Ownership doesn't make people do bad things, or excuse them.

Sometimes the feedback you receive from writing is unexpected, as happened with Andrei Mincov's feedback on twitter about yesterdays article: Why do we have copyright?.

He didn't offer feedback on the focus of the article, which makes sense given Mr. Mincov provided a good tool to determining which of two different answers to the "why copyright" question we each might give. What I found interesting was his response to the second half which documented how it was the protection of the rights of technology owners that caused my increased interest in copyright law.

Twitter's 140 character limit doesn't allow for discussion of complex ideas, which is why it took a few tweets to decipher what he was concerned with. He seemed to believe I was implying ownership of a computer gave people the right to install software which infringed the software authors copyright. As a software author who relies on copyright for my business, I would never imply such a thing, and do not believe such a thing.

It is still be worth exploring this type of misunderstanding.

I often make analogies between home ownership and computer ownership, given whether people rent or own they understand home ownership fairly well. I've discussed insurance fraud as an analogy to copyright infringement. I've stated that the fact that some home owners might commit insurance fraud does not justify disallowing home ownership. It doesn't justify only allowing citizens a form of rental where only home builders are allowed to own homes. This is what is effectively being proposed with non-owner locks on our devices allegedly justified by copyright: the fact some computer owners might infringe copyright is being abused to justify disallowing private citizens to own computers, only allowing them a dishonestly labeled form of rental.

To clarify the confusion that Mr. Mincov had: The fact that someone owns their home does not allow them to commit insurance fraud. I think such a suggestion is ludicrous, as would the suggestion that computer owners should have a right to infringe the copyright of software authors.

I have to admit to not understanding the source of the misinterpretation. I've re-read what I wrote, and don't see anything in there that might have been the source of the confusion.

It may be that Mr. Mincov has been convinced that the only reason someone might oppose so-called "digital locks" or "technological measures" is because they wish to infringe copyright. I consider this to be as incorrect as suggesting the only reason someone might want to own their own home (rather than rent) is because they wish to commit insurance fraud.

It's also not the case that home rental would stop insurance fraud, any more than non-owner locks on devices stop copyright infringement. In fact anecdotal evidence suggests non-owner locks on devices, and anti-interoperability locks on content, induce copyright infringement.

Ownership, which includes the right to control what you own for lawful purposes, should not be considered a bad thing. This is as true of computer ownership as it is of home, car, or ownership of other tangible property. Ownership doesn't give one the right to break the law, nor does the fact that some owners might break the law justify attacking ownership itself.

There are some other minor points of disagreement that can be seen in the twitter thread. I don't believe in some absolute "right to contract", and recognize that the law is full of limits to the right to contract. There are extreme examples such as the abolition of slavery which was a limit on the right to contract, and there are many more nuanced limits included within provincial laws to ensure that one party or another to a contract is not able to be dishonest and defraud the other.

I do not believe any contract that is deliberately dishonest about the type of transaction should be enforceable. If a transaction is called a "sale", then the rights that an owner would expect as an owner should be transferred from the previous owner to the new owner. If a previous owner wishes to retain rights that would be attributed to an owner, then they need to carry out a different type of transaction such as a "rental". The freedom to contract means that an owner has the freedom to choose between sale and rental of their property, but does not grant them the right to be dishonest and essentially defraud the other party.

This is what I consider companies like Apple (iDevices), Sony (Playstation) and Microsoft (XBox) to be doing. They are claiming they are offering hardware for "sale" while trying to retain for themselves legally protected rights which should accrue to the owner. They are free to offer this hardware for rent, and I consider it dishonest (and believe it should be illegal) for them to claim they are selling something which they are actually only renting. They are defrauding from the actual owners control and part of the value of their property.

This is what I'm speaking of when I talk about primary infringement of the rights of technology owners, with these companies placing locks on someone elses property and disallowing the owner from exercising their rightful property rights. These dishonest corporations then lobby misinformed governments to legalize and even legally protect these infringements.

Secondary infringement of IT property rights is similar to secondary infringement of copyright. These entities are not accused of infringing themselves, but inducing/encouraging/enabling the conditions for others to infringe.

CBC makes some content only available through iTunes. iTunes is not simply a retailer, given much of what they distribute is tied (via encryption, a type of "digital lock") to devices which Apple exerts some property rights infringing remote-control over. CBC audiences are left with a choice of not accessing that content, or using a property rights infringing device. The choice is easy for me as I don't consider any CBC content to be valuable enough to give the choice any thought, but for other people it may induce them into scenarios which enable Apple to infringe their property rights.

I consider it offensive that CBC is using taxpayer money to carry out activities I consider to be secondary infringements of technology property rights. It is bad enough when "private" broadcasters (who are still massively government subsidized) do that, but it is that much worse when my own money is being used against my and the public interest.

I am not suggesting what CBC is doing to be as bad as direct infringement of someone's rights. This is the same as my feelings with secondary liability in copyright, where I don't believe the law should be as strict for those who only induce/encourage/enable others to infringe. It is the direction we are heading politically on copyright, so I believe it is important to point out what this secondary liability thinking would look like for other types of rights infringement. It is also interesting that it is the most vocal copyright holders alleging to be anti-infringement who are most likely to be guilty of secondary infringement of other peoples rights, putting into question their moral indignation over the secondary infringements of their rights.

Note 1: Before the CBC defenders come after me, I am aware that they are slowly moving away from content only being on iTunes to having iTunes be an "also available on" which is not nearly as offensive. Not all content is available in a platform neutral manner, and is is not like Apple is the only company commercially infringing property rights.

Note 2: While I called iTunes a "retailer", I am not implying that something owned (a copyright) is "sold" via the service the way tangible items are "sold" where ownership is transferred. What is purchased through iTunes and other content stores is a license which grants certain copyright-regulated permissions, not the copyright itself. The copyright holder still owns the copyright, and the licensee doesn't "own" the copyright any more than they did before the transaction. A license is closer to rental than purchasing given ownership doesn't transfer, but licensing is still different in many ways from rental of tangible property. I shouldn't need this clarification, but given the misunderstanding from yesterday I wanted to avoid this possible confusion.

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