Consumers may not actually own some of the things they purchase, according to an organization that specializes in privacy, ownership and conflicts in the digital world.
That new car you bought? It's not yours.
Even an ink cartridge for your printer. Not yours, entirely.
And how many other products soon will be in the same classification?
The Electronic Frontier Foundation highlighted the issue with a recent commentary on a court ruling regarding printer cartridges.
"Patent owners can prevent you from owning anything" is the headline.
The issue is that Lexmark was selling its patented cartridges with a stated restriction of "single use only."
That means, according to the ruling from the U.S. Court of Appeals for the Federal Circuit, you can buy the cartridges and use them, but you can only return them to the patent owner. You cannot recycle them as many do.
The ruling said: "We hold that, when a patentee sells a patented article under otherwise-proper restrictions on resale and reuse communicated to the buyer at the time of sale, the patentee does not confer authority on the buyer to engage in the prohibited resale or reuse."
In short, an offender can be determined liable for patent infringement and subject to all the accompanying penalties.
EFF hopes the Supreme Court "takes a hard look at this case, and restores consumers' rights in products they purchase."
"Patents are now routinely granted on even the smallest part of a product (and even for the smallest design in the product). Yet is is often difficult, if not impossible, for consumers to find out what patents a manufacturer claims are embodied in their products, and therefore when those patents expire. (The patent statutes try to incentivize disclosure of that information, but it nonetheless remains optional). But what's more, under the federal circuit's rule a patent 'restriction' could be on packaging that's later separated from the item, creating even more ongoing uncertainty for resellers and repurchasers."
It's not just patents.
Pete Bigelow at Autoblog wrote last year about General Motors' claims that it retains ownership of some parts of its new vehicles, no matter how much you pay the dealer.
"It is our position the software in the vehicle is licensed by the owner of the vehicle," GM attorney Harry Lightsey said in a hearing by the U.S. Copyright Office.
Bigelow said it means that "after customers pay tens of thousands of dollars for a car, the company says users are merely signing a licensing agreement to use it over its lifetime."
It could lead to a requirement that any repairs must be made by an "official" GM technician using only "official" GM parts at whatever prices GM establishes. And your local mechanic could be out of work.
"GM's stance is a sweeping one. Cars today are mobile computing networks. Critical functions like steering, acceleration and braking are all controlled by software. Each GM model contains an average of 30 electronic control units. Without legal access to these ECUs and the software that run them, mechanics and others who enjoy working on cars may need to cease repairs," the Autoblog explained.
"General Motors currently prompts customers to sign licensing agreements for some vehicle functions, like its OnStar navigation and infotainment packages. Although they don't have car buyers sign agreements for all ECUs, the company is now claiming that licensing principle applies across the entire car," wrote Bigelow.
John Deere has made similar claims about its tractors and other machines.
Provided some relief for consumers, the U.S. Copyright Office eventually created exemptions to the Digital Millennium Copyright Act of 1998, which governs copyrighted materials with respect to digital technologies and the Internet.
"Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency, and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation."
IPWatchdog, which monitors technology and Web actions, said critics were challenging it as only a partial victory.
But it said the vehicle owners will be allowed to "perform vehicle diagnostics and make repairs themselves." Owners cannot alter the entertainment systems or change controls required by the Department of Transportation or EPA.
John Deere argued that such exemptions "would encourage the piracy of copyrighted music or film recordings by tampering with infotainment software systems installed on vehicles."
The company, along with GM, had taken a hard line in the argument, which undoubtedly will reappear.
"A vehicle owner does not acquire copyrights for software in the vehicle, and cannot properly be [called] an 'owner' of the vehicle software," John Deere said.
GM had said, "Proponents incorrectly conflate ownership of a vehicle with ownership of the underlying computer software in a vehicle."
The comments prompted Kyle Wiens, CEO of global mechanical repair community iFixit, to write: "It's John Deere's tractor, folks. You're just driving it."
Wrote EFF, "For almost 400 years, it has been widely accepted that those who manufacture goods shouldn't be able to reach out and exercise a 'dead-hand' of control over the goods once the manufacture has long passed ownership on to the consumer.
"And this distinction between licensees of a right and purchasers of embodiments of that right is routinely made. That is, the law routinely distinguishes between the rights attached to a copy of a work, and rights attached to the work itself. For example, the purchaser of a copyrighted book can resell that copy of the work, but cannot make new copies of that book (unless of course, some other right such as fair use applies).
"The federal circuit's rule privileges patent owners over consumers, and helps ensure even less competition in the resale market."
The dispute over copyrights, ownership and reselling even has percolated in the world of academic publishing.
In 2012, Hugh Gusterson pointed out in the Chronicle of Higher Education that a nine-page article he wrote for free for the Bulletin of Atomic Scientists is now being resold online for $32 by a company that pays him nothing.
The George Mason professor said perhaps the academic publishing model needs to be altered to reflect the profits the industry reports.
Patent fights can get expensive. Apple just this month was told to pay $625 million after a court ruled it used patented security software without permission.
The software apparently was used in FaceTime and iMessage.
EFF said the conflict's impact could surprise consumers.
"If you happen to use a product twice, but the patent owner had sold it as 'single use,' you could find yourself at the receiving end of a patent lawsuit. And because patent infringement generally does not require 'intent,' a consumer could be liable even if they never saw the notice or agreed to it (for example, if they bought the product used without the original packaging)."
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