I don't think it's that either. I think it's that laws exist to protect "intellectual property," which leads to a lot of bizarre consequences that don't occur with laws protecting traditional physical property. A lease on a physical good like a car is not particularly strange. It's just a contract that allows the lessee to use a scarce physical item that belongs to the lessor under certain terms.
If we had that kind of lease on software, but without IP laws, there still wouldn't be any strange legal consequences. The lessee gets the software, and perhaps the terms say that the lessee cannot copy or modify the software. The difference is that if the lessee does distribute a copy of the software, the lessor cannot go after third parties who download those copies, because they haven't signed any sort of lease or contract. The lessor can go after the lessee, of course, but that's it.
This latter description shouldn't be described as an "attack on ownership" any more than renting a car from the airport is an attack on ownership. The real attack on ownership is the existence of IP laws. You own your hard drive, but only until the hard drive happens to arrange some bits in a particular order.
> If we had that kind of lease on software, but without IP laws, there still wouldn't be any strange legal consequences. The lessee gets the software, and perhaps the terms say that the lessee cannot copy or modify the software. The difference is that if the lessee does distribute a copy of the software, the lessor cannot go after third parties who download those copies, because they haven't signed any sort of lease or contract. The lessor can go after the lessee, of course, but that's it.
The difficulty I see with the current and future legal landscape is that there's no clear distinction between right-to-modify and right-to-distribute.
It might be argued that this has been a willful conflation by IP owners in an attempt to best sell their agenda. (Right-to-modify-something-owned being substantially more in line with pre-digital norms)
My understanding was that the point of the DCMA's reasonable clauses was to clarify that yes, if you own something, you also own the right to modify it. Including the right to circumvent any artificial technical limits placed on your ability to modify. The tension has always been that modifiable devices can also strip technical protections from IP to enable distribution.
To me, I can't see how we end up with any alternative to the following two options (which I think the Stallman-position cardboard cutout would argue as well):
[World A] Users do not have a right to distribute IP. To ensure this, IP encrypted. Breaking IP encryption is illegal. To ensure breaking IP encryption is also impossible, modifying at least some portion of software/firmware/hardware in consumer devices is also illegal. To ensure modification is also impossible, technical measures are employed (aka "Nightmare TPM").
[World B] The legality of distributing IP is irrelevant. The legality of breaking IP encryption is irrelevant. Breaking IP encryption is feasible, because modifying the software/firmware/hardware of consumer devices is feasible.
The road to cyberpunk ethos was always that [World A] would be enacted legally (because money), while [World B] would be de facto reality (because consumers get creeped out by TPM and there are more hardware companies interested in selling units than vertically integrated IP stakeholders^).
^Bonus points for those who remember when Apple was the former rather than the latter
> The difficulty I see with the current and future legal landscape is that there's no clear distinction between right-to-modify and right-to-distribute.
In the context of entering a contract, I don't see either as "rights." If you sign a contract saying that you will pay a certain amount to use a tractor without modifying its internals or distributing copies of its source code, I am fine with a legal system enforcing that contract.
You're fine with the legal system enforcing the contract? Or the legal and technical systems enforcing the contract?
If it's only legal, I'd argue that's a slippery slope towards a legal system of convenience and loss of absolute respect for the rule of law. In other words "Yes, this action is illegal, but everyone does it anyway by necessity."
If it's both, then the technical methods for doing so become frightening pretty fast.
> Or the legal and technical systems enforcing the contract?
Both.
> If it's only legal, I'd argue that's a slippery slope towards a legal system of convenience and loss of absolute respect for the rule of law.
Well, as you might have guessed by my references to contract law, I'm not a huge fan of statutory law. "Rule of law" is only good if the laws are good.
> In other words "Yes, this action is illegal, but everyone does it anyway by necessity."
If people want to modify their products, then that should be a competitive advantage for firms that offer products with terms allowing modification.
> If it's both, then the technical methods for doing so become frightening pretty fast.
>> If it's only legal, I'd argue that's a slippery slope towards a legal system of convenience and loss of absolute respect for the rule of law.
> Well, as you might have guessed by my references to contract law, I'm not a huge fan of statutory law. "Rule of law" is only good if the laws are good.
> If people want to modify their products, then that should be a competitive advantage for firms that offer products with terms allowing modification.
> Why? [do the technical methods for preventing modification become frightening]
I'm getting the sense that we have fundamentally different opinions of the way the way the market works. In my view, it's entirely reasonable that the following chain of events unfolds:
a) Company A builds product that prevents users from making modifications (legally and technically)
b) The product captures a substantial market share (variety of means: maybe exclusive content, advertising, etc.)
c) Because the product prevents users from making modifications, it can extract higher profit-per-user than competitors (by taking advantage of revenue streams unavailable to sellers of a more open product)
d) Those higher profits can then be leveraged into a more dominant market position (regulatory capture, buying budding competitors, etc.)
I have a feeling you would say "(b) would not happen because the market would correct in favor of consumers and away from Company A."
My opinion is the market only self-stabilizes within certain bounds: once things get too out of whack, there is no guaranteed correction.
If we had that kind of lease on software, but without IP laws, there still wouldn't be any strange legal consequences. The lessee gets the software, and perhaps the terms say that the lessee cannot copy or modify the software. The difference is that if the lessee does distribute a copy of the software, the lessor cannot go after third parties who download those copies, because they haven't signed any sort of lease or contract. The lessor can go after the lessee, of course, but that's it.
This latter description shouldn't be described as an "attack on ownership" any more than renting a car from the airport is an attack on ownership. The real attack on ownership is the existence of IP laws. You own your hard drive, but only until the hard drive happens to arrange some bits in a particular order.