Home » Contracts, Copyright/Intellectual Property » Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights

18 September 2017

From Talking New Media:

The issue of digital property ownership recently, and surprisingly, came to the forefront during Hurricane Irma. Select Florida Tesla car owners received a notice that there was a software update available for their vehicles. The update, once applied, suddenly allowed gave their vehicles about a 30 mile increase in range. The idea was to help Floridians get out of harm’s way. But what it really did was remind the Tesla owners just who owns the software in their cars. It turns out that the only thing that had separated out two different models of Tesla — one that offered more range between charges, and one that didn’t — was the software in the vehicle, something that Tesla could change at any time.

In a way, this is the issue at the heart of Joshua A.T. Fairfield’s book Owned: Property, Privacy, and the New Digital Serfdom, from Cambridge University Press.

. . . .

“We own and control fewer and fewer of the products that we must use to function in modern society,” Fairfield writes. “Many computing devices (iPads, for instance) run only those programs approved by the device seller. We cannot even tell our devices not to reveal our personal data.”

“This is an untenable position in an information-age society,” Fairfield believes, and so he urges readers to promote changes in the laws governing such things, believing that right now we are living in a digital rights environment closer to feudalism than freedom.

. . . .

“First, internet technologies created an unprecedented ability to copy intellectual property — file sharing services spread pirated music like wildfire and fueled the music industry’s fears for its own future — before they created the ability to track and verify individual copies of electronic information,” Fairfield writes.

Then, the rise of free content created a situation were “software providers needed a revenue model that circumvented internet users’ refusal to pay for content that they could obtain — usually illegally, but with some degree of safety — for nothing. So software providers monetized information about their customers by surreptitiously monitoring everything their users typed, clicked or did, and selling that information to advertisers who could use it to extract more and often costlier deals from their customers.”

Fairfield’s observations are somewhat self-evident, we see examples of them every day, but the author gives the readers the background information, the cause and effect, and then lays out what needs to be done about, best summed up in the line “ordinary property ownership should apply to digital and smart property.”

Link to the rest at Talking New Media

PG suggests there are a lot of click-to-accept terms of use that might not hold up to well-lawyered litigation based on fraud, intentional misrepresentation, various consumer protection statutes and the like. He further suggests that smart lawyers will rein in their corporate clients’ overreach when establishing their legal relationship with their customers/users based on a mouse click instead of a signature at the bottom of several pieces of paper.

In PG’s litigating days, he observed that if, during the course of a trial, the judge decided one party or the other was a bad guy/gal, things didn’t go well for that party in the courtroom or in the judge’s decision.

Of course, a losing party can always appeal the trial court’s adverse decision. However, PG once heard an experienced trial judge say, “I know how to write an opinion that will never be reversed by an appellate court.” Knowing that judge, PG was inclined to believe him.

In PG’s experience, trial judges overwhelmingly want to do the right thing regardless of the legal arguments of the parties. Most good judges ascended to the bench because of a desire to do the right thing and could have earned more money by staying in their former practices. At the end of the trial, they want to walk out of the courthouse feeling like they helped make the world a little fairer with their decision.

In a fight between a giant corporation and the little people, most judges tend to identify with the little people.

Contracts, Copyright/Intellectual Property

21 Comments to “Joshua A.T. Fairfield’s ‘Owned’ examines the ‘feudal system’ of digital property rights”

  1. It’s not just cars. Our farmers are facing the same or worse with their tractors, combines, seeders and other equipment. I have a friend who works on farm equipment for a dealer. He’d like to go into business for himself, but he can’t get any software to diagnose the equipment software.

    One little glitch and we could have a lot of hungry people worldwide because the farmers couldn’t till the land or harvest the crops

    • Interesting. I’d heard about independent auto mechanics having problems diagnosing software problems, but nothing about farm equipment.

      • The most advanced modern combines are effectively robots.

        http://www.pbs.org/wgbh/nova/next/tech/farming-with-robotics-automation-and-sensors/

      • Flash about me and my Audi:

        Took my Audi to my mechanic for service. Independent shop with relaxed rules. They let customers on the shop floor, so I walked back to watch.

        Tall mechanic — every bit of six-four — reached down the front panel and unlatched the hood.

        I said, “So that’s where the hood release is.”

        Mechanic looked at me wide-eyed. “You mean you owned this car all this time and didn’t know how to open the hood?”

        I shrugged. “Didn’t need to. Besides, what’s the first thing you do after you open the hood?”

        “Connect the computer.”

        “I don’t have the computer. What good would it do me to open the hood?”

        He snorted a laugh and said, “None, I guess” and hauled the computer over and connected it.

        • Shudder. I’d be paranoid about not being able to open the hood just because I’ve heard so many stories of cars catching fire after their owners forgot to put oil in the engine. Is your car electric?

          • No, not electric. Where do you live that people run their engines dry?

            (Had a long discussion with my mechanic about synthetic oils. In short, I don’t use ’em.)

            Audis are great cars, I repeat, GREAT cars, if and only if you stay on top of the maintenance schedule. I did. Not just routinely but religiously. (I’m OCD about car maintenance.) I knew others who did not. Miss two scheduled maintenance services with an Audi and you better have AAA, ’cause you’re gonna need it.

            I love Audi more than any other car I owned — American or Japanese — ’cause it fit me and my driving style like a glove. I have owned four different models of Audi, maybe five, and enjoyed the driving experience in each one. The others were just transportation. Absolutely hated my father’s Cadillac. It was just a boat on the road.

            (FWIW when I sold my cars, my mechanic always bid for them. He had the maintenance records and knew he could turn a profit on the resale.)

            • Where do you live that people run their engines dry?

              Ironically, I’m from the Motor City (well, the metro area anyway).

              But I grew up with a DIYer dad so it’s second nature to open the hood to put in the oil and the washer fluid and antifreeze. Or to give a friend’s car a boost. Everyone I knew had booster cables in the trunk. I think at one point Dad upgraded the car radio. He replaces the fuses and lightbulbs for the headlights, and swaps out windshield wipers when they get old. A friend astonished me when she said she went to a mechanic for that last one.

              “But you could just go to Meijer and get the wipers yourself, in the car aisle. You put them on in the parking lot and you’re good to go.”

              Dad’s also the one who changes the brakes on my car, especially when I was away at college and my mother drove around in my car since hers had crapped out.

              “Your mom is really hard on brakes,” he observed.

              He just knows how to fix stuff, usually without the manual. Except for Chilton’s, which is the only one I’ve seen him consult. I grew up thinking mechanics were for big ticket repairs or stuff that requires lifting up the car, like replacing the muffler.

              The idea of having to go to a mechanic for routine issues is a major paradigm shift for me. It sounds as if gearheads no longer have the option to soup up their cars in their garages. It’s the end of an era, I guess.

              I always thought Audis looked cool, though, and wondered if they were reliable — but I’ve always defined reliable as not requiring me to go to a mechanic. Again, paradigm shift.

              • I have a friend who liked Audis.
                He spent a lot of time at the dealer.
                (That changed once he got a Honda.)

                • I always thought Audis looked cool, though, and wondered if they were reliable — but I’ve always defined reliable as not requiring me to go to a mechanic.

                  For me, the definition of reliable is will the car do what I ask it to do when I ask it. Audi delivers. That includes brake failure when I was headed into a T intersection. I got the car stopped safely and still drove it to my mechanic for repair. He gave me a loaner for the day. BMW. Hated it.

                  I have a friend who liked Audis.
                  He spent a lot of time at the dealer.
                  (That changed once he got a Honda.)

                  With Audi, you have to accept that 1 day in 90 it’s going to be in the shop. You have to accept the fact that you can’t do what needs to be done because you ain’t got the diagnostic and tuning computer to do it.

                  Drove a Honda. Owned a Nissan and a Toyota. Not impressed. (FWIW blew the engine on the Nissan.)

                  Like I said above, Audis fit me like a glove. I would choose Audi over Mercedes, and, yeah, I had that choice. I choose to accept the downtime. Not a problem.

  2. Cars, tractors, social media. The lack of privacy is the main reason I won’t join Facebook. (They say your info is secure — until the next update, when it isn’t.)

  3. This isn’t all that new. I once worked on an IBM mainframe that drove a large impact lineprinter. I was told by a tech that a faster lineprinter cost more money, and that once you agreed to the terms a tech would come out, open the enclosure (it was as big as i am) and move a belt from one pulley to another.

  4. If I did have legal access to the programs running my Tesla, and I tinkered with them, who do I call when the car just hums in the garage? Would my copy of the program be compiled machine language? That’s what runs the car.

  5. One thing to remember is that in this case we are dealing with a battery. A battery that will last longer and take more recharges if it isn’t drained flat each time it’s used.

    Tesla decided that it was better to shorten that battery life than risk losing those cars in the flooding. I would not be surprised if the next update lowers the possible mileage per charge again.

    Is this ‘wrong’? Depends on your point of view. Tesla warranties those batteries for so long and using them improperly would shorten that life.

    If the device is no longer out of warranty then the owner should be able to do whatever they like (though they might run foul of other laws if they make it a danger to themselves or others.)

    The tractors are another issue that I can understand both sides of. I ‘like’ being able to fix my own gear – but I’ve also seen some dumb and even dangerous ‘mods’ done to get something done the tractor had never been designed to do (or run with important parts damaged/missing because ‘the harvest has to be done and done ‘now’.)

    • Oops, that should have been: ‘If the device is no longer [in] warranty …’

      So on that hand if the own wants to call the manufacturer and agree that their warranty is null and void then the manufacturer should give them an ‘unlocked’ update the owner can use to do as they will with their equipment (though the bank may not like there no longer being a ten-year warranty on something the owner still has five years of payments to make.)

  6. Be careful what you click without reading.

    I get one prescription annually through CVS Specialty Pharmacy. This year a month after I received it, I started getting emails from them asking me to register an account for reminders and “important information,” which I ignored. Then I got an email telling me I had a refill available and should register an account, which I ignored. When I got a second “refill” email, I called them just to make sure they weren’t mistakenly waiting for me to get a refill. No, they said, it must just be a mistake. Then I got another email. Then a phone call.

    Finally, I went out to see what it took to register and whether it would be useful. There was a box to click for the Ts&Cs, which I normally don’t read, but with all of the effort to get me to register an account, I did. Guess what it contained?

    “THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS”

    and this:

    “YOU AGREE TO PERIODICALLY REVIEW THIS PAGE TO DETERMINE IF THIS AGREEMENT HAS BEEN UPDATED. YOUR CONTINUED USE OF THE SERVICE FOLLOWING ANY UPDATES TO THIS AGREEMENT SHALL CONSTITUTE NOTICE AND ACCEPTANCE OF THE UPDATED AGREEMENT.”

  7. Software sleaze is nothing new. Whenever there is an opportunity to make an extra buck, there are people who will take it.

    Back in the 80s I had a product manager propose to me that development should code the software that would gradually degrade performance as TNR (the next release) approached to make it easier to sell upgrades. I thought it was a joke, but he was serious. I told him to boil his head, or words to that effect. Never knew what happened to him, nothing good, I hope. But a feature like that is an example of the Tesla type shenanigans.

    Sometimes, the line between gaming and honest design is fuzzy. I was always challenged by demands for “sticky” software from the sales side. Sticky software is software that the customer finds difficult to replace with software from another vendor. In my book, sticky software is well-designed software that does an important job so well that no one would ever want to replace it, but that is difficult to achieve. Software can also be made sticky with artificial tricks like idiosyncratic user interfaces that require expensive user retraining on replacement, or intrusive programmatic interfaces that make integrated products difficult to replace. But sometimes those idiosyncratic designs that make a product hard to replace were implemented because the idiosyncrasy improved the product for the customer.

    The problem is worse today because we have become more dependent on software. I believe that licensing rather than selling and letting the vendor retain control of the software offers big advantages to customers, but it opens a wide door to abuse by the unscrupulous.

    The advantages for licensing and retained control exist because software is different from physical objects because it is easily changed, flexible, and more complex than any other human construction. A rough measure of the scale of software complexity: most operating system distributions for smartphones have more lines of code than a 747 has parts– even counting the rivets.

    I wish it were not so, but complexity and flexibility shifts the full range of ways software can be used and fail beyond anyone’s capacity to test. That means that the safest way to deploy software is to allow (and require) the vendor to correct problems immediately, as they are discovered. I believe that vendors must be held responsible for their products’ fitness for purpose and use as long as the product is in use.

    Customers today must trust software suppliers in ways that are unnecessary for pure physical objects, or even the simple software of a few years ago. Since software and physical objects are intermingled more and more, the problem just gets worse.

    We are approaching a crisis, or maybe we are already in its midst, because our legal and governmental systems are not designed to support the level of trust required for the software and hardware we are building today. Cyber crime and aggression are on the rise for exactly the same reasons that governance of the relations between software consumers and suppliers are on shaky ground. We are at a point where computers will do more and more for us, or advancement will have to stop because people are not up to the challenge of working together with honesty and integrity.

    I am optimistic– I think we are up to it, but time will tell.

    • I believe that vendors must be held responsible for their products’ fitness for purpose and use as long as the product is in use.

      I received a recall notice from Ford, took the car to the dealer, and they installed an updated program. That’s it. No mechanical work.

      I forget the specific problem, but it was sufficiently important that I didn’t waste any time getting the car fixed. With mechanical recalls, a car may have the problem. With software, it does have the problem.

      • Not sure I understand your point. Are you saying that a badly designed mechanical part is not a problem until it breaks? Like a faulty air bag does not have a problem until it blows a metal fragment through your face?

        My distinction between software and hardware is one of degree. Software has reached a point in complexity where it is impossible to see all of its weaknesses. The mechanical aspect of many cars today approach that point, but I don’t think they reach the extreme of software.

        As I understand the airbag issue, the manufacturer did not anticipate the effects of humid environments. That’s not that much different from a software vendor who doesn’t anticipate the perspicacity and malignancy of hackerdom. In both cases, the weakness in the product is waiting for the wrong circumstance and in both cases, the vendor has responsibility.

        I think the real shift is that 50 years ago when you bought a car, you bought a lump of stuff and used it as you saw fit. Now, you purchase a guarantee that the car will do what it is promised to do and it will do it safely under reasonable circumstances. That is a big change and, to me, it’s more like a service contract than purchase of an object. Software is the same, but even more extreme because it so hard to anticipate all the issues.

        But I may be completely missing your point.

        • Like that 747, so many places where missing a few corroded rivets could bring down the plane, an error in the code could cause an accident in a car.

          Heck, my 2005 Dodge minivan has a bug in the code somewhere. The horn/lights will beep/flash when you hit the remote lock/unlock but it doesn’t work the actual door locks (nor will the door lock switch.) But they’ll start working again if I simply disconnect the battery for a few minutes – rebooting its little computers.

          The question becomes ‘Do we want every Tom, Dick, and Henrietta mucking about in the code they can’t possibly fully understand?’

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