Honestly, I don't give a rat's ass whether they call it buying or licensing. I want to be able to resell my digital goods. This is what needs to be legislated. If a company wants to enjoy legal protection agains someone breaking their DRM, they must provide a way to transfer licenses. This should be the law.
I agree that the current status is a double standard, but I would prefer to resolve it in the other direction: I'd like to see no legal protection against breaking DRM, while allowing companies to sell anything to voluntary buyers under whatever terms they agree on.
But is it enforceable? I remember some internet drama about it a few months ago, but honestly don't know any place where you could resell license to download games and whatnot.
I personally know some people who make a new Steam account for each game they own and then they just sell the account on Ebay(and thus the game with it). It's against the terms of licence,but it works.
I like this. People always seem to say we need a law for this, that, or the other thing.
I don't see much of a difference between having a law to make something legal and having no law to make it illegal.
I suppose the difference might be that having a law keeps them (unspecified person/company) from doing something outrageous and then just saying 'well there isn't a law against it!'
You personally may not care which term is used. However, if you want to get the law changed, you probably need to get a large number of people interested in the issue. One way to do this would be to force the use of the word 'licensing', so that many oblivious consumers who assumed they were 'buying' goods are made aware of the difference.
In no way is "buy" in and of itself incorrect terminology. One can "buy" or "purchase" goods, services, subscriptions or -- yes -- licenses.
And by the way, when one buys a copy of software, what one really buys is at best a perpetual license to use it; one is not buying the software itself. (This point, of course, is at the heart of considerable open source ideology.)
The petition's authors have a reasonable claim to make that buying an e-book on Amazon should not be portrayed as the equivalent of buying a paper book. But the way they actually worded the redress requested in their petition is not well-supported by the facts.
"Buy a license for SimCity now!" is correct usage, which might be shortened to "License SimCity now!". These two phrases definitely don't have the same meaning as "Buy SimCity now!"
If you conflated the two terms then it would be ok to be selling photos of apples and just calling them apples. This is clearly absurd.
What aspect of the wording makes the request to change from "purchase/buy" to "license" not well-supported by the facts? The way I read the petition, such requirements would be in place only for products that incorporate DRM, not for any type of software whatsoever.
Because whether a product has DRM or not has absolutely no effect on the license, the way you purchase it, or the rights you do or do not get. DRM only enforces the license.
(Insert standard IANAL preface here. What follows are my own non-professional thoughts on the matter)
The petition is utilizing the observation that there are certain rights associated with the terminology of "buying" (or "selling") some product that have been developed over hundreds of years with laws regarding physical commodities. Physical objects are relatively simple to understand; the right to resell or repurpose a physical object is well understood, for example. Such rights are not merely an artifact of the legal system but are inherent to the nature of physical things. No matter the letter of the law, the purchase of a physical object implicates its transfer of possession and the physical capabilities such possession implies (destruction, use, retooling, repurposing, reselling, etc).
Intellectual constructs are a different matter, be it the selling of such intellectual consctructs that interface with physical commodities --think healthcare or perhaps selling access to some physical but expensive machine-- or the selling of intellectual constructs themselves --like stories or other expressions of ideas. The law has frustratingly used traditional property laws as its basis for investigating rights and liabilities with respect to these intellectual constructs, despite mounting observations that such a foundation is typically unsound. Licenses for software, as an example, can arbitrarily grant and deny rights, unlike the rights of physical commodities that are an inherent consequence of their physical nature.
The practical consequence for a consumer is that the "buying" that occurs for a license or some other intellectual construct has the potential to bear _little_ resemblance or _significant_ resemblance to the traditional notions of "buying" a physical commodity that consumers have been exposed to for centuries. The rights associated with various software licenses, for instance, can vary considerably. "Buying" a piece of GPL software and "buying" a piece of DRM-restricted and/or proprietary software are not, by any reasonable interpretation of each situation, the same thing. One who purchases a GPL-licensed piece of software is closer to the spirit of the term "buy" in its historical context of the transfer of physical commodities at some set price. Purchasing the proprietary and DRM'd software is more akin to "licensing" its use for specific cases and more closely aligns with contract law vis a vis services rendered.
Perhaps it would be better to say that one never "buys" software outright but rather "purchases a license," the rights and liabilities of which may vary dramatically, thus sidestepping the historical connotations of "buying" a physical object. But then of course the consumer loses any and all distinction between different types of licenses, effectively introducing the same problem as attempting to use only the term "buying." In such a case, rights that were once well-understood and reasonably presupposed by the consumer are now entirely up in the air and largely in the hands of the producer. In either case, it's clear to me that conflating the terms introduces problems.
I believe the presence of restrictive DRM could serve as a useful litmus test in gauging where on the scale such "licenses" to intellectual constructs fall and thus whether the term "buy" or "license" would be more appropriate. The current example on the crest of the news deals with the SimCity games. I know I would say that I "bought" SimCity 2000 (regardless of what the letter of the law would implicate). However, if I were to fork over cash for the most recent version of the SimCity franchise, I would never say that I "bought" it, but rather that I "licensed" it.
I feel you are completely missing the point here. The point was that draconian licensing is draconian with or without enforcement (eg DRM).
> I believe the presence of restrictive DRM could serve as a useful litmus test in gauging where on the scale such "licenses" to intellectual constructs fall and thus whether the term "buy" or "license" would be more appropriate.
This is utterly false. You can't deduce anything about the license from the fact that the license is enforced.
DRM is a set of technical policies: The user may install the software X times. Y users may use the software at once. This video stream will not decode properly without the private key embedded in chip ABC. This DVD will only play in DVD players that have region code Z. This game requires a persistent network connection in order to crunch game logic and stream assets. If these policies are not guaranteed to provide any insight into the arrangements of the license, then how can we say with confidence that the DRM is indeed a license enforcement mechanism at all? If the DRM is designed in such a way as to permit only 1 install ever, and yet a perusing of the legal license finds no such wording, then the DRM is not (accurately) enforcing the license and (so far as I can tell) cannot be said to be enforcing it.
If your complaint is that the presence of aggressive DRM means that the seller/licenser isn't really adhering to the stated or implied license, then the correct remedy still isn't to change the wording from "buy" to "license".
My primary concern with DRM is its anti-user behaviour, whether such an attitude is codified in the license or not. I believe it should not be allowed at all because I believe it violates natural rights that the users of software and hardware have. Setting aside the fundamental philosophy, I'd say I probably agree with you regarding the wording; namely, that the term "buying" must be removed needn't be the remedy. I think Algorias put it well by instead stating that the term "license" must be included in the marketing, whether one states "buy a license to this product" or else elects to shorten it to "license this product." In either case the licensed nature of the product is at least introduced, even if it doesn't come with "Defective by Design" warning labels.
The preoccupation with ownership is a bit awkward for me as European. Considering the tragedies around land ownership in the past of the Americas, I would expect a very sophisticated view on the matter. To "own" something because you "bought" it, is all such a virtual affair. The thing that matters is that the artist or studio that made this possible, is able to survive and will prosper because they make this thing that is liked by their customers. Everything else I consider side-effects (and no I am not an artist myself).
Moreover, I hope these discussion will disappear in the future, because we enter a more and more interconnected world. In the case of Spotify, it is logical that you pay for their service, DRM does not have anything to do with it. The more software is provided to the customer as online services, the more transparent its use can be regulated.
The point of software is often just its functionality, not its physical representation in the form of machine code that can subsequently be copied. Ownership of a car doesn't entail blueprints so you can 3D print another one, or a free subscription to fuel, and even changes to your own car are heavily regulated.
I like reverse engineering stuff, but I don't think we have the right to tell people or companies that hand us over stuff in exchange for money to tell them what this exactly has to entail.
>I like reverse engineering stuff, but I don't think we have the right to tell people or companies that hand us over stuff in exchange for money to tell them what this exactly has to entail.
Sure we do. That's what regulation is all about. When someone sells me a hotdog, I have the expectation that it does not contain sawdust as a filler. When I buy a beef meat pie, I do not expect it to contain horse meat.
When I buy something which is sold shrink wrapped in a box in a retail store, the expectation is that it is a copy of a copyrighted material, the same as any other media. Instead you are buying into a contractual obligation. Selling contractual obligations is not wrong, but selling them under the guise they are also copyrighted goods is fraudulent at best.
Make people sign the EULA. No more click-throughs. That's the regulation I want. Companies are taking advantage of consumers lack of legal expertise and it's something government is supposed to protect us against.
I would think this petition is in response to the Sim City debacle. When people buy a game they want to be able to play it as much as they like, and EA is not going to keep running their SimCity server infrastructure forever.
To borrow your car example: If I buy a new car and the manufacturer retains full control over how long I'll be able to keep using said car, I'm not really buying it, am I? I'm leasing it.
Spotify doesn't really fit, because you're paying a monthly fee, not a one time lump sum. (This may have been your point.)
The preoccupation with ownership is a bit awkward for me as European.
Oddly enough, as a European (EU), you enjoy far more protections for ownership of products, including digital and reselling DRM-limited products, than any North American.
License, buy, these are really hard terms to nail down in the physical space let alone the digital space. Does "Buy SimCity Today" mean they are selling the entire company, source code, single executable, dvd or a digital download?
I don't see that changing anytime soon, and requiring more legalspeek is going to just hurt all of us. What really is drm, can you say with confidence a particular bit of software is 20% DRM or DRM free like you could with sodium or dietary fiber?
Then there is the argument about whether or not the government should even be involved. SimCity isn't a necessary good, it isn't water/food/clothing/shelter, why are we forcing a business model that the consumers seem generally indifferent about (they still buy it, even though they complain about it). Shouldn't we be pushing individuals to 'speak with their wallets' and not purchase SimCity? Isn't that the solution to everything these days?
Here's what I think:
I hope these companies eat themselves to death. They'll keep pushing new and creative ways to use DRM and every time they do they'll alienate 1% of their consumer base. Their software isn't perfect, some innocent consumers will get locked out of the system and they'll become rabid-anti-consumers.
I also hope that the indie game movement grows like the micro-brew industry has over the last decade. I want to see more games, more companies and more ideas: Machinarium, Zeno Clash, Minecraft, Limbo, Super Meat Boy, World of Goo and the Kerbal Space Program. You may not like some of the creators of these games, you may not like the games themselves but the variety all but guarantees that you'll find something to like.
tl,td; Spend less time worry about wording, more time investing in indie game devs.
NYC has mandated that calories be printed on the menu in the same font size as the name of the product.
So here's a better idea for software sales:
For software licencing/sales, the terms and conditions of the purchase must be printed before the name of the product in the same font size as the name of the product. If buying a video game encumbers me with a clickwrap licence containing 17,000 words of dense legalese, then let them sell it on a box 300 ft tall.
Instead of changing the name, how about making sure licensed digital "goods" receive all of the legal protections afforded other goods: warranties, first sale, the whole package.
Those concepts have a legal origin because we believed consumers actually had some rights that you shouldn't be able to simply whisk away just because you are a more powerful negotiator. Apparently we decided those basic protections, enshrined by both code and common law, are overrated for an emerging sector of the economy. It was an odd conclusion, decided in a funny way where no citizen nor Senator ever cast a vote and where the open policy discussion on this core economic issue was muted and invisible.
It's time to stop pretending nothing changed.
The solution is a completely unsexy thing: we need to revise the classification of goods in the intro to the UCC, the "Universal Commercial Code," then get states to actually adopt it. We need to completely re-examine the way goods are distinguished from services at common law so that selling a piece of software with no support agreement is a good while mowing a lawn stays a service.
This isn't the moonshot of legal theory, we should be able to handle it without completely breaking society.
The biggest hurdle might be finding some way to make the sharing of cheap or free software still viable, but this should be manageable. People are able to do favors for their neighbors like take their kids to school or shovel their driveways without facing crushing liability from service contracts. Surely we can find an out for shareware.
Or maybe I'm overly optimistic. Again, we'd have to roll up our sleeves and work this stuff out, but I don't put it out of humanity's reach to balance the freedom to share code against the right of consumers to resell digital goods.
Oooohhhhh - the laywers would love this, wouldn't they? If I see an ad for a book, should I expect the book to come with five paragraphs of "fine print" that explains "You aren't actually buying the rights to the book, you are just buying a copy of the book. You can't print your own copies, you can't blah blah blah." I know that books themselves have it but do you want every ad to have this as well? Silly.
The FTC's power in that area comes from a very small piece of legislation, and is limited to only what that legislation provides.
From 15 USC §45:
> The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations ... from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.
> The Commission shall have no authority under this section or section 57a of this title to declare unlawful an act or practice on the grounds that such act or practice is unfair unless the act or practice causes or is likely to cause substantial injury to consumers which is not reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to consumers or to competition.
Considering we have decades of clickwrap licenses being enforced in all levels of court, I don't think an FTC memo would be enough to declare software/media arriving with a license agreement illegal. IANAL of course.
This soooo needs to happen, but the lobby against such a bill would be so gigantic that it would never pass. The vast majority of people do not realize just how restrictive the digital goods terms of service typically are, and it will take many years and many instances of accounts being locked, hacked, companies shutting down auth servers or going out of business before changes happen.
Not at all. That's precisely what the petition advocates for.
If you are required to use the term "license" when your software contains DRM, then you aren't allowed to use the term "buy" when your software contains DRM. Therefore, this petition disallows the use of DRM when using the term "buy".
This is completely wrongheaded. We don't want legal characterizations of these transactions to be "licenses". If what we pay money for is a good that we purchased, we get to keep that copy - and sell it if we no longer want it. Who cares if there's DRM on it. There will always be DRM on it. Without DRM there's no way we'd be able to resell the copy that we purchased. Apple recently received a patent on this very topic.
You miss the point. DRMed digital goods cannot be resold. When you go to Kindle and get an ebook, all of the buttons say buy prominently, yet everything in the license says you are merely renting it for an undetermined amount of time, until the company decides otherwise. How is that not false advertising? They should be forced to change their text.
Of course DRM-enabled goods can be digitally resold. It depends on the type of DRM being used. That would be one reason to have DRM. As I said, Apple is working on this now.
Imagine a country where decisions are made by consenting individuals and where the immediate reaction from someone seeing something they don't like isn't "the government should force them to stop doing whatever I don't like."
Ugh. More laws to the fat stack. A)Don't buy B) Complain and criticize like hell. In the end it's the companies decision to fuck it up or not. Do we want to be more paying taxes so government can regulate buy vs licensing labelling...
By paying for the picture, you agree that the picture is for your own use only. You can't show it to anyone else. You can't sell it to anyone else. You can't do anything with it but look at it, and only when you're alone.
And you don't get told that until after you've paid for it.
