I think this editorial is making this case out to be more than it is.
There are many ways that a company can work to restrict a person's ability to modify a product that they have purchased. Patent infringement is one way, and that argument's effectiveness has been reduced.
But there are other ways that a person's ability can be restricted, such as licensing and proprietary parts. This case says nothing about that.
So please, author, don't make like I was going to be sued if I tried to replace my iPhone's battery.
I was going to mention something similar. Someone, somewhere, is looking at all the ways you can headline the same information to generate clicks[1].
I've seen a number of people make this particular leap though, that people will cite this as a precedent for either reversing or defending lawsuits against post sale use.
If the Rolex on my wrist stops working, I can take it apart, and clean/oil it, but couldn't buy a part from Rolex.
That is without going through a lot of expensive training, and certification.
Even then--their master plan is just restricting parts, so you need to send it back to them. "Here is you $900 bill from the Rolex factory".
Companies will just start ramping up the whole "Quality Assurance" BS. It's my expensive gadget. It's out of warranty. Allow me access to parts, and information--if you have them? I'm not being unreasonable?
Would I buy a new high end watch again--no, with the exception of a Seiko. They sell parts.
It seems like you have been shadowbanned for quite a while now. I looked at your comment history and didn't see anything that would deserve that. I think if you emailed the mods you could get that ban reverted.
I think this article is taking what the ruling says and bringing it a bit far. Essentially this suit was about Lexmark suing a "remanufacturer", Impression Products, Inc., that takes used ink cartridges and refills them, instead of the consumer returning them to Lexmark, for parent infringement (I think in this specific case, the remanufacturer was refilling toner cartridges). Impression Products won this case, and the suit says that patent rights end once the cartridge is sold to a consumer.
I can see that this could be a landmark case in the future when one of those Right-To-Repair laws (like the one in Nebraska(?)) if the specific reason manufacturers don't want to let consumers repair their own products is due to patent issues, but more broadly I don't think it covers the entirety of the "right to repair". That case might use this as a precedent, but it will still need to be decided in a court.
This case rules on patents because the case before them was about patents. But for me, when I read the decision I got sense that the court felt the pendulum had swung too far away from consumers, and that things need to be balanced out with a stronger view of the first sale doctrine.
Given this change in thinking, I am optimistic future cases dealing with non-patent issues will yield similar results.
Maybe, but this suit rules only on patents and you can't infer beyond that. Take, for example, this line in the case (on page 10, under pp II A):
> The single-use/no-resale restrictions in Lexmark’s contracts with customers may have been clear and enforceable under contract law...
IANAL, but this makes me think that the case would only be applied to patent issues, because it doesn't rule about anything concerning contracts. That kind of suit will have to come later.
Sure I don't dispute that it only rules on patent issues. But, I think it is often possible to get a sense of how the court will rule on future decisions by reading their past rulings to get a sense of their thinking. And while there is a lot to be said for each justice's individual personality, on this issue they were unanimous.
My reading of the decision was that the court wasn't just clarifying the bounds of patent law, with no real interest in the consumer perspective. I felt a court that was concerned about the way consumer rights are heading.
If companies start spamming the public with grabby adhesion contracts for everyday purchases, I think the court is going to be very concerned.
Of course, this is just my intuition and reading. We won't know for sure until the next consumer rights case, but I am optimistic.
I do think that eventually you will be able to buy the parts for repairing your phone from the manufacturer (how that system will be set up, I'm not sure) but I would imagine that software locks would also be tied to that. As in, the software won't be able to tie your specific display or motherboard to your phone and not let you repair them. I'm actually curious about how the warranty and insurance will work in that case, since currently if you attempt to open your device its warranty is voided. I'm guessing that if you damage it due to your own repair attempt, you can have the manufacturer repair it but you will pay full price (insurance wouldn't cover it).
For any of this to happen, there would have to be some serious changes in either sentiment of device makers or the legal environment. And, honestly, the number of people who want to repair their own phone is basically zero.
Where I live, there are dozens of shops that can replace just about any part of your iPhone, except the secure elements (fingerprint sensor). They don't seem to have trouble getting parts. So really we are taking about a mechanism for consumers to buy OEM parts one-off. I don't see that happening.
The ruling in this case simply says you can't sue someone for patent infringement if they are re-selling, refurbishing or re-manufacturing your product without their permission. Further, it says that you can't sue someone for US patent infringement if they import your goods originally sold overseas. That's because patent rights are "exhausted" with the first sale, like copyright.
This ruling does not:
- prevent a seller from forcing you to sign a contract saying you won't re-manufacture or refill their product, and sue you if you violate that contract
- require a seller to do anything else to help you repair your product
- prevent Lexmark from suing cartridge refillers for patent infringement if the materials that they are using for the refill (inks, toners) violate a Lexmark patent
Why did Lexmark use patent in the first place? Well, the problem with using shrink-wrap agreements is that then you have to sue your customers - yuck. Lexmark's customers are the ones violating the agreement, the resellers don't have any kind of contract with Lexmark so they aren't in breach. Also, you'd have to sue thousands upon thousands of customers to chill the market - reminds me of the Napster days when record labels were trying to sue individual downloaders. Suing on patent law was a creative way to go after the resellers - but it didn't work.
Man, if only they'd made the cartridge play a little tune when the chip is disabled. Then they could do the full DMCA game. Seems like the key to modern security is to have something copyrighted behind a terrible lock
That seems unlikely to hold up in court. Sega v. Accolade was a very similar situation, and the court found that Accolade's use of a copyrighted string (the "Trademark Security System") was acceptable as an unavoidable requirement of Sega's console.
What does "stuff" mean? And what's a "right" in this situation? Does "stuff" include things like a Tesla Model S, and a "right" means that Tesla cannot remotely brick your car due to modifications? Does the "right" to repair only protect from prosecution or does it imply being given access to documentation and spare parts?
Usually a "right" defines a grant of legal ability to act, that is illegal for a third-party to attempt to constrain.
Examine the right to free speech:
• it is a denial of your rights if a third party interfere with your exercise of your free speech (by e.g. forcefully "silencing" you in the public square—maybe using noise-cancelling speakers or something.)
• It is not a denial of your rights if you made an agreement with the third party that they would aid you in your exercise of your free speech, and then they choose to stop honoring this agreement. (I.e. forums are allowed to ban people.) This is, in-and-of-itself, a consequence of the right to freedom of association.
I would expect the same to apply to the "right to repair": Tesla is allowed to revoke its complicity in helping you drive its cars—by "bricking" them—but you then have a right to circumvent that bricking, and they would be infringing on your rights by trying to prevent you from doing so.
They don't have to make it easy; logically, with a highly-complex software system like a smart-car (that hasn't gone through an ecosystem-wide standardization like PCs have), the vendor's complicity is required to make doing anything at all with the car easy, and they're not required to give you that complicity. (Consider: even if the law required them to, they could always just go out of business in response, like Lavabit did.)
But once you start "hacking your car", anything they do in response to that to inhibit you would be a violation of your right to repair.
A challenge about journalistic summaries of court decisions is that the court decisions usually address only the application of one area of law. (Also, they are often not even making a final decision, although this particular decision is final on this issue.) Here, the Supreme Court was considering whether a patent holder can assert that a patent lets them prevent some activity with respect to a patented product even after the product has been sold (in this case, when a consumer sells a patented printer cartridge to a remanufacturer who refills it with fresh ink and resells it to another consumer). The court said that existing patent law does not, in fact, include a right to prohibit this activity.
However, this is not the same as finding a blanket right to repair things; there might be other legal reasons why manufacturers can try to restrict repairs. The court did not decide whether any of those other reasons are or are not valid. One example that comes up a lot and that some of my colleagues are actively working on is software copyrights, and particularly §1201 of the DMCA as applied to embedded software.
It's also worth remembering that most U.S. court decisions that examine parties' legal rights are interpreting statutes or contracts (whose text can potentially be changed in response to the court decision), not evaluating constitutional rights (which are difficult to change). So a lot of decisions that say a party has a right to do something mean to say that a particular law or contract did not prevent the party from doing it. But another law or contract—including a future revised version of that same one—might conceivably still prevent it.
> Impression v Lexmark Isn’t About Printer Ink, It’s About Property Rights
to which one can agree. The object of discussion isn't limited to these two companies and this one product.
Then later article says:
> Also, how much weight do we assign those forms that no one ever reads?
and one would assume this could be given an even bigger weight. People accuse Bitcoin in wasting electricity but an obvious question with laws and law practices at least in US which commands a lot of resources is raised relatively rarely.
Can't lexmark just change it to a rental agreement? Use these cartriges until they run out, and then return them. If you fail to do so, lexmark doesn't care -- the point is that they would avoid exhausting their patent rights.
I'm not a lawyer, but my understanding is that you can't have something that looks like a sale and call it a rental. If Lexmark wants to rent printer cartridges, they'd have to spell out a term for the rental (can't be indefinite), collect rents, make reasonable attempts to reclaim their property from deadbeats, etc.
They'd also have to carry all those cartridges on their books as inventory, and therefore conduct audits, depreciate the value, etc.
The law does not generally look kindly on "hacking" - if it looks like a duck and quacks like a duck, you can't call it a swan just because that would be more convenient for you.
This is probably not the good news it seems. Apple and John Deer, as examples, are moving toward leasing/renting phones rather than outright purchasing. So if you don't own it, you don't have such a right to repair.
The industry has two choices: stop trying to impose post-sale restrictions, or start openly leasing products for a limited time instead of selling them.
Seems like a "partial" disagreement from Ginsburg, leading to a 7-1-1 split.
> Six other justices concurred with Roberts in full, and Justice Ruth Bader Ginsberg concurred in part, saying she agreed Lexmark patent rights ended when the cartridges were sold in the US. For foreign sales, she said Lexmark’s patent right was not exhausted. Here, “patent rights” refers to restrictions Lexmark placed on the cartridges. The newest justice, Neil Gorsuch, didn’t take part because arguments were heard last year, before he was confirmed and seated.
I think this editorial is making this case out to be more than it is.
There are many ways that a company can work to restrict a person's ability to modify a product that they have purchased. Patent infringement is one way, and that argument's effectiveness has been reduced.
But there are other ways that a person's ability can be restricted, such as licensing and proprietary parts. This case says nothing about that.
So please, author, don't make like I was going to be sued if I tried to replace my iPhone's battery.