New Bill Designed To Stop Bogus Copyright Claims From Stopping You From Selling What You Own
from the you-own-devices-act dept
We just wrote about an audio equipment manufacturer trying to argue that it was criminal for someone to resell their products. While this was obviously crazy, never underestimate the lengths that some companies will go through these days to try to block people from selling products they (thought they had) legally bought. And guess what tool they're using to block you from actually owning the products you bought? Why copyright, of course. It's yet another example of how copyright is often used to block property rights rather than to create them.This has become especially popular among telco/networking equipment manufacturers. These companies ship hardware with software included -- and then argue that you can't actually do anything with that hardware -- such as fix it or sell it -- without their approval, because doing so would violate their copyright on the software. Earlier this year, there was a big lawsuit in which Avaya had sued a company for copyright infringement for merely servicing Avaya equipment. Many other equipment manufacturers have terms of service or "transfer" policies that either effectively block such sales, or (more commonly) include a bunch of hoops that everyone has to jump through just to sell the products you thought you owned. All because of the software that comes with the hardware. While this has mostly been focused on big enterprise systems, it's not much of a stretch to think about how it might eventually apply elsewhere. With so many products being computerized these days, there will be software in lots of different hardware products -- and imagine the havoc those companies could create if they tried to block the sale of these products based on copyright.
Of course, as we've discussed for years, in copyright there's the right of first sale, which is supposed to let you sell your individual copy of a copyrighted work (it's why you can resell a copy of a book you own, for example). But many companies have been trying to chip away at that right, and at least some in Congress want to stop this practice. Rep. Blake Farenthold -- who I only just found out is an EFF member! -- has now introduced a new bill called the You Own Devices Act, or YODA. While I tend to hate silly names for bills, this simple bill is an important reminder that when you buy a product, even if it has copyrighted software included in it, you should own it. The key part of the bill:
...if a computer program enables any part of a machine or other product to operate, the owner of the machine or other product is entitled to transfer an authorized copy of the computer program, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or other product to another person. The right to transfer provided under this subsection may not be waived by any agreement.Realistically, this is just reinforcing the first sale doctrine, and it's ridiculous that it needs to be reinforced, but hopefully it can block out some of the questionable shenanigans by some companies.
The bill further makes sure that even if someone sells or transfers such equipment, that the new owners are still allowed to receive updates and security patches:
Any right to receive modifications to the computer program... relating in whole or in part to security or error correction that applied to the owner of the machine or other product... shall apply to the person to whom the machine or product and the copy of the computer program are transferred.While it's ridiculous enough that this bill is even needed, it's nice to see at least some good copyright reforms popping up.
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Filed Under: blake farenthold, copyright, equipment, first sale, ownership, property, property rights, resale, resellers, yoda, you own devices
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I'll be ready with a follow up:
Lost a law, Congress has. How embarrassing. How embarrassing.
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FTFY
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If what you've bought is a license, then how are you not getting what you've bought? Nor do I understand how this blocks property rights. If somebody's bought only a license, then what property rights of theirs are being blocked? Your definition of blocked seems to be that somebody can't enforce right they don't actually have. I thought you liked reality. And how does copyright not create property rights? It creates them in the copyright owner. I know you hate this fact. But it's still reality.
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But you knew that.
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And we all know there is nothing worse than an undead Newfoundlander. ;-)
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Nobody takes him seriously.
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Are your privacy rights, which are the product of the government, not real? Is the First Amendment not real, even though it's the product of the government? I know you read a Wikipedia article or two and are thus an expert, so I look forward to your explanation. ELI5.
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Privacy rights aren't necessarily natural rights. That's not to say it's something government shouldn't protect to some extent.
"Is the First Amendment not real, even though it's the product of the government?"
You keep repeating this same line. Free speech is a natural right. It exists outside of government. The first amendment isn't the government protecting your natural right it's a law that prohibits government from taking it away. You are dishonestly conflating two separate things here. You know better (or you should by now). Makes it very difficult for anyone to take you seriously. Stop making these dishonest arguments. and they keep getting shot down and you keep repeating them like a zombie. They're dead. They've been refuted. Repeating them doesn't help your position and only makes you look dishonest which reflects poorly on the position you attempt to defend.
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My privacy rights are not a product of the government. They stem from my natural liberty to be free of intrusion by others.
Is the First Amendment not real, even though it's the product of the government?
The First Amendment does not create free speech rights. The right to free speech - a natural liberty - is innate to human beings.
It is not created by the First Amendment. Instead, the First Amendment says the opposite - that the government is simply not allowed to infringe on this natural liberty. It is not the product of legal statutes, but overrides them. (Using the Hohfeld terms you love to abuse so much, the First Amendment is a government disability.)
Copyright, on the other hand - a statutory claim - is entirely a product of the government. Specifically, it is a right of Congress that is created by the Constitution. Clause 8 does not secure natural rights, it allows Congress to create them if it so chooses. (In Hohfeldian terms, it is a Constitutionally-created government power.)
But you know all of this. So quit being dishonest.
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It destroys them. My right to copy as I please is a property right. I have the right to modify my property the way I see fit based on the configuration of the property of others. It's a natural right. I never agreed not to copy someone else or 'pirate' their product. It's an act of government that imposes these restrictions on my property rights telling me what I may or may not do with my property.
The whole idea that you should have to 'buy' a license in the first place is what's misleading/misdirecting. I shouldn't have to buy a license, it's my right to freely copy as I please. Anything contrary to that is an artificial act of government abridging my property rights to do what I want with my property.
Though I'm sure you will still dishonestly claim that copy protection laws are natural rights despite the fact that they don't meet the definition and despite the fact that even many of the sources you cite disagree with you.
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How do you have any property rights in a work that didn't exist before someone else created it?
I have the right to modify my property the way I see fit based on the configuration of the property of others. It's a natural right. I never agreed not to copy someone else or 'pirate' their product. It's an act of government that imposes these restrictions on my property rights telling me what I may or may not do with my property.
You never agreed to not throw rocks at my windshield, yet your doing so violates my property rights, not yours.
The whole idea that you should have to 'buy' a license in the first place is what's misleading/misdirecting. I shouldn't have to buy a license, it's my right to freely copy as I please. Anything contrary to that is an artificial act of government abridging my property rights to do what I want with my property.
Who says you have to buy a license? You can choose to buy a license or not. But the reality is that if you choose to buy a license, you've bought a license.
Though I'm sure you will still dishonestly claim that copy protection laws are natural rights despite the fact that they don't meet the definition and despite the fact that even many of the sources you cite disagree with you.
What sources disagree with me? Please be specific.
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The property right is in my right to modify my property to make it hold whatever information I want including making copies of information.
"You never agreed to not throw rocks at my windshield, yet your doing so violates my property rights, not yours."
Property rights aren't natural rights. They are derived from government. Also breaking your windows ruins your original property. When I make a copy you still have the original and so I did nothing to harm the original. What I do on my private property, be it making a copy of something you chose to publicly release, is absolutely none of your business. If you don't like it then don't release it. No one is forcing you to release it. But don't release it and then expect others to follow the rules you set for its distribution. You're not government and you don't get to write laws.
According to social contract theory me breaking your window could result in retaliation. The social contract is that if I don't break your window you won't retaliate and break mine. But there is no contract between me and someone who publicly released something that I won't copy it. It is my right to copy it and only the interference of a government can impede that natural right. IP requires government and so is not a natural right. What, is the social contract that if I don't copy you then you won't copy me? Copy me all you want, I don't care.
"Who says you have to buy a license? You can choose to buy a license or not. But the reality is that if you choose to buy a license, you've bought a license."
Or I can choose to not buy a license and still make a copy. I've not agreed not to copy it even if you state otherwise. Otherwise I can just proclaim that by responding to this comment you agreed to give me a million dollars. It doesn't work that way. You can't just make up some arbitrary action that I can commit that constitutes an agreement or a violation of an agreement that I never made. You're not the government.
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The reason we create government to allocate property rights is because we believe that we as a whole are, hopefully, better off with the government 'artificially' allocating them than with individuals or small groups trying to fight for them. So we delegate our authority to manage property as individuals over to government for the hopeful benefit of all. We abdicate our natural rights and freedoms to create order and predictability in terms of who owns what and has exclusivity to what. and we collectively fund the government, through taxes, to enforce this order.
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You have no property rights in anything that you purchase, or are given, because you did not create it, like food, clothes ...
/s
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Who says you have to release the content? If you release it I am free to copy. If you don't like it then no one is forcing you to release it. Don't. It's that simple. But don't release it and then expect the government and everyone to abide by your expensive to enforce and abide by requirements. You are not entitled to anyone abiding by such requirements. Don't like it then there is no one forcing you to release it.
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If you are sold a physical good that requires "licensed copywritable works" from the vendor to function as advertised, but the vendor doesn't make this explicit during the purchase, they are committing fraud and are in violation of a bunch of laws, including interstate (federal) laws if your product is from out of state.
Therefore, if they attempt to sue you for resale, you can notify them that such a lawsuit, should it go on the record, is a direct admittance of fraudulent sale, and opens them up to class action suits.
Seems to me this should hold up in court without any extra laws.
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In addition, many states require that software licenses require you to agree to the license before purchasing the software, not after you purchased it. So it can get a bit complex if you have made a purchase of a physical device and it did not have the full software license agreement on the outside of the box.
I suppose another approach would be to force companies to sell devices and software licenses separate so you could always re-sell the device and the new owner could purchase an appropriate license for the software, but that seems like it would end up being problematic for everyone - including the manufacturers.
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Oracle will love this
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Re: Oracle will love this
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Sure...
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Are you seriously suggesting the way to nullify the problem is to brick the device and potentially make it useless?
The First-sale Doctrine is widely upheld by our courts (with the exception of Vernor v. Autodesk, Inc). If it wasn't, there wouldn't be millions of computers, phones, mp3 players, gaming consoles, watches, coffee pots, etc.. for resale on Ebay and Craigslist, would there?
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So I don't technically fully own my PS3.
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I believe this addresses both comments implying that having to make your own software and have some bricked devices being proof that copyright makes it impossible to have hardware transfer from one person to the other without infringing copyright on the included software due to its license.
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I agree that it is severely flawed (completely broken, in my opinion), however, the DMCA is absolutely copyright law.
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If that someone has not acquired the right to publicly distribute the work, then they have no right that is being infringed when they aren't allowed to publicly distribute that work. How can their right to distribute something be infringed if they never acquired the right to distribute that thing in the first place?
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I don't need to acquire the right to publicly redistribute something. Just like you don't need to acquire the right to breathe. It's my natural right to do so. It's my birthright. It's a right that exists outside of government. A government is required to remove this right. To claim otherwise is to continue with your dishonesty and expect to be taken seriously. You know better yet you continue your dishonesty. You can't reasonably expect to be taken seriously.
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What is common is not automatically what courts apply. You're not speaking factually.
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Please explain how this differs from reselling a dead-tree book.
The publisher has a special license to print the copyrighted content and sell the whole package to me. I do not have that license. BUT, I can still sell my copy to someone else because of the First-sale Doctrine.
Where is the difference?
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The book is the licensed copy. Anyone can read it, they just cannot copy it without permission. Put the book on a bookshelf with other books and you can legally sell the entire bookshelf with its contents together. Substitute "software" for books and "device" for bookshelf and you have the exact same First Sale rights on that bundle.
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Cars run software
I drive a Hyundai. It has fly-by-wire throttle, turbocharger wastegate control, etc. Without the software it will not start. If the software license is tied to the buyer and a SOFTWARE LICENSE TRANSFER must be done... that would be a barrier to resale, and a decrease of value of the asset.
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Section 117 what?
Awesome.
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What else will go with it?
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authorized resellers
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Vernor v. Autodesk
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Extremes
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