May the Device Be With You: YODA Reforms Copyright Resell Rights

Copyright does not apply in the same way to computer code and software as it does to literary works and works of art. For example, if you purchase a book from a bookstore, you obtain usage rights through the "first-sale" doctrine of copyright law. This means that you have the right to resell the book either privately or through a third-party system. However, in computer-related fields, developers often impose an end-user-license-agreement (EULA) that restricts the user’s rights to a limited or personal license. Such agreements have become industry standard tools to limit ownership rights in digital media

As digital devices take center stage in our daily lives, there is greater incentive to limit how EULAs and other restrictive licenses on software provide a cause of action for copyright violations through resale. Spearheading the legislative efforts, Representatives　Blake Farenthold (R-TX) and Jared Polis (D-CO) reintroduced the "You Own Devices" Act (YODA) on February 11, 2015. YODA, which is a proposed addition to Section 109 of the Copyright Act, would effectively prevent copyright infringement claims under EULAs and similar agreements by establishing a right to transfer a device:

[I]f a computer program enables any part of a machine or other product to operate, the owner of the machine or other product is entitled to transfer an authorized copy of the computer program, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or other product to another person. The right to transfer provided under this subsection may not be waived by any agreement.

Under YODA, if you originally had the right to receive the latest patch on a piece of software for your smartphone, but then sold your phone to someone else, that new owner would have inherited the same rights as when the purchase was completed.

Not only does YODA help standardize the application of transfer rights across all forms of expression protected under copyright law, but also it embodies the long-held fixture rule from property law. Dennis Crouch, a law professor at the University of Missouri School of Law and author of the popular patent blog "PatentlyO," provides the rationale—that once personal property has been fixed to a certain piece of land, that property becomes a part of the land and can be sold with it. As the law stands today, EULAs create an issue akin to selling several acres of farmland, but refusing to sell the barn sitting in the middle of the field. YODA seeks to rectify this absurdity.

While YODA’s focus and end goal is limited to transfer rights for devices, it at least sparks the conversation on the merits of broadening the current limitations on software and digital media.

Source: Gigaom