SLAPP Lawsuits or Patent Defense?

The SLAPP lawsuit is a suit brought by a big corporation or lobby against someone who, right or wrong, will exhaust their legal fees defending it.

While it was comforting to see ReUse and Refurbishing win one of the only UNANIMOUS Supreme Court decisions (Lexmark vs. Arizona Ink Cartridge Remanufacturers), the reality is more sobering.  The very weakness of the case against  ownership and reuse makes it all the more frightening that OEMs were willing to spend legal costs on APPEAL after APPEAL after APPEAL.  The contributions of "friends of the court" shows that patent extension is not just about ink, it is about winning a precedent against a financially weak adversary.

The OEM's chances of winning on the basis of LAW were somewhere north of a snowball's fate in hell.  But there was the hope that the small group of refurbishers could stumble, if they lack a good lawyer, succumb to bad advice, and LOSES the case, setting a new precedent.

"A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to censor, intimidate and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition.^[1]

The typical SLAPP plaintiff does not normally expect to win the lawsuit. The plaintiff's goals are accomplished if the defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion and abandons the criticism. A SLAPP may also intimidate others from participating in the debate. A SLAPP is often preceded by a legal threat. The difficulty, of course, is that plaintiffs do not present themselves to the Court admitting that their intent is to censor, intimidate or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in applying it, is to craft an approach which affords an early termination to invalid abusive suits, without denying a legitimate day in court to valid good faith claims."

There are immensely important rights at stake in the right-to-own, right-to-reuse, right-to-repair, right-to-resell market.  I have learned over the past 10 years that "ewaste" is a pawn on a much larger battlefield between Original Equipment "Manufacturers" and "Good Enough Market" suppliers.   Read: trademark or copyright owners, the "manufacturing" is a bizarre combination of leases, copyrights, contract manufacturing, outsourcing, etc.

Ironically, the Capitalist SLAPP war on reuse is a war on ownership.  The same people who would win the war against refurbishment might also take away your property rights.   This is not saying they are without legitimate legal rights or risks from counterfeit markets.  But some of the people who oppose export for refurbishment do not have an environmental thought in their heads as they fan the flames of opposition to the very small contract refurbishing factories they once trusted with their own warranty returns.   If I'm a Malaysian or Philippine contract manufacturer, I have a right to fix OEMs products for THEM to resell, but to buy the exact same unit on my own to electively upgrade and resell in the emerging markets, that is worthy of a multi-million dollar lawsuit against my supply chain.

The "fair trade recycling" movement caught between idealists who would envision the poor "leapfrogging" into new devices, and the makers of new devices who are engaged in a war against white box, grey market, and "good enough" product production.   This is a recipe for greenwashing.   This blog focuses on used electronics product, sustainability and recycling, but I'd wager there are very similar discussions going on in the bottom 3B (three billion people), who are struggling against disease and starvation --- not for "good enough" electronics or internet access, but over generic AIDS drugs, access to DDT (to defeat malaria), engineered crops, etc.   Sadly, the do-gooders and watchdogs everywhere can succumb to the forces of power, just as the Churches (Catholic, Anglican and Orthodox) succumbed between prayers to deals with Kings, Czars, and Emporers.  I wonder how many people inside these churches saw it happening, how many monks might have blogged about the deals being cut, and the victims of inquisitions and purges.

Fairport Convention vs. Steeleye Span,,, Can a thousand year old song be subject to copyright?

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I have devoted my life to preserving the planet.  That means more recycling and less mining and virgin extraction.   It means nourishing the hunger of world development with the least possible carbon, and to make honest decisions about NET TOXICS... not just whether the toxics occurred in Western Landfills, India recycling yards, or Indonesian mines... but how much, and honestly looking at world sustainability.  I think there are corporations who can and will be instrumental in that fight.  But the people in those corporations who will matter will be the ones who appreciate frankness and transparency, and will not hold against me that I supported the refilling of toner and ink cartridges, a "focus material" or "material of concern" without toxics and without a single iota of environmental reason to shred or destroy, any more than:

 the INFAMOUS NIKE REUSE A SHOE program which destroyed the National Recycling Coalition.  

Follow the link above, and ask why NIKE didn't set up collection points with Salvation Army, Goodwill, St. Vincent de Paul, Planet Aid, etc?   The entire reason for the program has nothing to do with diverting tennis shoes from landfills, and everything to do with diverting reuseable shoes from the poor.   For the struggling National Recycling Coalition, that was a Church deal with a wealthy king that did nothing but divert tennis shoe reuse from the Salvation Army and Goodwill and St. Vincent de Paul programs who sold the shoes to the developing world, spent carbon and energy to shred them, in the name of "Product Stewardship".  


The unmitigated evil of the Nike Reuse-a-Shoe program formed my future opinions of product stewardship, extended producer responsibility, takeback, planned obsolescence in hindsight, etc.  This blog is BLOWBACK from the Nike program, and AGMA people who wish it would go away would earn major points with me if they could convince me of a single, solitary good thing that comes of taking tennis shoes from my kids in Africa.


That's right, Nike. You've earned a special place in hell for the war on reuse and sustainability, and it must have seemed nice when NRC was desperate enough to do your bidding.  But this medieval monk has internet access and a blog.  SLAPP me, Nike, I dare you.  I bet there's a Nike attorney somewhere who followed Lexmark's "EULA" on ink cartridges with intense interest.


People learn to drive on used cars.   Look it up.