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> What you are proposing is akin to suggesting "any buildings should become public domain" or "any cars they own should go to a local charity".

I don't think this is accurate. I think they are proposing priority for the consumer in the hierarchy of creditors that is a little more specific about assets than the usual hierarchy.

All IP and licensing rights to IP could become specially encumbered during bankruptcy to enable a consumer priority on it, etc. I don't think it would be more difficult than some of the existing setup, but naturally much of the existing setup is more in theory than in practice.

Yup. This. The bankruptcy system already has tiered creditors (senior, junior, secured, unsecured) who take precedence in certain orders during bankruptcy.

In fact this already exists in accounts payable situations: customers may take precedence for goods not received before creditors, etc (depending on location and laws of course). But usually they don’t, sadly.

The "simple" answer is to handle these issues long before bankruptcy, with right to repair laws. It is not actually simple of course.

I don't think it would be unreasonable to mandate software for hardware products be pluggable in such a way that you can modify the runtime with hooks.

During the commercial, supported life of the product the consumer doesn't know any different. But at EOL, repair shops can make a market for "modules" that can do things like change the remote server a IoT device talks to. Removes requirements for DRM, fixes bugs etc.

Threat to commercial interests is really low here in my view, an average consumer pays for a product and pays for the SaaS portion because its convenient and provides value. Then the product reaches EOL and the aftermarket takes over. No different to say the long, exhaustive use of used cars (at least in the decades prior to digital integration in cars, it remains to be seen how the next two decades go re:software services ridden cars.)

I'm 100% behind right to repair.

But repairing hardware can be tricky (we've made hardware where the CPU got discontinued) - and of course repairing parts that contain firmware us another layer of hard.

As you point out mixing software and hardware (aka firmware) makes repair more-or-less impossible.

that's what documentation is for - give us the specs so that somebody somewhere can figure out how to replace it.

That’s the manufacturer’s problem to solve. It’s quite achievable.

> I don't think you're crazy, it's a good area to explore, but it's not practical to implement this in the business landscape we currently exist in.

It's relatively straightforward. You put the code or whatever else your customers need into escrow with a third party. The code gets released if you discontinue the product or it otherwise leaves the market.

You then market that you're doing this, so that everyone A) knows they can pursue getting access to the escrowed stuff, B) it's a selling point to remove some of the vendor risk, and C) it's not just a capricious action to undermine creditor rights.

Of course, it may be harder to borrow money if you do this. And customers are generally not savvy enough to require this (though if you do a large enterprise deal, requiring code escrow is not an unknown term).

As an option between developers and customers, of course you can do this now, and it happens.

That's very different though to a law that requires source to be released.

The former is something you do because you believe it gives you the edge in a sale.

The latter is a regulatory framework that imposes problems on everyone unilaterally.

Only everyone who goes bankrupt, and their creditors.

Rather the opposite for their customers.

I’m sure there’s a few cases where this would excessively hurt a company’s prospects (perhaps where a company has an innovative software product with a thin hardware component), but in the majority of cases losing access to the software of a hardware product as an asset is a relatively small loss, and the benefit to consumers is pretty huge. I’d support the trade off.

Putting code in escrow is usually done as part of the contract between the business and the customer, and the code is in escrow for that customer not for everyone.

The article talks about Medicare subsidising 80% of the purchase price for many customers. That'd be a fairly effective place to negotiate such an escrow contract.

Sure-- the point is the escrow infrastructure already exists. And it's been used the exact way I describe.

See e.g. https://en.wikipedia.org/wiki/Source_code_escrow#Software_op...

What would be the problem with making it a stipulation of the acquisition as a consumer protection law, regardless of the corporate structure? Either it goes to a buyer willing to take on the liability and continue operating it or wind it down cleanly in exchange for the IP (and bidders can price that liability in), or it goes to a government agency or NGO capable of open sourcing or extending its life.

I don’t know enough about how courts split up intangible assets like IP to suggest how to bundle it with this proposed liability, but I think it can be pushed up to insurance carriers like warranties are. Make the insurers liable so that they push the requirements downstream and make them first in line for the relevant IP as creditors. Allow them to argue in front of the bankruptcy court to define what bundle they are entitled to as creditors and them allow them to fire sale that bundle as part of the rest. If they can’t get enough to cover their calculations, they can dump it on the agency/NGO for free. (IANAL and I dont know what I’m talking about)

Define "continue operating it".

Let's say I buy a text editor from a bankrupt company. I take that code and incorporate it into my main product. You can buy the text editor separately, it just costs 20k (same as my main product.) Is that "operating it?"

Alternatively this asset is encumbered by these rules so no-one wants it, it gets Open Sourced. Creditors lose out on potential revenue to recover their losses.

Now let's assume the code base is 'large'. Maybe it contains licensed 3rd party code (shipped as source) maybe not. Someone has to check. Who's owning that someone to do the check? If the check misses code, and proprietary Google code gets released. Who will Google sue? (Hint: everyone)

The suggestion is flawed because it fundamentally changes the way assets are handled in bankruptcy. Or declares code not to be an asset (which in turn has unwelcome side effects.)

> Let's say I buy a text editor from a bankrupt company. I take that code and incorporate it into my main product. You can buy the text editor separately, it just costs 20k (same as my main product.) Is that "operating it?"

No, that’s operating a different product from the one customers of the bankrupt entity paid for. “Operating it” would mean stuff like decoupling the text editor from any service required to run it - like an extension server - by making just enough code open source to allow other users to run their own extension registries and updating the text editor binaries to allow setting custom endpoints. The acquirer can keep the rest of the code closed sourced and integrate it into their own products all they want. They can even stop updating the editor all together after they’re done fulfilling the requirements. The courts can decide where reasonableness ends with consumers in mind.

Honestly this seems like an intentionally obtuse example in a thread about a medical hardware product.

> Alternatively this asset is encumbered by these rules so no-one wants it, it gets Open Sourced. Creditors lose out on potential revenue to recover their losses.

Creditors lose out to higher priority creditors all the time. The #1 creditor should be the consumers who bought the products and have no protection otherwise (or maybe second only to unpaid employees).

> Now let's assume the code base is 'large'. Maybe it contains licensed 3rd party code (shipped as source) maybe not. Someone has to check. Who's owning that someone to do the check? If the check misses code, and proprietary Google code gets released. Who will Google sue? (Hint: everyone)

Binary blobs are fine for licensed code. That’s not new or radical (and even Windows is source available to the right customers). Licenses only extend far enough to allow the existing consumers to operate their devices. Besides, how would anyone acquire the IP without the components it licenses?

> The suggestion is flawed because it fundamentally changes the way assets are handled in bankruptcy. Or declares code not to be an asset (which in turn has unwelcome side effects.)

Yeah, I’m suggesting changes to bankruptcy and consumer protection laws. That goes with the territory.

This is why the concept of "source code escrow" exists, as well as escrow in general.

The assets the usually goto a ip archive content heapvto slowly rot and ferment, in the hopes they cozld one dsy become a payday as prior art.So its not like they are useful beyond patent trolling.

Yeah so ultimately this means source code isn't considered an asset, but rather an integral part of a product that has been sold. This is how it should have been all along. It's the fundamental point of the free software movement. It's also how it was in the beginning, before companies like Microsoft realised they could use law and technical means to sell knowledge as a product. I hope one day we can go back to this and look back at this funny time when people made us think knowledge was a product.

This is why I really like the idea of establishing communism