I have updated my Protecting property rights in a digital world paper to include a new section. As always, please send me feedback.
What about new business models?
There are a number of vendors of content and devices which want to offer new business models. You hear this all the time in policy discussions suggesting that, "wouldn't it be fair if we could offer you only the features that you need for a lower price"? The short answer is that while some aspects of the business models they want to explore may have some legitimacy, that the details of what they are asking for isn't fair.
These new business models aren't actually all that new. There are many business models that allow people limited use of something that they are not intended to own, possibly even use for a limited amount of time. We are all familiar with renting rather than purchasing a home, where the person living in the home is not the person who owns the home.
Separating the concept of rental and purchasing is not nit-picking. The legal regimes that regulate rental and ownership are entirely different, with each party in this transaction having rights and responsibilities that are fairly well understood by both the legal community and the general public. If a vendor, whether of information technology or a home, wants to offer you something less than full property rights and yet uses language that implies you are "purchasing", they are effectively trying to pull a fast one on you (and the legal system). They are trying to set up a business relationship where they receive the legal and other benefits of both a rental and a selling relationship, ensuring that you do not receive the benefits of either type of relationship.
The question of legal protection for TPMs needs to be analysed separate from the wide variety of business arrangements that are possible. TPMs should be legally protected when used to protect the rights of the owner of the hardware, and legally prohibited when used to circumvent the rights of the owner. In the case of a purchasing transaction, this means that the TPMs should be protecting the rights of the new owner, and the manufacturer or any other previous owner should no longer have any control over the hardware that is not authorized by the new owner. In the case of a rental transaction, this means the TPMs should be protecting the rights of the rental company who owns the hardware, with the person renting the hardware being prohibited from tampering with the hardware and software in ways not authorized by the owner.
This legal protection of ownership rights must have the same limits that already exist in law, meaning that when the owner rents to some other person that the protections that exist of renters of other property still apply to renters of information technology. Being the owner of the technology does not mean that privacy and other legislation protecting the renter is waived, nor does it allow you to circumvent competition and other laws which protect the economy as a whole. There is nothing so special about business models in the content industries or information technology that should suggest that governments should waive existing legal protections that exist in the rest of the economy.
