So?
By law you also can't grab the higher end tig welder next to it.
Your argument seems to be essentially "if they want to do this, they should have to produce identical models with slightly different firmware and give them different skus and blah blah blah blah blah"
That seems pretty silly.
These are market segmentation restrictions, they would normally just do what i suggested, and produce models with identical insides except for the firmware rom.
Why force them to do that, exactly?
IE what grand purpose does it serve?
This is, IMHO, very different from "you've made it illegal for me to play with my phone that i own", because you don't want to put your stuff on it or mess with the hardware using your software, you just want to not pay for the stuff they wrote.
If you want to install your own firmware on the tig welder hardware, that isn't theirs, and you wrote, awesome, that sounds great. I'll support you to death.
Yeah, but if they want to "sell" me a widget, I should be able to behave in the assumption that I then own it and can do whatever I like with it.
If I buy an IKEA table, and choose to take it apart and assemble it differently, I'm not going to expect the police to come knocking at my door saying "IKEA says you can't do that."
If they want to retain ownership and control over "their" widget, that's fine - I'm happy enough to pay Apple something less than half of what I used to pay for a physical CD - but if you put a "thing" on a shelf in a store, and I can pick it up and hand over some cash and walk out with it, there's no assumption that the manufacturer has any more legal right to tell me what I can and can't do with it when I get it home (there may be _other_ interested parties, if I turned a TIG welder into a homebuilt Taser, the police might come after me themselves, but not on behalf of the manufacturer.)
I'm not saying they can't fo it. But I am saying they shouldn't be allowed to call that "selling a TIG welder". Because it's not what people usually think it means.
lol, hilarious how the site is still up and using the exact same name and everything. Doesn't seem like they actually "confiscated it". Also, using a trademark however you want and using a physical object that you own however you want are radically different concepts.
If you buy a computer, this has never been true. You only get a license to use the software that comes with it and not complete freedom to do what you want. For example, you can't copy Windows off your computer on to your friend's. You're even restricted in making backup copies for yourself. We've been happy to accept that restriction since the invention of copyright. A guy in his basement with no connection to the outside world has always been able to break the law by pressing the wrong sequence of keys on his computer. DRM circumvention law is just an extension of those restrictions, not a quantitatively new thing.
So I think we already call this "selling a computer" or "selling a CD" or "selling a phone" and should get used to what "selling a welder" seems to mean now too.
I do kind of wonder what does and doesn't count as circumventing though. Can you pull out the transformer and connect your own homemade controller to it? What if you reuse the same power electronics too? What if you also reuse the same computer but put your own software on it? Can you even unplug the handle and plug it into another welder that has different capabilities?
Nonsense. Show me the contract I signed that created that situation. (difficulty: a post-purchase EULA or inside-the-shrinkwrap document is not a contract)
I can't copy Windows because of copyright law. If I buy a book I own that copy. I cannot copy it, but I can do what I want with that copy, because the author's rights end at the first sale[1].
Now this does get complicated when you bring in the DMCA's anti-circumvention clause. This is a separate problem that restricts the use of purchased goods.
There is a recent attempt to use the copyright on the firmware in in a product as leverage to extend these anti-circumvention restrictions to the entire product (see: John Deere[2]). As this drama is ongoing, we will have to wait to see how it is handled, but I would bet that the first sale doctrine is upheld; not because I think that outcome is likely, but because the alternative is de facto the end of personal property rights, which will not be a stable society.
> Show me the contract I signed that created that situation [that is, getting a license to use the software].
(IP lawyer here.) First, there doesn't need to be a contract; second, even if a contract is required, it's quite easy for a supplier to get a customer to form one without getting a wet-ink signature from the customer.
Fundamentally, an IP "license" is simply this: You want to take Action A. Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws. Licensor announces (to you specifically or to the world) that Licensor will not invoke that legal right against you, as long as your taking of Action A is limited to Circumstances C. You are now licensed. (That's how the GPL putatively works -- it's a bare copyright license, not a contract [1].)
If a contract is required, one can be formed in a variety of ways, including an offer that is accepted by performance (known as a "unilateral contract") [2]. So-called browse-wrap agreements fall into this general category [3].
> (difficulty: a post-purchase EULA or inside-the-shrinkwrap document is not a contract)
That's not a universally-held view in the courts [4].
> GPL ... it's a bare copyright license, not a contract
Yes, the GPL is a licence... for redistribution. As buyer of a product containing code licensed under the GPL, the GPL is not involved, though there is a recursive offer of a license should I want to redistribute the code. I can ignore the offer of redistribution license and use product any way I want (provided I do not copy it). This is even stated in the GPL itself (GPLv3, section 9).
> Licensor has the legal right to prevent you from taking Action A, e.g., under the copyright laws.
That's entirely my point - I am not making copies by using the software. I'm not even making copies reselling my copy (provided I actually actually transfer the work; keeping a "backup" would be a violation). I have zero need for a license.
Conflating use with redistribution has been a popular scam in recent years, in an effort to apply copyright enforcement tools to mere use. While software companies would like to control how their product is merely used, their rights end at the first sale.
> copyright license, not a contract
Yes, I'm very familiar with the difference.
> unilateral contract ... browser-wrap
Sure, provided all the elements are there. I have nothing against actual contracts. These are not involved when I walk into a shop and buy a widget with firmware in it. The only transaction is: pay cash, receive widget.
Some software is sold under a proper contract, of course. Most things with software in them (and a lot of software) are sold plainly as a simple exchange.
> That's not a universally-held view in the courts
Key phases in my post: "post-purchase", "inside-the-shrinkwrap". Throwing legal papers at someone after consideration has already been exchanged is at best a new offer, which the customer has no obligation to accept.
Yes, there have been a few badly argued cases on this topic. Contracts are not supposed to be a "gotcha"/surprise; a "meeting of the minds" (mutual agr4eement) is a requir4ed element. Therefor, I find it hard to believe that, in the long run, undermine hundreds of years of contract law by allowing extra obligations only seen post-purchase.
That's not how the law (in the U.S.) sees it. When you load software into RAM to run the program, you're making a copy, which requires a license from the copyright owner --- and that license can restrict the extent to which you're allowed to use the software (e.g., no service-bureau use). [1] [2]
> I have zero need for a license.
As you seem to recognize, but for the benefit of any other readers who don't know: The copyright owner's exclusive rights aren't limited to the making of copies -- those rights also extend, e.g., to the distribution of copies and to the creation of derivative works. [3]
First, you seem to be going out of your way to pretend the First Sale doctrine exists.
> MAI Systems Corp. v. Peak Computer, Inc.
That was 1993. Several cases have handled the issue of temporary RAM copies since then. In particular, Cartoon Network, LP v. CSC Holdings, Inc.[1] found that the MAI case didn't address how RAM copies only exist for a "transitory duration", and thus are not eligible for copyright. Using software normally is patently fair use. Again, this supposed license requirement doesn't exist in most cases.
Besides, this entire line of argument is strange; pretending that normal use of a product infringes copyright sure seems like a claim that the product was not fit for purpose.
> those rights also extend
Up until the first sale. Generally, anything beyond that point requires a contract.
> the MAI case didn't address how RAM copies only exist for a "transitory duration", and thus are not eligible for copyright.
You might want to read the Cartoon Network opinion itself [1] if you haven't already, because it doesn't provide nearly the support for your position that you seem to think. See especially pp. 128-29, where the Second Circuit noted that in MAI Systems the software in question had been loaded into RAM and used by an unlicensed individual for several minutes:
<blockquote>
... Accordingly, we construe MAI Systems and its progeny as holding that loading a program into a computer's RAM can result in copying that program.
We do not read MAI Systems as holding that, as a matter of law, loading a program into a form of RAM always results in copying. Such a holding would read the "transitory duration" language out of the definition, and we do not believe our sister circuit would dismiss this statutory language without even discussing it.
It appears the parties in MAI Systems simply did not dispute that the duration requirement was satisfied.
</blockquote>
(Extra paragraphing added.)
> Using software normally is patently fair use.
That might well be true in some circumstances. But if you're using software in violation of the express terms of your license, good luck persuading a court to adopt your fair-use position.
I don't need to dodge the first-sale doctrine, because on the facts you recited, the doctrine doesn't apply. The case law has been pretty consistent that when you "buy" software in a typical mass-market transaction, you're not buying a copy, you're buying a license, and consequently the first-sale doctrine doesn't apply. See, e.g., Vernor v. Autodesk [1] [2]
EDIT: Suppose that the first-sale doctrine did apply (e.g., in the case of an object with embedded software with no license as part of the transaction). You'd only have the right to redistribute that copy. Without a separate license, you still wouldn't have the right to create new copies, nor to create derivative works -- that is, no hacking to "improve" the code" --- nor to "publicly perform" or "publicly display" the copyrighted work (which conceivably might apply in some circumstances).
As to your Upton Sinclair quote, you're assuming facts not in evidence. I try to stay on top of this area of the law, but it's never been more than a miniscule part of my practice --- nor for that matter of anyone else's, save for those rare lawyers who have to actually litigate a case in which these issues arise, which happens only rarely.
A spirited debate is one thing, but a comment suggesting that you haven't won the debate merely because the person you're arguing with is corrupted by money crosses a line. It's flatly uncivil and, more or less, an accusation of shillage; those accusations are verboten on HN.
I saw this because I read all of 'dctoedt's comments, because they are uniformly excellent, and was moved to comment because accusations like the ones you made here drive me fucking nuts. Please stop making them.
For the last 5 years, I've been running on almost exclusively Free Software. Cases where that hasn't been the case are in ATI and nVidia drivers. I can easily plop in an Intel graphics card and even route around that, if I chose.
The public should be educated about this.
Maybe printing and distributing some flyers would be beneficial. (Does the EFF maybe already do something like this?)
Miller is free to segment the market however it wants, but I don't agree that altering the welder that I own should be a federal crime.
We're changing the very definition of property here to support some company's price discrimination scheme.
> Why force them to do that, exactly? IE what grand purpose does it serve?
Without the DMCA, Miller could decide that their DRM is sufficient allowing that they can't legally prevent people from bypassing it. Or they could decide to ship different programming in different products. The grand purpose, though, is upholding the notion that when I own a thing that means I am free to do I want with it.
" but I don't agree that altering the welder that I own should be a federal crime"
Altering plenty of things is a federal crime.
You can't file the serial number off a gun, for example.
As a more apropos example, you can't make a sawed off shotgun. it is a federal crime to possess them, and this includes making them, without paying some tax and registering for a permit.
If you want a less violent example, most medical devices can't be modified, etc.
"We're changing the very definition of property here to support some company's price discrimination scheme."
No, we really aren't. While completely controlling everything you can do with every physical device you own is a great theory, it's definitely not reality, nor has it been, for many many years. It's definitely not "the very definition of property".
In fact, historically property law was worse. If you physically mutilated or damaged some things you owned (religious, etc), you could often get stoned/killed.
"The grand purpose, though, is upholding the notion that when I own a thing that means I am free to do I want with it."
You are working off the premise that this changes the state of the that. It does not.
That is because this notion has never been upheld, and i can point to tons of examples of physical property you can own but are not free to do what you want with.
Your examples of changing weapons to be untraceable or more lethal are not apropos because these are violations of legal restrictions passed by congress into law.
You can not saw off a shotgun not because Browning doesn't want you to saw it off, but because sawed off shotguns are not legal.
What the DMCA does is take a manufacturer's prerogative and elevate it to the status of federal crime as soon as the manufacturer decides to create a "digital rights management" scheme to enforce that prerogative.
"Your examples of changing weapons to be untraceable or more lethal are not apropos because these are violations of legal restrictions passed by congress into law.
"
So is the DMCA?
I'm not understanding what distinction you are making. They became federal crimes identically.
"You can not saw off a shotgun not because Browning doesn't want you to saw it off, but because sawed off shotguns are not legal."
I'm not sure how this is relevant, particularly?
What relevance does who wants you to not touch your property matter to your notion you should free to do with your property what you want.
"What the DMCA does is take a manufacturer's prerogative and elevate it to the status of federal crime as soon as the manufacturer decides to create a "digital rights management" scheme to enforce that prerogative.
"
I'm quite aware of what the DMCA says (and in fact, have been directly involved in pushing back on large numbers of crappy DMCA requests).
I'm trying to understand why you think this is special somehow, compared to all the other things that folks have made it illegal to do with your property, which span the gamut from government saying you can't do this directly, to government saying you can't do what this other guy says you can't do, to etc.
The DMCA's anti-circumvention language constitutes a delegation of congressional power to private manufacturers, who can create schemes at will to criminalize uses of their products which they consider to be harmful to their business.
"The DMCA's anti-circumvention language constitutes a delegation of congressional power to private manufacturers, who can create schemes at will to criminalize uses of their products which they consider to be harmful to their business.
"
?????
No it literally does not.
You make it sound like they choose what is circumvention and not, and they don't. Congress did.
You are really stretching here to try to differentiate it.
You'd be much better off saying "it's not different, but it still sucks", because right now, your argument strongly stretches credulity IMHO.
> So? By law you also can't grab the higher end tig welder next to it.
False comparison. If you bought the cheap welder and opened it up and twiddled it to make it as good as the more expensive one then that is fine and totally lawful. (And there have been a fair number of products intentionally differentiated that way: someone willing to move a jumper gets the premium product, but lots of buyers will just pay)
The complaint about the DMCA is that it gives a trivial distinction which many users could presumably self-upgrade otherwise the force of law.
"
False comparison. If you bought the cheap welder and opened it up and twiddled it to make it as good as the more expensive one then that is fine and totally lawful. "
The DMCA does not prevent you from doing anything to this welder except trying to work around their firmware to get something you didn't pay for.
You are, in fact, free to take it, twiddle the inside bits, write your own firmware, from scratch, and use the hardware in it.
You just can't take their software and hack it to do it
"The complaint about the DMCA is that it gives a trivial distinction which many users could presumably self-upgrade otherwise the force of law.
"
You have not actually shown this, because of what i said - you are free to upgrade it as you see fit. You just have to not use someone else's IP to do it. You have to use your own.
Your argument seems to be essentially "if they want to do this, they should have to produce identical models with slightly different firmware and give them different skus and blah blah blah blah blah"
That seems pretty silly.
These are market segmentation restrictions, they would normally just do what i suggested, and produce models with identical insides except for the firmware rom.
Why force them to do that, exactly? IE what grand purpose does it serve?
This is, IMHO, very different from "you've made it illegal for me to play with my phone that i own", because you don't want to put your stuff on it or mess with the hardware using your software, you just want to not pay for the stuff they wrote.
If you want to install your own firmware on the tig welder hardware, that isn't theirs, and you wrote, awesome, that sounds great. I'll support you to death.