Arch Your Eyebrow at Impression Products V. Lexmark International

When it comes to recycled printer consumables, the world seems to divide sharply into those who think they’re great, and those who have had their printer or their work ruined by a badly filled cartridge containing cheaper photocopy toner, or God knows what black stuff masquerading as inkjet ink. It doesn’t matter though whether you’re a fan or a hater, a used printer cartridge is just a plastic shell with its printer-specific ancilliaries that you can do with what you want. It has performed its task the manufacturer sold it to you for and passed its point of usefulness, if you want to fill it up with aftermarket ink, well, it’s yours, so go ahead.

There is a case approaching the US Supreme Court though which promises to change all that, as well as to have ramifications well beyond the narrow world of printer cartridges. Impression Products, Inc. v. Lexmark International, Inc. pits the printer manufacturer against a small cartridge recycling company that refused to follow the rest of its industry and reach a settlement.

At issue is a clause in the shrink-wrap legal agreement small print that comes with a new Lexmark cartridge that ties a discounted price to an agreement to never offer the cartridge for resale or reuse. They have been using it for decades, and the licence is deemed to have been agreed to simply by opening the cartridge packaging. By pursuing the matter, Lexmark are trying to set a legal precedent allowing such licencing terms to accompany a physical products even when they pass out of the hands of the original purchaser who accepted the licence.

There is a whole slew of concerns to be addressed about shrink-wrap licence agreements, after all, how many Lexmark owners even realise that they’re agreeing to some legal small print when they open the box? But the concern for us lies in the consequences this case could have for the rest of the hardware world. If a precedent is set such that a piece of printer consumable hardware can have conditions still attached to it when it has passed through more than one owner, then the same could be applied to any piece of hardware. The prospect of everything you own routinely having restrictions on the right to repair or modify it raises its ugly head, further redefining “ownership” as  “They really own it”. Most of the projects we feature here at Hackaday for example would probably be prohibited were their creators to be subject to these restrictions.

We’ve covered a similar story recently, the latest twist in a long running saga over John Deere tractors. In that case though there is a written contract that the farmer buying the machine has to sign. What makes the Lexmark case so much more serious is that the contract is being applied without the purchaser being aware of its existence.

We can’t hold out much hope that the Supreme Court understand the ramifications of the case for our community, but there are other arguments within industry that might sway them against it. Let’s hope Impression Products v. Lexmark doesn’t become a case steeped in infamy.

Thanks to [Greg Kennedy] for the tip.

Lexmark sign by CCC2012 [CC0].

63 thoughts on “Arch Your Eyebrow at Impression Products V. Lexmark International

  1. The fact it even made it through appellate courts is a bit scary. I wonder how many cartridges Lexmark sells at full price without the 20% discount and attached terms of use? I’m guessing zero. A point I’m sure the solicitors will raise.

    There is more than just EULA application or ownership rights at stake here. The entire notion of informed consent when entering contractual obligations is being challenged.

  2. Yeah — inkjet printers have been doing this with their cartridges too. They even managed to leverage the DMCA (as Deere does, AFAIK): the cartridges had a chip (which decided “I’m now empty”), this chip had some firmware, and trying to circumvent that meant bypassing a copyright protection.

    There should be a (reputable!) black list of vendors pulling off this kind of stuff (perhaps not an all-or-nothing, but more like a score system, to provide a path to improvement).

    1. HP did this recently via firmware update. It stopped me using refilled cartridges in my OfficeJet Pro 8610. Even brand new cartridges didn’t work. I had been using cartridges and toner from the same reputable source for years, and they suddenly stopped working. Since I am now retired, and the difference in cost between refilled, and “Genuine HP” is around 100%, this was a big deal. I joined the chorus of protest, and HP caved in with a firmware update that removed the “check to see if this is one of ours” test.

      There are a lot of online ads around in then UK of the “FREE Laser Printer with 2 sets of Toner” type. Pay £160 or so for the toner and the printer is free. I would rather pay £160 or £200 for the printer and get the toner for £30 or less. I have a very old HP LaserJet 2300DN for which a re-manufactured toner cartridge is less than £20. This lasts me at least a year, for printing stuff for a local charity. Same with the OfficeJet. I saved up for this specifically because most HP business class printers play nicely with Linux, and the running costs are affordable.

      Lexmark have turned the consumer printer market into an area where it is cheaper to buy a new printer than replace the ink. I found that even HP consumer grade printers were only lasting a year or so before failing. This is what happens when you let the marketing types dictate the business model!

        1. I still rock an HP 4100 as my volume printer; although I do have an Epson multifunction that use for everyday stuff (no chips from what I remember, although I have eBay-sourced tanks with refill ports on top)

          What’s funny is that my HP DesignJet 500ps plotter has no chips – just like the Epson multifunction, it just has plastic tanks; yet my DesignJet 250C plotter, which is several years older, has chipped cartridges.

        2. I keep forgetting the model number, 2300n, I think, mine has got parallel USB and 100mbit ethernet.

          and yah, I can get the “small” 5000 impression, shake them an they do 7000, toners for 20 or 25 or so, insanely low cost. Big ones are 30ish I think.

      1. I like it, either an Arduino or a Pi Zero(maybe with wireless) and a custom cable to jack directly into the cables used by the disposable dummed Lexmark printer. Pith the frog then Borg it!

      2. It’d basically just need a new controller board, right? How hard can that be? I mean, not easy, but by the standards of some of the stuff that turns up here (thinking of CNLohr in particular), certainly within the capabilities of our more ingenious brethren.

        And fortunately powerful micros are really cheap and easy to interface with.

        One possible caveat would be, have the cartridges themselves refuse to print after their onboard chip says they’re empty. Since many inkjet carts also have the print head built in. I suppose the answer to that is, “don’t use those particular printers”. Lasers should be fine though right? Not much in a toner cart besides toner.

        It’s all well understood science. As a bonus, you could leave out those horrible yellow MIB dots that identify a document’s source. Why’s nobody done this yet? I suppose because the printer manufacturers haven’t quite crossed the line into utter dickholery. They’re pretty close to it, and well past, “not cool”, but perhaps not yet enough to drive someone to hack up a new control board.

        Still would be super-nifty right? Any old ARM should be up to the job.

  3. I can recall years ago… and I mean around the turn of the century… doing work experience for a company here in Brisbane that traded in second-hand ex-government computers.

    Back then, they were selling brand-new Lexmark printers for $50. The cartridges for these printers cost $80.

    Even then, I wondered what justified the $30 hike in price and thought how wasteful it would be to throw the whole printer away simply because it was cheaper than replacing the cartridge. It seemed silly to me then, and still seems silly now.

    1. I think the argument is that printers ship with “demo” cartridges, ie less-than-full.

      Many moons ago, I bought a Dell inkjet (from Dell) for £10. Didn’t really need/want it, but it came with a long USB cable I did want, so why not…

      1. I don’t think they did back then… but as I say, it was a long time ago.
        Pretty sure every one of those printers I saw sold are in a tip somewhere now.

        I have heard of that low-ball too… provide a cartridge which is sufficient to do some head alignment, print the test page and no more.

        1. it is still standard practice, even on fairly expensive prosumer printers, the only printer i know of that breaks that tendency is the epson printer that uses resevoirs instead of cartridges.

          other epson printers still come with specially tagged *INITIAL* cartridges.

          1. Oh by the way, I didn’t see their printers as “bad” per-se, more like you get what you actually paid for, so your $120 purchase seemed to be competing against $120 subsidised cost based on the sale of 10+ ink carts at $80 a pop in a distorted market. Still seemed most of the herd would rather pay for their printer in installments at the rate of 16 cents a page rather than 2c.

          2. … ah yah, and between that for color and the 2300n for mostly text bashing and volume, I’ve got dirt cheap printing …

            So when the pseudo-geeks at bestbuy or similar ask me once too often if they can help me with anything, (Really buddy, you can’t, you’re going to tell me intel onboard graphics are the best you can get or some ridiculous shit.) … then I start going on about how my printers are old and tech must have improved a great deal, and them going yes, yes, and getting really excited, until they’re jiggling on their toes and I drop the bomb “and of course they must be much cheaper too, show me everything you’ve got that costs under 2 cents a page..” …. whereupon they’ll start flapping, may even call me a liar because “that’s impossible” and sometimes if I’ve spotted it, I’ll point at the Kodak ink sitting there for like $10, and say, “That does 500 pages.” and see them try to explain, then they miiiiight start going on about crisper deeper blacks or some shit by then, but I usually just laugh in their face and go back to what I was looking at.

  4. How about a court case the other way around?
    Demanding / forcing printer manufauctures to make their products in such a way that the ink/toner is user refillable?
    It’s better for the environment you know…

    Save the world plant a tree. :)

    1. I wish groups like Greenpeace would spend even 1/10th of their effort on calling out bullshit like this.

      It’s not as fun or glamorous as being photographed harassing a whaling ship but it might just make a bit more difference to the planet.

  5. This is why I love my Brother, it has no chips in its cartridges, nothing but plastic and the necessary components for printing. To refill it, you unplug one end, fill it, then push a pen in the right spot to reset a wheel which acts as the fill meter. Unfortunately I don’t think they do anything above 3000 pages/month rated load so sooner rather than later some key components on the printer are going to die and I don’t know how much that’ll cost. If they did something in the 50k+ range I’d be up for it.

      1. Seems like Lexmark would have to prove the person who are using the cartridge is the same one who opened and agreed to the disclaimer. I doubt Lexmark can make the agreement extended to anyone who uses the printer so an office may have one person who opens the package and 50 other people who uses the printer.

        Companies who refills and reset the cartridges never opened the original package so they aren’t subject to the agreement.

    1. Opening boxes is not the same as signing a contract. Besides the idea obviously being fucking ridiculous, there are standards about enforceable, valid contracts. The contract being signed freely is one of them.

      Having an implicit “contract” that you “sign” simply to be able to use the item you’ve paid for, is nonsense. I think it was Microsoft who had this proved to them in court a decade or two ago. The idea that opening the envelope your disk comes in, constitutes accepting a contract. Clickwrap on software installation is the same. Invalid and blatant nonsense.

      It doesn’t cost much to dream up any old nonsense and sprinkle it with legalese. An enforceable, valid contract, however, has to be written with the actual law in mind.

      This is just another symptom of the USA being over-lawyered, and companies being ridiculously greedy and callous. It’s getting worse. If only there were politicians who aren’t corrupt, corporate shills, people could do something by voting.

      If Lexmark get their way, then something’s really, really gone wrong with US law. I doubt they will though. Just hope for a sensible judge who won’t be bamboozled.

  6. We can’t hold out any hope that the Supreme Court by itself would understand the ramifications. That’s what Amicis Curae briefs are for and I’d be shocked indeed if the EFF hasn’t (or isn’t going to) chime in on this one.

    1. Well if the decision ends up particularly stupid, like saying $45 of the $50 value is tied up in proprietary cartridge magic, and ergo like re-purposing a milk crate, the refiller is directly robbing them….

      Then, I hope EFF spins around and helps organise a class action of printer users for the $45 deposit refund that lexmark and others seem to have forgotten to offer them, once they used the now admitted only $5 worth or less of actual ink.

  7. The world seems to be losing its empathy and basically promoting self-serving jerks. The legal case for this is totally ridiculous: you don’t actually own that ink cartridge, you’re actually licensing a single use of it from us, didn’t you know you signed that agreement?!

    Luckily the US Senate is looking out for its constituents as well. This one is nearly as bad:

    http://www.latimes.com/business/la-fi-broadband-privacy-senate-20170323-story.html

  8. I bought an old office-sized HP 4050 from Craigslist for home, and I absolutely love it. Printing is dirt cheap with the toner cartridge lasting something like 10,000 pages, it’s always ready to go, unlike the inkjet I used to have that constantly had clogged heads and print issues, and it is connected to the network through a DD-WRT client bridge, so I don’t have to fight with weird drivers. I paid $70, which was probably more than I needed to since I often see these types of printer listed for free, but it came with the network card and it was fully functional. I wish I had bought this years ago.

  9. What are the ramifications for this audience? How is it different from the attribution requirements in various open source licensing schemes? And does a decision on one have ramifications for the other?

  10. Really what is the world coming too guys, We have GM Crops which are copyrighted (I think they make them intentionally seedless so you can’t reproduce). Tractors that you can’t fix, Printer cartridges you can’t refill. Companies are getting too greedy perhaps workers should license their time on mass to companies so when they leave so does all the IP they created too. It seems Super Corporationism is winning over common sense and I’m a capitalist and believe in profit etc, But not by renting products instead of buying.

      1. nothing communist about it, some from of IP sharing between the actual creators and the companies that paid for it should be standard, it would prevent so much abuse everywhere.

      2. Individual humans and small businesses with limited financing having the ability to realistically bargain with their IP rather than having to sell out or be destroyed in the face of the established and heavily state socialized corporations large enough to buy laws, bailouts, and government contracts is simply rebalancing the scales and returning to even playing field capitalism from very weighted toward the largest corporate oligarchies.

        1. It doesn’t hep that after a life in politics most end up working for the companies they said they were regulating etc. Corporationism is corrupting politics around the world in nearly every country,

        1. You are right government it’s like socialism for corps and capitalism for people. If we are going to be capitalists lets do it in the interests of us not companies. Companies cant vote, companies don’t breathe lol

  11. So what is a good Linux drivers laser printer? Basic USB and no special functions is great, I can plug in a little print server and update every few years, hopefully good for 20 years, cheap is important too…

    I have an old BJC-80, a portable printer(parallel port with an old USB adapter cable) from about 1998, it is actually designed to be refilled with ink in the field, but it is only good for 10-20 pages B/W less with color tanks in.

    1. I use a Brother multifunction laser printer. WiFI and USB. The Linux drivers were a bit finicky, but once installed correctly (the second time… duh) it works just fine. I use it almost exclusively with WiFi as a network printer for all my computers.

      Configuring the WiFI was a pain – I ended up dual booting Windows (shudder) and using the Brother utility, but that only needs to be done once (unless you change the WiFi password frequently).

  12. Lexmark has been a bad actor for a long time. They attempted to use copyright to do the same thing several years ago and the courts ruled that their copyright on the code inside the cartridge was invalid because they used the existence of the particular byte sequence as a functional item (i.e. checking that the firmware on the cartridge was the lexmark firmware before allowing it to be used invalidated the copyright on the firmware)

    so now they are back trying to use patents to do the same thing. Shame on them.

  13. I have a HP LaserJet 4100DTN. Works great, even with Windows 10. Refilled toner cartridges are cheap and should continue to be so due to the massive number of printers still in use that use the same cartridge.

    Xerox took a run at inkjet printers a while ago. They were redressed ones made by Sharp. Changed the plastics a bit and did a find and replace in the firmware and software to swap Xerox for Sharp. They were advertised as being 1200 DPI, had that on the box too. But if you were using Windows 2000 or XP you only had the drivers provided with Windows – which were limited to a maximum of 600 DPI. If you were using Windows 98/98SE/Me you could have 1200 DPI.

    Shortly after the release of XP, and after a crapstorm of hate aimed at Xerox over the limited 2000/XP drivers, and huge numbers of the printheads ceasing to print one or more colors, Xerox bailed on inkjets.

    If you see a functional Xerox inkjet, it’s rarer than a functional Makerbot Cupcake.

  14. Lexmark International? What about Apex Technology? http://fortune.com/2016/04/19/kentucky-printing-lexmark-private/

    If the suit is about inkjet cartridges, why do they care when Lexmark got out of the inkjet business back in 2012?
    http://www.pcworld.com/article/261564/lexmark_exits_the_inkjet_market_are_printers_doomed_.html

    I had the misfortune of buying a Compaq inkjet on clearance after the HP acquisition. It used Lexmark innards. The thing was built so cheaply it didn’t have any priming system. If you didn’t print something at least every other day the ink would dry in the nozzles, despite resting in the capping station. Other brands have a small pump that sucks on the nozzles periodically to ensure the ink flows. Better ones keep track of use so they only prime when needed. Crappy ones do a prime before every use, and go through ink faster. HP’s Photosmart 3000 series is one of the bad ones – almost every use it’s doing a prime, they claim it “recycles” the ink but that’s BS. I have one I only use as a scanner because of “ink system failure”. I wonder if its LCD can be hacked to connect to an Orange Pi?

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