Digital Sale Of Goods Protection

I've been giving some thoughts about the idea of a Digital Sale Of Goods act which is currently being discussed at the EU level. I've not looked at the details of what they have planned, it's more exploring the idea and it's implications. I do note the BSA are bleating about it and urging their employees to vote against it, so it may be more balanced than we could have hoped for.

The principle is that every digital product you purchase comes with some legal duties on the providers to ensure it's quality, that it's fit for purpose etc. If you buy a car, drive it away and a week later the steering wheel comes off in your hands it was clearly not fit for purpose and you have some rights under the law to get redress. Right now this excludes digital products like downloads.

One of the arguments against this protection is that the "fit for purpose" is about the time of sale, but in the case of software it needs updated, which means it's technically not the same software as the version you paid for. On the other hand, there is a warranty period which is part of the value when you pay for it, and that warranty requires the company to update it. This logic would mean that it has to be guaranteed "fit for purpose" for the length of the warranty, including updates.

What happens with free (charge) software? With physical goods, even free cost goods have to be of a certain standard in terms of health and safety but I'm not sure how much more. Would the same apply to digital goods? Can you apply "health and safety" to bits and bytes? Maybe it's about what the software is supposed to be doing or is actually doing. On the other hand, any software that affects someone's health like running a heart monitor sure as hell wouldn't be free (cost). It'd be paid software with separate legal guarantees of reliability, not to mention lots of insurance coverage.

If the vendors are responsible legally for the software where does that leave FOSS? Some projects have an organised framework behind them like RedHat or Canonical, but many are just varying sized groups of individuals who come together to share a common itch. If a small three person project are suddenly legally and financially responsible for their product, one lawsuit could bankrupt all three devs. Or would there be a separate exception for community projects? If so, how can they compete when nobody will use them, because they are exempt from consumer protections?

At consumer end user level this may not be so much of a big deal, but imagine the embedded Linux usage. Right now there's a LOT of Linux devices in peoples homes and they don't know it. Would Samsung or LG embed Linux into their TVs if it exempted them from consumer protection? Or would the liability be passed onto the corporate entity who charged for the goods? The customer didn't buy a Busybox TV, they bought a Samsung one which happened to have Busybox inside.

The one area I can see this idea working, is another one the copyright cartels won't like. It's downloaded media like music, movies, TV shows and ebooks. Those are read only items. You don't buy an ebook to edit it, you buy it to read it. There is therefore no need to change it's status at any time, let alone inside a year. Where this hurts the publishers is their insistence on consumer hostile DRM.

If they shut down a DRM server, anything bought within the last year suddenly stops working, and becomes their responsibility to fix. The fix of course is to avoid DRM in the first place. That way songs you buy now will still play ten years from now. Well, assuming the file formats and codecs are patent and licence free that is. Why is this important? Imagine Amazon change the spec of their .mobi files and the version of their Kindle five years from now. they tell you "just buy your ebooks again in the new .mobix format, there is no converter" your .mobi books don't work on the current devices.

Some third party will make a converter right? Maybe, maybe not. Depending on how Amazon use / abuse their IP. They may refuse to allow it to be used in any conversion application, and legally shut down any application which implements it. With closed formats, the corporation who owns the patents controls how they are used.

With physical goods there is consumer protection within the warranty period, after that it will degrade in it's own time. The vendors can't sabotage it and kill it remotely like they can with digital goods and DRM. Even if the specifications for the formats don't change, all it takes is the vendor to be sold, or switch it's DRM servers to a different technology and all those songs you bought five years ago are useless to you. They didn't degrade at your end, they just won't authenticate. The bottom line is that any consumer protection for Digital goods will kill DRM.

Another complication comes in the shape of "who owns the product". Almost everything you pay from from large corps is licensed. You don't buy a music CD, you buy a CD and a licence to use it in ways the publisher allow. If they say you can't play it on a PC, they will put DRM on it to detect a PC and refuse to play. If they say it can't be ripped and put on your mp3 player they will do the same, put DRM on it to detect and refuse to be ripped. If you buy Windows, you're not buying Windows, you're buying a licence complete with a EULA telling you exactly how you can and can't use the software you just "bought". The point of a license is that ownership never changes. It's still owned by it's creators after you "bought" it.

If you never own it, it becomes a lease, even if it's a one off fee at the time of sale. Since it's advertised wrongly as a "sale" it has a warranty period. Is the lease time the same? Or will they be forced to call it what it is; a license. If that happens the illusion that the vast majority of people have been living under will vanish overnight as 90% of the goods they previously saw for sale suddenly become "for rent".

If you bought say Microsoft Office 2003 back in 2005, and now with your new PC you decide to buy Microsoft Office 2010 you can uninstall Microsoft Office 2003 and sell it right? Wrong. Even though the license is for a current install, one serial per installation, and that installation is no longer there the license can't legally be transferred. Well, it might, by contacting Microsoft and asking their permission, and paying any "administration" fee they choose to impose.You thought you bought Microsoft Office 2003 didn't you? You also thought you bought Microsoft Office 2010.

If you buy a new TV to replace your old but still perfectly functional old one, the old one is yours to do with as you like. Physical goods can be passed on, loaned, given away or sold by the person who originally paid for them. Digital goods can't because they're infested with DRM and a EULA which prevents it. How does a piece of paper prevent it? Ask people on eBay who try to sell unused software licences and get charged with fraud for it. I'm sure they will explain the details, as explained to them by their lawyers, the Police and sometimes the courts.

What happens about your data created in software which uses proprietary formats? The software itself may be forced to be "fit for purpose" for the length of it's lease period or warranty, but people use software to create data. They create spreadsheets, word processor letters, photographs, movies and a whole lot more. The vendors use changing specifications in the file formats to force people to buy new versions of software they already paid for and don't necessarily need the new versions for any new features.

Would they be required to maintain support for older versions because consumers have data in formats that require that version of the software to open? If so, for how long? Again it comes back to a company killing a customers data long after they bought it. Would they be required to inform consumers in a meaningful way that saving their data in the software's preferred proprietary formats is a risk and advise the open route? For this they'd have to properly support open formats, anything less and it fails the day one "fit for purpose" test. If they are forced to do open formats they lose the lockin that many companies still seem to prefer, which forces them to actually compete for consumers. How many companies who claim to be "the consumers choice" know the only reason they are where they are is because of the lockin and that their consumers data is held hostage so they can't change?

This is the real reason the various copyright holders are desperate to set their lobbyists on the case to kill the bill. There are lots of different angles to this as an idea that I haven't covered here, these were the ones that sprung to mind around the concept. I guess I'll have to take some time to look at exactly what's being proposed to see if it addresses any of this.