Should the iPad be illegal?

I would like to clarify quotes in two recent CBC articles by Peter Nowak: Copyright bill may spark battle over who owns what and Apple iPad hits Canada amid controversy.

In each it is suggested that I believe that the iPad should be illegal. What I said should be illegal is the application of non-owner locks to technology. I am not concerned with Apples technology, only radical changes to the law that legalize and/or legally protect a form of theft.

When I buy tangible property, whether that is a house, a car, or a communications device, I expect that part of the process of purchasing is that I am given all the keys to any locks applied to what I now own. If a key is lost or otherwise unavailable to the owner, I am then legally protected in hiring a locksmith to change the locks such that I have the keys. This is what the concept of buying has meant for hundreds of years.

Apple (directly in some cases, largely indirectly in Canada through umbrella groups) is lobbying parliaments to change the laws to legalize a form of theft where the owner is not given the keys, and it would become illegal for the owner to change the locks.

Many people have suggested that if I don't like Apples technology, that I should just not buy it. Apple's technology is not my concern, their lobbying to try to legalize and legally protect a form of theft is. I don't have the option to just leave Canada if I don't like Canadian law. The correct thing for me to do is try to educate people about this form of theft, and for all Canadians to convince the government not to legalize or legally protect this form of theft.

See also: When consumer choice is not enough: Dishonest Relationship Misinformation (DRM) and Protecting property rights in a digital world.

Please sign the Petition to protect Information Technology property rights.

Comment viewing options

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

Theft?

I don't agree that what's going on here is theft any more than copyright infringement is. You can't be deprived of a property right that you have never acquired in the first place. The problem is more akin to fraud.

If consumers are offered limited rights rentals openly and honestly, and they want that, so be it. The problem is that they often aren't clear on what they're being offered, and that the bargain may be subject to Darth Vader terms. (I'm altering the deal. Pray I don't alter it further.) In the case of the iPad, the restricted nature of the device is not a secret, it's practically a selling point.

I certainly agree that special legal protections for device locks are a bad idea, and that there are good reasons to limit them in consumer protection and/or competition law. But it's not useful to indulge in the same kind of distorted language that is already confusing the issue.

Fraud vs Theft?

Whichever word we wish to use, we aren't talking about a traditional sale of property. The property is put into my possession, but I am not granted the legal rights I would if I were being treated as the owner. We need to get people to this point, and then we can wordsmith on the most correct language (for laypersons, politicians and/or for those in the legal profession).

I agree with you on rental, where the relationship (who is the owner, who is in lawful possession, etc) is far more clear. I only partly agree with you that fraud is a better word to use when we are talking about dishonesty around a property rights "who is the owner" question.

I'm not certain I know what property right I "never acquired in the first place". Are you simply saying that a property right not protected in the law can never be legally claimed to be "stolen" by anyone or any thing? It would be equally true to say that an activity legalised and/or legally protected by the government could also never be called "fraud".

I try to be as clear as I can by saying "form of theft". Even with most "theft" it is possession and not legal ownership that changes, so even the word "theft" isn't used in legal conversations exactly how laypersons would.

With copyright infringement the closest analogy to tangible property I have heard is trespass. As with other forms of trespass it may be morally offensive to the owner, but does not necessarily cause economic harm.


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

property is not all-or-nothing

Given that property is a purely legal concept, not a natural right (although some might dispute that), it certainly follows that a property right not recognized by law can't be stolen, simply because it doesn't exist at all. But that's not what I was getting at. Rather, it was that property is never an all-or-nothing concept. You can buy or sell some rights and not others.

For a tangible example, consider that "ownership" of land frequently consists only of surface rights. People have been quite shocked to discover that prospectors have entered "their" land to stake claims to mineral rights. They think, quite naturally, that this violates their rights as owners. But it may actually be a case where they just never had the rights they think they have.

Similarly, it makes legal sense to imagine a transaction where you buy the right to use a device, but not the right to modify it. In some cases, there may even be policy reasons to make such a restriction desirable. There are offences related to tampering with odometers and VINs in many jurisdictions. Or you might "buy" something representing a non-transferable right: OC Transpo passes, for example.

What I was getting at was that "traditional sale of property" is a more fluid concept than most people realize. I agree that the fundamental issue is that people are being deceived about what rights they have. But I'd focus on the dishonesty, which is why I think fraud is the better legal category. False advertising and/or bait and switch seem apt.

Politics vs. science (social or natural)

We can debate semantics for days, but as of Tuesday I think we should focus.

The reality is that when discussing politics we are dealing with political opponents that do not let the reality of social sciences (correct legal terms) or natural sciences (what "technical measures" can accomplish in the real world) confuse their making stuff up for the theatrical effect. I've endured years of people claiming that infringing PCT (patent, copyright, trademark or related rights) is remotely similar to "theft". This includes the federal parliamentary Industry committee, so this isn't a problem limited to those we recognize as lobbiests or special interest groups.

Anyone who does any analysis knows this is nonsense, but in our sound-bite political word there is an insignificant fraction of people who do that do that analysis.

You, I, and many others know that property law, like many laws, do not have the same contours that the average citizen believes they do. Diving into what the rights really are, and the limitations of those rights, doesn't (IMHO) help in political conversations.

But back to the semantics.

If I buy something that was locked where I wasn't given the keys, but I'm legally protected in hiring a locksmith or otherwise changing the locks, then there really isn't a serious problem. It just means that part of the cost of the purchase includes the cost of hiring the locksmith (and the new locks/keys) if you wish to have the keys. There is only a labelling question where customers need to be told something is locked and they aren't being given the keys.

If the government makes it illegal for the owner to change the locks, then it isn't really "fraud". It is a radical change to the nature of a type of relationship (buyer/seller), but since it is the government that is prohibiting the changing of the locks by the owner then it isn't "fraud" on the part of the non-owner who applied the lock prior to sale. The government could simply say "buyer beware", and blame average citizens for not realising that in oddball special cases it is illegal to change the locks on something that you "bought".

In other words, I don't think the word "fraud" is any more correct than the phrase "form of theft" or even the word "theft" itself. In my opinion what laypersons think the word "theft" means is far closer to what we are discussing than what they think of from the word "fraud", even if both aren't quite correct.

We have a situation where owners are not able to exercise rights that they rightfully believe should be their rights after purchase. The fact that "jailbreaking" exists for iPadLocked devices is proof to me that there is a percentage of owners who believe they have the right to change the locks on the hardware they purchased.


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

Copyright Consultation

This is why in my submission to the Canadian Copyright Consultation I advocated banning Digital Rights Management/Technical Protection Measures. I have since called for this publicly in my blog.

Of course it appears that no one is listening in Ottawa.

Wayne
http://madhatter.ca