"on the box" Post Sale Product Terms of Use Now Legal?

This post is two parts. The first being the new legal precedent set by Lexmark in the Ninth Circut court, and the second being what I see as the only long term solution to what is a clear attempt to reduce competition and lock consumers into solutions that are more expensive than they would otherwise be.

Edit: I've seen a coupla early comments on this and it seems I missed the mark. Clearly I'm not happy with Lexmark, but this post is not about just avoiding Lexmark products. (Which I would recommend doing!) It is about the problem in general, being our poor representation due to a basic knowledge gap between the average person and corporations looking to increase profit at their expense.

Maybe I'll do a rewrite of this. Ideally this little preamble will make things more clear in the meantime. Keep the problem embodied by Lexmarks recent actions in mind while reading --thanks!

From BoingBoing:

Box-Wrap Licensing is an odious patent-holder practice that's been upheld by the Ninth Circuit. It allows a patent holder to print terms of use (e.g. "single-use only") on the side of the product box and to force you to abide by them:

This little gem is from our friends at Lexmark who have already tried using the DMCA to control the re-use of their printer cartridges. That attempt failed, but it seems they are seeing some success using a mix of patent and contract law to discourage commercial and private refilling of their printer cartridges.

Corante has links to the 9th circut ruling and commentary that I won't repeat here.

Here is the takeaway:

This ruling just established legal precedent for companies to print terms of use on the box that you agree to when you open it. If you use the product, you agree to their terms. In Lexmarks case, you agree to only buy printer ink from them and nobody else. That's just like owning a car that may only be serviced at their dealers, for example. I think most people would say they really don't own the car under those terms. Well, when you purchase a Lexmark printer cartridge, you really don't own it the way you own other things, because you have agreed to abide by Lexmarks terms.

Don't like it? Your only alternative is to purchase other printers and supplies. However, what happens when the other printer manufacturers follow suit? What do we do then? Read on for what I think needs to start happening...

The whole concept of Intellectual Property, combined with corporations economic power and greater ability to influence legislators is beginning to really do some damage and most folks have no idea it's even happening. Corporations are exploiting the knowledge gap that exists between most ordinary people and their own highly trained staff.

It's nothing more than a virtual land grab, with serious real-world implications most of us are just beginning to understand. The companies are already there with a running start locking in everything they possibly can.

Our legal system and our government is a system of checks and balances. Our two most effective checks are rendered largely useless these days. They are our ability to vote for representative government and our wallets. (Vote with your feet!)

The knowledge gap is a problem for both of these and it needs to be addressed before we are going to see the changes necessary to tip the balance back in the average citizens favor.

If we don't understand the technology or the law, how can we vote our best interests? That's problem number one. If we don't know we have alternatives to the licenses, how can we know what not to buy? That's problem number 2.

I think the only realistic solution is citizen advocacy and education. If we are better informed, our votes will matter more than they do now. This will also generate more informed legislators, who might be more willing to limit these kinds of things. Same for the courts.

A more informed public will also be better able to exercise it's economic power as well. In the case of Lexmark, it's probably easier for most people to just buy new cartridges. That's wasteful and expensive. However, if people understood the implications better, more of them would avoid Lexmark on principle, thus discouraging other companies from following suit.

One thing I've noted is the serious lack of coverage on these complex and subtle issues in the mainstream media. Everything becomes common knowledge at some point, isn't it time for these issues to see greater discussion?

I'm not totally sure this is by accident. The "people won't understand it" argument, frequently used to dumb technology down is a non-starter today. A few years ago, nobody understood the details surrounding computers and the Internet, but they did know about cars, radios, phones and television. Today, our understanding of computers and related technology is good enough to being talking about the issues in a general way.

People may not understand the complexity behind their printer, but they are easily capable of understanding that a Lexmark printer cartridge comes with terms of use, crafted to extract more money from them per page printed.

We have already largely transitioned to a "what to buy" culture from a "build it yourself / fix it yourself" culture. The ongoing emphasis on ease of use is helpful and often productive, but also dangerous because it encourages a higher degree of dependance as well. My personal choice happens to be in favor of limiting dependance where practical. However, I can understand people choosing otherwise. What's not ok is the lack of balance in the system to make sure their interests are duly represented.

We need to form groups of people that understand technology, or better leverage groups, such as the Electronic Fronter Foundation (EFF), that do understand these things. This Lexmark story should be news like changes in traffic law, or local law are news. To a degree it is, but it needs to go farther than the business section, back page one paragraph coverage or 10 second sound byte heard on the radio.

What's missing are the implications and what people can do to act and why it matters. We are also missing some bigger picture coverage too. Taken one at a time, each of these subtle yet important changes in the law and technology, are fairly minor. But they build up --and have built up to equal serious changes in our rights and responsibilities we are largely ignorant of.

I think a good model would be the one we use for political issues. Afterall these are political issues, once the technology learning barriers have been distilled out.

I've asked this question of media people before and got the usual, "yeah, but is there interest?" stock answer, followed by it's too complex or boring, etc...

Again a comparison of political issues reveals a similar level of complexity and subtle facts that see media coverage and discussion on talk radio each and every day.

One could take the headlines from the many fine Internet blogs and websites, currently covering these issues, water down the technology issues and focus on the legal and social implications, just as we do with political issues today. At first, folks might not grok all that they are hearing, just as they did with politics at first, but they will learn and share, just as they do with politics today.

Mix in interviews and commentary with known advocates and start hammering things home until enough people get it well enough to start pushing back.

That's it really. Long post I know, but I think this is getting to be enough of a problem to warrant some greater action than we are currently seeing today. Is there anyone doing this for radio, TV or print publications now? If you know of something, I would love to check it out. Share your thoughts and links via e-mail or use the handy comment button below.

Reality

I've been watching, reading and listening to news related to Katrina and New Orleans since it all started. Of course the usual emotions washed over me in waves as each new detail arrived: anger, sadness, helplessness, futility, pain. It's hard to really grok the scale of things there.

A Whole City Lost

The emotion for me this evening is fear. I try hard to not live in fear, but sometimes it grips me and I have to deal with it. I fear our nation has been stripped of essential services and supplies we need to handle situations like New Orleans. It's like some sick gamble. Stealing from Peter to pay Paul, hoping Peter won't notice right away.

We should be able to do better than we are doing right now. I just don't quite understand what has changed here in America, but something has and we need to wake up and fix it before we really get into trouble.

The amount of finger pointing, blame shifting and outright spin I'm seeing is just sick. The truth is we have lost whatever it is that brings Americans together in times of need. It's not lack of money, nor inability to prepare and execute safety plans.

We have lost our trust in one another.

When bad things happen, there are always a group of people that take advantage. Nothing new here. However, the majority of Americans have always outweighed this and prevailed to get things done. We are not seeing this in New Orleans and we really should be.

People are dying because our own government does not trust us to help ourselves. Churches feeding and housing refugees have seen those in their care taken and shipped off to another city because they were not authorized to care for them. What the fuck is that? Authorized? Since when do we need permission to help ourselves stay alive?

Granted, the police and military forces are stretch thin because of Iraq. That does make the job harder for those left here to handle things. But where is the trust in one another that makes good things happen? Why are we pointing guns at people barely able to walk? How come the civilian volunteers cannot enter the city to help people? Why can't we work together for the common good when we need to?

An army publication called the people in New Orleans an insurgency today. I'm sorry, but those people are Americans. Not the nicest ones, mind you, but Americans all the same. Has our mindset shifted so far that we cannot see that and act accordingly?

People with cameras are being told to leave and have had their equipment confiscated or destroyed. What's to hide? We know it's a bad scene, but can't we be honest about that and move on toward making things right? Why do we have to control the flow of information like this? Again, what's being hidden? I know an election cycle is coming, but do we seriously believe suppressing the information about the damage needs to be done to protect those in charge?

If they were acting as true statesmen, why all the secrecy and tough control over the city? Why keep people from reporting the news? I can only conclude we have some serious problems we are not being told about. Nothing else makes any sense.

Back on the trust issue. A growing number of blogs are detailing goofy and cruel actions by the military and police forces there. Folks who worked hard to organize aid are being denied access and they shouldn't be. The current plan is to evacuate the entire city. Why? What about those that have homes, businesses and other interests there? Can't they be allowed to help others, maybe secure their possessions, and do other simple human things?

Are we just going to close it all up and ignore it?

The lack of resources is easily explained. We have over extended ourselves in Iraq and it's showing now. The high level of control is necessary to keep the peace and allow rescue efforts to continue.

Why can't we be honest about these things and address them as a nation? Why are we not allowed to take pictures and communicate the situation to others? How come people have to die so our government can look good? Why can't our rescue teams, volunteers and the miltary / police work together like they use to do?

Fear and trust are gone and what's left is not pretty. Our leaders have cultivated fear and have used it to strip away rights, start wars and exploit us. That same fear has eroded trust between fellow Americans. All of this makes us weak and vulnerable when we need to be strong. It has also divided us, making us weaker still.

I don't know how to fix this stuff, but I do know I don't want to live in a world where churches need authorization to help people in need. I don't want to live in a place where taking the wrong picture can put you in jail or have your camera taken. And I sure don't want to be living in a place where keeping secrets that help prop up a failing government is worth American lives.

We need leaders we can trust. Leaders that inspire us to do great things. Leaders that the world looks up to and that we can be proud of. All I see today are people that act like sleezy businessmen that honor the bottom line and their own power above all else.

I'm not sure who to believe over this whole mess and that's a problem too because I should be able to know what is happening and trust those making it happen to do the right things at the right times.

Fear....

What if we are attacked right now? If we can't handle this, can we really handle other things? Is our nation really so weak now and untrustworthy that we cannot take care of our own? Are we now sitting ducks while our corporations continue to make money hand over fist?