I don't know about Patent law, but it should be made illegal to mask renting as selling. That would be first step to let consumers know. Like in this Lexmark case - if you are required to return the cartridge, then this transaction is not sale. And on and on, same with electric cars where you do not own the battery.
I'd love to see the exact legal language that even specifies that condition "required to return".
After all we can assume that most people don't do that or actually that those who don't return the cartridge almost certainly suffer no legal jeopardy for that inaction. If you are required to do something by a contract, then you would expect some degree of enforcement when the contract terms haven't been met. My guess is that Lexmark can't show any action they take for cartridges not returned.
I've often noted how companies that sell laser cartridges will give you a free label to UPS the cartridge back to them. They cloak it as "recycling" but it serves two purposes. It gives them a free cartridge to refill but it also takes away a cartridge that could be used by a third party that would a sale from the company.
In the US, unless you are signing a contract of some sort, then a sale is a sale. Any physical object that you simply buy at the store is yours, full stop.
I don't understand the comment that you make about not owning the batteries in an electric car. If you own the electric car, then you own the batteries, that's not in question.
However, manufacturers often put measures into place that make ownership less useful:
-- They might load software into the device that makes it respond to their control, and limits your ability to use the object
-- They might restrict availability of manuals, repair parts and other information to incentivize you to use their service facilities
However, I would argue that these are not the same as infringing on your ownership.
I'm not sure if you've been keeping up with US news, but this isn't true, at least until it's decided in court. GM, John Deere, and Ford all have the opposite opinion[1][2][3]
Not to mention I think it's currently illegal to Jailbreak an iPhone or root an Android, despite them being yours.
I really do wish the US was as cut/dry as you make it seem, and I wish they cared about consumers more, but in reality, Companies get far more rights then we, as consumers, do.
The hardware is yours. If you want to blow away the firmware and write your own, no one can (legally) stop you on copyright grounds, though it might lose its street-legal status in the interest of the people you might manslaughter by writing buggy code.
It's where you want to modify the software and post a derivative work online that copyright law kicks in. You may as well say that you do not "own" a book, because you don't have the right to share an edited version of it. Sort of true, but not very interesting.
Last time I checked, other than the Nexus phones, pretty much every manufacturer locks down their bootloaders, so no, you can't "blow away the firmware and write your own".
False premise: you often cannot blow away the firmware, because it is either hard-coded, or signed.
And even when said premise is correct for a device, there are cases where the firmware inherently requires copyrighted material (For instance, requiring a (copyrighted) poem in a handshake).
What the manufacturer makes it easy to do and what you can get in legal trouble for are different things.
Do you want the state to use men with guns to force everything with a microcontroller in it to also come with an SDK? I'm basically a socialist, and even I think that's ridiculous overreach.
> And even when said premise is correct for a device, there are cases where the firmware inherently requires copyrighted material (For instance, requiring a (copyrighted) poem in a handshake).
No way! Copyright law does not prevent someone from creating a new work that is designed to be compatible with an old work. Likely outcomes are that the poem would not qualify for copyright protection for that usage (it's not a poem as much as a sequence of arbitrary bytes to be read only by a computer), or that a fair use finding would be made, perhaps on the grounds that the copy does not affect the market for the original work - i.e. nobody was paying for the poem. Most likely a judge would just throw out the entire case at the start as a waste of the court's time.
Yes, I'm well aware of these restrictions. However, I don't think they impact whether or not you own the THING.
What GM, Ford, John Deere, Apple, etc. have said is that you can't tinker with their firmware that is installed on the device. None of them would argue that they can come repossess your tractor/car/mobile phone.
As others have pointed out, it is not currently illegal to jailbreak a phone, though that may change in the near future.
To make an analogy and play devil's advocate a little further, it would be hard to argue that I don't own my home. There is a deed to that effect recorded with the county, more than I can say for anything else I own. Yet:
* The state can take it from me in short order if I don't pay my taxes
* I have to get a permit from the city to make any substantial modifications to the property
* There is a neighborhood association that dictates property uses as well, which I have to comply with
* I couldn't just knock the house down and build a car repair garage -- city zoning ordinances restrict how I use my property.
And yet, I don't hear a big outcry that I don't truly own my house.
If you read that John Deere article, their specific quote is actually that you don't own the vehicle itself:
... an implied license for the life of the
vehicle to operate the vehicle
And fundamentally then, I think that I disagree with that particular view of ownership. I think my views align well with those declared by the EFF, in that I believe you should be allowed to tinker with your stuff.
With a mortgage, in some sense you really don't own your own home. You have equity in the home, and the home is collateral on your debt for the home, so until you've payed everything off, the bank owns the home. Equity and Ownership are related, but not equivalent concepts.
From what I understand, the exemptions only allow jailbrakeing/rooting with permission from the Manufacturer, which I highly doubt would be given from 80-90% of manufacturers
Your parent is referring to a DMCA exemption approved by the US Copyright Office in 2012. Jailbreaking phones is currently legal "where circumvention is accomplished for the sole purpose of enabling interoperability of [lawfully obtained software] applications with computer programs on the telephone handset"[0], while jailbreaking tablets is not.
I agree what you say should be true, but companies are trying to change the First-Sale Doctrine. Companies like John Deer say you are licensing the tech, not buying it, thus you do not own everything in the vehicle you 'bought'. Software companies have used this logic for years and it's beginning to bleed over into hardware. Companies want you to license things and do away with ownership. I'm on your side though, I believe in the First-Sale Doctrine and do not want to see it undermined, but there's a financial incentive for companies to do away with it and they will keep trying unless we make hard rulings in cases like this one against Lexmark. Look at what Nintendo tried to do with the resale market of their game discs and cartridges.
Wait, the John Deere lawsuits were about hardware? I thought they were arguing that they only licensed (and didn't sell) the firmware controlling their newer tractors. I.e., the same bullshit companies have been pulling for decades. IIRC, the original inspiration for the Free Software Foundation was a buggy, restrictively licensed printer driver.
Sorry, didn't mean to muddy the conversation. It's not the hardware they say is licensed, it's the necessary software used to run the machine. Either way, you don't own the entire product, only part of it, and the most essential part is what is licensed. Without the software the hardware is useless so it may as well be the hardware.
In theory, someone could write GPL tractor firmware, and I don't think anyone from John Deere could legally prevent you from replacing their locked-down firmware with GnuTractor or whatever. (Then again, IANAL, so maybe they could?)
Frankly, this seems like an area where the FSF could do a lot of good and garner a lot of goodwill.
One could argue they are actually selling you the ink and simply renting out the cartridge. Not sure if the verbiage on the terms of sale in this case support that.
> Not sure if the verbiage on the terms of sale in this case support that.
When I swing by Office Max to pick up toner, or click the Amazon button to add it to my card, there is literally no verbiage either presented to me or agreed to by me that would indicate anything other than a flat-out sale. One can't argue any such thing because no contract is sought or required for end users to buy toner.
I sometimes wonder if we really own the products we buy. It feels like I'm theoretically leasing, more and more products. Item breaks down, you need to send it back to the company. "We don't sell our service manuals." I need to buy their toner, ink, etc?
I repair watches. Their are certain brands I cannot buy parts for. Even as a certified watch repairer, most companies won't sell parts to me, or anyone else--no matter how much experience you have. You are forced to send that watch back to the factory, and pay outragious prices for repair and service.
So you did ok financially. You go out and buy a fine watch. A watch designed to be taken apart--over and over again. A watch you plan to hand down to your kids. The only problem is you, and everyone else who owns that watch needs to send it back to the factory for service(cleaning, and oiling), and parts when it stops keeping time. You don't own the watch, you are mearly leasing it. It's not about quality service; it's about money.
If you happen to own one of these watches. If it ever stops don't think you have the right to repair it yourself, or decide who repairs your timepiece. It has to go back to the factory.
A. Lange & Sohne
Alfred Dunhill
(Rolex, and Omega sell to some certified watch repairers, but are trying to find ways to eliminate 3rd party watch repairers.)
Audemars Piguet
Bertolucci
Blancpain
Breguet
Breitling
Bulgari
Cartier
Certina
Chaumet
Chopard
Daniel Mink
David Yurman
Dior
Diesel
Doxa
Fossil
Franck Muller
Frederique Constant
Glycine
Guess
Harry Winston
Hublot
Jaeger-LeCoultre
Krieger
Luminox
Marcel Watch
Meylan Stopwatches
Mont Blanc
Nixon
Parmigiani
Piaget
Pierre Balmain
Raymond Weil
RGM
Sector
Skagen
Tourneau
Tutima
Ulysse Nardin
Vacheron Constantin
Van Cleef & Arpels
Zodiac
Yes, the watch analogy is little off topic, but I believe relevant. If consumers don't smarten up, more and more companies are going to be "milking" you for money, or we will be forced--economically to just buy another expensive unit of their product? (It's not just ostentatious watches, it's car companies that won't sell 3rd party auto repairers scan codes in order to repair their complicated/mess of wires, and computers? It's more product than people realize? I believe in recycling/repairing goods? I don't like this throw away society.
I feel terrible that my sausagy American fingers accidentally downvoted you because you make an excellent point. I fear that by stripping people of their agency when it comes to things they've already purchased implies that companies not only still own things you buy, but by extension, they own you. They own your priorities for use, your necessity for repair, and your creativity for adaptation. It's like if it were illegal to use anything but Home Depot(TM) nails on Home Depot(TM) planks, or auto shops that have to kick back to Ford or GM or else they couldn't touch your car.
I can't see this principle as anything but incumbent crony capitalism and a completely unnecessary drag on the economy.
> It's like if it were illegal to use anything but Home Depot(TM) nails on Home Depot(TM) planks, or auto shops that have to kick back to Ford or GM or else they couldn't touch your car.
It's actually nothing like that. It's like Ford refusing to sell you parts for your car. Or Apple refusing to sell you parts for their computers. Nothing says you can't acquire parts from another manufacturer, nor is there anything preventing you from performing the repairs yourself. (Other than maybe warranty terms, which is IMO not a moral hazard.)
> Nothing says you can't acquire parts from another manufacturer, nor is there anything preventing you from performing the repairs yourself.
Incorrect.
> I'm not sure if you've been keeping up with US news, but this isn't true, at least until it's decided in court. GM, John Deere, and Ford all have the opposite opinion[1][2][3]
> Not to mention I think it's currently illegal to Jailbreak an iPhone or root an Android, despite them being yours.
> I really do wish the US was as cut/dry as you make it seem, and I wish they cared about consumers more, but in reality, Companies get far more rights then we, as consumers, do.
For instance: parts that refuse to work unless all other parts return a handshake containing a copyrighted message.
Why don't third parties step in to make parts? If the vendor's repair service is so overpriced, the market should respond by creating competing parts manufacturers + repair services.
It's not exactly easy to make watch parts. The manufacturers already have the tools so they could produce them at reasonable prices. But for a third party it would be very hard and the volume is probably extremely low.
This is exactly the sort of niche that fully automated single-part manufacturing equipment can fill.
While you're not going to be able to print a replacement part for a mechanical watch with a RepRap any time soon, a specialty machine that could duplicate parts by putting the original on a microscope slide and taking some photos could be useful whenever the replacement parts are unavailable from the manufacturer at a lesser cost.
Some hobbyist-grade volume printers and CNC mills have been employed to make car repairs in instances where the manufacturer sells for $50 some nylon gear assembly that contains $0.10 of plastic and some commodity steel axle pins. Sometimes, the nylon is replaced by CNC-machined aluminum (at higher materials cost--maybe $2 instead of $0.10), and that part will never need to be repaired again for the lifetime of the vehicle.
Such one-off manufacturing moves the market from zero competition, where the market can be manipulated and controlled, to a more competitive model. Even if the original manufacturer can create a replacement part at 1% the cost of a home-repairer garage-manufacturing a part, the threat of it places an upper limit on what the business can charge for their officially sanctioned repairs.
It is the manufacturer's refusal to sell those parts at a reasonable price that creates the market opportunity. Every complete new watch must necessarily contain working parts. So someone buys one, takes it apart, makes detailed photographs, and discovers the means to duplicate the parts. It's not whether the parts can be produced at lower cost, but whether they are made available for sale by anyone at lower cost. If it costs you $20 to make a part that can be produced at $0.02, it hardly matters to you if the only way you can get that is by paying $100 and shipping to and from the factory.
I think your example with the watches is actually entirely non-relevant. I personally don't advocate for laws forcing companies to sell isolated parts to third-parties. It's certainly a nice thing for a company to do, and I would take that into consideration during a purchase.
To be analogous, the watch companies would need to be suing people for repairing their watches, perhaps by cannibalizing parts from other broken watches. I haven't heard of any watch makers doing that, and until they do, there is no attempt to subvert the doctrine of first-sale that we are seeing with the Lexmark case.
Well... No. If I bought a nice watch, I am not required to send it back to the manufacturer to fix and clean it. I can find a watch repairman to do that. Of course he might not have the tools, or he might have to fabricate the parts. But I am under no legal obligation to return it to the factory.
A blog page listing reasonable quality watches that can be repaired would be useful. It would be tricky to post on HN - watches attract a lot of spammy pages and HN probably filters that stuff out. You might need to coordinate with dang before posting. (I feel sorry for whoever has a handbag startup).
Seems to be. Maybe I'm buying cheap printers, but the last two I've bought had anemic toner cartridges along with a catalog and order form for direct sale of the cartridges that were actually full. Notably the manufacturer toner cartridges were close to the price of the printer itself, while the third-party knockoffs on Amazon were a fraction of the price.
I'm no industry insider, but their packaging behavior says to me that their real money is in getting you to buy their toner, and the stark price difference between first and third party replacements indicates the likely markups on the first party option.
There is MRR in ink, not so much in printers. If you naively optimize for MRR, your business will operate around extracting profit from ink selling schemes, not printer selling schemes.
Indeed patent law shouldn't block the resale of any products if you bought them legitimately in the first place. Just think if the precedent got set and you couldn't sell on your cars, computers and the like because someone had some patent.
Once it was said, that patent law was introduced to support small inventors and the disclosure of inventions. Today's implementation of the patent system fails in both respects!
Small inventors are not supported, but hindered by the current patent system. And no essential inventions are disclosed anymore by the patent system. Most patents are about things that are so trivial that the patent disclosure brings no additional knowledge to the world. Even the other patents most often do not hold enough knowledge, that would be a real "disclosure" -- patent lawyers are trained today to "disclose" with out real disclosure. The real information is hidden -- just enough information is given, to block competitors.
As we can see, additionally the patent system is misused by big corporations today more and more to protect their monopolies. Essentially, patent law is used by the big players to damage the interests of consumers. Today we could also speak of a concealed "patent-tax" that all of us are paying when we buy a smart-phone or other high-tech products. With any product, we pay also for patent-fights, for a host of patent-lawyers many companies need today and for the situation, that cheaper products are blocked by patent-holders.
The problem is, that there are to many interests pro-patent. So a real reform will never be undergone by today's politicians.
If you have a patent, and I use the patent to sell a product, why shouldn't you as patent holder be able to get an injunction to prevent me from selling the product?
Also, what does 'reasonable financial compensation' mean? Consider newly patented drugs. The R&D cost is enormous, even without covering the cost of the attempts that failed to get to market. And there can be multiple patents, including the method of action and the method of synthesis.
If you have 5 patents for drug X and I infringe on 3 to make a competing drug X', do I pay less than if I infringe on all 5 patents?
(Edit after several people commented: I believe that amelius meant to include mandatory RAND-like licensing for first sale. My response should be read in that vein.)
Let's say that you are a patent holder for an über-toaster.
If some company is making über-toasters using your patent, you can stop them from using your patent for their profit. This is what patents for.
If some other company is buying used über-toasters, fixes them and re-sells them, you should not be able to stop them from re-selling fixed über-toasters.
As you and chii correctly point out, the NYT article is about resale. I believe however that amelius, with the statement "Patent Law shouldn't block any sale", meant to broaden the topic to include first sale. My comment should be viewed as commenting on that change of topic.
If amelius only meant to include re-selling equipment acquired under a valid patent license, then the phrase "It should at most lead to reasonable financial compensation of the inventors" makes no sense. Were patent rights to follow first-sale doctrine, the patent holder would receive no financial compensation for resale. Which, for the record, is fine with me.
I was remiss in not making that clear in my scenario.
It seems to me that when a patent covers a product that is sold, the sale implies a license on that patent for that product. The license is sold along with the product. So if the über-toaster is resold, the patent license is sold along with it, regardless of the number of intermediate steps.
If that's not how the law works, it's how it should work. Actually scratch that, the way it should work is to not have patents at all, since they lost their net benefit to society a long time ago (if they ever had it), but that's a whole other can of worms.
They also cause a lot of research not to happen, and a lot of products to not come to market. If you take a holistic view, as a society we would be better off without patents.
There is simply not enough empirical evidence to support your assertions. Every time I've asked for evidence to support similar assertions, I've gotten nothing but vague anecdotes or historical examples that have been debunked.
This is unfortunate, because there are plenty of empirical studies showing the benefits and costs of patents (search ssrn.com for "patents" and focus on the studies that use economic data). The upshot is, to date nobody has been able to say the one outweighs the other largely because they are not directly comparable.
This book gets cited a lot in such discussions,
so I usually just respond by linking some of my previous comments that address it and related works :-)
Again, there is not much overwhelming empirical evidence that software / tech are harmed by patents. Studies attempting to prove this have been sorely lacking. However, there was a recent study that showed that patents can be a slight drag on fields characterized by a large number of very small, incremental improvements, which can characterize a lot of software innovations. I cannot find it right now, but this was the first paper I found that actually tries to quantify the costs of patents to industries like ours.
On the other hand, there are multiple other studies showing how having a patent increases the chances of tech startups of a) receiving VC funding and b) making successful exits. I'd say it's still not clear that the software industry is being harmed more by patents than it is being benefited.
That sounds like a loophole a patent infringer could easily drive a bus through. "I'm not infringing the patent, I'm just reselling these patent-infringing items that were manufactured by a company in China that - oh dear, doesn't seem to exist any more."
The key there is that the patent-infringing items were never properly authorized by the patent holder. But a patent holder should not be able to prevent the resale of items he has previously licensed appropriately. Nor, IMHO, should he be able to attach conditions to his license: a sale is a sale, and once someone has sold something his interest in it should end.
Which is no doubt why companies want to switch from sales to rentals. If I rent you a toaster (or rent software, or rent an e-book), then there's no sale, and I can keep my interest.
"Servicise" everything. The purchase of the UBER-toaster has a web-service associated with it. Do you really want the toaster or do you want your bread toaseted? When you re "sell" the toaster the service goes with it, it cost money to provide this service, so maybe the service provider is due a portion of the resale?
The normal notion of a patent is that the patent covers the creation of something, but not its use. A patent is supposed to be instructions or the specifications for the creation of some object. If you are not creating the object, you are not using the patent. Otherwise, you would need to sign a contract for buying a hammer (assuming it was patented) outlining the allowed uses.
> You can also get an improvement patent for an innovation that provides a new use for an existing invention. For example, in 2000, the Federal Circuit allowed a patent for the idea of using Bag Balm -- an ointment normally used to soothe irritated cow udders -- to treat human baldness. The court found it patentable, because it's a new use of a known composition.
> In addition to patent protection for the original compound and method of use, patents directed to new uses and treatment indications can be obtained. Developing new methods of use for identified compounds can be a successful strategy for maximizing research dollars and for increasing the commercial life.
Those sound like it's possible to patent use, in addition to the 'creation of something.'
The law is sort of like that. You are only given an injunction when you prove you will suffer an irreparable harm that monetary damages cannot make hole.
Before 2006 injunctions were essentially presumed, but now it's pretty hard to get an injunction in a patent case.
Your point sounds reasonable, but there's a good reason to block first sale.
Suppose I run a firm that sells custom men's clothing, that has a patent to, say, change color and temperature at the wearer's preference. Each outfit has to be personally tailored by a professional designated by our company.
Now, perhaps a high-end men's clothing retailer begins selling my clothing and tailors it in-house. The quality is comparable and they compensate my company. So far so good, right?
Well, what if quality isnt comparable? What if the stitching was improperly done and felt too tight, or unraveled over time? Even if the customer knew that the "re"-seller wasn't an official associate, the damage to our brand would already be done.
And that's why first sale should be at the discretion of the patent holder.
I don't even see that he did bring patents in at all. It seems to be a total non-sequitur. The argument is entirely about branding. How does "...and it happens to be patented" change anything about how the quality of the secondhand product reflects on the brand?
But what does the patent have anything to do with anything? The seller would still be interested in protecting their brand even if the product wasn't patented and the patent would still exist even if the product was sold under a generic label. There is no apparent connection between the patent and the interest in protecting the brand.
Yeah, you can use trademark law to enforce quality control, which makes much more sense than using patents, which the product might or might not even have.
Kirtsaeng solved this for copyright, but first sale in copyright is different from exhaustion in patents.
I'd ordinarily assume the courts would follow the path of Kirtsaeng, and find for the refiller.
However, if the court's asking for briefs on Kirtsaeng's applicability... that's a worrying question. Kirtsaeng is not binding as a matter of law in this domain, even though it's the better solution. The court wouldn't ask for briefs on applicability if that wasn't potentially decisive. So maybe the Court is prepping to find for Lexmark, and will force SCOTUS to explicitly extend Kirtsaeng-reasoning to patents.
