YODA: You Own Devices Act

A magical aspect of intellectual property is in the way that rights can pervade a system without the need for the rights-holder to physically engage with the supply chain. Someone may have personal property rights in their chattel, but IP rights control aspects of how that chattel can be used or transformed.  For example, although I own my computer, there are certain ways I might use my computer that would infringe patents or copyrights held by others. In this framework, IP rights can be thought of as a form of regulation – albeit with increased private involvement.

Ordinarily, when someone purchase goods, the purchase comes with all rights to use that good. However, the sale of goods with underlying IP rights certainly does not pass all rights in the IP.  The exhaustion (first-sale) doctrines of copyright and patent laws provide some linkage by giving the purchaser of goods certain use-rights to the underlying intellectual property. However in the computer-related fields required end-user-license-agreements (EULAs) have now become the industry standard for limiting ownership rights — especially for digitally delivered media. Rather than “owning” the media, in many cases these contracts purport to only give users a limited and personal license.  The common law tradition is to strike-down substantial use restrictions as effectively being unreasonable restraints on the market. However, it seems that the underlying IP rights have served as a basis for courts to favor “freedom of contract” over the traditional unreasonable-restraint-of-trade doctrines.

Representative Blake Farenthold (R-TX) has proposed a partial fix in his bill known as YODA: the You Own Device Act.  The key provision focuses on copyright law and would add the following to Section 109 of the Copyright Act:

(1) IN GENERAL.—Notwithstanding section
106 or section 117, 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 EFF has praised the bill, but has also called for particular digital-first-sale rights and rights to access and modify software stored on your devices, and

28 thoughts on “YODA: You Own Devices Act

  1. 10

    Once I heard of a computer company who sold computer systems with peripherals made by others. It just so happened that some of those components were leased. Should the lease transfer as a matter or right if the issue is not covered in the lease agreement? Does it make any difference if the lease is paid up?

    What happens when you sell an apartment building with leased apartments? What if all the lease agreements had a clause voiding them upon sale?

    You buy land an there are no recorded easements. Do you take the land subject to “common law” easements?

    You sell a CD. Does the sale give the buyer the right to play the CD in commercial establishment?

    You sell a patent to a troll who enforces against your cross licensee. Can the cross licensee sue you for breach?

    It gets complicated in the land of IP.

  2. 9

    “the right to obtain such a copy”

    This is odd for IP legislation which confers exclusive rights to authors/creators etc.

    It looks almost like a positive right, given to “consumers” which imposes a duty on the creative author to actually do something. I.e. *provide* a copy.

    But that would be insanity, more likely it is an exemption from copyright infringement when the owner of the machine “gets a copy” from someone else. Does that mean the “someone else” is also exempted from copyright infringement if the someone else assists the “owner of the machine” to “obtain a copy”?

    1. 9.1

      The language isn’t air-tight there, but I think it means that if you are entitled to a copy of software (such as, the device doesn’t come with it preinstalled, but you get the contractually-conferred right to obtain a copy to install after you purchase the device), you can transfer that right to the next owner (instead of transferring the software itself).

  3. 8

    I believe this is a poorly thought out solution. Imagine you own a house (let’s say it is a white house) and someone buys a new pair of sneakers and runs all over your yard. This would be trespass and you wouldn’t like to hear the person say that they just bought these brand new shoes and should be able to run wherever the heck the shoes will take them… There are public parks where it is ok to roam, but you cannot just hop, skip, and jump your way all over my property, new shoes or not.

    Perhaps for intangible property the solution is better signage and not super-duper magic shoes.

    1. 8.1

      This is less about intangible property and more about the charade of “licensing” something that is actually a sale.

      Of course, there are complicating factors that the subject of the transaction is a digital good (such as extreme ease of replication).

  4. 7

    It leaves out something important.

    Microsoft’s EULA for their operating systems (for the OEM version) says that the copy of Windows that you just bought is good only for the machine that you originally install (and activate) it on.

    If the machine breaks you cannot install (and activate) it on a new machine.

    I am not talking about installing and using it on multiple machines simultaneously. Just one machine.

    What qualifies as a “new machine”?

    If your motherboard dies and you install a new motherboard, it is a new machine.

    I have seen people complain that when their hard drive died and they installed a new hard drive they could not activate Windows because Microsoft considered it a “new machine”.

    Note that motherboards and hard drives all have unique hardware serial numbers so Microsoft knows if you install new ones even if they are the exact same model.

    1. 7.1

      The problem there is “new machine” is anything Microsoft wants to call a new machine.

      Replace CPU? very likely a new machine.
      Replace ethernet controller? not very likely.
      Replace a disk drive AND ethernet controller? likely a new machine.
      Replace a motherboard? almost certainly a new machine – as you usually replace both disk controller, ethernet controller, clock chip, AND CPU.

    2. 7.2

      No longer the case. In Windows 8 OEM, one can now replace the motherboard and reinstall.

      But what indeed is a new machine?

      An iParody:
      Imagine, in a scenario where change defined a patent new machine, just how many more operating systems could be sold. We just added a game, new OS, bought (ummm licensed) Photoshop, new OS, added/sorted customers in a new market to our old database app, new OS, emailed and received a positive response from said targeted customers, no longer new-consider unchanged, uninstall new OS, plugged a cool new diagnostic device in via USB, new OS, added new operating system to comply with new requirements of new functional modules on previously old computer authorized via electronic communication port, new infringement, then the weak willed one downloaded planted but unauthorized video, copyright toll or threat to tell spouse, add new place to sleep.

      Then we try to sell that old and information sanitized computer still full of newness, but that is all vaporized back to the cloud to prevent trespassing. No ROI and we still can’t get the last months rent or our security deposits back.

  5. 6

    What does “enables [it] to operate” mean? For instance, one can assume that this probably applies to my legally purchased copy of Windows, since my computer does substantially nothing when I don’t have an OS loaded on it. But does it apply to, say, a computer game?

    And would this have any impact if Microsoft imposed a DRM scheme in an effort to tie my copy of Windows to me personally, such that the software is deactivated if they catch wind that I’ve transferred it to someone else?

    I mean, we have fair use rights to use movies in certain ways (such as criticism), but it’s still illegal (though phenomenally easy these days) to circumvent the DRM on a legally purchased DVD to obtain access to the movie. What’s to prevent someone coming up with a DRM scheme that technologically prevents transfer absent a DMCA violation?

    1. 6.1

      What is to prevent?

      I would hope that the fact that there are fully legal (think fair use) uses of any and all copyright material, and that as such, tying down the material through adjacent criminal statutes should be considered an illegal denial of these ‘rights’ that anyone has on the copyrighted material.

      Not really my problem that the material itself is digital and thus once free of the lock-down mechanism is so very easy to replicate and let loose into the world. Can you penalize those having common rights because of the nature of the item that the producer decides – of his own volition – to use?

      People who want to push protection into contract land should pay extra attention to this dynamic.

    2. 6.2

      APoTU, I already use Microsoft Office 365 where we do not own a copy or even arguably own a copy, but instead rent a service and pay a monthly a fee.

      I presume that Microsoft could expand this concept to include all its applications, including its operating systems. What happens when you do not pay the monthly fee?

  6. 5

    I wonder when those click-wrap licenses are going to be outlawed. Talk about a contract of adhesion. They put a 7000 word contract in small print in a small window that shows maybe 200 words at a time and say that you have agreed to all of that jargon, despite the fact that the entire presentation to the customer is designed to assure that he/she does not read it. I’d like to see a court have the courage to call that what it is.

  7. 3

    I don’t see where that provision gives one the right to modify software. In any case, you don’t have the source code, so it really doesn’t matter.

    1. 3.1

      There are people that know how to do that, even without source code.

      It isn’t included in the bill, which is why the EFF included “and” in their request.

  8. 2

    Also covered at ipkitten.blogspot.com/2014/09/towards-electronic-devices-flea-market.html?showComment=1411633292775

    Always love when innovation experts such as Kondratieff can be drawn out in the discussion of the comments section. Very thoughtful. 😉

    1. 2.1

      essentially selling a “right to use”.

      One difficulty is how do you transfer that “right to use” when you don’t have anything to show the transfer.

  9. 1

    It has been known that people who buy complicated machines that combine software and hardware cannot sell them because the software is licensed.

    Business folk are known to be aghast when you inform them of the facts of life.

    1. 1.1

      ^^^ so,…. the answer to all of this “no patent for you” on software is an even more onerous restraint of trade because “you have a license, not a true sale (of everything)” in that thing…?

      Business folks are also known to be aghast when you inform them that using something they buy may also violate a patent. But is that (inconvenient) fact of life somehow different than the fact that – as here posted – should be accepted without question? with such business folk held to be mocked?

    2. 1.2

      First time I ran across that was with Microsoft.

      You can’t even give away a computer anymore as the license can cost more than what the hardware is worth.

      So I use Linux for everything.


          Well, I used to use Solaris and SunOS. Nearly all the equipment was given away as technology cycled, and it was always with the software.

          Since Oracle has pretty much canceled/destroyed Solaris, the only software you can include in gifts is either BSD or Linux based.

          So take your pick.


            I thought that you believed that software was “already in there” or was “just math.”

            How is it then that you are paying either a) again for something already in there, or b) something that free to all?

            Per chance is software more than just math?

            Per chance is software not already ‘in there?’


              “in there”? Not sure what you are referring to.

              Software is just math.

              Paying who? Microsoft? It happens to be legal extortion.

              Since I don’t (well rarely) give away computers, any I do give will have Linux on it. No charge. In the cases I previously prepared systems for giving away, I purged the disk, then reloaded Solaris (or earlier, SunOS). The right to use license went with the system. With Sun, if you had the right serial number, then you could install on the system.

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