I'm guessing you've never run a company into bankruptcy (which I take as a good thing.)

Bankruptcy is when liabilities exceed assets and cash doesn't exist. At that point the assets are sold to raise money to give pennies on the dollar to creditors. The assets are not "binned", they are sold. That includes intangible assets like domains, source code, hardware schematics, and so on.

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".

In essence you are taking one asset class and dictating how that class is disposed of. Why that class? Why not all of them?

Thirdly (I thought of another reason) it's trivial to simply store this class of asset in a separate structure, that has no liabilities and hence can't be bankrupt. It becomes simply a different asset class. (Separating assets from liabilities is a common business practice - even if a company "owns" their office, it's typically a different company.)

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.

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.)

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.

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)

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.)

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.

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).

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

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.

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.

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.

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 only problem I see is the licence cost (or should it cost anything for existing licence owners of bankrupt company).

I'm with you on software patents. On copyright (from which proprietary software is derived) I'm less convinced.

My argument is two-fold;

Firstly, copyright law is the only thing that allows Open Source and Free Software to exist. Copyright is the mechanism that grants an author control of their work, and is the mechanism that forces people building on OSS/Free Software to release code.

You talk about "ending proprietary software", which in turn means effectively removing copyright, since it removes the authors control over their source code.

Secondly, and from a completely different direction, killing proprietary software basically kills all the software people use.

Sure OSS is great at infrastructure. But it has performed poorly in becoming the software people care about. Without proprietary software there's no Chrome, Google Search, Gmail, YouTube, Facebook, Netflix, MS office, Dropbox, AWS, et al.

In infrastructure there's no iOS, Windows, Macs, Google services (aka Android as we know it) etc.

To argue that OSS has clones or replacements of this stuff is o miss the point that proprietary software created these products and markets. And for all the clones that may be out there most have < 10% market share, actually most have < 1% market share, because most clones are either poor refections or simply get their feature list from the proprietary work.

You argued quite the opposite, in fact, by claiming copyright (and not license terms) ensures open source software.

It is entirely possible to ban proprietary software in cases of human rights and public interest (e.g., open source medical firmware, to use the OP case) while maintaining copyright law even as it exists now.

Really, there are cases where this is obviously a change that needs to happen. Eg, if a company holds personal data, the agreements that allowed a company to obtain it should live across bankruptcy with the data, not be terminated if it is transferred.

This sort of arrangement is common in real property. For example, if you buy a house where you have to access it via some other private land, the agreement that you can do so is arranged in such a way that it can't be voided when that land is sold, even during bankruptcy. You can't do that for data AFAIK (would love for a lawyer to comment). It needs to be enabled and made mandatory in cases like this.

There is some limited ability to do this: creditors can get a "charge" registered against intellectual property, so theoretically in the OP's case one might be able to design a legal construct that would cause a bankruptcy court to give rights to some special purpose vehicle that is set up (in advance) to represent the patients. But I don't know if that would work in all cases

Please don’t let the following stop your thinking. We need many solutions.

FTA: He said that the company is no longer repairing exoskeletons older than five years because the Food and Drug Administration, which regulates the devices, has approved their usage for that timespan.

There are tradeoffs from supporting-but-not-really-supporting unmaintained products. Also, in this case, it sounds like they were missing hardware that wouldn't have been fixed by publishing the software.

- create a medical product

- apply for FDA approval and put code in escrow

- get approval

In case of bankruptcy or other types of failure to maintain product, release code from escrow.

Although I wonder what would happen in this scheme if you use someone else's IP while creating a product, or parts of your stack are also obsolete.

with respect to similar sorts of things, I think the library of congress used to get copies of copyrighted works. And patents have enough drawings and descriptions to (re)create what is being patented.

I don't know that this is how things are currently structured, but if a company was required to submit a device's source code as a condition of receiving a 510(k) clearance perhaps there should also be a condition that the FDA can release this code in instances where the public interest in doing so would outweigh the IP interests of some piece of abandonware.

Yeah who am I kidding that won't happen.

You are proposing extensive changes, with undeniably serious chance of side effects and your proposal doesn’t even address the issue from the article.

All owners of hardware should have a licence to inspect and modify the code it runs. Not necessarily open source, just something tied to the hardware itself at a bare minimum.