If your business is considering a laser printer purchase anytime soon, I'd like to make sure you're aware of one fact. After a protracted legal struggle, Lexmark has succeeded in getting federal district court sanction to sue its customers if they violate the company's "boxwrap" license agreement. And, while Lexmark has at least hinted that suing customers is not its intention, you might not want to take the chance.
No sooner did I remark the other day how refreshing it was to see a court render a good decision for once then word came of two more recent federal court decisions that are just the opposite. The ruling to uphold Blizzard's EULA ban of reverse engineering is so depressing that I'm just not going to even talk about it right now. But the Ninth Circuit's decision in the ACRA vs. Lexmark case deserves our attention, if only because it's one in which it's clear what my readers can do about it.
The litigation is the result of yet another attempt by Lexmark to use patent, copyright, and contract law to lock its printer customers into using its consumables. (In case you're confused, this is a different Lexmark lawsuit than the one where the company tried to use the DMCA to block manufacture of compatible consumables.) ACRA, the Arizona Cartridge Remanufacturers Association, was asking the court to declare Lexmark's shrinkwrap-like "Prebate" license agreement on its laser printer toner cartridges unenforceable. On the outside of the cartridge package in bold type it says "Return Empty Cartridge to Lexmark for Remanufacturing and Recycling" followed by this license:
"Please read before opening. Opening of this package or using the patented cartridge inside confirms your acceptance of the following agreement. The patent cartridge is sold at a special price subject to a restriction that it may be used only once. Following this initial use, you agree to return the empty cartridge only to Lexmark for remanufacturing and recycling. If you don't accept these terms, return the unopened package to your point of purchase. A regular price cartridge without these terms is available."
Unfortunately, the court upheld the lower court's ruling that this "boxwrap" agreement does constitute a contract between Lexmark and the customer. The judges seemed to have no problem with the fact that any manufacturer could add similar post-sale usage restrictions on its packaging in order to eliminate aftermarket competition, or perhaps third-party support, or even the right of customers to repair, modify, refurbish, or resell the products they've purchased. Oh, well, it's not like we didn't already know which side most of our judges are on when the interests of consumer and business conflict.
Even this court, however, couldn't help but notice one interesting contradiction in Lexmark's position. "According to Lexmark, its post-sale restriction on reusing the Prebate cartridges does not require consumers to return the cartridge at all; it only precludes giving the cartridge to another remanufacturer," a footnote in the ruling noted. "The plain language of the contract does not clearly reflect this position."
Indeed, the language of this "contract" is plain enough. If you don't ship the empty cartridge back - and Lexmark told the court it only gets about half of them - then the U.S. Court of Appeals says you're violating a contract and infringing Lexmark's patents. And if that's not the message Lexmark officials wants to send us all, why did they write their license agreement that way and why are they in court essentially arguing for the right to sue their customers?
What speaks even more plainly is the clear purpose of all Lexmark's legal maneuverings: to restrict customer choice. Yes, Lexmark isn't the only printer manufacturer using expiration chips or other lockout devices to boost consumable sales, but only Lexmark seems determined to use the courts as well as technology. So the next time you're pondering which laser printer to buy, you might to send Lexmark a plain message while you're still legally free to make your own choice.
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