New Bill Designed To Stop Bogus Copyright Claims From Stopping You From Selling What You Own

from the you-own-devices-act dept

Fri, Sep 19th 2014 9:16am — Mike Masnick

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

51 Comments

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Violynne (profile), 19 Sep 2014 @ 7:46am

The Force is strong in this one. Try not. Pass YODA or do not. There is no try.

I'll be ready with a follow up:
Lost a law, Congress has. How embarrassing. How embarrassing.
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antidirt (profile), 19 Sep 2014 @ 8:36am

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.

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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Anonymous Coward, 19 Sep 2014 @ 9:20am

Now the copyright maximalists will go apeshit over this and will do everything in the power even illegal to make sure this does not get passed.
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Anonymous Coward, 19 Sep 2014 @ 9:24am

Oracle will love this
Not. Since buying Sun, they've done everything they possibly can to exterminate competition for Solaris support services and to make it impossible for anyone buying used gear to actually use their software on it.
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Anonymous Coward, 19 Sep 2014 @ 9:27am

Re:
Because you also bought a physical product.

But you knew that.
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Anonymous Coward, 19 Sep 2014 @ 9:28am

Re:
"And how does copyright not create property rights?"

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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Anonymous Coward, 19 Sep 2014 @ 9:34am

Re: Re:
I don't see how antidirt can expect to be taken seriously when he keeps wrongfully claiming that copy protection laws are a natural right. They're not. He knows this and he's being dishonest about it. and every time someone kills his stupid claim the shills keep it dormant for a while before resurrecting it like a zomby. Until he can be honest enough to admit the obvious fact that copy protection laws are a product of government, and not a natural right, he can't reasonably expect to be taken seriously. What a joke.
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Anonymous Coward, 19 Sep 2014 @ 9:36am

Re:
If what you've bought is a license, then how are you not getting what you've bought?
The purchaser obtained a physical good, such as a cell phone, a GPS receiver, or a car. The physical good happens to require manufacturer-installed software to serve its function. While copyright precludes the purchaser from unauthorized duplication of the software that came with the device, it should not preclude transferring the device to another willing purchaser. For most people, it is neither intuitive nor even logical that the physical good should come with first sale restrictions just because the manufacturer decided to include copyrighted material as an implementation detail. Although this is long gone, I remember some early software licenses expressly recognized first sale by stating that you could transfer the software to someone else, provided you gave them all the pieces, both physical and digital, that you received in your purchase and that you retained no copy of the item after the transfer. We have now abandoned not only the ability to transfer a software product under first sale, but gone the other direction by saying that anything which happens to include software as an implementation detail should be as encumbered as a pure-software product.
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Michael, 19 Sep 2014 @ 9:39am

Re:
While you are somewhat correct in that you should know you are purchasing a license for software rather than purchasing a copy of that software, that difference is too subtle to most people. They believe they purchased an iPad, but they may have purchased an iPad and a license for iOS. Making that license non-transferrable effectively blocks the right to sell the device - even more so when removing the software license can be considered a violation of DRM circumvention laws.

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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Anonymous Coward, 19 Sep 2014 @ 9:40am

I don't copy the original work , It's not what I own , I own a copy therefore It's mine to recopy ,clone or sell.
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Michael, 19 Sep 2014 @ 9:40am

Re: Oracle will love this
Which could help explain why so few companies adopt Solaris platforms when they have a choice.
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John Cressman, 19 Sep 2014 @ 10:00am

Sure...
I'll believe it when it passes. I can already see Big Copyright lining the pockets of their bought and paid for representatives and senators telling them to vote that down.
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Anonymous Coward, 19 Sep 2014 @ 10:00am

What does copyright have to do with property rights? You imply that the alternative to taking away property rights is creating them buts that's not the case. Copyright does neither, if it's doing what it's supposed to.
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Anonymous Coward, 19 Sep 2014 @ 10:23am

Re: Re: Re:
"resurrecting it like a zomby."

And we all know there is nothing worse than an undead Newfoundlander. ;-)
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Anonymous Coward, 19 Sep 2014 @ 10:35am

Re:
If someone is not allowed to resell a device they purchased because its firmware is copyrighted, then copyright is infringing on the owner's property rights.
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Anonymous Coward, 19 Sep 2014 @ 10:40am

Bills like this never go anywhere because you can sell your old computers and laptops, along with the installed software, without having to worry about copyrights or any of that other nonsense because the courts don't recognize that copyright has been broken and that it's just resale rights that every consumer is protected by.
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Ehud Gavron (profile), 19 Sep 2014 @ 10:47am

Cars run software
How long before (absent these extra laws to clarify existing first-sale rights) car manufacturers -- WHO ALREADY LIMIT their warranties to first buyer -- will disclaim any right of transfer of the 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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Anonymous Coward, 19 Sep 2014 @ 11:02am

Re: Re:
No, it's not. Removing the software from the device nullifies the problem. You can put non-IOS software on Cisco gear for example.
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Anonymous Coward, 19 Sep 2014 @ 11:05am

Re:
Your device manufacturer has a special license to put software on the device and sell the whole package to you. You do not have that license. If you want to sell the device your recipient cannot use the software included and must get their own license.

What is common is not automatically what courts apply. You're not speaking factually.
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Anonymous Coward, 19 Sep 2014 @ 11:07am

Re:
Copyright has long since not done what it's supposed to of course.
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Gwiz (profile), 19 Sep 2014 @ 11:14am

Re: Re:
Your device manufacturer has a special license to put software on the device and sell the whole package to you. You do not have that license. If you want to sell the device your recipient cannot use the software included and must get their own license.

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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Gwiz (profile), 19 Sep 2014 @ 11:35am

Re: Re: Re:
No, it's not. Removing the software from the device nullifies the problem. You can put non-IOS software on Cisco gear for example.

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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Rikuo (profile), 19 Sep 2014 @ 11:35am

Re: Re: Re:
And if we're not allowed remove the software? Case in point, the Playstation 3. The first batch of PS3 consoles allowed the user to install Linux on it. I can no longer do that. Sure, technically, if I took the time and energy to do it, I might be able to do it, but that involves circumventing Sony's DRM (their hypervisor, that restricts access to the hardware to only Sony signed code). Circumventing DRM is against the DMCA.
So I don't technically fully own my PS3.
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Anonymous Coward, 19 Sep 2014 @ 12:04pm

i wonder how long it will be before this is changed so as to cater for what the movie and music studios want? after all, they say that any movie or music file downloaded or disk 'bought', is really only rented or leased, leading customers to paying out good money but owning nothing!!
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Michael Donnelly (profile), 19 Sep 2014 @ 12:08pm

Section 117 what?
Oh, yeah, nobody owns anything. Let's codify more basic property rights to further muddy the illusion.

Awesome.
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PRMan, 19 Sep 2014 @ 12:27pm

Re: Re: Oracle will love this
I was at a company that quit using Solaris for exactly this reason.
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PRMan, 19 Sep 2014 @ 12:29pm

Re:
"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, own it you should."

FTFY
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Anonymous Coward, 19 Sep 2014 @ 12:50pm

Re: Re:
I've got an easy solution:
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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Anonymous Coward, 19 Sep 2014 @ 1:10pm

What else will go with it?
They will probably attach this bill to something really awful so that we can't have the good without the bad.
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John Fenderson (profile), 19 Sep 2014 @ 1:17pm

Re: Re: Re:
"I don't see how antidirt can expect to be taken seriously"

Nobody takes him seriously.
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Russ (profile), 19 Sep 2014 @ 1:33pm

authorized resellers
This bill will run into pushback from the companies that restrict warranty work to purchses from authorized resellers. regardless of the logic of that policy, there is a huge number of companies that don't want that to change. As I read the quotes, if I buy from an unauthorized reseller (ebay)the warranty would still apply. Not the way it works now.
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Zonker, 19 Sep 2014 @ 3:51pm

Re: Re:
The First Sale Doctrine implicitly applies copyright licenses to the product, not the person using it. That is what allows you to resell a book you purchased.

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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antidirt (profile), 19 Sep 2014 @ 4:08pm

Re: Re:
It destroys them. My right to copy as I please is a property right.

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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antidirt (profile), 19 Sep 2014 @ 4:10pm

Re: Re: Re:
I don't see how antidirt can expect to be taken seriously when he keeps wrongfully claiming that copy protection laws are a natural right. They're not. He knows this and he's being dishonest about it. and every time someone kills his stupid claim the shills keep it dormant for a while before resurrecting it like a zomby. Until he can be honest enough to admit the obvious fact that copy protection laws are a product of government, and not a natural right, he can't reasonably expect to be taken seriously. What a joke.

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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antidirt (profile), 19 Sep 2014 @ 4:15pm

Re: Re:
If someone is not allowed to resell a device they purchased because its firmware is copyrighted, then copyright is infringing on the owner's property rights.

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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Anonymous Coward, 19 Sep 2014 @ 4:22pm

Re: Re: Re: Re:
And he is still going on about Mike doesn't answer him: https://www.techdirt.com/articles/20140918/06504728559/hollywood-insiders-directors-actors-producers -camera-people-more-demand-peter-sunde-be-freed-treated-with-dignity.shtml
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antidirt (profile), 19 Sep 2014 @ 4:37pm

Re: Re: Re: Re: Re:
Yes, Mike refuses to take a definitive position on copyright. It's not so much that he won't answer me, it's that he won't take a position no matter who's asking. As he shows in that post, he has no trouble whatsoever giving us his opinion on criminal infringement. Yet, when it comes to civil infringement, he absolutely refuses to state his opinion. Do you want to turn these comments into that discussion again? I'm happy to talk about that, if you want. I'm sure Mike doesn't like it though, so you might consider that before answering. It's his dirty little secret.
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Anonymous Coward, 19 Sep 2014 @ 5:30pm

Vernor v. Autodesk
So how would this affect Vernor v. Autodesk?
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Anonymous Coward, 19 Sep 2014 @ 6:50pm

Re: Re: Re:
"How do you have any property rights in a work that didn't exist before someone else created it?"

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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Anonymous Coward, 19 Sep 2014 @ 6:57pm

Re: Re: Re:
"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."

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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Anonymous Coward, 19 Sep 2014 @ 7:03pm

Re: Re: Re:
"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."

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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Anonymous Coward, 19 Sep 2014 @ 7:13pm

Re: Re: Re: Re:
"Are your privacy rights, which are the product of the government, not real?"

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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Anonymous Coward, 19 Sep 2014 @ 7:37pm

Re: Re: Re: Re:
To be more specific the government enforcement of property rights aren't natural. It's a government derivative. My ability to defend property that I deem to be 'mine' is natural. You attack me or what I deem to be my property and I can fight you and kick you off. Or I can attack and destroy what you deem to be your property. The 'fittest' or whoever can best defend the property they want gets the property they want. Or we might all just be worse off because we might all just end up destroying each others' property. Then no one owns anything and we value exclusive ownership of physical goods. Doesn't make a government established ownership 'natural' but it does make it possibly convenient.

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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Karl (profile), 19 Sep 2014 @ 10:45pm

Re: Re: Re: Re:
Are your privacy rights, which are the product of the government, not real?

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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Candid Cameron, 20 Sep 2014 @ 1:08am

Re: Re: Re: Re: Re: Re:
Isn't it obvious, antidirt? Mike's definitive position on copyright is that he has no definitive position on copyright. Everyone is allowed to reserve judgment for however long they want, for whatever reasons they want. Don't like it? Too bad, that's reality. I don't have a definitive position either because it's too early for one IMHO. Why does that bother you so much? It really shouldn't. Well, unless you have ulterior motives, of course.
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Anonymous Coward, 20 Sep 2014 @ 6:47am

Re: Re: Re: Re: Re: Re: Re:
Everyone should ignore the boy that keeps crying wolf by clicking on the report button and its out of site and out of mind.
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Anonymous Coward, 21 Sep 2014 @ 3:26am

Re: Re: Re: Re:
"How do you have any property rights in a work that didn't exist before someone else created it?"

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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NewAgeTechs, 21 Sep 2014 @ 6:07pm

Extremes
In my opinion, it is "almost" comparable to the following absurdity: Imagine if you will an artist of a painting copywriting the "use" value of the his work, which would transfer such enjoyment usage rights to the original purchaser, and disallow said rights from being transferred. As absurd as that might sound, it is exactly what is happening with most Enterprise IT today. My guess is, sadly, legal might will continue to make right with regard to this legislation ...
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Anonymous Coward, 21 Sep 2014 @ 7:02pm

Re: Re: Re: Re:
The DMCA is not copyright law. It is a flawed law giving the government the ability to prosecute and therefore enforce copyright law. Being required to go to a lot of work to get past copyright law's boundaries is not an example of copyright law being impossible. Look at the origins of Richard Stallman's work in free software. Was copyright automatically broke. Because he had to *gasp* do work in order to have software that wasn't freely licensed for any purpose? No, he had a choice of making his own software and doing the work or paying someone else to. This is an example of copyright being wholly not a barrier.

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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Anonymous Coward, 21 Sep 2014 @ 7:03pm

Re: Re: Re: Re: Re:
... enforce copyright law *in the digital age
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John Fenderson (profile), 22 Sep 2014 @ 8:01am

Re: Re: Re: Re: Re:
"The DMCA is not copyright law."

I agree that it is severely flawed (completely broken, in my opinion), however, the DMCA is absolutely copyright law.
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