Quote: (Originally Posted by
AD_ward9)
Can you clarify exactly what it is you are taking issue with. Is it:
1. Sale of a unit with training, such that once training is done, the unit is able to be used but not before? Nothing appears to be illegal in that.
You need to look at something called "forced tied sales" Alex. They are frequently violations of the law in the United States.
IBM got their tits in a knot over this back in the 1960s. It used to be that you could not buy an IBM mainframe unless you also purchased "maintenance and service", along with an operating system license, from them. This resulted in what was held to be an illegal tied sale arrangement, and IBM was forced to discontinue this practice.
Quote:
2. Sale of a unit with additional hardware features that cannot be accessed, unless additional firmware and software is purchased and installed? Nothing illegal in that: software companies do it all the time, such as Cadence, Mentor, Synopsis when the packages run into millions of dollars per seat (ASIC design packages).
That is legal
provided that you do not also condition the purchase on a second tied sale (e.g. you can sell a Trimix PIN, but if you condition ITS sale on a second class you could get in trouble.)
The degree of scrutiny that such arrangements reach has to do with their effect on commerce. To the extent that any such "tied sale" requirements become "disposable", and therefore tend to promote destruction of the purchaser's value, they tend to lessen competition and are more likely to be ruled unlawful.
A class that is unit-specific
by definition destroys the purchasers value as it conveys no value to the purchaser that is "durable." It is thus effectively a "tax" on the purchase of the unit and tends to lessen competition because it chills both resales of the units and mobility of users between vendors.
This is a "good thing" from the standpoint of the builders of the units and the vendors of said classes (after all, getting to sell the same thing to the same person more than one, and being given a mechanism to FORCE the second purchase is a boon to agencies and instructors) but paradoxially to the extent that this promotes unit builders' and instructors interests it increases the risk that such an arrangement will be ruled unlawful as it
damages the consumer's interest and denigates rather than promotes competition.
Quote:
There is no question of the unit being sold without a manual that allows anyone to understand it full, if they study the manual sufficiently. One client is even considering an internet course.
Alex
A device that is not delivered with sufficient documentation that a person ordinarily skilled in the art of whatever it is that is being used (e.g. diving a CCR) can safely utilize it is, I would argue, in violation of the implied warranty of fitness for the purpose it is sold.
Requiring the purchase of a class (whether over the Internet or not) in which such information is conveyed does not "cure" this deficiency - if anything it exacerbates it due to the tied sale concerns.
Attempted parallels to "type ratings" for aircraft (which I've heard people attempt to draw before) are invalid. You
can purchase an aircraft without any license whatsoever, and there is nothing preventing you from using it. That there may be a
law prohibiting operation without a specific license is an entirely unrelated matter - governments are not subject to anti-trust constraints, but private corporations and citizens most certainly are.
I believe the only reason nobody's gotten sued in the rebreather space over this so far is that market penetration has been insufficient for an enterprising attorney to be interested in it. When you deliver 100 units even a "treble damages" award on the cost of the requisite training is only $450,000. That's not enough to be worth it.
Sell 10,000 units and add into this the potential for a racketeering allegation (collusive action between multiple vendors - sellers of units and training agencies, all acting in lock-step with their policies) and suddenly things change.
I suspect that somewhere before you reach 45 million reasons to chase this industry sufficient enticement for
someone to take a run at it will be established.
Indeed, if what Gordon Smith told me a couple of years ago about WHY they started requiring certifications to purchase their units is correct (he stated that the agencies ALL told him they would not offer a class for his SPORT KISS unless he conditioned the sale of ALL of his units, including the Classic, on prior or concurrent purchase of a class from a recognized agency) then IMHO evidence of collusive activity with the intent to restrain trade would be trivially easy to establish.
I have no idea if that sort of thing is unlawful in Canada, but it sure as hell is in the United States.