The good news is that a new bill proposed in Congress this week would vastly increase consumers' rights of property ownership, by ensuring that software copyrights did not prevent ordinary people from buying or selling used electronics. The bad news is that the bill is very unlikely to pass; a similar version proposed last September died quietly in committee.
Two congressmen – Texas Republican Blake Farenthold and Colorado Democrat Jared Polis – have proposed the “You Own Devices Act.” (An earlier version of this bill, proposed last Sept. 18, died in committee before ever making it to a House vote.)
Yes, the bill's acronym does spell “YODA,” and yes, that was on purpose; when Rep. Farenthold announced the revived bill on his Twitter feed this week, he used Yoda-style syntax and other Star Wars references to do it:
#YODA bill, today I have. Luke didn’t have to re-license Anakin’s lightsaber, so why should you?
“Re-licensing” is at the heart of what the YODA bill is all about. Last September, the day before he introduced the 2014 version of the You Own Devices Act, Farenthold attended a hearing on the Digital Millennium Copyright Act and expressed concern over the possibility that patent and copyright law might be getting confused, where consumer rights and protections are concerned.
“Traditionally patent law has protected things and copyright law has protected artistic-type works,” he said at the time. “But now more and more things have software in them and you are licensing that software when you purchase a thing.” Current copyright law doesn't offer any way to draw distinctions “between software that is an integral part of a thing as opposed to an add-on app that you would put on your telephone,” and the YODA, if passed into law, is supposed to fix that by adding the following provision to the copyright act:
“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.”
Under current American law, you can own the physical hardware components of electronics, such as the plastic and metal which comprises your computer, but you do not own the software required to actually use it as a computer rather than a big paperweight; as Farenthold said, you only license the right to use the software. This also means that if you sell the hardware, you lose the right to use the software (or that your software license does not transfer to the devices' new owner). Farenthold's bill proposes to end that status quo.
Luke's father's lightsaber
Remember his Tweeted joke mentioning how Luke Skywalker “didn’t have to re-license Anakin’s lightsaber”? Suppose you actually could buy lightsabers, and furthermore that they are computerized or otherwise run on software: under current American law, it is genuinely possible that Luke would be unable to use his father's lightsaber unless he first paid a “software licensing fee” to JediCorp or whoever, because Anakin's license to use the lightsaber died when he did.
That's not merely a hypothetical scenario, either. Companies have already used “software licensing” as a way to exert control over any secondhand market for their products (and make extra money off additional sales, too).
For example: if you're looking to buy some used Hewlett Packard servers from a previous owner who no longer needs them, you'll have to pay Hewlett-Packard $400 for what the company calls a “software license transfer.”
But if Farenthold's YODA bill is passed into law (advice: don't hold your breath waiting for that to happen, at least not this year), you or any other secondhand buyer would not have to pay that fee to Hewlett-Packard.
Like a book
Basically, the YODA bill would give software-run devices the same ownership status as pre-computer forms of media: right now if you own a physical copy of a book, you're allowed to sell it to someone else without first getting permission from the book's author (or whoever owns the copyright on that book).
Conversely, if you want to buy a secondhand book from its current owner, you can do so without paying additional copyright fees to the book's author. Your right to buy or sell used books falls under what's called the “Doctrine of First Sale,” which essentially says that a copyright holder can only control the first sale of a copyrighted work, but has no control over any secondhand market.
The Department of Justice's “Criminal Resource Manual” says this about “first sale doctrine”:
The first sale doctrine, codified at 17 U.S.C. § 109, provides that an individual who knowingly purchases a copy of a copyrighted work from the copyright holder receives the right to sell, display or otherwise dispose of that particular copy, notwithstanding the interests of the copyright owner. The right to distribute ends, however, once the owner has sold that particular copy.
Right now, the manufacturers of software-operated devices can use licensing to skirt around the first sale doctrine, as with those Hewlett-Packard servers mentioned earlier: you don't own the software required to run them, you merely bought a license granting you the temporary right to use it.