BY NELSON PAVLOSKY

In print | October 20, 2005

“Pay attention next time you rip open a cardboard box — you may be entering into a contract without realizing it.” The New York Times presented its readers with this warning earlier this month, as it reported on the Ninth Circuit’s decision in ACRA v. Lexmark, a case that may call into question how much you truly own the things that you buy.

Laser printer manufacturer Lexmark claims that if they sell you a printer cartridge, and they label it “single use only,” then if you open the package, that means that you agree not to refill the printer cartridge when it runs out of ink, or to give it to someone else who will refill it. Unfortunately, the Ninth Circuit court agreed with Lexmark and ruled that if you break the agreement on the printer cartridge package, then you could be sued under contract law and patent law. Lexmark holds the patents on various parts of their printer cartridges, and apparently if you ignore the terms of the license on the box, then you become a patent infringer.

Lexmark’s “box-top license” is one of the latest steps in a disturbing trend toward a world in which corporate control over “intellectual property” trumps your right to use your physical property as you wish. “Click-through licenses” or “shrinkwrap licenses,” also known as End User License Agreements (EULAs), have been standard practice in the world of software for years.

Whenever you update Windows or Mac OS X, you are presented with pages of legal gobbledygook, which you are required to agree to before the installation will continue. Sometimes, software companies will sneak rather nasty provisions into their EULAs, causing you to sign away your rights (such your right to privacy) without understanding that you are doing so.

Proponents of EULAs argue that if people don’t want to agree to this contract, they can always choose not to open the box or install the software. However, given the ever-present threat of computer viruses and malware, refusing to update your computer because of a suspicious EULA is often not an option — unless, of course, you are willing to leave your computer vulnerable to the latest Windows exploit and risk losing your data. EULA supporters will also argue that if you don’t read those endless pages of legalese, then it’s your fault if you click on the button that says “I have read this and I agree” in order to install the software.

But who has time to read every EULA they see, especially as they become more popular and seemingly longer every day? New software programs such as the EULAlyzer attempt to read and analyze EULAs for you and warn you when you are about to agree to something stupid. But what if every product you purchase, from printer cartridges to razor blades, comes with a layer of red tape wrapped around it? In the future, will everyone have to have a law degree merely to navigate the supermarket aisles?

There has to be a limit to how many rights one can sign away simply by opening a box or clicking “OK.” Sadly, the courts don’t seem to have found that limit yet. Will books someday come with a license that says, “By opening this book, you agree not to resell it or give it away”? Will the manufacturer put a label on the hood of your car saying, “No modifications or repair permitted”? If so, it seems that the courts might enforce those “agreements,” and used book stores, independent repair shops and aftermarkets may finally disappear, to the relief of monopolists everywhere.

As for your personal property, you may continue to lose control over it, until one day you’ll find all of your possessions actually belong to their manufacturers, and you can’t use the things you own without getting permission from corporate headquarters.

Nelson Pavlosky is a senior. You can reach him at npavlos1@swarthmore.edu.

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