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Keyword: ‘intellectual property license’

Owner’s Rights, Copyrights, and Licensing

October 29th, 2012 Comments off

I’ve been on my high horse about licensing for some time, and, from recent events, I think more and more that such a concern is justified. There are cases going before the courts now about reselling textbooks from overseas.

Students at U.S. colleges hurt from outrageous prices and resale-avoidance schemes related to textbooks; any college student knows the frustration of hundred-dollar books, rip-off college bookstores, dodgy buy-back setups, and textbook “editions” obviously designed not to improve the book but to make used book sales impractical.

Now the publishers are fighting back against students who found a loophole: publishers sell identical textbooks cheaper in other countries, so why not import? Well, because publishers don’t like loopholes, so they used licensing to shut it tight.

The problem: licensing is basically a way of saying, “you don’t own what you just bought.” Intended to protect intellectual property, it is now being used to protect physical property in a way that could have serious implications on ownership.

Seven years ago, I expressed it like this:

Think about it. Plug in any other kind of product into that equation. What if a store that sold you oranges tried to sue a company that made juicers on the grounds that they had rights and controlled what you did with an orange after you bought it? That the orange seller deserved a cut of any sales having to do with changing the form or consumption of the oranges after the sale? That you would have to pay extra if you wanted to do anything with the orange except peel it and eat it straight? That turning it into juice would require an extra fee to the orange grower, or that using the rind in baking confectionaries would be prohibited?

Ridiculous, right? But maybe not so much.

Take, for example, a guy who bought several original boxes of software, with install disks and serial numbers; the software was not being used on any computer. He tried to resell the software on eBay, but the software maker shut him down, and won the case. The license agreement said you could not re-sell the product.

The case is important because the sale was not of the intellectual property per se, but of the physical set in which it was obtained. The critical point is that copyright laws were intended to keep people from copying and reproducing intellectual property. For example, I take Microsoft’s latest software, slap a new name on it, and sell it as my own software—that’s a copyright infringement. Copyright law was not intended to keep people who had bought physical originals from reselling them. But that’s where it is right now.

Have you ever bought a used book? You may not be able to in the future. It’s intellectual property, after all. Selling the physical container of that, apparently, is not OK—according to the recent textbook case. It could mean that publishers could slap a license on any book that says you cannot resell it (this already applies to all ebooks, after all), and presto, no used book stores.

It could even mean libraries are under threat. Even if borrowing is allowed, it might carry an extra price. Anything is possible under licensing. I have little doubt that librarians will have to carefully read the license agreement of books they want to add in the future.

But hey, it stops there, right? Well, not really. A few years back, Costco tried to import and resell Omega watches sold for substantially less overseas. Omega sued, and tried a trick: stamp an image on each watch, copyright the image, license it, and use copyright law to keep others from buying and reselling. The case tied in the Supreme Court, allowing Omega victory at a lower court to stand, albeit in a limited way (and Obama appointee Kagan, who recused herself as she had represented Omega in this case, could well have sealed it at the Supreme Court level had she ruled).

Now, apply that to the oranges. Let’s say somebody who makes oranges stamps the peel with their logo, which is copyrighted. Boom. It’s intellectual property, terms can be dictated by license, and suddenly you don’t own the orange you just bought.

I know, you’re still not buying it. Pun intended—you won’t be “buying” much of anything in the future if this comes to pass. You’ll be renting it. And that’s my point. One rule about businesses: if they can find a way to raise prices and exert more control, no matter how ridiculous, they will do it. That is the nature of business: to go to any extent to make money.

And recent court cases are opening doors that fly in the face of what we used to believe was the fundamental basis of property ownership: you bought it, you own it. Business is trying to rewrite that: you didn’t buy that, you only signed a license agreement to temporarily consume it.

Still not a believer? Wait and see. The problem is, by the time you’re convinced, it’ll probably be too late to do much about it.

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Paying Twice for the Same Item

April 12th, 2010 4 comments

Randy Cohen, ethicist for the New York Times, has an interesting spin on a reader’s question about pirating a book which he already bought. In short: it’s illegal, but not unethical. The reader in question already paid full price for the hardcover, so Cohen feels that there is no bad juju involved in downloading the same work for an ebook reader:

Buying a book or a piece of music should be regarded as a license to enjoy it on any platform. Sadly, the anachronistic conventions of bookselling and copyright law lag the technology. Thus you’ve violated the publishing company’s legal right to control the distribution of its intellectual property, but you’ve done no harm or so little as to meet my threshold of acceptability.

Cohen notes immediately after that, however, that publishers disagree:

Unsurprisingly, many in the book business take a harder line. My friend Jamie Raab, the publisher of Grand Central Publishing and an executive vice president of the Hachette Book Group, says: “Anyone who downloads a pirated e-book has, in effect, stolen the intellectual property of an author and publisher. To condone this is to condone theft.”

I’m definitely with Cohen on this, although he’s a bit wrong on what lags behind what (see the next paragraph). What the publishers want, of course, is the ability to re-sell the same product to the same consumer over and over again, and call them “separate” purchases. I liked my purchase of the Star Trek Blu-ray because it contained a digital copy which I could use on my computers and my iPhone. Including a DVD-compatible version would be even better. The point is, you should never be forced to pay twice for the exact same thing. Publishers, of course, want as much of your money any way they can get it, so they fight for the paradigm of device-centric purchases.

Partly to blame here is the mindset that came into play with business purchases of software. Because businesses would use the same software on hundreds or thousands of machines, instead of having to wastefully purchase that many physical copies of the software, they would buy just one copy. That copy would come with an EULA (End User License Agreement) that would spell out exactly how the software could be used–how many machines or users, in what environments, etc.

Soon enough, the EULA was popping up everywhere, including personal purchases of software. If you buy a copy of a program for personal use only, you may have to pay several times–one each for every computer you use it on. Sure, if there are different versions for different devices, like for Windows, OS X, and the iPhone OS–that represents separate products which the author must work to produce. But for the exact same product on two machines using the same OS? How is that really fair, when there’s only one user? Depends on how you see it, of course–and of course, sellers will want to see it in the way that makes them the most money.

Most users see it differently: I am one person using this content, I should not have to pay to use it in two different places. Some extend that not just to themselves, but to family–after all, if I buy a book, I don’t have to pay for my family members to read it; within the home, there is a “community property” sense at work. While the same could be said about lending to friends, most people would agree that the ethical line ends pretty sharply at the borders to your house, and some will say it ends around the individual user. Publishers insist that it ends around the individual device. Often times a compromise is met which reflects these sensibilities; for example, your iTunes account can be extended to five devices, enough for most families. Some software comes in heavily discounted “family” packs.

However, the EULA was seen as an opportunity for content publishers in the digital world, who applied it to music, video, and all other forms of media. Publishers realized that they could use the EULA to keep that cash register ringing: sell a movie on DVD, then on Blu-ray, then for the computer, then again for the mobile device. As the number of devices which can play media multiplied, publishers saw the number of sales opportunities similarly multiply, and so have since aggressively pushed the idea that any copying, in any form is illegal and shameful. That includes ripping your CDs to iTunes. You’re a criminal, they insist; instead, if you want to use your iPod to listen to the music which you already bought on CD, you must go to the iTunes Store and purchase it again digitally, like a good little consumer. Naturally, most consumers call bullshit on that and rip away.

What it comes down to is perception and control. Are you buying a thing, or the rights to use a thing in a very specific way in a very specific place? Once you buy something, do you own it for personal use, or does the publisher maintain both ownership and control, with you simply having the privilege of looking at it in the way the publisher approves of? It could be argued both ways, with publishers claiming that the idea of copyright in itself asserts eternal control by the owner over intellectual property. But publishers try to go beyond that, not just controlling the rights to the intellectual property, but also controlling a consumer’s personal use of that property. If John Grisham writes a book and I buy a copy, he still owns the story, but he does not control the specific book I bought, nor can he dictate to me how I read it. Publishers are trying to change that, at least in the digital world (though you know they would do the same in the physical world if they thought they could get away with it).

As I laid out a little more than fours years ago, once you apply the digital model to a physical purchase, the “eternal control” concept and most EULA terms come across as ludicrous. If you purchase a paperback book, it does not come with an agreement that you will only read it at home, and that reading it in a cafe, at the park, or at work would require additional payment. They can’t charge you extra for reading the book in bed, or using a book-light with it. In purchasing the book, there is no legal way for the publisher to prohibit you from later selling that book to another person. Nor will they try to–people would seriously balk at that, the idea being contemptible.

And yet this is precisely the kind of control and re-purchasing which the publishers are trying to foist on people with the transition to the digital medium. If you buy digital music, digital movies, or ebooks, you will not be allowed to re-sell these things, even if you paid more for them than you would have for a physical copy. And many will forbid you to transfer the work to another location, or else severely limit it. Technically, I am violating my purchase agreement when I rip a DVD I bought so I can view it on my computer or iPhone, unless they specifically say I can.

Screw them. I say the traditional model holds. Cohen is right: if you pay full price for a book, you paid for the book content to be at your disposal. Downloading the digital version of the book is no crime, as the publisher and author have already made their money off of you. In my book, forcing a consumer to pay again for something they already bought is, if not illegal, then certainly unethical. Now, if the electronic edition is different, if it contains extra content like audio, video, or even changes one would expect in a subsequent edition, that’s not kosher to download for free; it represents added work. Sure, you can grouse that the 47th re-re-release of the “Star Wars” soundtrack only adds two tracks that the other five versions you bought don’t have, and George Lucas is being a schmuck for trying to make you pay for the same music over and over again just to get the new snippets–but there’s new content, and so you can’t say you already paid for it.

Publishers instead insist that it’s all in the agreement, and will refuse to sell to you unless you agree to their terms. The law, over time, has sided with the traditional model (remember the whole debate over recording video at home?), but more and more I fear that the content cartels will get more and more restrictive laws passed, like the DMCA, and eventually consumers will be forced by a government bought and sold to work against them to toe the publishers’ line.

Yet Another Reason to Avoid Vista: The Pervasiveness of Virtual Serfdom

October 14th, 2006 Comments off

As if there weren’t enough reasons not to get Vista already, Microsoft keeps coming out new ones. This time it’s one related to the license: Microsoft will limit the number of times you can transfer Vista’s license to a new computer. So let’s say you buy Vista for your existing computer, then you decide to get a Mac, for example, and license it to that. The next time you buy a new computer, or if you want to simply switch to a different computer, you’ll have to buy Vista all over again–even if you disable Vista on your older machines. Even if this will not effect you directly, the whole idea is offensive in principle.

This is not true on Macs–in fact, Mac OS X doesn’t require activation–hell, Mac OS X doesn’t even have a freakin’ serial number or “product key”! They just trust you to use it honestly. But they wisely do not even try to do anti-piracy measures which would probably accomplish little aside from massively annoying their customers. Now, it is true that Apple tends to care more about selling hardware–heck, before Mac OS 7.5, the Mac OS was always free. But in principle, Apple’s way is far more attractive.

The idea of individual ownership is quickly disappearing, and is being replaced by a system akin to serfdom, where the serf (you) is not allowed actual ownership, so that the master (the corporation) maintains control. As the information age develops, “license agreements” pervade in a way that limit your ownership of something. If you buy a movie on your computer, the studios want to limit the license agreement so that even after you’ve paid your money, the studios still control how you watch the movie, and on which appliances. While the claim is that they are trying to avoid piracy, that’s bull–they just want to limit it so they can sell you the same thing all over again in a different format, and still control what you “own.”

Examples of this abound. One variation is the “region encoding” of DVDs, which restricts the buyer of a DVD to play that DVD in the same geographic region where they bought it. For example, I live in Japan, which is region 2; however, I want to buy DVDs from the U.S., which is region 1. But when I try to play a region 1 DVD in a region 2 player, it won’t work; they want to force me to buy the DVD in Japan. Why? To fight piracy, they’ll claim. Again, bull. Pirates can easily, effortlessly get rid of the region encoding. They don’t want to stop pirates, they want to stop legitimate consumers from getting around regional pricing and release dates. If I buy DVDs in Japan, they cost about 50% more, and are usually released months after the U.S. release. Region encoding is not to protect from pirating, it is to protect the profits of the movie studios.

In short, any license agreement at the individual consumer level has one purpose: to make more money for the vendor by denying true ownership to the purchaser.

The whole “licensing” business is as if you bought a new car, but the “license agreement” only allowed you to drive the car to work, and you are forbidden to do shopping or leisure using the vehicle; for that, you need to buy another car. And just to make sure you follow the license agreement, the car dealer will have someone follow your car around to make sure you honor it, ready to disable your car should you stop off at the convenience store. That is the effective analogy for what these “intellectual property” vendors are doing.

Microsoft’s one-license-transfer-only policy could be equated to giving a car to a new family member. When you buy the car, you may sell it or give it to one person, but that person must then keep it or throw it away–the car may not be given to another person again, ever.

The Vista scheme is a sham because the transfer of the license to a new computer could be performed in a way that ensures the copy on the older machine is disabled. But the probable reason Microsoft is doing this is because their whole “activation” scheme costs them money in terms of hiring telephone operators to help people with the process; to avoid the extra cost of assuming you’re a criminal, they want to limit your legal property rights.

Here’s a radical concept: when you buy something, you own it. You can do whatever the hell you want with it. Since information can be duplicated, and that is a form of stealing, that can be forbidden rightfully. But beyond that, what you own, you control. This whole license crap is nothing but a way to deprive individuals of the right of legitimate ownership.