*countable infinities only

Chris Murphy lists at colorremedies.com
Mon Jun 18 22:08:57 UTC 2012


On Jun 18, 2012, at 2:45 PM, Adam Williamson wrote:

> Re-reading my paragraph above, I admit I phrased it somewhat badly. A
> convincing case could at least be made, under the first sale doctrine,
> that you have the right to _try_ and retrofit alternative operating
> systems onto any device you purchase.

I don't see how first sale doctrine applies. The doctrine applies to copyright IP, not physical hardware. And the doctrine applies only if you purchased/own a copy of the copyrighted work. If you own it, you can sell that particular instance. If you licensed or rented it, you can't. Modification/retrofitting isn't indicated in the doctrine.

> As I said later in my mail, the
> question of whether doing it when the manufacturer has made no provision
> to let you do it or has actively tried to prevent you doing it can ever
> be illegal is really kind of a side issue to the main debate in this
> thread, and I'm trying to avoid it.

I understand the desire to avoid, but it's not so easy because everything comes with EULAs or SLAs these days. And that even includes UEFI. The EULA can of worms escaped over a decade ago and no one really bothered to care.

I haven't read other vendors' SLAs for EFI, but Apple has one and it asserts the software is licensed, not owned. Therefore if I agree to the license, first sale doctrine definitely doesn't apply, and presently established case law supports this contention. The agreement expressly defines the terms of how I can make a one time permanent transfer of all of the software and hardware together as a bundle - without that, having previously agreed to the SLA, I wouldn't be able to sell the hardware because I wouldn't be able to sell the EFI software or OS which I do not own, but merely license.

If I agree to the license, further I can't decompile, reverse engineer, disassemble, decrypt or modify the software at all.

If I don't agree to the license, then I'm not to use the software. So on the face without further investigation, it seems like wholesale removal of their EFI is permissible. Whether it's possible or practical, for this or non-Apple hardware, I have no idea.

This ideology is a problem for ebooks also because publishers are asserting these are not sold copies, but either rental or licensed copies. They are asserting you cannot give away purchased ebooks, to a library, to your mom, anyway. Some have borrowing terms, which are time limited, and frequently a one time deal for life. So this paradigm is quite dangerous compared to physical books under which first sale doctrine absolutely did (and does) apply.

> 
> What I should have said is that we have no God-given right to demand
> that any computing device offered for sale must be explicitly designed
> to accommodate the retrofitting of other operating systems or software,
> or indeed to demand that any device available not be designed expressly
> to prevent it. What I was trying to correct was an impulse to assume
> that the x86/BIOS world where systems are explicitly designed to make
> execution of arbitrary code easy is the One True Way for things to be,
> rather than an accident of history, and anyone doing anything different
> must inevitably be guilty of some kind of crime or immorality and must
> be fought to the last ditch.

That is how I understood the original text.

Chris Murphy


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