Sunday, September 04, 2005

"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.

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.


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