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