The grumpy editor's e-book reader [LWN.net]

The grumpy editor's e-book reader

Posted Jul 24, 2009 4:55 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]

put this in software terms.

what if I were to take your software, give it to Joe Smith, and tell him that he can distribute it. Joe then packages the software up and sells it to people.

then you notice that your software is showing up in strange places, go to Joe and provide proof that it really was your software, and that I had no right to tell him to publish it.

obviously he will stop distributing the software, but now there are lots of copies of your software around without your permission. how can you be 'made whole'?

in the case of electronic distribution, one method (which has been ordered by the courts in several cases) is to force Joe to issue refunds to everyone he sold your software to, and use the same distribution network to remove the software.

remember, until you told Joe that the software was yours, he had done nothing wrong.

The people who purchased the software from Joe thought that they were making a legitimate purchase, but they were buying stolen property.

now, you can make the argument that all joe would need to do is to turn over the money that he made from the sales to you, and in some cases that will be enough, but what if you really don't want your software to be out in the wild?

also, in cases of theft one of the first priorities is to try and get everything back as it was before the theft, and then look into penalties. if things cannot be put back, then compensation for the loss gets added.

The grumpy editor's e-book reader

Posted Jul 24, 2009 5:16 UTC (Fri) by jordanb (guest, #45668) [Link]

> in the case of electronic distribution, one method (which has been ordered
> by the courts in several cases) is to force Joe to issue refunds to
> everyone he sold your software to, and use the same distribution
> network to remove the software.

Name one time American courts have ordered such a thing.

The grumpy editor's e-book reader

Posted Jul 24, 2009 8:38 UTC (Fri) by johill (subscriber, #25196) [Link]

>> (removing software via distribution network if possible)
> Name one time American courts have ordered such a thing.

I don't think that's the question -- they will [1] eventually if there's a technical possibility. So the argument comes round saying the possibility shouldn't exist.

[1] and apparently have in other countries

The grumpy editor's e-book reader

Posted Jul 24, 2009 9:43 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]

read the slate article pointed at in this post http://lwn.net/Articles/342917/ it mentions a couple of cases where the courts have ordered similar things.

The grumpy editor's e-book reader

Posted Jul 25, 2009 1:39 UTC (Sat) by jordanb (guest, #45668) [Link]

Echostar/DirectTV DVRs are rented, rather than purchased. So the court there was ordering Echostar to disable features on a device it still owns.

That's a whole lot different than ordering that devices which were sold in good faith to people who were not party to the lawsuit be forcibly recalled or disabled -- with no mechanism for the owners of the devices to protest or make their interests heard.

Now, no doubt the legal issue here is that you don't really *own* a kindle file like you own a book. I bet in the TOS somewhere Amazon says that they are really selling you an indefinite but conditional and revokable lease on your copy of the book. I'm sure they trumpet the lack of real ownership to the publishers as a major benefit of the format.

If the terms said that when you purchase an 'ebook' on the kindle, you actually do in fact own that file. I can not believe that they could have gotten away with deleting the books; I can't believe the courts would endorse let alone order such an action.

The grumpy editor's e-book reader

Posted Jul 25, 2009 2:03 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link]

directTV DVRs are purchased, not rented (I don't know about Echostar, but I suspect that they are the same)

there is a DVR charge per month, but that is very definantly not rent on the devices (among other things, it's a constant, no matter how many DVRs you have)

as for weasel words in the contract, I know that courts have struck down such rulings in the past for software purchases that the vendor tried to claim were only licenses to use.

The grumpy editor's e-book reader

Posted Jul 25, 2009 2:33 UTC (Sat) by jordanb (guest, #45668) [Link]

Direct TV recievers are rented. You have to pay $0 per month for the first receiver but the deal is still constructed as a rental.

<http://www.directv.com/DTVAPP/global/contentPage.jsp?asse...>

They spell it out even more explicitly in the "Equipment Lease Addendum":

<http://www.directv.com/DTVAPP/global/contentPage.jsp?asse...>

> YOU UNDERSTAND AND AGREE THAT YOU HAVE NOT PURCHASED THE DIRECTV
> EQUIPMENT, YOU DO NOT OWN THE DIRECTV EQUIPMENT AND THE DIRECTV
> EQUIPMENT MUST BE USED AND RETURNED TO DIRECTV STRICTLY IN
> ACCORDANCE WITH THE TERMS OF THIS EQUIPMENT LEASE ADDENDUM AND
> THE DIRECTV CUSTOMER AGREEMENT.

And just in case that doesn't stick, in the "Customer Agreement" they toss in restrictions specifically on the DVR software:

<http://www.directv.com/DTVAPP/global/contentPage.jsp?asse...>

> (c) Ownership. The Software is licensed, not sold, to you solely for
> your use under the terms of this license agreement, and DIRECTV and its
> suppliers reserve all rights not expressly granted to you. You shall own
> the media, if any, on which Software or End User Documentation is
> recorded, but DIRECTV and its suppliers retain ownership of all copies
> of the Software itself.

For more hilarity check out the FAQ:

<http://www.directv.com/DTVAPP/customer/faqPage.jsp?assetI...>

Like this for example:

> Q: I am charged a lease fee. I paid for my equipment upfront, so don't I
> own it?

> A: As technology becomes more advanced, leasing allows us to provide the
> latest equipment with minimal upfront cost to the customer. The upgrade
> fees allow us to keep our monthly lease fees low. Many leased items
> require an upfront payment as well as monthly fees. Just like leasing a
> car, a customer pays an amount upfront and that amount allows the
> customer and the company to keep the monthly lease fee low.

The funny thing about Corporate service agreements is... you know they're screwing you. But you gotta read the agreement if you want to find out the exact manner and method of the screwjob.

The grumpy editor's e-book reader

Posted Jul 25, 2009 19:51 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link]

for regular recievers you may be renting them, but when I get a DVR I have to pay a large lump sum for the equipment, that's a purchase, not a rental.

besides which, 4 of the 5 DVRs I have in my house connected to the directtv satellite were not acquired from directtv, so there is zero chance that they are rentals

The grumpy editor's e-book reader

Posted Jul 25, 2009 16:37 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

I know that courts have struck down such rulings in the past for software purchases that the vendor tried to claim were only licenses to use.

They have also upheld such agreements. It is possible to use software without owning a copy of it. Even if the copy you're using is in your house.

And the Echostar case was even simpler, because it didn't involve any mind-twisting new intellectual property law; it was about ownership of hardware. Echostar disabled a box, which the contract said belonged to Echostar, though it was on the customer's property. That's been going on for hundreds of years, though it used to require a person to go to where the box was to disable it, rather than reach in through radio waves.

as for weasel words in the contract,

In a contract, "weasel words" are not terms that withold something one of the parties would like to have (or feels entitled to), such as control of a DVR. They're words that reduce the effect of an otherwise simple term, sometimes to nothing. For example, "DirectTV shall provide television service 24 hours per day, where practical." "Where practical" are weasel words. They're called that because one of the parties narrowly escapes an (otherwise) obligation, like a weasel can escape a predator's grip.

The grumpy editor's e-book reader

Posted Jul 25, 2009 20:09 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link]

yes it's possible to use software without purchasing it. I am not disputing that

but the question that the courts have asked in the cases I have noticed is if the acquisition of the software was structured as a purchase or not.

and from what I've seen, if the user pays a lump-sum up front for the software it's considered a purchase

the fact that you can sell your kindle on e-bay would also indicate that you purchased it.

in the case of a DVR, what happens when you cancel service with the satellite company? if you keep it (which is what I've always seen happen) it's a purchase, not a rental

The grumpy editor's e-book reader

Posted Jul 25, 2009 23:06 UTC (Sat) by jordanb (guest, #45668) [Link]

I think you should go back and read your customer service 'agreement' very carefully. It may surprise you.

Also, try checking out that FAQ question I posted.

At any rate, even if you continue to insist that they don't claim ownership of the receiver you have, they *clearly* and *separately* claim ownership of the DVR software, and they also reserve the right to change the software at any time (again, read your customer service agreement).

So DirectTV setup the legal framework to be ordered to disable their customer's DVRs, in an effort to retain far more centralized control than they'd have in a clear-cut transfer of ownership situation.

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 24, 2009 16:07 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

put this in software terms.

Well, I'd rather not because copyright is not my area of expertise :-), but most of what you're asking is fairly general law, so I can still respond.

obviously he will stop distributing the software, but now there are lots of copies of your software around without your permission. how can you be 'made whole'?

We figure out (with the help of a court if necessary) how much money I lost by not being able to sell copies to those people and you and/or Joe pay me that amount. It's a very difficult calculation, but people do it all the time. In the US, there are also statutory damages that help with the calculation: legislation sets an arbitrary value on a copyright infringement that can be used when there's nothing better available.

remember, until you told Joe that the software was yours, he had done nothing wrong.

I beg to differ. As the most efficient means of preventing thefts, law often charges all people with the responsibility to make sure what they're buying isn't stolen, and Joe didn't do everything he could toward that responsibility. That was wrong. For example, Joe could have insisted that we broker the software through another company that is more trustworthy than me and more capable than Joe of detecting copyright infringements. My employer buys virtually all of its software through such a company for exactly this reason. It also won't take bug fixes from customers and is very reluctant to redistribute any open source software.

but what if you really don't want your software to be out in the wild?

The law can't help me with that. At least not English Common Law, which is the basis for US civil law, among others. The law, with few exceptions, deals only in money value of things.

in cases of theft one of the first priorities is to try and get everything back as it was before the theft, and then look into penalties. if things cannot be put back, then compensation for the loss gets added.

In my experience (again, English Common Law), "back as it was" is a statement about money. A court will rarely order a thief to return the stolen item, but rather will order payment of the market value of the item. Typically, the thief offers to return the item instead and the victim settles for that. There usually aren't penalties (except as part of an entirely separate criminal matter).

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 24, 2009 16:48 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]

no, you are not required to do everything that you could do to determine if what you are buying has been stolen or not. if you were you could never buy anything, and auction sites like e-bay could not exist (exactly how do you go about proving that _anything_ you buy on e-bay has not been stolen)

it would be nice if the law only considered the actual price of something, but it doesn't appear to do so (see the mess with the RIAA lawsuits as an extreme example). it can also be hard to set the price of something that isn't being sold

also, right or wrong, right now there is a huge amount of paranoia about digital versions of things, with the fear being that if someone makes one digital copy of something available it will get copied everywhere and completely destroy the market for the original and any legitimate sales. for the people who believe in this logic (which unfortunately includes many judges at the moment), stray digital copies of things are a _very_ big deal

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 24, 2009 17:35 UTC (Fri) by giraffedata (subscriber, #1954) [Link]

no, you are not required to do everything that you could do to determine if what you are buying has been stolen or not.

Your "required" may be different from my "charges with a responsibility." Civil law doesn't define behavior a person must engage in, in that the person is evil and will be punished if he doesn't, with the goal of ridding society of the behavior. It only defines who has to pay when a set of behaviors results in damage. It's about structure, not morals.

Legally speaking, a person is absolutely "required" in most cases to make sure what he is buying isn't stolen, in that if he doesn't, and it's stolen, he is the one who pays, i.e. is the victim of the theft.

if you were you could never buy anything, and auction sites like e-bay could not exist (exactly how do you go about proving that _anything_ you buy on e-bay has not been stolen)

The reason you can buy things and Ebay can exist is that buyers are willing to take the risk (which in the Ebay case is pretty low because even if it's stolen, the owner will almost certainly not find the buyer).

Rest assured that if you bought a million dollar baseball on Ebay and announced to the world that you had it, and the true owner of the baseball could show that it's more likely than not that the baseball was stolen from him at some point, it doesn't matter how hard you tried to make sure the Ebay seller was authorized to sell it, you would have to give the ball back. Remember: the owner didn't do anything "wrong" either. Why should he pay?

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 24, 2009 18:37 UTC (Fri) by dlang (✭ supporter ✭, #313) [Link]

the point I started with (which I think I managed to loose in this thread) is that (while I dislike what they did), issuing a refund and removing the book was not an insane thing to do.

and if you want to say that they should not do that, then the question comes up 'what should they do?'

you can't just say that amazon should turn over the money they collected and call it good (what if the copyright owner of the book wants to charge $1000 per digital copy of the book and amazon only charged $1, while this may be an unreasonable price, it is within their rights to set such a price)

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 25, 2009 1:57 UTC (Sat) by giraffedata (subscriber, #1954) [Link]

the point I started with (which I think I managed to loose in this thread) is that (while I dislike what they did), issuing a refund and removing the book was not an insane thing to do.

Yes, at one point you veered off into a larger, and quite interesting, question:

but it does raise the question (which is also very relavent to opensource software), how do you protect party A if party B tells party C that they have the right distribute something when they really don't?

And my comments were addressed solely to that.

I have no problem with Amazon's actions. I also have no problem with Amazon's plans not to handle it that way in the future.

I wonder if the copyright owner of 1984 was involved in the decision to revoke the books; I would think they would prefer that Amazon just pay them the money it refunded to the customers and let the customers keep the books.

Amazon's distribution of 1984 based on false statement of ownership

Posted Jul 25, 2009 2:13 UTC (Sat) by dlang (✭ supporter ✭, #313) [Link]

from the stuff that amazon has published, it seems clear that the copyright holder was involved in telling amazon to stop, since they have the self-service tool to make the book available, the copyright holder could have gone ahead and made it available from that point on. the fact that they choose not to do so seems significant to me.

I would like to see discussion on that larger question, but I felt that I was getting confused over what we were talking about.

with opensource being so common, the probability that _someone_ will publish some code under an opensource license when they don't have the right to is high. once such code is out there with the wrong license terms on it, there is not really any way to 'unpublish' it, there will always be stray copies around with the incorrect license attached, and people will stumble across them and use them, further spreading the problem

it would be a good thing if we had some idea of how this could be dealt with _prior_ to someone ending up in court. I am not saying that the community should in any way support a guilty defendant, but it would make a _lot_ of sense to suggest remedies to the judge in a friend of the court brief that the community can live with rather than risking silly things like orders to shut down sourceforge or google code because they 'repeatedly publish' stolen code (as parts of different projects, all independent from each other, who's authors think they are legitimately using opensource code)