Your computers, your phones, your medical devices, even your cars are under attack. They are being controlled remotely, with unseen overlords dictating without your consent what you can and cannot do with them.
Who are the attackers I'm talking about? Not foreign hackers, not government spies, but the very manufacturers from whom you bought those products. And their weapon of choice is not computer infiltration, but rather patent law.
In just a few weeks, a federal patent appeals court will be making a key decision as to whether or not this sort of zombie control over your possessions will be permitted by law. The case itself, called Lexmark International v. Impression Products, is being heard today and is about a very specific product, namely laser printer toner cartridges. But the decision could have far-reaching effects as the world moves toward an Internet of Things, where all devices can become computerized, all devices can become automated—and all devices can be controlled by their manufacturers without the buyers’ consent.
Ordinarily, when you buy something, the seller doesn’t get to tell you how to use your purchase or when you can resell it. When I buy a red Solo cup, for example, I expect that I can use the cup for drinking, potting flowers, playing beer pong, or whatever else I might imagine. It would be particularly weird and obnoxious if the Solo Cup Company disallowed me from giving my cup to a friend or only allowed me to pour Coors Light into the cup.
There are many good reasons why manufacturers like Solo Cup aren’t allowed to control my use and resale of purchased goods. The right to resell, on eBay or Craigslist for example, enhances the free market and keeps consumer prices low. Also, allowing consumers to do what they wish with their possessions encourages them to reuse, repair, and even innovate upon those possessions in unexpected ways (Pringles can as Wi-Fi antenna, for example). Because of these consumer benefits, the law has generally disallowed manufacturers from exerting post-sale restraints over products after they are sold.
But that hasn’t stopped manufacturers from trying to impose post-sale restraints on products, especially in the high-tech market.
The Court of Appeals for the Federal Circuit will hear the Lexmark International v. Impression Products case today. In this case, the printer manufacturer Lexmark has brought a patent infringement lawsuit against several companies who refill and remanufacture laser printer toner cartridges—even though those toner cartridges were lawfully purchased from Lexmark itself. Lexmark is seeking to use its patents to enforce a single-use-only restriction—a post-sale restraint—that disallows consumers from refilling their cartridges. The instant that a Lexmark toner consumer sends in a cartridge to a third-party refiller, the argument goes, patent infringement against the consumer arises, zombie-like, where it did not exist before.
The implications of Lexmark’s legal theory are stunning: Lexmark, or any other company, could attach all sorts of conditions to sales of products and enforce them with the hammer of patent infringement, which potentially carries enormous monetary penalties and high attorney fees. It’s unclear what would stop Lexmark from slapping on an End User License Agreement deeming it an act of patent infringement to print more than 500 pages of text, or to print Swedish-language documents, or to print documents without first doing five jumping jacks and a headstand.
More seriously, the big problem with Lexmark’s patent infringement theory is that it leads to undue monopolies that steal value away from consumers. If Lexmark can force its printer customers to use only new Lexmark cartridges, then consumers will not enjoy competition and choice in cartridges for their printers. Lack of competition leads to excessively high costs and low-quality products—two features already seen in the printer cartridge world, where ink cartridges cost more by volume than vintage champagne and stop working even when they’re still 20-percent full.
Yes, patents are meant to be a temporary monopoly of sorts. But they are not intended to give manufacturers total, unbounded control over products, to the detriment of the consuming public.
This concerning possibility only compounds as we move to the Internet of Things, because the Internet of Things is all about taking ordinary household products and putting computer technology—often patented—onto them. An automated cat feeder, for example, is an old idea and so is less likely to be patented, meaning that the cat feeder manufacturer cannot easily play the Lexmark post-sale control game. But an Internet of Things cat feeder might have patents that could be leveraged to force consumers to buy, for example, only approved cat food brands. The same could go for your lightbulbs, thermostat, coffee maker, and refrigerator: manufacturers could leverage patents on their new technologies to prescribe how you use them.
If manufacturers want consumers to obey certain rules of use, they have lots of fair ways to encourage it. They could provide monetary incentives for compliance. They could void the warranty for failure to comply. They could refuse to provide customer service to those who modify their devices. Companies are free to encourage, even strongly encourage, following the rules. But they should not be allowed to force submission through the powerful tool of patent law.
To protect consumers from these zombie post-sale restraints, numerous consumer advocates have asked the Federal Circuit to reject the manufacturers’ theory of patent law. The manufacturers are fighting against these consumer rights, though. They claim that the restrictions on use that they impose on consumers are for the public good, protecting people from low-quality toner cartridges, ineffective drugs, unsanitary medical devices, and so on.
I’m all for protecting the public good, but I don’t know that I trust product manufacturers to be the best defenders of it. I certainly have doubts that a monopoly of control will cause manufacturers to act in my best interest. The car manufacturers right now argue that locking down vehicle software avoids “greatly increased risks to the safety and security of every American motorist, passenger, and pedestrian,” and yet that very locked down software is cheating emissions testing and is being hacked remotely on freeways.
The Internet of Things raises many questions about the future, about privacy, data security, interconnectedness, and more. But in my mind, the threshold question is this: Whose future will it be? Will it be a future determined by the big companies who are selling us those Internet of Things devices? Or will it be one determined by us, the consumers, based on a free marketplace of devices and ways of using them? As courts and government agencies address these questions, we should continue to push them to support the interests of consumers, to support an Internet of Our Things rather than an Internet of Theirs.
