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.
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?