Do You Own Your iPhone?

There were some dark times a few years back, when big studios sued old ladies for downloading music illegally. When this failed, they have tried blocking us with DRM technologies. However, DRM was ineffective and drove customers away, so music stores mostly abandoned it.

I was quite hopeful. I thought customer demand and copyright owners have reached a new working equilibrium. I’m not so sure anymore. Consumers are in a much worse position compared to where we were twenty years ago. Once, when you bought a book, you owned it. When you bought software, you owned it. When you bought hardware, you owned it. Well, this may not be the case anymore.

You Do Not Own Your Books

Sometime in July 2009, buyers of Orwell’s literary masterpiece 1984, found that the e-book they have purchased has been erased from their Kindle devices. Is this legal? Well, it depends:

Amazon’s published terms of service agreement for the Kindle does not appear to give the company the right to delete purchases after they have been made. It says Amazon grants customers the right to keep a “permanent copy of the applicable digital content.”

However, in a lawsuit settled not two months after the incident:

In the settlement, Amazon promises never to repeat its actions, under a few conditions. The retailer will still wipe an e-book if a court or regulatory body orders it, if doing so is necessary to protect consumers from malicious code, if the consumer agrees for any reason to have the e-book removed, or if the consumer fails to pay (for instance, if the credit card issuer doesn’t remit payment).

So, the answer is still “no,” you don’t own the digital books you download. Though I can understand the reasoning behind some of the exceptions Amazon lays out, Amazon still maintains control over your e-books. It is not the same as having a book all to yourself once you leave the bookstore.

This means you do not own your books. You are licensed to read them, of course, but you do not own them. Not in the sense you were used to with our old paper books, the ones you lent to our friends.

You Do Not Own Your Software

I’ve been fuming at the mouth for the past few weeks after I’ve read this little piece on Slashdot:

A federal appeals court ruled today that the first sale doctrine is “unavailable to those who are only licensed to use their copies of copyrighted works.” This reverses a 2008 decision from the Autodesk case, in which a man was selling used copies of AutoCAD that were not currently installed on any computers. Autodesk objected to the sales because their license agreement did not permit the transfer of ownership. Today’s ruling (PDF) upholds Autodesk’s claims: “We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner (1) specifies that the user is granted a license; (2) significantly restricts the user’s ability to transfer the software; and (3) imposes notable use restrictions. Applying our holding to Autodesk’s [software license agreement], we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense. “

In short: you are licensed to use the software, but it is not yours. Even if this ruling only holds for AutoCAD today, I’m sure the rest of the industry (and gaming in particular) will promptly follow suit with “improved” licenses.

You Do Not Own Your Hardware

Microsoft banned 1 million users from Xbox Live. These users were banned because their machines have been altered to allow them to play pirated games. While this it is legitimate to fight pirates, is the act of modifying the Xbox an act of copyright infringement? That depends:

“With hardware, you can do pretty much anything you want with it. There are very few rules that apply. You buy it, you own, you can take it apart, and that’s perfectly fine,” she explained. The problem is that no one simply modifies the hardware. “It becomes complicated with modern hardware because it’s combined with firmware, the embedded software.”

So, our ownership of the Xbox is partial, at best. This gives Microsoft the right to do more than ban us from the online service they provide after purchase. It gives them the right to cripple your Xbox, or even remove the software remotely, rendering the hardware useless:

Your Banned 360:

  • Cannot go on Xbox Live
  • Cannot install games to the HDD
  • Cannot use Windows Media Centre extender
  • Cannot be used to get achievements from backups without corrupting your profile

Next in stores: Apple kills jail-broken iPhones. LG shuts down TVs that played pirated movies. Toyota pulls the plug on car modifications.

Copyright as in The Right To Copy

Somewhere along the way we have lost the sense of ownership. In the digital world, every use produces a copy. Thus, every use requires consent by the license owner.

I understand the need for copyright protection by law. Piracy, distributing the work as is and wholesale possibly for a profit, is not to be condoned. I just want to point out the price we pay to keep the rights of the few protected. Everything we “buy” is actually lent to us under stern limitations (must remain connected to the Internet,  must enter credit card, must use this hardware USB device, must not sell, must not modify).

Copy rights are important, but what about the rights of ownership and property?

I’ll leave you with Larry Lessig, advocate for copyright reform and the worlds coolest lawyer:

  • http://ofriraviv.com/blog/ Ofri Raviv

    Do you know if MS crippling its XBOXs has ever been put up to court?

    James Boyle points in his (free as in speech) book The Public Domain to what seems to be one of the major causes of this shift: For years copyright has been the internal regulation of the publishing industry. To infringe on someone else’s copyright in any meaningful magnitude you had to be a publisher yourself. In that time we have been accustomed to letting that industry set its rules for itself. With the advance of technology stuff have changed – as you write, simple usage needs copying, every person can make endless number of copies of a work, etc.

    I think the solution is in customer deman to be owners of their products and regain their freedoms, but your prologue is way too optimistic. We haven’t reached a new working equilibrium. How many people do you see switching to linux, just because its free (as in speech)? On the smartphone market, where more users are early adopters, we see that people are choosing android mainly because of openess (which can be doubted, but still).

  • http://www.loup-vaillant.fr Loup Vaillant

    A book (and an XBox, and many other things) is made up of two parts : the material (paper, silicon…), and the knowledge embedded in that material (text, firmware…). While ownership of material is a well known concept, ownership of knowledge is a meaningless one. Knowledge isn’t owned, it’s known. Knowledge isn’t shared, it’s spread. Knowledge isn’t destroyed, it’s forgotten.

    Up until recently, knowledge was always embedded in some material, with no easy way to transfer it to another. Because of this tight coupling, dealing with the material felt like dealing with the knowledge itself to the unwary. Knowledge and matter didn’t feel so different.

    Now they do. And refusing to acknowledge it is either foolish or evil.

    Licensing is such a refusal: it tries to rent knowledge. Meaning, it more or less tries to prevent you to teach its teaching. Or to make you forget it. This can’t work but in the tightest dictatorship.

  • Mike

    I think you meant to say piracy “is NOT to be condoned.” All in all though, a well argued post.

  • http://github.com/BonsaiDen Ivo Wetzel

    The whole copyright thing is getting out of control, it literally shouts out pure capitalism. In the end you just get less, for more money.

    You cannot stop piracy, there will always be people which either cannot afford a product or just outright refuse to pay for it. The more you do to protect your work, the more you annoy the normal user, which after all, actually bought your product. More barriers also mean more challenge for the crackers, which as we all know have more than enough time to break/circumvent it.

    Oh and I’m sorry but I can’t watch the video :/

    “This video contains content from UMG. It is not available in you country”.

  • http://www.dogsinduds.com/2010/trollface-dog/ jamie dalgetty

    scary stuff for sure. unless we as a people do something, the rest of our lives will become less and less free.

  • http://omergertel.com Omer Gertel

    @Mike – Oops, Got me. Fixed.

    @Ivo – You can watch this video on TED:
    http://www.ted.com/talks/lang/eng/larry_lessig_says_the_law_is_strangling_creativity.html

    I don’t like TED’s embeddable object, so I used YouTube.
    BTW, this is the ultimate irony: The video is blocked because of a 2 second snippet, which is trying to explain why Fair Use is so important. It was taken down, automatically, and without any inquiry about the legitimacy of the use.

    @Ofri, as usual, I agree with you. You rock, man.

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