So this is perhaps old news for people who keep up with Slashdot, but the U.S. Ninth Circuit Court of Appeals recently ruled in favor of Lexmark in ACRA v. Lexmark.
The case was about whether Lexmark could offer a “prebate” on some of its ink cartridges with the stipulation that ink cartridges bought under this prebate (that is, a discounted price) would carry a contractual obligation on the part of the customer to mail back the empty cartridges to Lexmark — and not reuse them by using an ink-syringe kit to refill them or sending them to a company that refills cartridges for you (such companies being the ones represented by ACRA, a trade association for such things).
There’s no actual contract, of course. The reason companies don’t make you do this random crap most of the time is because, before, it would require railroading you into signing something, which most customers won’t do.
But now apparently by generalizing from the way shrinkwrap licenses or “Click to Accept” EULAs on software work, hardware is falling under similar rules. The Court has ruled that if a box reads “Single Use Only”, then buying the product and opening the box constitutes a contract of sale that says you will only use the product once and not find some third-party way to reuse it.
My God. Think about that a little.
Ink cartridges are already one of the most hideously disgusting rackets in the world. Now they can actually force me by legal means to adopt their vile business model of wastefully tossing out old cartridges and buying new ones at exorbitant prices. Right now there’s no force involved because the cartridges are being introduced under the “prebate” scheme, but if this works — what incentive would they have to sell legally refillable cartridges at a higher price at all, when the profit margin of the damn things is so high, and customers are already leery of stepping outside the bounds of what the company tells them they’re “supposed” to do with the product?
Imagine cars that can’t be detailed or souped up or modified unless you buy parts specifically manufactured for the purpose by that car company, and that can’t be fueled except with that car company’s gasoline. Dell computers that won’t let you plug in peripherals that weren’t also licensed or manufactured by Dell. Lamps that will only take GE lightbulbs. And so on.
Now, sure, I sound like an alarmist. These companies have no cameras in your house — right now if you can syringe ink into the cartridge yourself, there’s not a damn thing in the world they can do to stop you.
But consumers are easily stymied by inconvenience and ignorance. They can’t stop an individual from refilling his cartridge but they can sure as hell legally sue the companies that make refilling kits or provide refilling services out of business, once all cartridges get the “Single Use Only” shrinkwrap license on their packages and refilling services become by definition illegal. (Thanks to the Grokster ruling, it’s now become easier to do this crap than ever — you don’t have to prove any instance of wrongdoing, just that a service’s availability could easily encourage wrongdoing. The burden of proof would be on the refilling company to prove they only refilled cartridges purchased before 2007 or whatnot, and they probably couldn’t.) Car companies can do the same to push out third-party parts dealers; Dell and Gateway can kill off the sellers of cheap keyboards, mice and CRTs; and so on. This ruling is a deadly combination with Grokster — it takes Grokster and extends it beyond the digital world to plain, ordinary objects we use every day.
I mean, come on — we’re not talking about electronically stored data here anymore, not about information, not about complex technology. We’re talking about your right to buy a container filled with fluid, use up the fluid and fill it up again with fluid. What’s next, Evian refusing to allow you to fill their containers with non-Evian water? When you can’t own something as mundane as an ink cartridge — when a simple physical object that fulfills a simple physical function is licensed rather than being sold the old-fashioned way, when companies absolutely refuse to allow us to have the right of resale and reuse and creative retooling that we’re used to with actual physical objects that we actually physically buy and take home to our houses to use –
Well, damn. This fight’s just gotten a lot bigger than cyberspace. This is now a meatspace fight. This fight is now about the right to own anything.
How ironic, that the people who claim that DRM and the licensing principles that stand behind DRM are the fundamental guardian of property rights, when in fact this is the force that is rapidly destroying property rights as we once knew them and stands ready to turn the consumers of at least expensive electronic goods from owners into renters and squatters.
