Reps Farenthold and Polis today reintroduced the You Own Devices Act (‘YODA’) that I discussed in September 2014. The provision attempts a statutory end run against end-user-license-agreements (EULA) for computer software. The current and growing market approach to software to license rather than sell software. That approach cuts-out the first-sale (exhaustion) doctrine and allows the copyright holder to limit resale of the software by the original purchaser and to impose substantial use restrictions. That approach is in tension with the common law tradition of refusing to enforce use or transfer restrictions. However, a number of judges have bought into the idea that existence of an underlying copyright somehow requires the favoring of “freedom of contract” over the traditional unreasonable-restraint-of-trade doctrines.
YODA addresses this issue in a limited way – focusing on transfer rights – and would provide someone transferring title to a computer with the right to also transfer an ‘authorized copy’ of software used on the computer (or transfer the right to obtain such copy). That right would be absolute – and “may not be waived by any agreement.” Even without the proposed law, courts and the FTC should be doing a better job of policing this behavior that strays far from our usual pro-market orientation. However, the provision would make the result clear cut.
In some ways, I think of this provision as akin to the fixture rules in real property — once personal property (such as a brick) is fixed to the land (by being built into a house), the brick becomes part of the land and can be sold with the land. In the same way, a computer would come with rights to use all (legitimate) software therein.
To be clear, YODA would not allow transfer of pirated software, but would allow transfer in cases where the owner has a legitimate copy but is seemingly subject to a contractual transfer restriction.
Farenthold is a Texas Republican and a member of the IP Subcommittee of the Judiciary Committee. On Twitter, Farenthold quipped: “Luke didn’t have to re-license Anakin’s lightsaber, so why should you?”
![lego-star-wars-games-to-play-on-computer-1oli8qnz[1]](https://cdn.patentlyo.com/media/2015/02/lego-star-wars-games-to-play-on-computer-1oli8qnz1.jpg)
Consistent with the meme of the thread, and on the lighter side:
link to theverge.com
There have been a number of interesting precedential cases decided in the last two days by the Federal Circuit. I hope Dennis discusses them all. But just to note, there are two today on collateral estoppel.
UNITED ACCESS TECHNOLOGIES v. CENTURYTEL BROADBAND
SERVICES
link to cafc.uscourts.gov
Relying heavily on Supreme Court case law from the 1800’s, the Federal Circuit (Bryson, Newman and O’Malley), reversed a holding that infringement of a patent by a new defendant was barred by collateral estoppel by a jury verdict in a prior case where two alternative grounds of noninfringement were presented and where there was a general verdict so that one could not tell on which grounds the jury decided the case. The Federal Circuit distinguished other cases where courts in the prior litigation had decided that either grounds were sufficient to uphold the judgment.
SOVERAIN SOFTWARE LLC v. VICTORIA’S SECRET
link to cafc.uscourts.gov
On appeal from a final judgment of infringement and that the patents were not invalid, the Federal Circuit reversed, holding that the claims were invalid based upon collateral estoppel where the Federal Circuit had held in a prior case that the “same” claims were invalid, and had ordered judgment to be entered accordingly.
There were two primary issues on appeal. The first issue concerned whether the patent owner in the prior case had an incentive to fully litigate the validity issues because the only relief requested by the defendant in the prior case was that it be accorded a new trial. However, the Federal Circuit held that all the issues that it now contends were not adequately litigated in the prior case were argued or could have been argued to the Federal Circuit in the prior litigation, and it was irrelevant that the only relief requested in that case was a new trial.
The second issue in the present case was related to whether the estoppel applied to a dependent claim of an independent claim that was held invalid in the prior adjudication. Because the only additional limitation in the dependent claim was the generic use of the Internet, the court held that collateral estoppel applied because the difference between the parent claim and the dependent claim were not (argued to be) material to the issues of validity.
Thanks Ned.
Hokey regulations and ancient ordinance are no match for a good barrister at your side, kid
These are great. Keep em coming, Les!
We’ll be safe enough once we make the jump to Licensee. Besides, I know a few maneuvers.
EXAMINER
(softly)
Fixedly
Examiner lowers her head.
“Secured” means fixedly.
ATTORNEY
There. You see Judge Rader, interpretation CAN
be reasonable.
(addressing Secretary)
Continue with the operation. You may
file when ready.
I think the other side would sum up their position as:
License, or license not! There is no buy.
Ain’t that right, Count Dobu?
Aw, man, why you dragging me back into this? *sigh*
As a software developer and a consumer, my feelings are mixed. I want freedom to license my own work to my best advantage, but I also want to be able to sell my PS3 and video game library if I grow bored of it.
This act seems to be aiming to mandate licensing requirements for software that is “essential” for using a device. I guess that’s as good a compromise as any, except for all the wiggle-room for maneuvering around the word “essential”.
MS Windows ™ is offered in different “levels” (Pro, Premium, Starter, whatever). If someone “buys” (licenses) Pro, would MS be (or should they be) obligated to allow only a “Pro” level license to transfer, or is meeting the transfer obligation by forcing a downgrade to a “starter” edition okay?
Aww Dobu —
Sorry if you felt FORCED to respond. I was just having fun with Star Wars puns.
LLAP
OHH!! I get it now. Dobu/Dooku. I confess I was slow picking that up.
Very amusing. At least, until Nit Witter picked it up as “Countless Dobu”.
;^)
So we all agree you are slow.
It is less that he is slow, and more that even when he picks up the meaning, he is unable to get out of the way of his own Belieb system.
That’s why he flits back and forth, and that’s why BOTH his copyright and his patent positions do not compel (that, and he can only pound the table of his “policy/opinion).
Any recent 9-zip Supreme Court decisions go YOUR way, Mr. Anon?
May I suggest that you actually read the comments to the breach of statutory law and the resulting mess of jurisprudence in 101 that you appear to be “celebrating” Dobu.
By edict and obfuscation (define “abstract” please) is just not all that compelling – other than in the sense of (wrongful) force.
…or to continue in the theme of the thread, let me quote another great ursuper of proper law ‘writing,’ Supreme Chancellor Palpatine:
“The dark side of the Force is a pathway to many abilities some consider unnatural.”
If there ever was a poster boy for the “ends do not justify the means” mantra…
Sometimes, certainly. No need to be petty, Night.
Count Dobu, perhaps the dark side has slowed your wits.
Funny enough, but it was in a conversation with Count Dobu’s boss (under the guise of legislator Palpatine), that Yoda uttered:
“Hmmm. The dark side clouds everything. Impossible to see, the future is.”
For some, the future apparently isn’t the only thing clouded.
What’s all the fuss about? I’m told new software does not make a new machine.
So, a device should be just as valuable, useful and easy to sell without software as with it….
Not at all, Les. A DVD player would be more valuable, useful, and easy to sell if you include a library of popular movie DVD’s. Same situation with purchased add-on software (under the proposed act, of course).
You seem to quite miss the point, Dobu:
the utility of the DVD player does not in fact change whether or not you include a library of Non-Useful Arts material.
So, there is a material distinction with purchased add-on software.
The point you accuse me of missing is not in evidence, Anon.
“Utility” is a new point that you are bringing to the discussion.
Not so, Dobu, as Utility is inherent in the word “useful.”
This is a patent blog, after all, and Les’s sarcasm (I caught the sign this time) has everything to do with patent law.
Anon, the good Professor saw fit to post an article pertaining to copyright law, so I’m surprised you are taking issue with discussing copyright in the comments.
If you demand utility, then I (again) present to you a DVD disk on which is recorded test patterns and sounds used for video and audio testing, alignment, and diagnosis.
This discussion thread has to do with more than copyright Dobu.
You do realize that, right?
Night Writer,
Verily – the “ecosystem” of America’s leading patent law source weaps when such material misrepresentations are propagated here.
It’s painful even.
Anon: “This discussion thread has to do with more than copyright Dobu.
You do realize that, right?”
Yes, and I also realize that you are attempting to eliminate copyright from the conversation and make it just about patents. I am disinclined to follow that lead.
Dobu,
Again you are simply wrong.
You are in a thread that Les started – pay attention Man! Think!: what is the point of the sarcasm?
Glib denials. Dobu: your dodge that this is a patent issue and not a copyright issue is just that a dodge.
Anon: “You are in a thread that Les started – pay attention Man! Think!: what is the point of the sarcasm?”
I am quite aware that Les was using the copyright angle to mock those who disagree with his worship of the in re Alappat decision.
I responded in kind, continuing the copyright angle. You want to make this purely about patents, I don’t.
Dobu,
Pull those fingers out of your ears: there is no such thing as purely patents or copyright – as I explained below, software has aspects that garner protection from both patents and copyright.
Engage your thinking capabilities, please.
Its not exactly the same situation. The software in question is installed in and is a part of the device. The dvds are separate circular shiny, if scratched to hell, thingies in thin plastic boxes with broken dvd grippy thingies.
The distinction you are drawing is merely which media the software is recorded on.
The “software in question” is often provided on DVD disks, and can be installed on a thumb drive or SD-card.
Exactly the same situation.
Les’s attempted point of distinction is less apt than the one I pointed out.
What I pointed out is critical – you simply must understand the distinction between Useful Arts and non-Useful Arts to have any standing in a proper discussion on the merits.
Anon, you know full well that a DVD player is a special-purpose computer allowing easily-replaced software (i.e., DVD’s), and that general-purpose computers can play videos. Your continued insistence that the two “machines” must never appear in the same conversation is an arbitrary and self-serving argument.
Dobu: please educate yourself regarding the Information Age. You know, the age of the world that you live in. If you don’t know the difference between a DVD and software, then you fail and obviously don’t understand information processing.
Night, surely you’re aware that movie recordings on DVD media include functional instructions that affect how the player presents the contents? Interactive menus, unskippable content, and the like?
DVD’s contain software.
Now Countless Dobu is turning his DVD playing into a general purpose computer, so now the Countless has software with some images on it. This goes completely counter to the entire DVD analogy the judicial activist came up with to dupe the masses.
We can get into classes of functions that maybe your “DVD player that is really a general purpose computer” may not be able to perform, but I think you have admitted defeat.
Probably you will never say as much and probably spout the same nonsense in the next thread, but so go the polluters of the world.
Name-calling, Night? Really? At your age?
Throwing out a strawman argument (I never said a DVD player could replace a general-purpose computer) and declaring me “defeated”. Great legal acumen, there.
Night, over time, your posting has grown more childish, hateful, and disconnected from reality. I’m starting to worry about you.
May I suggest Dobu that you spend less time worrying about “Nit Witter” and more time recognizing that he gets upset because you are peddling a position that cannot be sustained under law.
If you want to bring up “legal acumen” while displaying such a low level yourself, well,… it’s easy to see why some would get upset and wish to treat you with name-calling.
Just a suggestion.
“Now, son, Pa wouldn’t abuse you so bad if only you’d stop provoking him. Just tell him what he wants to hear, and everything will be all right.”
Classic.
That’s a serious misrepresentation Dobu.
There is a world of difference between “what he wants to hear” (your version) and the reality that your glib comments simply are not sustainable under the law.
Each word that you type Dobu dirties the environment. You are filth.
Yet you keep responding to me, prompting me to reply further. That’s not very eco-friendly of you, now is it?
Dobu,
You operate in a land of fallacy.
It is expressly NOT that I “demand” any such separation of machines, it is that I merely point out the inherent inconsistencies of those purporting to NOT recognize a fundamental aspect of patent law – it is that fundamental aspect that creates the “bite” in Les’s sarcasm.
You cannot be that obtuse.
Further, if you have been paying attention – at all – you would recognize that I am one that readily points out that software has multiple aspects and that it is the different aspects that garner protection under the different IP laws.
This is precisely why software can garner BOTH patent protection for the utility aspects as well as copyright protection for the expressive aspects.
You can posture and pretend they are the same, but they are not.
Dobu presents the propaganda nonsense from the anti-patent movement. Does the DVD Dobu change the functionality of the DVD player? No. Does the software change the functionality of the computer? Yes.
Please educate yourself. Oh wait, we all know that you know this but are pushing propaganda. Filth.
Anti-software-patent, anyway.
And yes, the DVD does change the functionality of the DVD player. As mentioned above, unskippable content, access controls, region lockout, revoked encryption keys (that may be blu-ray only, not sure), etc.
Software change the functionality of the computer? Only if you insist on regarding particular configurations of the computer as being individual “things”. (Which I know you do, and I don’t, but there we are.)
Propaganda? Filth? Careful, the oxygen might start thinning out with how high you’re holding your nose in the air.
I thought that you only wanted to talk about copyrights and not patents…?
(Oopsie)
You got me, there, Anon. Yeah, I did. *sigh*
Looks like Count Dobu has lost his head.
See link to youtube.com
…or a shorter version:
link to youtube.com
Without software, the device wouldn’t work. Any DVD/bluray player, for instance, wouldn’t work without software. Any programmable thermostat wouldn’t work without software. Pretty much anything electronic these days wouldn’t work without software.
I think the bill is specifically referring to the transfer of license for operating systems and firmware rather than aftermarket software. So the difference here is that we’re not really talking about special purpose machines at all – arguably, an operating system turns a paperweight into a g_neral purpose machine.
>arguably, an operating system turns a paperweight into a g_neral purpose machine.
You sound like you have absolutely no idea what you are talking about.
Thanks! I try my best.
If that’s your best, your best won’t do.
Said in the best Twisted Sister tones.
It’s times like these that I wish the comments here had “Like” buttons.
🙂
(is that a pledge pin on your uniform?)
Apotu,
Your thinking – to be blunt – is unfounded.
May I suggest that you read the bill (pay attention to words like “enables any part” and “machine or other product [to wit: something NOT a machine per se]”
The original bill can be found at: link to gpo.gov
I did, and I also read Farenthold’s comments on the subject on his website. I’m pretty sure they’re talking about situations where, for example, Apple decided to license iOS to you with a nontransferability clause, which would completely prevent you from selling your iPhone to someone else, and not situations where you bought MS Word for your computer and want to sell the computer to someone (in which case you could just uninstall MS Word and still have a fully functioning computer).
“I’m pretty sure”
Your pretty wrong – you did not pay attention to the words that I asked you to pay attention to.
Also, you present somewhat of a strawman, being that you represent selling a computer (sans programming) – that’s assuming your own conclusion on the matter here. You are reading into “any” an operating type requirement that just is not there. You are negating the “or other product” aspect.
This is such an interesting question that I feel compelled to comment. The bill is very short and sweet, but although the intent is clearly to guarantee automatic transfer of the OS without any reference to contract law, I’m not sure that the outcome is so limited. MS Word, for example, enables the computer to operate as a word processor (such things once existed as stand-alone devices in the dim and distant past), so does Word enable any part of the machine? IMHO, yes, and so does any other software that enables a particular type of operation, which is to say ALL software. That doesn’t appear to have been intended, but seems to be in the plain language itself.
I’ll certainly agree that the letter of the bill is vague enough to potentially result in unintended consequences, although in my opinion, MS Word doesn’t enable the functioning of any part of the machine that wouldn’t already be enabled by Windows. My earlier comments were directed more at the spirit of the bill in that regard, although it’s quite possible that a court could end up interpreting it to mean what you’re saying.
“that wouldn’t already be enabled”
Hark. Is that an “old box” position I hear? Or is that along the lines of silly 6’s “MS operating system is equivalent to a Britney Spears CD”…?
Apotu, you are once again reading into the bill things that just are not there. That “spirit” is of your own conjuring and is not really there. Pay heed to the words as I beckoned you to.
This comment and NWPA’s below miss the point which I have repeatedly emphasized here.
No one believes software isn’t important, valuable, etc. The only issue is that, as claimed, many software CLAIMS preempt/claim abstract ideas.
We are discussing claims directed to software, not software itself.
I know when we become invested in a patent/set of claims/invention it becomes easy to conflate them.
Claims are words that create legal rights. Software, using anon’s definition is defined as a “machine component.”
They’re just not the same.
Go,
You simply do not understand patent law.
Seriously.
Think: statutory category.
Your “directed to” and “preemption” is a sickness of the “Gist/Abstract” kind.