Whose hardware is it anyway?

With the recent launch of the Petition to protect Information Technology property rights at the Ottawa Linux Symposium (French translation in progress), we now move to the harder stage of explaining the petition not only to those who we want to sign it, but those whose activities we wish to influence. It is not only politicians who must help protect our property rights, but also software authors who we want to discourage from working with monopolies in the hardware manufacturing and content industries to circumvent our property rights.

I am drafting a paper titled "Protecting property rights in a digital world" that I hope to use to explain the different pieces of the puzzle.

Summary: We have works under copyright, media used to store these works, and hardware/software used to create, distribute and access these works. Each of these things has their own owners which must have their rights protected: authors (and non-creator copyright holders) of digital works, owners of the media (Physical CDs, etc), owners of the hardware, and authors/users of software.

We have a petition for users' rights which focused on the balance needed in copyright to protect the rights of past and future authors, as well as audiences. The current petition focuses entirely on the property rights of the owner of information technology hardware. Authors should strongly support us given it is not possible to protect their rights as authors of digital works without first protecting the rights of those who own the hardware used to produce, distribute and access digital works.

The rights of people purchasing media is important, as is the balance needed in software to protect the sometimes conflicting interests of various rightsholders. We have left these components for later discussions.

Who owns the hardware?

The important question we must ask is this: Who owns the hardware, and what rights should these owners of tangible property expect to be protected in the law.

As an owner of hardware I expect to be control of my hardware for any lawful purpose. Where there is software, I should have the right to replace that software with software of my own choosing, including the right to author and run my own software on the hardware if I have these skills.

Without this basic right, these devices will not be obeying the instructions of the owner, or protect the interests of the owner. Our property might be protecting the special interests of some third party who considers the owner to be a threat. There are many harmful aspects of this which can be understood by thinking of other things which we own, from our homes to our vehicles, and the harm to society if property rights were abolished.

While it is possible to commit crimes within our homes, or with our vehicles, we generally recognize it is inappropriate to revoke property rights in order to stop these crimes.

Car owners have quite appropriately rejected having speed controls built into their cars given it is impossible for technology to tell the difference between illegal speeding and a skilled driver trying to avoid a collision. When it comes to our homes, the idea of placing spy equipment or armed private security guards in our homes in order to protect the special interests of someone else should make every law abiding citizen cringe. The very act of monitoring our private lives can be more harmful than the crimes theoretically being avoided, and any monitoring and control can be abused for far more harmful and/or unlawful purposes.

Hardware manufacturers have their own special interests, some legal and some not legal. Giving hardware manufacturers control over our hardware is more likely to increase the severity of the lawbreaking by these manufacturers, not decrease lawbreaking by the owners of these devices.

Protecting our property rights!

While the need to protect the property rights of hardware owners should be obvious, even those in our community are not yet familiar with thinking of ourselves as property owners. An example can be seen in the public debate about the modernization of the GNU General Public License (moving to GPL Version 3).

In a recent article in CNet News.com, Linus Torvalds, the founder and leader of the Linux kernel project, was quoted as follows:

"Say I'm a hardware manufacturer. I decide I love some particular piece of open-source software, but when I sell my hardware, I want to make sure it runs only one particular version of that software, because that's what I've validated. So I make my hardware check the cryptographic signature of the binary before I run it," Torvalds said. "The GPLv3 doesn't seem to allow that, and in fact, most of the GPLv3 changes seem to be explicitly designed exactly to not allow the above kind of use, which I don't think it has any business doing."

I strongly disagree with Torvalds language, and disagree with his objections to the enhanced GPL.

If I purchase hardware, it is my hardware and is no longer owned by the manufacturer. If my hardware checks a cryptographic signature on a binary file to verify its origins, it should be my signature signed with my key since I am the owner of the hardware. It should be illegal for any hardware manufacturer, whether they are using GNU GPL'd licensed software or not, to use cryptographic signatures to lock the owner of hardware out of their own hardware.

While I am uncomfortable when people refer to infringement of intangible exclusive rights such as copyright as if it were "theft" (See the Jefferson Debate), I am quite comfortable stating that I believe it is theft of tangible property when hardware manufacturers lock out the owners of the hardware.

Unfortunately many governments have attempted to dodge any responsibility of protecting the hardware property rights of their citizens from attempts by hardware manufacturers to circumvent their rights. This has left gaping legal loopholes in many license agreements which assumed basic property rights were protected.

The GNU GPL was written with the assumption that the owner of hardware could not be locked out of their own hardware. This meant that if the owner of the hardware had the full source code to software, and a legal license that protected it as Free/Libre and Open Source Software (FLOSS), then the owner of the hardware would have nothing that could restrict them from running the FLOSS on their own hardware. Being able to run the software is the first condition for software being FLOSS, and holes in the law should not be able to be used to circumvent the intent of a FLOSS license.

There should be no controversy about the provisions of the GPL which protect property rights, and to be honest I am stunned by people like Linus Torvalds who disagree. I wonder if his disagreement relates to personality conflicts with people within the Free Software Foundation. Whatever the personalities, we all have a responsibility to help protect the rights of information technology property owners. Without the right of hardware owners to install software of their own choosing, FLOSS has no future as hardware vendors will be able to revoke these rights from us. It is unfortunate that thus far the GNU GPL is the only FLOSS license that is seeking to help protect our property rights.

Not only should we be actively trying to educate members of our community, we also need to educate the general public and politicians. People who purchase information technology hardware must think of themselves as property rights holders, and the government must step forward and protect these rights, rather than allowing hardware manufacturers to infringe our rights.