

Require companies to use the term "licensing" instead of "buying" with DRM goods - vyrotek
https://petitions.whitehouse.gov/petition/force-companies-change-language-buying-licensing-when-dealing-drm-restricted-goods/myq4rZjX

======
CurtMonash
In no way is "buy" in and of itself incorrect terminology. One can "buy" or
"purchase" goods, services, subscriptions or -- yes -- licenses.

And by the way, when one buys a copy of software, what one really buys is at
best a perpetual license to use it; one is not buying the software itself.
(This point, of course, is at the heart of considerable open source ideology.)

The petition's authors have a reasonable claim to make that buying an e-book
on Amazon should not be portrayed as the equivalent of buying a paper book.
But the way they actually worded the redress requested in their petition is
not well-supported by the facts.

~~~
aspensmonster
What aspect of the wording makes the request to change from "purchase/buy" to
"license" not well-supported by the facts? The way I read the petition, such
requirements would be in place only for products that incorporate DRM, not for
any type of software whatsoever.

~~~
Kerrick
Because whether a product has DRM or not has _absolutely no effect_ on the
license, the way you purchase it, or the rights you do or do not get. DRM only
enforces the license.

~~~
aspensmonster
(Insert standard IANAL preface here. What follows are my own non-professional
thoughts on the matter)

The petition is utilizing the observation that there are certain rights
associated with the terminology of "buying" (or "selling") some product that
have been developed over hundreds of years with laws regarding physical
commodities. Physical objects are relatively simple to understand; the right
to resell or repurpose a physical object is well understood, for example. Such
rights are not merely an artifact of the legal system but are inherent to the
nature of physical things. No matter the letter of the law, the purchase of a
physical object implicates its transfer of possession and the physical
capabilities such possession implies (destruction, use, retooling,
repurposing, reselling, etc).

Intellectual constructs are a different matter, be it the selling of such
intellectual consctructs that interface with physical commodities --think
healthcare or perhaps selling access to some physical but expensive machine--
or the selling of intellectual constructs themselves --like stories or other
expressions of ideas. The law has frustratingly used traditional property laws
as its basis for investigating rights and liabilities with respect to these
intellectual constructs, despite mounting observations that such a foundation
is typically unsound. Licenses for software, as an example, can arbitrarily
grant and deny rights, unlike the rights of physical commodities that are an
inherent consequence of their physical nature.

The practical consequence for a consumer is that the "buying" that occurs for
a license or some other intellectual construct has the potential to bear
_little_ resemblance or _significant_ resemblance to the traditional notions
of "buying" a physical commodity that consumers have been exposed to for
centuries. The rights associated with various software licenses, for instance,
can vary considerably. "Buying" a piece of GPL software and "buying" a piece
of DRM-restricted and/or proprietary software are not, by any reasonable
interpretation of each situation, the same thing. One who purchases a GPL-
licensed piece of software is closer to the spirit of the term "buy" in its
historical context of the transfer of physical commodities at some set price.
Purchasing the proprietary and DRM'd software is more akin to "licensing" its
use for specific cases and more closely aligns with contract law vis a vis
services rendered.

Perhaps it would be better to say that one never "buys" software outright but
rather "purchases a license," the rights and liabilities of which may vary
dramatically, thus sidestepping the historical connotations of "buying" a
physical object. But then of course the consumer loses any and all distinction
between different types of licenses, effectively introducing the same problem
as attempting to use only the term "buying." In such a case, rights that were
once well-understood and reasonably presupposed by the consumer are now
entirely up in the air and largely in the hands of the producer. In either
case, it's clear to me that conflating the terms introduces problems.

I believe the presence of restrictive DRM could serve as a useful litmus test
in gauging where on the scale such "licenses" to intellectual constructs fall
and thus whether the term "buy" or "license" would be more appropriate. The
current example on the crest of the news deals with the SimCity games. I know
I would say that I "bought" SimCity 2000 (regardless of what the letter of the
law would implicate). However, if I were to fork over cash for the most recent
version of the SimCity franchise, I would never say that I "bought" it, but
rather that I "licensed" it.

~~~
zokier
I feel you are completely missing the point here. The point was that draconian
licensing is draconian with _or without_ enforcement (eg DRM).

> I believe the presence of restrictive DRM could serve as a useful litmus
> test in gauging where on the scale such "licenses" to intellectual
> constructs fall and thus whether the term "buy" or "license" would be more
> appropriate.

This is utterly false. You can't deduce anything about the license from the
fact that the license is enforced.

~~~
aspensmonster
DRM is a set of technical policies: The user may install the software X times.
Y users may use the software at once. This video stream will not decode
properly without the private key embedded in chip ABC. This DVD will only play
in DVD players that have region code Z. This game requires a persistent
network connection in order to crunch game logic and stream assets. If these
policies are not guaranteed to provide any insight into the arrangements of
the license, then how can we say with confidence that the DRM is indeed a
license enforcement mechanism at all? If the DRM is designed in such a way as
to permit only 1 install ever, and yet a perusing of the legal license finds
no such wording, then the DRM is not (accurately) enforcing the license and
(so far as I can tell) cannot be said to be enforcing it.

~~~
CurtMonash
If your complaint is that the presence of aggressive DRM means that the
seller/licenser isn't really adhering to the stated or implied license, then
the correct remedy still isn't to change the wording from "buy" to "license".

~~~
aspensmonster
My primary concern with DRM is its anti-user behaviour, whether such an
attitude is codified in the license or not. I believe it should not be allowed
at all because I believe it violates natural rights that the users of software
and hardware have. Setting aside the fundamental philosophy, I'd say I
probably agree with you regarding the wording; namely, that the term "buying"
must be removed needn't be the remedy. I think Algorias put it well by instead
stating that the term "license" must be included in the marketing, whether one
states "buy a license to this product" or else elects to shorten it to
"license this product." In either case the licensed nature of the product is
at least introduced, even if it doesn't come with "Defective by Design"
warning labels.

------
azov
Honestly, I don't give a rat's ass whether they call it _buying_ or
_licensing_. I want to be able to resell my digital goods. This is what needs
to be legislated. If a company wants to enjoy legal protection agains someone
breaking their DRM, they must provide a way to transfer licenses. This should
be the law.

~~~
cpa
FWIW, it's the EU's opinion.

[http://www.wired.co.uk/news/archive/2012-07/03/digital-
softw...](http://www.wired.co.uk/news/archive/2012-07/03/digital-software-
reselling)

~~~
IsTom
But is it enforceable? I remember some internet drama about it a few months
ago, but honestly don't know any place where you could resell license to
download games and whatnot.

~~~
gambiting
I personally know some people who make a new Steam account for each game they
own and then they just sell the account on Ebay(and thus the game with it).
It's against the terms of licence,but it works.

------
MrQuincle
The preoccupation with ownership is a bit awkward for me as European.
Considering the tragedies around land ownership in the past of the Americas, I
would expect a very sophisticated view on the matter. To "own" something
because you "bought" it, is all such a virtual affair. The thing that matters
is that the artist or studio that made this possible, is able to survive and
will prosper because they make this thing that is liked by their customers.
Everything else I consider side-effects (and no I am not an artist myself).

Moreover, I hope these discussion will disappear in the future, because we
enter a more and more interconnected world. In the case of Spotify, it is
logical that you pay for their service, DRM does not have anything to do with
it. The more software is provided to the customer as online services, the more
transparent its use can be regulated.

The point of software is often just its functionality, not its physical
representation in the form of machine code that can subsequently be copied.
Ownership of a car doesn't entail blueprints so you can 3D print another one,
or a free subscription to fuel, and even changes to your own car are heavily
regulated.

I like reverse engineering stuff, but I don't think we have the right to tell
people or companies that hand us over stuff in exchange for money to tell them
what this exactly has to entail.

~~~
snarfy
>I like reverse engineering stuff, but I don't think we have the right to tell
people or companies that hand us over stuff in exchange for money to tell them
what this exactly has to entail.

Sure we do. That's what regulation is all about. When someone sells me a
hotdog, I have the expectation that it does not contain sawdust as a filler.
When I buy a beef meat pie, I do not expect it to contain horse meat.

When I buy something which is sold shrink wrapped in a box in a retail store,
the expectation is that it is a copy of a copyrighted material, the same as
any other media. Instead you are buying into a contractual obligation. Selling
contractual obligations is not wrong, but selling them under the guise they
are also copyrighted goods is fraudulent at best.

Make people sign the EULA. No more click-throughs. That's the regulation I
want. Companies are taking advantage of consumers lack of legal expertise and
it's something government is supposed to protect us against.

------
columbo
Meh,

License, buy, these are really hard terms to nail down in the physical space
let alone the digital space. Does "Buy SimCity Today" mean they are selling
the entire company, source code, single executable, dvd or a digital download?

I don't see that changing anytime soon, and requiring more legalspeek is going
to just hurt all of us. What really is drm, can you say with confidence a
particular bit of software is 20% DRM or DRM free like you could with sodium
or dietary fiber?

Then there is the argument about whether or not the government should even be
involved. SimCity isn't a necessary good, it isn't
water/food/clothing/shelter, why are we forcing a business model that the
consumers seem generally indifferent about (they still buy it, even though
they complain about it). Shouldn't we be pushing individuals to 'speak with
their wallets' and not purchase SimCity? Isn't that the solution to everything
these days?

Here's what I think:

I hope these companies eat themselves to death. They'll keep pushing new and
creative ways to use DRM and every time they do they'll alienate 1% of their
consumer base. Their software isn't perfect, some innocent consumers will get
locked out of the system and they'll become rabid-anti-consumers.

I also hope that the indie game movement grows like the micro-brew industry
has over the last decade. I want to see more games, more companies and more
ideas: Machinarium, Zeno Clash, Minecraft, Limbo, Super Meat Boy, World of Goo
and the Kerbal Space Program. You may not like some of the creators of these
games, you may not like the games themselves but the variety all but
guarantees that you'll find something to like.

tl,td; Spend less time worry about wording, more time investing in indie game
devs.

------
tempaccount9473
NYC has mandated that calories be printed on the menu in the same font size as
the name of the product.

So here's a better idea for software sales:

For software licencing/sales, the terms and conditions of the purchase must be
printed before the name of the product in the same font size as the name of
the product. If buying a video game encumbers me with a clickwrap licence
containing 17,000 words of dense legalese, then let them sell it on a box 300
ft tall.

------
fludlight
Licensing is still to difficult for Joe Sixpack to comprehend. Renting is a
clearer term.

------
brownbat
Instead of changing the name, how about making sure licensed digital "goods"
receive all of the legal protections afforded other goods: warranties, first
sale, the whole package.

Those concepts have a legal origin because we believed consumers actually had
some rights that you shouldn't be able to simply whisk away just because you
are a more powerful negotiator. Apparently we decided those basic protections,
enshrined by both code and common law, are overrated for an emerging sector of
the economy. It was an odd conclusion, decided in a funny way where no citizen
nor Senator ever cast a vote and where the open policy discussion on this core
economic issue was muted and invisible.

It's time to stop pretending nothing changed.

The solution is a completely unsexy thing: we need to revise the
classification of goods in the intro to the UCC, the "Universal Commercial
Code," then get states to actually adopt it. We need to completely re-examine
the way goods are distinguished from services at common law so that selling a
piece of software with no support agreement is a good while mowing a lawn
stays a service.

This isn't the moonshot of legal theory, we should be able to handle it
without completely breaking society.

~~~
brownbat
The biggest hurdle might be finding some way to make the sharing of cheap or
free software still viable, but this should be manageable. People are able to
do favors for their neighbors like take their kids to school or shovel their
driveways without facing crushing liability from service contracts. Surely we
can find an out for shareware.

Or maybe I'm overly optimistic. Again, we'd have to roll up our sleeves and
work this stuff out, but I don't put it out of humanity's reach to balance the
freedom to share code against the right of consumers to resell digital goods.

------
ScottWhigham
Oooohhhhh - the laywers would love this, wouldn't they? If I see an ad for a
book, should I expect the book to come with five paragraphs of "fine print"
that explains "You aren't actually buying the rights to the book, you are just
buying a copy of the book. You can't print your own copies, you can't blah
blah blah." I know that books themselves have it but do you want every ad to
have this as well? Silly.

------
dfc
Can any lawyers/legislative types comment on how this would be implemented
assuming everyone in congress and the whitehouse supported the petition?

~~~
jrockway
Seems like it doesn't need any legislation: it can just be an FTC rule.

~~~
dangrossman
The FTC's power in that area comes from a very small piece of legislation, and
is limited to only what that legislation provides.

From 15 USC §45:

> The Commission is hereby empowered and directed to prevent persons,
> partnerships, or corporations ... from using unfair methods of competition
> in or affecting commerce and unfair or deceptive acts or practices in or
> affecting commerce.

> The Commission shall have no authority under this section or section 57a of
> this title to declare unlawful an act or practice on the grounds that such
> act or practice is unfair unless the act or practice causes or is likely to
> cause substantial injury to consumers which is not reasonably avoidable by
> consumers themselves and not outweighed by countervailing benefits to
> consumers or to competition.

Considering we have decades of clickwrap licenses being enforced in all levels
of court, I don't think an FTC memo would be enough to declare software/media
arriving with a license agreement illegal. IANAL of course.

------
dendory
This soooo needs to happen, but the lobby against such a bill would be so
gigantic that it would never pass. The vast majority of people do not realize
just how restrictive the digital goods terms of service typically are, and it
will take many years and many instances of accounts being locked, hacked,
companies shutting down auth servers or going out of business before changes
happen.

------
gte910h
Instead, require they escrow the server code/DRM and it gets released if they
shut down the necessary DRM servers

------
mich41
What about requiring no DRM when using the term "buying"?

I think they got it backwards.

~~~
wycats
Not at all. That's precisely what the petition advocates for.

If you are required to use the term "license" when your software contains DRM,
then you aren't allowed to use the term "buy" when your software contains DRM.
Therefore, this petition disallows the use of DRM when using the term "buy".

------
seanmcdirmid
You can buy a ticket to Disney Land for ~$69, but buying Disney Land will
probably cost a billion or more.

So....Buy a license to play a game vs. buy a game?

------
sean_hogle
This is completely wrongheaded. We don't want legal characterizations of these
transactions to be "licenses". If what we pay money for is a good that we
purchased, we get to keep that copy - and sell it if we no longer want it. Who
cares if there's DRM on it. There will always be DRM on it. Without DRM
there's no way we'd be able to resell the copy that we purchased. Apple
recently received a patent on this very topic.

~~~
dendory
You miss the point. DRMed digital goods cannot be resold. When you go to
Kindle and get an ebook, all of the buttons say buy prominently, yet
everything in the license says you are merely renting it for an undetermined
amount of time, until the company decides otherwise. How is that not false
advertising? They should be forced to change their text.

~~~
sean_hogle
Of course DRM-enabled goods can be digitally resold. It depends on the type of
DRM being used. That would be one reason to have DRM. As I said, Apple is
working on this now.

~~~
kefka
Does the restriction and ledger of BitCoin also implement so called DRM?

It does implement technological and other measures to guarantee the security
of the whole blockchain.

(yes, it is a strained analogy, however one you would have to go up against in
making new law or changing old laws)

------
y1426i
Imagine a country where all decisions are taken by the popularity of the
issue....

~~~
baddox
Imagine a country where decisions are made by consenting individuals and where
the immediate reaction from someone seeing something they don't like isn't
"the government should force them to stop doing whatever I don't like."

~~~
Evbn
Imagine a world where 100% Beef Hamburgers are made from 25% diseased horse
meat.

------
apineda
Ugh. More laws to the fat stack. A)Don't buy B) Complain and criticize like
hell. In the end it's the companies decision to fuck it up or not. Do we want
to be more paying taxes so government can regulate buy vs licensing
labelling...

~~~
Evbn
Yes, That is one of the main functions of government.

------
hayksaakian
Buying (a license)?

~~~
tantalor
Licenses are not goods! For example, many licenses are nontransferable. DRM
for one!

~~~
Kerrick
And buying is not a term exclusive to transferable goods!

    
    
        buy  
        /bī/
        Verb
        Obtain in exchange for payment
    

You can obtain a non-transferable license in exchange for payment. You can buy
a non-transferable license.

