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So here's my dumb little fantasy law, I'd love for anyone to tell me if this is stupid. 1. In the event of a bankruptcy proceeding, all source code for a hardw

So here's my dumb little fantasy law, I'd love for anyone to tell me if this is stupid. 1. In the event of a bankruptcy proceeding, all source code for a hardware product shall be open-sourced. 2. In the event of a hardware product that is dependent upon cloud services being discontinued, instructions for "rooting" the product, and the firmware source code shall be open-sourced. 3. Companies that acquire the rights to patents of bankrupt companies and discontinued products must keep the cloud servers going or open-source blah blah. The only serious counter argument I can think of here is the tangle of patents, to which I retort, the price of keeping the patents is keeping the furnaces powering the cloud servers running. Am I crazy here?

para_parolu 2y ago
I don’t fully understand how bankruptcy works but isn’t it just gives whatever you have to creditors? Source code and hardware designs fits into assets. No?
- ajb 2y ago
  Yes, thats the current law in most places. The op is proposing that not all agreements made by a company should be void on bankruptcy. 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
dangrossman 2y ago
Few companies write 100% of the software that runs on their hardware. If some insulin pump uses proprietary firmware licensed from Johnson & Johnson for some part of its operation, does Johnson & Johnson lose its entire firmware licensing business as soon as one customer goes bankrupt? Or are they forced to become a B2C company and manage and sell licenses to millions of people it had no relationship with before? Is it weaponizable: pick a competitor, get them to license some software to a shell company of yours that makes a token device with it, fold the shell company, and now the competitor is required to give away their firmware to the public (and you)?
- HeralFacker 2y ago
  Exactly. Proprietary software and software patents need to end. In the case of medical devices, such restrictions violate the ADA by blocking access to reasonable accomodations.
  - bruce511 2y ago
    >> Proprietary software and software patents need to end. 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.
Intralexical 2y ago
Case 2 probably ends up being hacked to mine cryptocurrency. If it's a prosthesis, I guess it secretly does delivery runs when you're sleeping. If you (a normal consumer) don't burn out the motor/blow up the battery while messing with it. 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.
- Eric_WVGG 2y ago
  :) that’s a sad but excellent point
fudged71 2y ago
Reminds me of oil well remediation
dirtyhippiefree 2y ago
Not crazy, but the actual issue was due to the FDA. 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.
onionisafruit 2y ago
Nobody would extend credit to software companies if that were the law
bruce511 2y ago
>> In the event of a bankruptcy proceeding, all source code for a hardware product shall be open-sourced. 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.
- ehnto 2y ago
  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.)
  - bruce511 2y ago
    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.
Rexxar 2y ago
Maybe it could be done by considering the technical dependencies as a debt toward customers that should be higher in the debt hierarchy. So if any debtor want the assets of a company, he will have to find a way to manage this sort of "technical/services" debt first.
m463 2y ago
I think what you really want is: - 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.
- numpad0 2y ago
  ^ this sounds like a long-term good plan to me. Submit all code to qualify, or not. That should be the standard for all authority-approved things globally.
- notjulianjaynes 2y ago
  There already exists some limitations from the FDA regarding software. For example if you receive clearance (NB this is different than approval) for a device which uses AI, it cannot modify its own source code and any changes need to go through the clearance process again. (Or something like that it's been a while since I looked this up.) 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.
krisoft 2y ago
What are we talking about here? The exoskeleton maker didn’t go into bankruptcy. The exoskeleton is not dependent on cloud services (or at least it is not reported that they would have gone away) and no company acquired anyone. You are proposing extensive changes, with undeniably serious chance of side effects and your proposal doesn’t even address the issue from the article.
- nfrmn 2y ago
  Exactly. The problem here is that the company has set a policy not to support $100,000 medical equipment after 5 years. Mind boggling - imagine if an aircraft manufacturer said the same thing. Using aircraft as an example, they are still in service after 50 years and parts still available for many of them. A similar approach should be taken to equipment like this exoskeleton
oliwarner 2y ago
Why do we need bankruptcy? That's way too late. 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.

para_parolu 2y ago

I don’t fully understand how bankruptcy works but isn’t it just gives whatever you have to creditors? Source code and hardware designs fits into assets. No?

ajb 2y ago
Yes, thats the current law in most places. The op is proposing that not all agreements made by a company should be void on bankruptcy. 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

dangrossman 2y ago

Few companies write 100% of the software that runs on their hardware. If some insulin pump uses proprietary firmware licensed from Johnson & Johnson for some part of its operation, does Johnson & Johnson lose its entire firmware licensing business as soon as one customer goes bankrupt? Or are they forced to become a B2C company and manage and sell licenses to millions of people it had no relationship with before? Is it weaponizable: pick a competitor, get them to license some software to a shell company of yours that makes a token device with it, fold the shell company, and now the competitor is required to give away their firmware to the public (and you)?

HeralFacker 2y ago
Exactly. Proprietary software and software patents need to end. In the case of medical devices, such restrictions violate the ADA by blocking access to reasonable accomodations.
- bruce511 2y ago
  >> Proprietary software and software patents need to end. 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.

Intralexical 2y ago

Case 2 probably ends up being hacked to mine cryptocurrency. If it's a prosthesis, I guess it secretly does delivery runs when you're sleeping. If you (a normal consumer) don't burn out the motor/blow up the battery while messing with it. 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.

Eric_WVGG 2y ago
:) that’s a sad but excellent point

fudged71 2y ago

Reminds me of oil well remediation

dirtyhippiefree 2y ago

Not crazy, but the actual issue was due to the FDA. 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.

onionisafruit 2y ago

Nobody would extend credit to software companies if that were the law

bruce511 2y ago

>> In the event of a bankruptcy proceeding, all source code for a hardware product shall be open-sourced. 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.

ehnto 2y ago
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.)
- bruce511 2y ago
  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.

Rexxar 2y ago

Maybe it could be done by considering the technical dependencies as a debt toward customers that should be higher in the debt hierarchy. So if any debtor want the assets of a company, he will have to find a way to manage this sort of "technical/services" debt first.

m463 2y ago

I think what you really want is: - 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.

numpad0 2y ago
^ this sounds like a long-term good plan to me. Submit all code to qualify, or not. That should be the standard for all authority-approved things globally.
notjulianjaynes 2y ago
There already exists some limitations from the FDA regarding software. For example if you receive clearance (NB this is different than approval) for a device which uses AI, it cannot modify its own source code and any changes need to go through the clearance process again. (Or something like that it's been a while since I looked this up.) 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.

krisoft 2y ago

What are we talking about here? The exoskeleton maker didn’t go into bankruptcy. The exoskeleton is not dependent on cloud services (or at least it is not reported that they would have gone away) and no company acquired anyone. You are proposing extensive changes, with undeniably serious chance of side effects and your proposal doesn’t even address the issue from the article.

nfrmn 2y ago
Exactly. The problem here is that the company has set a policy not to support $100,000 medical equipment after 5 years. Mind boggling - imagine if an aircraft manufacturer said the same thing. Using aircraft as an example, they are still in service after 50 years and parts still available for many of them. A similar approach should be taken to equipment like this exoskeleton

oliwarner 2y ago

Why do we need bankruptcy? That's way too late. 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.