Hacker Newsnew | past | comments | ask | show | jobs | submitlogin

You have framed this question in terms of your freedom to contract in order to restrict distribution. Although many think contractual freedom is paramount, that is not necessarily so. It may be bounded by other more basic legal principles. In your chips example, it may be bounded by property and competition law.

In property law, there is the concept of a restraint on alienation. In competition/anti-trust law, there is the concept of a post-sale restraint. The idea is simple: after you by the chips, they are yours and you can do with them what you want. Restricting resale also limits competition, which is bad for consumers. Whether this view trumps your freedom to contract is a legal question whose answer has varied over time.

Historically, such restraints were a problem for real property in England. An estate might have been held in "fee tail" to be passed on to heirs indefinitely. Society decided that land was not being effectively used in this way, so fee tails were broken by statute beginning in the 1800's. Your freedom to "devise by will" was limited in favor of the property right of alienation.

Software was traditionally sold to the end user, who could use or sell the product as he wished, subject to Copyright restrictions on making additional copies for distribution. Only recently did this property-like right erode in favour of the current norm where software is licensed under a plethora of contractual restrictions you may never have read (the EULA).



I see the circumscription of absolute property rights (e.g. right to limit redistribution) as an implicit admission that monopolies or cartels form even in well-functioning free markets.

If not, customers would be free to avoid onerous terms by choosing a competitor, thus disincentivizing their use in the market. Instead in our current world, I'm sure we can all think of companies who could easily impose the most draconian TOS restrictions & limitations on rights-after-purchase and yet would still sell approximately the same amount of product.

Ergo, we limit these rights by law.




Guidelines | FAQ | Lists | API | Security | Legal | Apply to YC | Contact

Search: