There are many ways that companies make money by having you pay again, again and again.
For example, just try buying a copy of the Windows operating system, installing it on one computer, then trashing that computer and installing the same system – which you purchased – on another piece of hardware.
Isn’t likely to happen.
And that’s the basic issue in a request for the U.S. Supreme Court to hear arguments in a case between Impression Products, which recycled and resold computer printer cartridges, and Lexmark, the maker.
A privacy organization, a coalition of senior citizens and others have submitted a brief to the high court requesting that it hear the case and reverse the lower-court decision that favored Lexmark.
The Electronic Frontier Foundation asked: “When you buy a printer cartridge, is it yours? Or can the company control what you do with it, even after you pay your bill and take it home?”
The technical legal issue is called “patent exhaustion” doctrine. In this case, Lexmark sold printer cartridges with restrictions on consumers’ rights printed on the packaging. It said consumers were not allowed to refill or resell the cartridges.
When Impression acquired used Lexmark ink cartridges and then refilled and resold them, Lexmark sued.
A federal appeals court said it’s perfectly proper for a manufacturer to sell a product but still control a customer’s use.
EFF, along with AARP, Mozilla and other groups, contend such “conditional sales” aren’t in the public’s interest.
“If allowed to stand, the lower court’s decision could block your right to reuse, resell and tinker with the devices you own,” said EFF Staff Attorney Daniel Nazer.
“Under this theory, consumers could be held liable for infringement for using products purchased legally, and that the patent owner has already been paid for,” he said.
The groups argue that if patent owners can control goods after they are sold, American consumers could face all sorts of complications.
“This trick is straight out of some companies’ wishlists for restricting user rights,” said EFF Staff Attorney Kit Walsh. “They have tried a variety of legal tactics to restrict your ability to repair or resell the things you buy, and to prevent experts from investigating how they work.
“That includes experts who want to figure out if your devices are secure and respecting your privacy, or who want to build products that can plug in to your devices and make them do new and useful things.”
EFF urges the Supreme Court “to reaffirm the patent exhaustion doctrine and protect people’s rights to own and understand the products they’ve purchased.”
The brief argues that even repairing something a consumer owns could be endangered if the lower court’s decision in upheld.
“The ordinary incidents of property ownership are critical to ensuring competitive markets and consumer rights. Secondary markets in goods permit efficient maximization of value, prevent price discrimination, and avoid waste by enabling reuse and recycling. Full ownership rights also include a right to repair, which opens up a valuable marketplace for repair services,” the groups told the Supreme Court in a friend-of-the-court brief.
“But ownership rights do not merely have economic value; they are essential to fundamental rights such as speech, autonomy and privacy. Central to ownership are rights to understand, analyze, and innovate upon one’s possessions,” they said.
By Bob Unruh