Locks and doors: obsolete idioms of bygone days

(This is a reply to What if the builder of your home burnt it down if you changed the locks?)

I have a strong suspicion that Apple will try to convince us that these iPhones are a strange sort of rental and are not really the property of the people who shelled out 500$ for the device. Most likely, they'll come up with some sort of mumbo-jumbo based on their control of the copyright on the software which runs the device. They'd likely claim that "unlocking" the phone is a modification of the software that is not permitted under the copyright licensing terms they provided when you purchased the device with the software pre-installed.

This would lead to my first inquiry for Apple: can I remove the pre-installed software and replace it with other software that allows me to use the device outside their narrowly defined market? If I cannot, then I would argue that the entire package (device plus software), being indivisible, is "rented".

Assuming that no iPhone user actually owns the device but instead rents it, how does this change of assumptions reflect back into the original "property" metaphor?

There are provincial acts and regulatory bodies covering the rental of property. For example, I can change the locks on a rental property, with the agreement of both parties. Neither the tenant nor the landlord can deny the other access to the property without the other's approval unless sanctioned by a provincial authority.

I doubt that Apple would look fondly on greater government involvement in their market. Due to this, I suspect that, if pressed, they are likely to revert to the claim that only the software is "rented". A quick scan of the warranty information provided with an iPhone would likely explain the limits of Apple's liability towards the continuing fitness of the device - a further indication that the purchaser "owns" the device.

Confused yet? I am.

To resolve this confusion, I'd suggest that we first start by only applying metaphors from the physical world to artifacts from the physical world. That is, the device called an iPhone, software excluded.

If the physical device is "owned", a user should have no restriction on their ability to replace the software running on their iPhone with something more to their liking. This does not, unfortunately, give them license to modify the existing software on the device as Apple has given no indication that derivative works are permitted. As part of this ability to choose other software, a user should be able to indicate that they have made an alternative selection and Apple should cease updating the software.

Sadly, there is nothing beyond market pressure that can force Apple to provide this ability to iPhone purchasers. Since the current state of affairs gives them a de facto monopoly over iPhones, I doubt they can be convinced to provide this functionality. Any change only weakens their monopoly.

Information is not a tangible. It presents no artifact that can be directly manipulated in the physical world. It cannot be made scarce by hiding it behind "locks" (themselves information, just as easily manipulated as the information they "protect"). We need to move on, away from the scarcity economics of the past and learn the information economics of the future.

Extending a physical world concept (property rights) into the informational world does nothing to clarify this issue for uninformed users. The "intellectual property" salesforce has convinced much of the populace that copyright is a fence around ideas to stop people from "stealing" those ideas. They pretend that information is something to be owned. It's counter-productive to add to this confusion by suggesting that purchasing a device gives any control over the software that might be running on that device.

Two wrongs don't make a right.

Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.

modification is not copyright infringment

This does not, unfortunately, give [users] license to modify the existing software on the device as Apple has given no indication that derivative works are permitted.

I disagree. If I buy a painting I can decide to modify it any way I please as it hangs on my wall. I could put a big red "O" around it with a "/" across the center (to show my disagreement) even if that greatly offended the painter. I could buy a paperback novel and cross out any words I didn't like, highlight other words, and write whatever I wanted on any page. I could buy a Ford Taurus and modify and rebuild it so that it looks nothing like a Taurus.

I own Windows98. However I run "98lite" which uses win98 as base and heavily modifies it into a derivative work. But the important part is that I did not purchase a derivative work, I bought software that modifies something I already own and infringe no one's copyrights. I cannot sell my harddrive as it is currently as it's a derivative work but if I did only then would it be copyright infringement.

Copyright forbids distribution, not modification of your own property.

Clarifying "derived work"

If I buy a painting I can decide to modify it any way I please as it hangs on my wall. I could put a big red "O" around it with a "/" across the center (to show my disagreement) even if that greatly offended the painter.

In Canada, this might actually be a violation of the moral rights of the artist. Of course, this does not apply in the USoA.

Copyright forbids distribution, not modification of your own property.

I certainly agree. That said, if someone uploads firmware that they did not modify then whoever distributed that modified firmware is distributing a derived work.

My intent with that statement was to explain that, since Apple offers no explicit support for derived works, then we should expect that modified firmware will be overwritten and the phone returned to its original state. If that modification had allowed access to a network not supported by Apple, then the phone likely no longer works as before.

I've not seen any directed evidence that Apple has actually "bricked" the unlocked iPhones. That is, rendered them completely dysfunctional now and forever. I'd appreciate links to direct (not anecdotal) evidence of this practise.

we should expect that

we should expect that modified firmware will be overwritten and the phone returned to its original state

What gives them the right to do that ?
If I buy a painting and modify it, can I expect the original artist to come around and put it back to the way it was when I bought it ? Wouldn't doing so be an infringement of my moral rights (in Canada) in the work I created ?

The "moral rights" issue is interesting, it'd be fascinating to see Apple argue in court that their moral rights were infringed when somebody modified their copy of the software on the iPhone they bought.

One of the things I really object to is automated software updates to devices that I've bought that I can't even opt out of - Shaw regularly "updates" the cable box I bought from them several years ago. They only seem to bother to tell me that they've done so because they need to me to check that they haven't destroyed any of my data (scheduled events, etc) in the process. Ideally, they'd have to offer any such changes with enough information about their effects that I can make an informed choice about whether I want it or not.

The "artist" chooses the "license"

What gives them the right to do that ?

Unfortunately, it's probably in the license. Having purchased the device, the iPhone owner has possibly agreed to the license provided with the software. This agreement might not be valid (you'd have to go to court to validate it) but it's mere existence signifies that Apple is likely to abide by it.

Additionally, there's probably the typical disclaimer of warranty which accompanies most software. This might also require court validation. Again, a warranty disclaimer probably tells you tons about Apple's intention: if something goes wrong, they're hoping to find something the user has done to invalidate liability. Altering the firmware might just be one of those things.

Ideally, they'd have to offer any such changes with enough information about their effects that I can make an informed choice about whether I want it or not.

Why should they be required to do this? You've already purchased the device. Ideally, Shaw would like you to treat the device as a black box. They like to be able to change (or degrade) your service without your consent. Currently, they seem to be getting away with this approach.

The only true leverage you wield is to not buy their service. This goes double for the iPhone. Before purchasing any of these devices/services, we should always verify that they satisfy our requirements without sacrificing something we care about.

Simply: caveat emptor.

Not so simply caveat emptor.

The concept of "caveat emptor" is exactly what I believe we should focus on. I believe it is unfair to say buyer beware when the buyer could never reasonably be expected to understand the limits that these companies are seeking to apply to these purchases, or that there is actually a law on the books that claims to seek to regulate personal/private activities of citizens in their own homes.

We have federal copyright law written for a time when only large industries were regulated by it and which even lawyers don't understand. We have province-specific contract law added on top with clauses in contracts which are enforceable, unenforceable, and possibly even illegal.

We could talk about subsection 30.6 of the Copyright Act and whether the modification is "essential for the compatibility of the computer program", but I believe that this clause, like most under Fair Dealings, is far to narrow to match what people reasonably expect and extremely hard to understand. How many people, including Apple lawyers, have ever read caselaw involving this subsection, or can otherwise claim to understand it?

There was a time when we had a Consumer and Corporate Affairs department, and now we have a consumers affairs branch that has no teeth at all (and nearly no staff) and a competition bureau that forced on the side of the defendants so much that they won't even publicly disclose an investigation since that might damage their reputation.

I happen to believe that Copyright law should be expanded to include a living Fair Use regime which not only carved out time, space and device shifting, but also any truly personal copying. Only if copyrighted material leaves the person (their home, their devices), whether by means of physical copies, via communication by telecommunication, or by public performance/exhibition, should copyright apply at all.

That would reduce Apples unreadable (by lawyers, leave along iPhone owners) EULA to a waiver of warranty in this case, and would force them to treat their customers with more respect if they were to remain customers.


Free/Libre and Open Source Software (FLOSS) consultant.

But it's mine, not theirs

Why should they be required to do this? You've already purchased the device. Ideally, Shaw would like you to treat the device as a black box. They like to be able to change (or degrade) your service without your consent. Currently, they seem to be getting away with this approach.

Ummm...because it's my device, not theirs ?

Can the builder go in and repaint your house after you've bought it without your permission ? No - not even if it makes the other houses they've built easier to sell.

When a "house" is a "home"

Ummm...because it's my device, not theirs?

The device is yours, the software is theirs, licensed to you under very specific terms.

Can the builder go in and repaint your house after you've bought it without your permission ? No - not even if it makes the other houses they've built easier to sell.

This is why I wrote the original posting: Russell's "house" metaphor triggered some synapses in my brain.

A Shaw/Rogers cable modem box (or iPhone) is like your house after you moved in. It is a combination of tangibles (circuits, chips, plastic) and intangibles (licensed software).

You are the software which transforms an empty building into your home. When you sell your home to me, I only get the building, not you, your family, pets or decorative skills.

If I were to purchase your services to maintain the look of the building after I occupy it, you would be welcome to take any action necessary to perform those services subject to my approval (or pre-approval). The license and/or terms and conditions signed with Rogers/Shaw/Apple are just like this pre-approval.

This is what I'd like to see:

  1. technical folks educating people so they completely understand what they are purchasing
  2. vendors providing clarity in the terms and conditions so that purchasers might make an informed decision
  3. changes in terms and conditions subject to approval by all parties
  4. options to purchase devices with no software installed so that I can develop/market an alternative

Including the software, everything in the box is yours

The device is yours, the software is theirs, licensed to you under very specific terms.

You are wrong. The device is yours. The software is also yours. The right to produce and distribute additional copies is the only thing you do not own. This is true for many different reasons. Namely:
1) If a license it must meet the definition of a contract. Eulas do not come close.
2) If a valid contract, then two different aspects (device/software) are bundled together with conditions of use. This bundling with conditions is not only unenforceable but also illegal under various competion laws. (such as tied selling, refusal to deal, etc)

Copyright law is exhaustive and limited in scope. Furthermore it is prohibited by law to claim any right or obligation that you do not have under copyright. That is called misuse of copyright. Misuses in the past have generally been ignored but now that companies can use technical measures and legal threats to give those misuses teeth, they cannot be tolerated. I think that this is because the faulty doctrine of common law copyright has pervaded many people's minds due to the unfounded claims of eulas etc. However that legal doctrine was declared invalid by courts long before any of us were born.

I see your argument (device plus software) repeated many times by many different people but it's based on a misperception about A) how many components exist to the transaction, B) when that transaction occurs, and C) what constitutes a valid contract. I think the fundamental problem is not that consumers need to be educated, but lawyers and judges need to be educated and most importantly that companies that try to misuse their copyrights and make claims need to be slapped down, and slapped down hard so the corporate world doesn't take advantage of consumers with less negotiating power.

Examples of statements above

Lets use an Ipod rather than an Iphone as a less complex example (so we don't have to deal with the monthly services of an iphone.) With an ipod sold straight out of a box, there are 4 components of property, two physical and two intangible.
#1- The device. [physical] The white hunk of plastic and wire you can get your fingerprints on.
#2- The software. [physical] It can be destroyed without damaging the plastic and wire by bringing a magnet close or an EM field close, or by various input commands by the device.
3#- The copyright of the device. [intangible] This is the look and style of the white hunk of plastic. It can be forgotten but cannot be destroyed. Ever. Period. Eventually it will expire into the public domain.
4#- The copyright of the software. [intangible] This is the right to make more copies of the physical software noted in #2. It also cannot be destroyed, but will expire.

When you buy a cardboard box at Walmart, you don't buy the packaging. You buy the packaging and everything inside the packaging. Purchasing the cardboard box means you buy the hunk of plastic packaged by the cardboard box. Buying the hunk of plastic also buys you the copy of the software that is packaged by the white hunk of plastic. It does not buy you the right to distribute additonal copies of the software or even additonal copies of the device. If someone takes an action that purposely damages the physical property (software or device) that you own, they aren't allowed to do that and you have legal remedies open to you.

Let me give another example:
An architect owns the copyright on their building design. Only that particular architect can make a structure that looks like the design of his building. If the architect designs, builds and sells that building then the architect keeps his copyrights but he has no claims to the building... he sold it. All of that is negotiated at the time consideration changes hands.
The landowner did not license the use of the building even if the architect puts a big sheet of paper across the inside of the door that states "Mr Landowner I still own the copyrights to the building! By breaking this piece of paper and walking into the building you accept that I can come in whenever I want. I can redecorate if I want too. If you do look at the inside of the building you purchased, you accept these terms. Return the building without looking inside or using it if you reject these terms." The landowner wanted a building and paid for a building. He now owns the building and has no obligation to return anything. The architect can't put locks on the doors, can't enter when he wants and has no say on anything inside the property.

This is the same as computer software. Apple manufactured it, sold it to a company and it's resold multiple times until the end user buys it off of Walmart. The software resides on the end user's physical property (the handheld computer device) and if they don't wish to return it they don't have to. A contract exists for the end user and the entirety of it was negotiated at Walmart's cash register. Apple owes a duty of care to each entity who subsequently purchases the ipod, but the reverse is not true. The end user owes nothing to Apple and has no contractual obligations. The only thing the end user doesn't have is the right to do is make/distribute additional copies.

Forgot an education target

You list customers, lawyers and judges that need to be educated. I think you forgot politicians and other policy makers, which is really the necessary focus of this site.

The Conservative Government has already stated that they consider the upcoming throne speech as a matter of confidence. This means that any bill that is a follow-through on something mentioned in the Throne Speech will be a confidence bill, meaning that if it fails we go to an election. Whoever causes the next election is likely to loose it, regardless of the reason for the vote against the government.

If the Conservatives put harmful Copyright revision (which is the only type of copyright revision they have been talking about) in the throne speech, that it is highly unlikely that the opposition parties will amend it.

How much of what we have been discussing do you think Canada's federal politicians understand? If they are even vaguely aware of the question, do you think they support tangible IT property rights as well as required limits on the intangible statutory monopoly created by copyright and patents?

What I've written about the implications of copyright on this question are a matter of what I believe "should be", not a matter of what I think current politicians and courts think it is (or should be). The harmful claim that has been made for decades is that when a computer loads a computer program from storage into RAM that this is a copyright-regulated copy, and thus anything up to and including this ephemeral copy is regulated by copyright. I believe this is a nonsense claim, but it is the claim that has been used many times in courts to justify the types of things mentioned in EULA's which have nothing to do with public communication/distribution/performance/exhibition/etc.

Many in this thread believe that Copyright is already limited to public activities. While this is what it should be, this is not what the policy makers or legal system currently interpret it to be.

PLEASE write to your MP about this issue. Get them thinking about the conflicting rights involved in this discussion. Talk to them about the erosion of so-called "first sale" rights (which includes "first give away", etc), both when there is a tangible media and when there is not.


Free/Libre and Open Source Software (FLOSS) consultant.

when you buy a device, it includes the software

The software is not theirs - I was never asked to sign (or even click through) any kind of license agreement when I purchased my cable box (or my iPod for that matter). I own that copy of the software. For anyone else to modify it (without my permission) is an infringement of my property rights.

I can see that there may be cases where people have signed license agreements that might make this less obvious (although I don't think those cases are nearly as clear-cut as you seem to think they are), but in the case of my cable box, there are no license agreements involved, so it's very simple.

The only things I can't do with the software included in my cable box as part of the sale are create a copy, publish it, distribute it, perform it in public and the other specific rights that are exclusive to the copyright holder. All other rights belong to me as the owner of that copy.

Erosion of historical rights.

What you are discussing makes logical sense, but it is up for debate whether this has been eroded. It is one of the fundamental differences between traditional copyright and digital copyright. I don't believe we should be treating these things differently, but the legal community appears to believe we should (and they already do).

If we are to retain this important limit to copyright we are going to have to fight for it. We need to push to make sure this is clearly included in future copyright reform.


Free/Libre and Open Source Software (FLOSS) consultant.

"computer ram = copyrightable copies" is not true

The harmful claim that has been made for decades is that when a computer loads a computer program from storage into RAM that this is a copyright-regulated copy, and thus anything up to and including this ephemeral copy is regulated by copyright. I believe this is a nonsense claim

I agree, "computer ram = copyrightable copies" is a nonsense claim. I've only ever heard that used in the devil's advocate sense as you did above. I've never heard someone argue that point that expected someone else to believe it. I've always viewed it as a strawman since the Copyright Act and the US version both make it clear that internal computer functions aren't copyright violations.
For Canada, internal computer copies are outside of copyright and for the US, it's a limitation on copyright holder's rights. Effectively it ends up being the same -- legal for a computer to work. Specific sections are: Copyright Act 3.(1)(h) for Canada, and 17 U.S.C. § 117 (a)(1) for the USA. Reproduced below (emphasis mine):

3.(1)(h)
Copyright [includes the sole right] ... in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program,

17 U.S.C. § 117 (a)(1)
It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided... that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

Also also for Canada 30.6 Computer Programs (Permitted acts) is somewhat relevant too, but that's more about interoperability. (And additional reasons why unlocking your ipod/iphone is ok.)

As to forgetting politicians... I have such a low opinion of politicians that I often forget about them.

Politicians

As someone who has met more Canadian Federal politicians than the average Canadian, my experience has been that they just haven't thought about the issues as much as we have. To be a politician you need to be a bit of a generalist, and that includes Ministers who aren't necessarily specialists on their own portfolio.

I believe it is our duty as informed citizens to speak with them. Otherwise we can't legitimately complain when they make decisions based on all the information they had available to them, and the information was seriously lacking (Or in our context, largely the science fiction brought to them by old-economy lobbiests).

I'm meeting with a key MP (Industry Committee, Government side) later this month which I will report on later.

As to the interpretation of Copyright to exclude the internal operations of computers, my conversations with lawyers suggests that this is not their thinking. I haven't yet read a case that involves this question, and am very interested to see how courts will interpret these things. This type of thinking is the basis of many clauses in EULA's that may be unenforceable if copyright law is interpreted to fully exclude these activities (both for software and digitally copied data).

You need to remember that decisions aren't made for what technical people think are reasonable reasons. When I read about the single case that the RIAA has won I have questions about the validity of holding the person who hired an ISP account fully liable for any activities on that account. How many technically incompetent people buy wireless adapters for their home without realizing how easy it is for a third party to get on that network -- including if they have WEP encryption enabled.

While I believe someone should be held responsible, we haven't yet informed the public of this responsibility -- nor have we provided adequate training in the safe use of ICT.

We also have the core conflict between computer security and DRM: how can we expect people to be in control of their own computers when countries are giving legal protection for techniques whose purpose is to disallow the owner to be in control of their own computers? In a DRM-infected system, should the entity who holds the keys (the device manufacturer) be held legally liable rather than the hardware owner or ISP account holder?


Free/Libre and Open Source Software (FLOSS) consultant.

The "moral rights" issue is

The "moral rights" issue is interesting, it'd be fascinating to see Apple argue in court that their moral rights were infringed when somebody modified their copy of the software on the iPhone they bought.One of the things I really object to is automated software updates to devices that I've bought that I can't even opt out of - Shaw regularly "updates" the cable box I bought from them several years ago.