YODA Takes On The Dark Side Of Copyright Enforcement

Mytheos Holt Policy Analyst
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Imagine the following scenario: You buy a computer secondhand off eBay at a bargain price that would put most computer stores out of business. You then boot up the machine, only to learn that, in order to make any of its features work, you need to enter a host of product keys to prove that you do, in fact, own the operating system. You email the original owner, who replies:

“Sorry, but it’s illegal for me to give you the product key. They only licensed me to use it. You’ll have to buy your own copy of the software before you can use the computer.”

Absurd, right? Depressingly enough, what I’ve just described is the status quo when it comes to the secondhand sale of software. A byzantine web of user license agreements, product keys (supposedly designed to protect against piracy) and other tools allow companies to essentially revoke basic property rights, such as the right to resell your own possessions or even to have them repaired.

As Techdirt notes:

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.

In other words, if you own an Xbox 360 and the dreaded “three red rings” light up (indicating a problem with the hardware or power supply) don’t even think about sending it to a cheap repair service not authorized by Microsoft. You could be on the hook for copyright violations, which could cost you anywhere from $750 to $150,000 if the matter goes to court. That’s a lot of copies of Destiny!

This is a system that should raise major alarms for property rights advocates, as it transforms owners into the equivalent of digital serfs, at the mercy of software manufacturers.

Responding to such concerns, U.S. Rep. Blake Farenthold, R-Texas, has just introduced the aptly named You Own Devices Act (YODA). Like the lovable, but extremely powerful fictional Jedi master whose name it bears, YODA is intended to cut through red tape with the same speed and dexterity that its namesake uses to push aside lightsaber-wielding Sith.

Here’s the relevant piece 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.

The bill also explicitly allows the new owner to receive security update patches, just as the original owner would. In other words, when you resell a computer to someone they get that computer with exactly the same software they would expect if they bought it new. No more, no less.

Let’s not mince words: This bill shouldn’t need to exist. Imagine selling a car, but being prohibited from selling the engine that makes it drive. Yet because software property rights exist in a nebulous netherworld where companies can mandate adherence to often abusively self-favoring contracts with no room to negotiate, a legislative fix has become necessary.

If companies want to treat the purchase of their software as if it’s merely a glorified rental, then there needs to be more transparency in terms of service agreements, which consumers don’t read and wouldn’t be able to decipher even if they did. Either companies should disclose that you are merely leasing their products, or they should acknowledge the common and reasonable expectation that buying a computer or a game console or any other piece of electronic hardware means you do, in fact, own it in full, including the right to resell it.

Or, to paraphrase Yoda, if once you buy software from a company, forever should it not dominate your destiny.

Mytheos Holt is an associate fellow at the R Street Institute.