The Concept of "Sale" is Under Attack

For the past two years I have been pointing out that the concept of "sale" is being eroded. Basically, companies have been claiming that the products they "sell" you are really only licensed to you. Unfortunately, a recent court decision seems to have bolstered that concept. The court held in Vernor v. Autodesk (PDF) "that the terms of an end-user licensing agreement, or EULA, can change the sale of commercial software into a mere license, in this case a license that prohibits users from reselling their copy of the software".  Today, both CNET and the Technology Liberation Front carried the story: "The end of software ownership--and why to smile" by Larry Downes. Well, I am not smiling.

For a website that is ostensibly based on Libertarian principles, the appearance of this article is particularly disturbing.  Mr. Downes makes this very surprising and unbelievable assertion: "replacing the regime of ownership with one of rental.  And, perhaps more controversially still, I try to make the case that such a dramatic change is in fact not, as most commentators of the decision have concluded, a terrible loss for consumers but a liberating victory."  It would appear that Mr. Downes is asserting that the average citizen does not have a right to property.  With that in mind, why should I be grateful that my right to own something is being taken away by a corporation?  With this line of reasoning, I should also be grateful to the government should they pass a law that requires that I  must eat "healthy food" and that I can't buy a big Mac. Seems like Mr. Downes is advocating a "Nanny State".

Beyond the simple right to property, there are other concerns:

1. No mention is made in the "End of  Software Ownership" of the consumer as possessing any rights what-so-ever. When one rents an apartment, the landlord is obligated to keep it in a livable conditions. Existing EULA's basically say, if it doesn't work, too bad. Not only that but the EULA's also grant companies the ability to change the rules post-sale (after-the-fact). So you buy (rent) a product and the next day the cost just doubled as expressed in a new freshly posted EULA that you never saw. You don't accept, well your license is terminated.
2. The upgrade cycle. Companies can now reach into YOUR computer to "brick" or turn-off stuff at their whim. So if XYX company unilaterally declares a perfectly good program obsolete they can turn it off. The customer has virtually no recourse? Intuit is a good example of this strategy.  At least in the "old" days you could use your software until it really broke or became obsolete.
3. You pay for something, the company says Oops we've had a change of heart and they remove the content without your permission.  Remember the removal of Orwell books from the Kindle. Due process for the consumer, you must be joking.
4.  In the "End of  Software Ownership" the statement is made that software rapidly becomes worthless. Well, it that is true - why should a company care about retaining ownership? If a product is worthless to the consumer then it is also worthless to the company. If a product is worthless, companies shouldn't care who owns it. In fact, Mr. Downes should be advocating that it be in the public domain so that the user community can determine when a product is truly "obsolete". To state that companies determine when a product is "obsolete" is arrogant and counter to the concept of the free market. In the free market, a product is obsolete when the consumers no longer desire to use it.

In fact the "End of  Software Ownership" seems like a precursor to new form of Communism. Instead of the State owning all the property, only corporations will have the right to own property. Welcome to the new workers consumers paradise.