Own Your Own Devices You Will, Under Rep. Farenthold's YODA Bill

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By Tamlin Bason

Sept. 19 — A bill introduced Sept. 18 would make clear that consumers actually owned the electronic devices, and any accompanying software on that device, that they purchased, according to sponsor Rep. Blake Farenthold's (R-Texas).

The You Own Devices Act (H.R. 5586) would amend the Copyright Act “to provide that the first sale doctrine applies to any computer program that enables a machine or other product to operate.”

The bill, which is unlikely to receive attention during Congress's lame-duck legislative session, was well-received by consumer's rights groups.

“This bill takes a crucial step forward in an often-overlooked area of the law,” Sherwin Siy, vice president of legal affairs for Public Knowledge, Washington, said in a statement issued Sept. 19. “People should be able to sell, lend, borrow and give away the things that they own without worrying that their transactions will be booby-trapped by copyrighted works embedded in their own devices.”

Bill Would Amend First Sale Provision

Section 109(a) of the Copyright Act, 17 U.S.C. §109(a), serves as the foundation for the first sale doctrine. H.R. 5586 would amend Section 109(a) by adding a provision covering “transfer of computer programs.” That provision would state:

if 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 pro gram, 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.

‘Things' Versus Software

Farenthold had expressed concern during a Sept. 17 hearing on Section 1201 of the Digital Millennium Copyright Act over what he perceived was a muddling between patents and copyrights when it comes to consumer products. 

“Traditionally patent law has protected things and copyright law has protected artistic-type works,” he said. “But now more and more things have software in them and you are licensing that software when you purchase a thing.”

Farenthold asked the witnesses if there was a way to draw a distinction in copyright “between software that is an integral part of a thing as opposed to an add-on app that you would put on your telephone.”

H.R. 5586 seeks to draw that distinction.

“YODA would simply state that if you want to sell, lease, or give away your device, the software that enables it to work is transferred along with it, and that any right you have to security and bug fixing of that software is transferred as well,” Farenthold said in a statement issued Sept. 19.

To contact the reporter on this story: Tamlin Bason in Washington at tbason@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Full text at http://pub.bna.com/ptcj/HR5586Sept19.pdf.