Patent Law Shouldn’t Block the Sale of Used Tech Products
nytimes.com
nytimes.com
I'd love to see the exact legal language that even specifies that condition "required to return".
After all we can assume that most people don't do that or actually that those who don't return the cartridge almost certainly suffer no legal jeopardy for that inaction. If you are required to do something by a contract, then you would expect some degree of enforcement when the contract terms haven't been met. My guess is that Lexmark can't show any action they take for cartridges not returned.
I've often noted how companies that sell laser cartridges will give you a free label to UPS the cartridge back to them. They cloak it as "recycling" but it serves two purposes. It gives them a free cartridge to refill but it also takes away a cartridge that could be used by a third party that would a sale from the company.
I don't understand the comment that you make about not owning the batteries in an electric car. If you own the electric car, then you own the batteries, that's not in question.
However, manufacturers often put measures into place that make ownership less useful:
-- They might load software into the device that makes it respond to their control, and limits your ability to use the object
-- They might restrict availability of manuals, repair parts and other information to incentivize you to use their service facilities
However, I would argue that these are not the same as infringing on your ownership.
Frankly, this seems like an area where the FSF could do a lot of good and garner a lot of goodwill.
I'd say that's a pretty direct infringement on my ownership, but then again I've got a few tin-foil hats lying around.
[1]http://www.againstcronycapitalism.org/2015/04/john-deere-and...
[2]https://www.techdirt.com/articles/20150421/23581430744/gm-sa...
[3]http://news.boldride.com/2015/04/gm-wants-to-make-working-on...
Not to mention I think it's currently illegal to Jailbreak an iPhone or root an Android, despite them being yours.
I really do wish the US was as cut/dry as you make it seem, and I wish they cared about consumers more, but in reality, Companies get far more rights then we, as consumers, do.
Edit:Formatting
Has the 2012 DMCA jailbreaking exemption now expired? I know exemptions expire every three years, but I wasn't sure exactly when.
See also this timeline of the EFF's efforts in getting DMCA exemptions: https://www.eff.org/issues/dmca-rulemaking
[0] https://en.wikipedia.org/wiki/IOS_jailbreaking#United_States
It's where you want to modify the software and post a derivative work online that copyright law kicks in. You may as well say that you do not "own" a book, because you don't have the right to share an edited version of it. Sort of true, but not very interesting.
False premise: you often cannot blow away the firmware, because it is either hard-coded, or signed.
And even when said premise is correct for a device, there are cases where the firmware inherently requires copyrighted material (For instance, requiring a (copyrighted) poem in a handshake).
No way! Copyright law does not prevent someone from creating a new work that is designed to be compatible with an old work. Likely outcomes are that the poem would not qualify for copyright protection for that usage (it's not a poem as much as a sequence of arbitrary bytes to be read only by a computer), or that a fair use finding would be made, perhaps on the grounds that the copy does not affect the market for the original work - i.e. nobody was paying for the poem. Most likely a judge would just throw out the entire case at the start as a waste of the court's time.
Do you want the state to use men with guns to force everything with a microcontroller in it to also come with an SDK? I'm basically a socialist, and even I think that's ridiculous overreach.
You could be held for circumvention of copy protection schemes.
http://arstechnica.com/tech-policy/2013/01/unlocking-new-cel...
What GM, Ford, John Deere, Apple, etc. have said is that you can't tinker with their firmware that is installed on the device. None of them would argue that they can come repossess your tractor/car/mobile phone.
As others have pointed out, it is not currently illegal to jailbreak a phone, though that may change in the near future.
To make an analogy and play devil's advocate a little further, it would be hard to argue that I don't own my home. There is a deed to that effect recorded with the county, more than I can say for anything else I own. Yet:
* The state can take it from me in short order if I don't pay my taxes
* I have to get a permit from the city to make any substantial modifications to the property
* There is a neighborhood association that dictates property uses as well, which I have to comply with
* I couldn't just knock the house down and build a car repair garage -- city zoning ordinances restrict how I use my property.
And yet, I don't hear a big outcry that I don't truly own my house.
... an implied license for the life of the
vehicle to operate the vehicle
You could argue that, but you'd be going against the clear meaning of ownership over the last few hundred years.
When I swing by Office Max to pick up toner, or click the Amazon button to add it to my card, there is literally no verbiage either presented to me or agreed to by me that would indicate anything other than a flat-out sale. One can't argue any such thing because no contract is sought or required for end users to buy toner.
I repair watches. Their are certain brands I cannot buy parts for. Even as a certified watch repairer, most companies won't sell parts to me, or anyone else--no matter how much experience you have. You are forced to send that watch back to the factory, and pay outragious prices for repair and service.
So you did ok financially. You go out and buy a fine watch. A watch designed to be taken apart--over and over again. A watch you plan to hand down to your kids. The only problem is you, and everyone else who owns that watch needs to send it back to the factory for service(cleaning, and oiling), and parts when it stops keeping time. You don't own the watch, you are mearly leasing it. It's not about quality service; it's about money.
If you happen to own one of these watches. If it ever stops don't think you have the right to repair it yourself, or decide who repairs your timepiece. It has to go back to the factory.
A. Lange & Sohne Alfred Dunhill (Rolex, and Omega sell to some certified watch repairers, but are trying to find ways to eliminate 3rd party watch repairers.) Audemars Piguet Bertolucci Blancpain Breguet Breitling Bulgari Cartier Certina Chaumet Chopard Daniel Mink David Yurman Dior Diesel Doxa Fossil Franck Muller Frederique Constant Glycine Guess Harry Winston Hublot Jaeger-LeCoultre Krieger Luminox Marcel Watch Meylan Stopwatches Mont Blanc Nixon Parmigiani Piaget Pierre Balmain Raymond Weil RGM Sector Skagen Tourneau Tutima Ulysse Nardin Vacheron Constantin Van Cleef & Arpels Zodiac
Yes, the watch analogy is little off topic, but I believe relevant. If consumers don't smarten up, more and more companies are going to be "milking" you for money, or we will be forced--economically to just buy another expensive unit of their product? (It's not just ostentatious watches, it's car companies that won't sell 3rd party auto repairers scan codes in order to repair their complicated/mess of wires, and computers? It's more product than people realize? I believe in recycling/repairing goods? I don't like this throw away society.
I can't see this principle as anything but incumbent crony capitalism and a completely unnecessary drag on the economy.
It's actually nothing like that. It's like Ford refusing to sell you parts for your car. Or Apple refusing to sell you parts for their computers. Nothing says you can't acquire parts from another manufacturer, nor is there anything preventing you from performing the repairs yourself. (Other than maybe warranty terms, which is IMO not a moral hazard.)
Incorrect.
> I'm not sure if you've been keeping up with US news, but this isn't true, at least until it's decided in court. GM, John Deere, and Ford all have the opposite opinion[1][2][3]
> [1]http://www.againstcronycapitalism.org/2015/04/john-deere-and....
> [2]https://www.techdirt.com/articles/20150421/23581430744/gm-sa....
> [3]http://news.boldride.com/2015/04/gm-wants-to-make-working-on....
> Not to mention I think it's currently illegal to Jailbreak an iPhone or root an Android, despite them being yours.
> I really do wish the US was as cut/dry as you make it seem, and I wish they cared about consumers more, but in reality, Companies get far more rights then we, as consumers, do.
For instance: parts that refuse to work unless all other parts return a handshake containing a copyrighted message.
While you're not going to be able to print a replacement part for a mechanical watch with a RepRap any time soon, a specialty machine that could duplicate parts by putting the original on a microscope slide and taking some photos could be useful whenever the replacement parts are unavailable from the manufacturer at a lesser cost.
Some hobbyist-grade volume printers and CNC mills have been employed to make car repairs in instances where the manufacturer sells for $50 some nylon gear assembly that contains $0.10 of plastic and some commodity steel axle pins. Sometimes, the nylon is replaced by CNC-machined aluminum (at higher materials cost--maybe $2 instead of $0.10), and that part will never need to be repaired again for the lifetime of the vehicle.
Such one-off manufacturing moves the market from zero competition, where the market can be manipulated and controlled, to a more competitive model. Even if the original manufacturer can create a replacement part at 1% the cost of a home-repairer garage-manufacturing a part, the threat of it places an upper limit on what the business can charge for their officially sanctioned repairs.
It is the manufacturer's refusal to sell those parts at a reasonable price that creates the market opportunity. Every complete new watch must necessarily contain working parts. So someone buys one, takes it apart, makes detailed photographs, and discovers the means to duplicate the parts. It's not whether the parts can be produced at lower cost, but whether they are made available for sale by anyone at lower cost. If it costs you $20 to make a part that can be produced at $0.02, it hardly matters to you if the only way you can get that is by paying $100 and shipping to and from the factory.
To be analogous, the watch companies would need to be suing people for repairing their watches, perhaps by cannibalizing parts from other broken watches. I haven't heard of any watch makers doing that, and until they do, there is no attempt to subvert the doctrine of first-sale that we are seeing with the Lexmark case.
Epson was the first major printer manufacturer to ditch that business model, with it's EcoTank range: http://www.wsj.com/articles/review-epson-kills-the-printer-i...
I'm no industry insider, but their packaging behavior says to me that their real money is in getting you to buy their toner, and the stark price difference between first and third party replacements indicates the likely markups on the first party option.
I think it's great that they're branching out but they didn't stop production on their other models, right?
If business doesn't pan out for EcoTank, they won't keep it around.
Once it was said, that patent law was introduced to support small inventors and the disclosure of inventions. Today's implementation of the patent system fails in both respects!
Small inventors are not supported, but hindered by the current patent system. And no essential inventions are disclosed anymore by the patent system. Most patents are about things that are so trivial that the patent disclosure brings no additional knowledge to the world. Even the other patents most often do not hold enough knowledge, that would be a real "disclosure" -- patent lawyers are trained today to "disclose" with out real disclosure. The real information is hidden -- just enough information is given, to block competitors.
As we can see, additionally the patent system is misused by big corporations today more and more to protect their monopolies. Essentially, patent law is used by the big players to damage the interests of consumers. Today we could also speak of a concealed "patent-tax" that all of us are paying when we buy a smart-phone or other high-tech products. With any product, we pay also for patent-fights, for a host of patent-lawyers many companies need today and for the situation, that cheaper products are blocked by patent-holders.
The problem is, that there are to many interests pro-patent. So a real reform will never be undergone by today's politicians.
Also, what does 'reasonable financial compensation' mean? Consider newly patented drugs. The R&D cost is enormous, even without covering the cost of the attempts that failed to get to market. And there can be multiple patents, including the method of action and the method of synthesis.
If you have 5 patents for drug X and I infringe on 3 to make a competing drug X', do I pay less than if I infringe on all 5 patents?
(Edit after several people commented: I believe that amelius meant to include mandatory RAND-like licensing for first sale. My response should be read in that vein.)
Let's say that you are a patent holder for an über-toaster.
If some company is making über-toasters using your patent, you can stop them from using your patent for their profit. This is what patents for.
If some other company is buying used über-toasters, fixes them and re-sells them, you should not be able to stop them from re-selling fixed über-toasters.
If amelius only meant to include re-selling equipment acquired under a valid patent license, then the phrase "It should at most lead to reasonable financial compensation of the inventors" makes no sense. Were patent rights to follow first-sale doctrine, the patent holder would receive no financial compensation for resale. Which, for the record, is fine with me.
I was remiss in not making that clear in my scenario.
If that's not how the law works, it's how it should work. Actually scratch that, the way it should work is to not have patents at all, since they lost their net benefit to society a long time ago (if they ever had it), but that's a whole other can of worms.
This is unfortunate, because there are plenty of empirical studies showing the benefits and costs of patents (search ssrn.com for "patents" and focus on the studies that use economic data). The upshot is, to date nobody has been able to say the one outweighs the other largely because they are not directly comparable.
http://www.dklevine.com/general/intellectual/againstfinal.ht...
https://news.ycombinator.com/item?id=7890441 https://news.ycombinator.com/item?id=8157206
But computer software and tech startups would be much better off since patents are purely harmful to software innovation.
Which points to one obvious reform.
On the other hand, there are multiple other studies showing how having a patent increases the chances of tech startups of a) receiving VC funding and b) making successful exits. I'd say it's still not clear that the software industry is being harmed more by patents than it is being benefited.
Quoting from http://www.nolo.com/legal-encyclopedia/improvement-patents-n... :
> New Uses for Existing Inventions
> You can also get an improvement patent for an innovation that provides a new use for an existing invention. For example, in 2000, the Federal Circuit allowed a patent for the idea of using Bag Balm -- an ointment normally used to soothe irritated cow udders -- to treat human baldness. The court found it patentable, because it's a new use of a known composition.
Quoting from http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3146086/ :
> In addition to patent protection for the original compound and method of use, patents directed to new uses and treatment indications can be obtained. Developing new methods of use for identified compounds can be a successful strategy for maximizing research dollars and for increasing the commercial life.
Those sound like it's possible to patent use, in addition to the 'creation of something.'
There are several types of patents listed at http://www.uspto.gov/web/offices/ac/ido/oeip/taf/patdesc.htm . One is a patent on new varieties of plants (see https://en.wikipedia.org/wiki/Plant_Patent_Act_of_1930 ). I don't think that counts as "instructions or the specifications for the creation of some object."
You wrote: "Otherwise, you would need to sign a contract for buying a hammer (assuming it was patented) outlining the allowed uses."
I believe this is almost exactly what's at issue in the NYT article, replacing hammer with ink cartridge.
Suppose I run a firm that sells custom men's clothing, that has a patent to, say, change color and temperature at the wearer's preference. Each outfit has to be personally tailored by a professional designated by our company.
Now, perhaps a high-end men's clothing retailer begins selling my clothing and tailors it in-house. The quality is comparable and they compensate my company. So far so good, right?
Well, what if quality isnt comparable? What if the stitching was improperly done and felt too tight, or unraveled over time? Even if the customer knew that the "re"-seller wasn't an official associate, the damage to our brand would already be done.
And that's why first sale should be at the discretion of the patent holder.
Before 2006 injunctions were essentially presumed, but now it's pretty hard to get an injunction in a patent case.
I'd ordinarily assume the courts would follow the path of Kirtsaeng, and find for the refiller.
However, if the court's asking for briefs on Kirtsaeng's applicability... that's a worrying question. Kirtsaeng is not binding as a matter of law in this domain, even though it's the better solution. The court wouldn't ask for briefs on applicability if that wasn't potentially decisive. So maybe the Court is prepping to find for Lexmark, and will force SCOTUS to explicitly extend Kirtsaeng-reasoning to patents.