routinely ignored because society has moved passed them

      The content industry keeps pushing for harsher and harsher punishment for what is essentially a non-crime. This will never work in the long term and only prolong their demise. Just as online shopping has killed retailers who refused to adjust, the internet will kill the content industry who refuses to adjust.

  • No patent in the world can restrict me from doing what I see fit with the things that I own. At worst, when it comes to resale, it can only affect how I do it.

    • by Mitreya ( 579078 )

      No patent in the world can restrict me from doing what I see fit with the things that I own.

      Yeah, I heard the same things about DMCA.
      It didn't restrict what you could do, but it did prevent others from building tools to help you do it.

      So you do whatever you want with that printer cartridge.
      But I hope you can build a custom fireproof printer, because printers you can actually buy will crash and burn trying to use "non-approved" cartridges.

    • Technically, they can. Licensing rights aren't recursive. If I buy some product that uses a licensed, patented part, then use that part to make something else, I could still be sued for infringement. Arguing that someone else already licensed it would get me nowhere.

      Courts have ruled that it's not necessarily infringement to repair a broken item, but IS infringement if the repair improves it beyond its original design. I think the key case involved a knife whose handle was prone to breakage long before the

  • by Joe_Dragon ( 2206452 ) on Wednesday March 22, 2017 @10:54AM (#54087909)

    goodbye jiffy lube hello $60-$100 dealer oil change.

    Just be lucky it's not a dealer with an $100 minute change for any service even just to get an estimate.

  • by gurps_npc ( 621217 ) on Wednesday March 22, 2017 @10:56AM (#54087939) Homepage

    Look, if I offered to sell you a home, but after putting down a downpayment you read the contract and it turned out to be a hundred year lease, you would be damn upset.

    But that's what the software people do. They are actually renting licenses with all sorts of secret provisions while the salesmen are using the word 'buy' or 'sell'.

    Every time you 'buy a license', it is you RENTING a license. It may be a 'lifetime' license, but that is what it is.

    The only people that actually 'buy' software or music are the people that buy the copyrights.

    We need a simple law that clarifies this point. Out law the use of the words 'buy' or 'sell' when dealing with a license - including physical products that include a necessary license, such as those evil John Deere Tractors.

    Then when some shmuck tries to sell a John Deere tractor, arrest them for fraud, as they are actually renting it to you for an unspecified amount of time. If they want to use the words 'buy' or sell', they have to include free-as-in-speech software on it. Otherwise, it is fraud, punishable by a fine.

    • Software is a written work like any other - it should be protected via time-limited copyright and that's it. This would go a long way to clearing the courts of patent trolls.

    • The world is much more than software. I've worked at startups with easy to copy products that took years to prove out. Everything is easy once you know the trick of how to do it,
    • by Dragonslicer ( 991472 ) on Wednesday March 22, 2017 @11:16AM (#54088095)

      We need a simple law that clarifies this point. Out law the use of the words 'buy' or 'sell' when dealing with a license - including physical products that include a necessary license, such as those evil John Deere Tractors.

      Then when some shmuck tries to sell a John Deere tractor, arrest them for fraud, as they are actually renting it to you for an unspecified amount of time. If they want to use the words 'buy' or sell', they have to include free-as-in-speech software on it. Otherwise, it is fraud, punishable by a fine.

      We don't need an additional law for that, we just a need a judge and/or jury to decide that it counts as fraud.

      • Go talk to a lawyer. They will tell you that a) That's not how the law works. b) It works on a buyer be ware basis, c) it would have to be a Supreme Court judge to make it stick and d) laugh in your face.

        • I've worked with lawyers enough already, thank you very much.

          a) It depends on how the fraud laws are written. If the law says something like, "only the following specific things are fraud", then yes, it would require changing the law. If, however, the law is general, such as saying something like "any deception regarding the terms of a transaction", then that law can be applied to a case such as this one. To be honest, I don't care enough to look them up, and the specifics will vary by state anyway.

          b)
    • by known_coward_69 ( 4151743 ) on Wednesday March 22, 2017 @11:16AM (#54088105)

      difference is when you buy a house and screw something up it's on you to fix it yourself or pay someone. sometimes you might even get fined by your town or thrown in jail

      with a lot of this stuff people buy and then break it with cheap supplies or bad parts and then run to the manufacturer demanding warranty service. i've used cheap off brand toner in the 90's and when i got rid of it my HP Laserjet printers suddenly stopped jamming every other day.

    • by Vektuz ( 886618 ) on Wednesday March 22, 2017 @12:04PM (#54088525)
      This is pretty much what turned me off on IP law in general.
      Copyright law and Patent Law are part of a bargain, a deal made where in the general public gives up some fundamantal rights, such as the right to copy things, (which you had the right to do before copyright law limited your rights to do so).
      The theory is that in exchange for giving up these rights, on a temporary basis, the good that comes from it is that the public gets access to a much larger library of public domain over time. That is literally the bargain. You give up your pre-existing rights to do what you want with your media and recordings and whatever, in the hope that in the longer term, more such works exist since creators have protection.

      This bargain was always supposed to be two sided. You give up your right to copy and a fair bit of tax money that goes into enforcement, and in exchange, after a brief period, the works become public domain.

      Look how that worked out. As soon as the public was locked into this deal, powerful IP mills started immediately eating away at their side of the deal, extending copyright duration into infinity, consolodating power, making it incredibly one-sided. At this point I'm willing to say that the old IP deals need complete cancellation, that replacing it with literally nothing would be better for the public.
      • by gurps_npc ( 621217 ) on Wednesday March 22, 2017 @12:16PM (#54088645) Homepage

        You have a solid point. To add to what you say:

        A) Patents are anti-capitalism. And so are similar IP issues, such as copyrights. Patents were created under mercantilism, and they were not for inventors, but for friends of the king. Later when capitalism came along, we needed some way to encourage invention in a free market society where competition was essential. They could have set up a simple 10% fee structure, but instead went for an unlimited patent system. Big mistake. But capitalism was strong enough to handle it in most of the early cases. But in time the patent holders expanded their power, particularly in life or death situations (pay what we demand if you want this life saving medicine - or die).

        B) The world has changed significantly since those IP deals were created, speeding up. What used to take 10 years now takes 1. The real time that would be appropiate for those licenses is measured in more like 5 years, not 50. I.E. most of the honest profit is made in the first 5 years, after that it's dishonest prevention of innovation.

    • by Vektuz ( 886618 )

      Look, if I offered to sell you a home, but after putting down a downpayment you read the contract and it turned out to be a hundred year lease, you would be damn upset

      Haha, are you making a subtle joke here? Because in the vast majority of this nation, this is literally in the small print of house sales and is actually how it works. If you're surprised at this, then take another look at your small print. :)

    • We need a simple law that clarifies this point. Out law the use of the words 'buy' or 'sell' when dealing with a license

      I disagree. We need to revise copyright law and adopt more of a copyleft law system. Copyrights do exist for a very necessary reason. If you are willing to invest time and money in making and delivering a product that people want, by all means, you should have a certain right to make back that investment and profit on your product. Nonetheless, copyrights should have a certain timelimit that runs out within a generation unless significant innovation by the copyright holder can be shown to retain that copyri

  • what about renting = the landlord pays for service and upkeep?

    Will they be so willing to say you are just renting the software / car / device / etc?

  • If I don't own it then you can pay all associated recycling fees for the device, if it's left in places that are not appropriate you will be responsible for removal of it, if it's stolen you need to provide the replacement and you need to pay the insurance for it as well, since you own it, not me.

    It doesn't get stolen from me, it gets stolen from you. Since I paid for the use of the product within a warranty period, you can ensure I have it for that time regardless what happens to it.

    Sounds far fetched? So

  • There. I said it. Ok, that wasn't very deep was it...

  • by UPZ ( 947916 ) on Wednesday March 22, 2017 @11:05AM (#54088015)
    They seem to define the original case as that of patent licensing rather than sale of goods, therefore falling outside the scope of first sale doctrine. If I understood this correctly (and correct me if I'm wrong), that this discussion is about "patent licensing" creeping into sales of goods as a way for seller to retain control over sold products.
  • by ISoldat53 ( 977164 ) on Wednesday March 22, 2017 @11:14AM (#54088081)
    How would this affect liability. If an owner uses a product in a way not intended by the manufacturer is the manufacturer liable for the damages? I'm not talking about product defects but the use of products not intended by the manufacturer, i.e. using a lawnmower as a hedge trimmer. It seems like there should be some kind of protection for the manufacturer in these cases. I'm all for using the product as you see fit as long as you don't come after the manufacturer when it cuts your dick off.
    • It seems like there should be some kind of protection for the manufacturer in these cases.

      There is. If you use or modify a product in a way that isn't endorsed by the manufacturer, and that use or modification results in harm, the manufacturer is not liable. You are.

    • When was the last time Ford, Smith&Wesson or even a maker of ammunition were sued when someone was killed by their products?

  • I do with it as I d*mn well please. If not, I just won't buy it!
  • The remedy is in all our hands. Simply don't buy (or "buy") such products at all. The owners and managers of the corporations that sell them are in business for exactly one reason: to get as much of your money as quickly as possible, with an acceptably low risk of being imprisoned. (Technically known as "business").

    If we all stopped buying Lexmark products we would soon be hearing less of this nonsense. And please don't tell me that all printer manufacturers (or even most of them) would join in solidarity w

  • A patent holder, trademark, copyright, or other intellectual property should have to pay an annual tax on that property as if it's an asset. This tax would allow the holder to self-determine the value of the asset (as the tax would be based on it's self-determined value) and thus set the min/max fines for infringement. If a company or person allows the tax to lapse, then the work should enter the public domain. That would do two things 1) fully fund (at least) intellectual property courts, and 2) discourag
  • Cancer Economics (Score:4, Informative)

    by Jim Sadler ( 3430529 ) on Wednesday March 22, 2017 @11:51AM (#54088397)
    Capitalism can become a kind of disease. Just like cancer, capitalism tries to expand its domain and take over everything that it touches. So here we have capitalism using patents to try to restrict the degree of ownership that a purchaser is allowed. The medical industry takes this sort of thing to new depths. The current Hep- C drug costs $80,000 in the US for the usual course of treatment. In India the identical drug costs $200... The fact that people in the US die for lack of that drug does not seem to bother the medical industry one bit. That is what patents and capitalism can do for you.
  • That's the only valid response to this whole subject. I buy something, it's MINE. Unless I'm reverse-engineering it to copy it and sell the copies, the manufacturer should stay the hell out of it. This applies to everyone across the board, including software (I'm looking at YOU, Miscreant-o-soft; get your dirty little fingers out of our computers, NOT YOURS!). How many of you are aware that farmers who own John Deere equipment are not allowed to service and repair them themselves, for instance? Auto manufac
  • from the /. summary:

    When you buy something physical -- a toaster, a book, or a printer, for example -- you expect to be free to use it as you see fit: to adapt it to suit your needs, fix it when it breaks, re-use it, lend it, sell it, or give it away when you're done with it. Your freedom to do those things is a necessary aspect of your ownership of those objects.

    Yet, whenever AirbnB is discussed here, a significant contingent espouses precisely the opposite principle, that the owner should not be free to use as he sees fit.

  • The First Sale Doctrine [wikipedia.org] was a legal ruling to prevent these kinds of restrictions to consumers of products under copyrights and/or trademarks. The basic concept is that once the product is lawfully sold or even transferred gratuitously, the copyright owner's interest in the product in which the copyrighted work is embodied is exhausted. Regarding trademarks, it immunizes resellers from infringement liability as long as the product has not been altered so as to be materially different from those originatin
  • Now you never fully own things. They are always co-owned by sellers/IP owners... You need to share your former rights with them. You must agree how will you share the thing you bought - if you want to use it, you can, if you want to fix it, only they can, if you don't need it then you must destroy it or return (you cannot resell many things like games and such)

    You don't really own things anymore. Marx is half-happy because we are half-way there!

  • I'd patent 'the knife' and forbid everybody from wounding or killing somebody or themselves with it and I would sue everybody who cuts himself.

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