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