Sneakwrap licensing

S

Steve

From Ed Foster's GripeLog -

http://www.gripe2ed.com/scoop/story/2003/10/9/9193/72265



The sneakwrapping of American law took another fateful step last week
with a decision rendered by the U.S. District Court in the case of
Lexmark versus the Arizona Cartridge Remanufacturers Association
(ACRA). The court's ruling - dismissing ACRA's charges of deceptive
practices against Lexmark - implies that a manufacturer can deprive
mass-market consumers of their rights just by slapping a license
agreement on its product.

The case revolves around what Lexmark used to call its "Prebate"
program for laser printer toner cartridges. Prebate cartridges come
with a shrinkwrap license agreement saying "opening this package …
confirms your acceptance of" a restriction that the cartridge can be
used only once and then should be returned to Lexmark. Lexmark said
it wanted the empty cartridges for remanufacturing or recycling
purposes, but no one can doubt the company's primary motive was to
keep the cartridges out of the hands of re-manufacturers.

ACRA argued the Prebate program was deceptive because it misled
consumers into thinking they did not have the right to dispose of the
cartridges as they chose. ACRA assumed the court would conclude
Lexmark customers have that right due to what is called the "doctrine
of exhaustion." Roughly the patent law equivalent of the first sale
doctrine in copyright law, the doctrine of exhaustion says the patent
holder's rights cease - are "exhausted" -- once the product is
actually sold. Buyers have an implied license to use the patented
product as they see fit, including reselling it or fixing it. As the
judge put it in her ruling, the doctrine of exhaustion "includes the
authority to repair a patented device (e.g. refill an empty printer
cartridge.)"

But ACRA assumed wrong in thinking the court would uphold the doctrine
of exhaustion in this case. That doctrine only applies in
unconditional sales, the judge said. Conditional sales in which one
negotiates a better price in return for agreeing to certain
restrictions are not uncommon in business-to-business transactions.
Most laser printer customers are businesses, the court noted, and
Lexmark's license was visible on the outside of the product "so the
Lexmark purchaser is on notice that Lexmark has imposed a single-use
condition on the cartridge."

The court also bought Lexmark's description of its Prebate price as a
$30 discount or upfront rebate off the "regular" price of its
theoretically available non-Prebate cartridge. ACRA had argued that
the Prebate price was the actual regular price, and $30 more for a
cartridge without the usage restriction was actually a surcharge. But
the judge concluded that the Prebate offer constituted a special price
that reflects an exchange for the single-use condition.

"Based on these circumstances, the court concludes that Lexmark has
not exhausted its rights," the ruling read. "The Prebate is a
conditional sale and the single-use condition is enforceable ….
Because of its patents, Lexmark has the right to impose conditions on
the sale of its patented product. It may restrict a purchaser's
ability to repair it, which is what in essence the single-use
condition does."

In other words, a federal judge is saying that a patent holder can
impose usage restrictions on its customers just by having some
legalese on the package. And the usage restrictions are enforceable
even when they are clearly intended to limit competition. Indeed,
giving Lexmark the right to prevent its cartridges from being acquired
by the remanufacturers makes it all the more likely Lexmark printer
customers will have no other options when they need a toner cartridge.

Of course, Lexmark customers did have another option - they could have
purchased a different brand of printer to begin with. As we've seen,
Lexmark isn't the only printer company trying to lock customers into
using their consumables, but none of the others have gone so far as to
employ UCITA-style legal tricks to do it. Either we make it clear we
will have nothing to do with companies that deprive us of our rights
this way, or we can bet that very soon all companies will do the same.
 
J

jitney

It sounds like Kobe's defense, she went into my room and kissed me, so
she agreed to sex. Basketball players are not the only rapists,
package unwrap corporate licensing is stripping off our wraps and
raping us, too.-Jitney
 
N

None Of Your Biz

From Ed Foster's GripeLog -

http://www.gripe2ed.com/scoop/story/2003/10/9/9193/72265



The sneakwrapping of American law took another fateful step last week
with a decision rendered by the U.S. District Court in the case of
Lexmark versus the Arizona Cartridge Remanufacturers Association
(ACRA). The court's ruling - dismissing ACRA's charges of deceptive
practices against Lexmark - implies that a manufacturer can deprive
mass-market consumers of their rights just by slapping a license
agreement on its product.

The case revolves around what Lexmark used to call its "Prebate"
program for laser printer toner cartridges. Prebate cartridges come
with a shrinkwrap license agreement saying "opening this package …
confirms your acceptance of" a restriction that the cartridge can be
used only once and then should be returned to Lexmark. Lexmark said
it wanted the empty cartridges for remanufacturing or recycling
purposes, but no one can doubt the company's primary motive was to
keep the cartridges out of the hands of re-manufacturers.

ACRA argued the Prebate program was deceptive because it misled
consumers into thinking they did not have the right to dispose of the
cartridges as they chose. ACRA assumed the court would conclude
Lexmark customers have that right due to what is called the "doctrine
of exhaustion." Roughly the patent law equivalent of the first sale
doctrine in copyright law, the doctrine of exhaustion says the patent
holder's rights cease - are "exhausted" -- once the product is
actually sold. Buyers have an implied license to use the patented
product as they see fit, including reselling it or fixing it. As the
judge put it in her ruling, the doctrine of exhaustion "includes the
authority to repair a patented device (e.g. refill an empty printer
cartridge.)"

But ACRA assumed wrong in thinking the court would uphold the doctrine
of exhaustion in this case. That doctrine only applies in
unconditional sales, the judge said. Conditional sales in which one
negotiates a better price in return for agreeing to certain
restrictions are not uncommon in business-to-business transactions.
Most laser printer customers are businesses, the court noted, and
Lexmark's license was visible on the outside of the product "so the
Lexmark purchaser is on notice that Lexmark has imposed a single-use
condition on the cartridge."

The court also bought Lexmark's description of its Prebate price as a
$30 discount or upfront rebate off the "regular" price of its
theoretically available non-Prebate cartridge. ACRA had argued that
the Prebate price was the actual regular price, and $30 more for a
cartridge without the usage restriction was actually a surcharge. But
the judge concluded that the Prebate offer constituted a special price
that reflects an exchange for the single-use condition.

"Based on these circumstances, the court concludes that Lexmark has
not exhausted its rights," the ruling read. "The Prebate is a
conditional sale and the single-use condition is enforceable ….
Because of its patents, Lexmark has the right to impose conditions on
the sale of its patented product. It may restrict a purchaser's
ability to repair it, which is what in essence the single-use
condition does."

In other words, a federal judge is saying that a patent holder can
impose usage restrictions on its customers just by having some
legalese on the package. And the usage restrictions are enforceable
even when they are clearly intended to limit competition. Indeed,
giving Lexmark the right to prevent its cartridges from being acquired
by the remanufacturers makes it all the more likely Lexmark printer
customers will have no other options when they need a toner cartridge.

Of course, Lexmark customers did have another option - they could have
purchased a different brand of printer to begin with. As we've seen,
Lexmark isn't the only printer company trying to lock customers into
using their consumables, but none of the others have gone so far as to
employ UCITA-style legal tricks to do it. Either we make it clear we
will have nothing to do with companies that deprive us of our rights
this way, or we can bet that very soon all companies will do the same.

So what is the big deal? Pay for the thing in cash (not credit cards,
checks, that identify the buyer). Then do whatever you want with it.
That is the whole problem today, people sell their identity each time
they use a credit card or give out personal information.
 
M

magpie

One less reason fro me to recommend Lexmark to my clients. Pity,
because they used to build such good workhorse printers.

Frank
 
C

CWatters

It sounds like what Lexmark are doing is a bit like selling crates of beer.
The price includes a deposit on the crate/bottle and you have to return the
empty crate/bottle to get a refund. Only in this case Lexmark gave you the
refund up front and made you promise to return the bottle.
 
J

Jim Kent

Only in this case Lexmark gave you the
refund up front and made you promise to return the bottle.

Uh, C, there *is* no 'refund' up front -- that's the whole point.
There really is no price reduction, only the convenient fiction of the
$30. The judge is, as is so often the case, a clueless moron.

I have no details of the case other than what was in the original
post, but it makes me wonder if the plaintiffs blew it by failing to
show that Lexmark's cartridge prices didn't change when the
mumbo-jumbo appeared. Based on the stated reasoning, that should have
made the judge's reasoning invalid on its face.
 
B

Bob Kos

Hold on. Is it the cartridge remanufacturers that are complaining about
this? Who are the people that charge the living hell out of you if you
don't have an exchange?? Many of the cartridge remanufacturers, that's who.
I never understood that. They have big balls to complain about lexmark.

Auto parts rebuilders are the same way. Or used to be. That's disappearing
in the automotive world. Cartridge remarketers should check into that.

The cartridges that came in both of my Lexmark printers were not identified
as prebate. They were both in used printers that I purchased. They were
both equipped with Lexmark branded cartridges. I have seen the prebate
cartridges and they are DEFINITELY discernable from non-prebate units by the
labeling. So not EVERY Lexmark cartridge is prebate.

Seems to me that there should be plenty of THOSE available for
remanufacturing or to fill up the land fills.

Every toner I have EVER purchased that consisted of more than a plastic
bottle included shipping instructions to ensure the unit was returned to the
manufacturer. Lexmark went one further by making it seemingly worth your
while to do it. And I'll bet the consumers have responded favorably to
that. Which pisses off the remarketers, I'm sure.

Who says the 'regular' price is the prebate price and the non-prebate price
is an overcharge. Lexmark can charge whatever they want. Hp, Canon, Ricoh,
Epson, Minolta, Okidata, Panasonic, Brother, etc, etc all charge whatever
they want for their supplies. And sometimes those other companies are
outright sickening what they get for an item. So is Lexmark being unfair in
their pricing for NEW cartridges? I don't think so at all. Not for what
you get.

I like the Lexmark toners. I'll keep buying them. And sending them back.
As infrequently as I do. They really DO last as long as they're supposed
to.

Steve wrote in message ...
 

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