Welcome to another entry in Free to Play. It seems like this series just doesn’t want to rest as every time I think I’ll retire it for a while something comes up that needs to be addressed. Recently the Supreme Court of the United States laid down a landmark decision for the rights of technology users. In Impression Products, Inc V Lexmark International, Inc there was a 7-1 decision to reverse the lower court’s ruling that consumers can’t legally refill printer cartridges they have already bought. How does this affect gaming? Let’s get into it.
The argument from Lexmark was that using aftermarket kits to refill their printer cartridges was infringing on their patents for said cartridges, despite the fact they already made money on them. The Federal Circuit, Federal Court of Appeals sided with Lexmark and said that their patents mean that consumers can’t modify any item they bought. The appeal from Impression Products got to the Supreme Court – which my crack legal adviser Brandon Walker assures me does not mean it comes with extra cheese and sour cream – where they soundly reversed the previous decision in a 7-1 landslide. Their reasoning was that the long established “exhaustion doctrine” meant that once purchased a lot of patent rights by the manufacturer are exhausted to allow the consumer the right to use their property, and this makes a lot of sense.
The vast majority of us will go to an independent mechanic when something needs to be maintained or repaired on our vehicles, and there’s no concern about patents for the vehicle manufacturer ever considered. There are literally hundreds of different patents that combine inside the average automobile, but it’s never been an issue for anyone to fix their own vehicle. I suspect that nearly every person who reads this article knows at least one “shade tree mechanic” and lives within 10 miles of an auto parts store. The majority opinion follows this idea, in that end level users have the right to repair their own devices as they have paid for them already.
At first glance the jump between printer cartridges and gaming seems spurious – besides the fact that both cost more than they should. The connection is that in both cases the manufacturers of the products wanted to use an expansive take on copyright to protect the business model they prefer, at the cost of consumer and property rights. All of us gamers are familiar with stickers on consoles saying “opening this voids your warranty” or similar, but that’s a thing of the past now. The Supreme Court ruled that repairing our own consoles is within our rights.
As someone who greatly enjoys doing console mods and hacking this is one of the best court decisions I can remember. Nintendo for one has been adamant about prosecuting sellers of modchips and now it looks like, in the US at least, they have no legal leg to stand on. As long as the mods in question rely on only off the shelf parts or reverse engineered items they are totally legal. However, Nintendo et al still have the right to say that you can’t use their online services with mods or hacks so caveat emptor.
Of course, this does mean that repairing your console – retro or modern – is completely legal and within your rights. Sure, if it’s still under warranty why not send it in for free repair, but for anything bought second hand you cannot be banned for fixing a console. Modding will be a grey area on modern consoles simply because of the ability to pirate and cheat on games. Repairing a console, is a totally different story, as you are simply returning it to normal. With the debacles like the Red Ring of Death or the Yellow Light of Doom, it’s understandable that end users would want the ability to fix their own consoles without worrying about losing key functions such as online play. This decision protects that.
To me the idea that we had to get a Supreme Court decision to legally repair digital technology is insane. Nothing else in my home ever had a rule that said I couldn’t repair it except for my game consoles. I certainly blame the onerous demands of the Digital Millennium Copyright Act, which neutered far too many property rights of end users and has been the source of endless abuse. Once you spend your money for a product you have the right to repair or modify as you see fit provided you don’t sell it as your own. It’s one thing to sell a product as “refurbished,” but it’s another to sell a modified product as a new one of your own invention. That’s a restriction I agree with, but one I doubt comes up too often.
As for modchips, I won’t touch on the piracy issue in this article but the idea of cheating in games is a valid one. My best friend is a high level Call of Duty player and it’s all too often he’ll hear in a lobby how player X is using cheat device Y to artifically speed up shots or whatever. This is unfair to other users, and should not be allowed. The piracy restriction is of course to keep third parties – and first party titles – selling because if they don’t then developers will see no need to make games for that hardware. It arguably led to less third party support on the easily modifiable Playstation Portable.
Property rights are the backbone of civil society. Without them our basis of law and order would crumble, and we have to protect them. The problem is that the law will always lag behind technology and the balancing act of protecting producer rights and consumer rights continues to be tricky. However, this case should have been a cut and dry issue of common sense laws instead of legal maneuvering. We should have the right to repair and even modify our consoles and devices so long as we don’t infringe upon the rights of others, and that should be common sense. The problem is that expecting common sense out of anything Congress has ever done is like expecting your cat to sit up and start barking.
I hope you enjoyed this article, and I’d like to hear your opinions on this issue. You can comment below or catch me on twitter @ithinkibrokeit. For a better view of the full history of this case check out this fantastic article on Wired. Thanks for reading.