Tag Archives: digital locks

Will Dicta from Impression Products v. Lexmark Lead to the Ability to Control Your Own Devices?

OG-CopyrightWeek2

Today we’re celebrating Copyright Week! Today’s topic is “Controlling Your Own Devices: As software-enabled devices become ubiquitous, so do onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it – meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.”

Due to an ambiguity in the text of the Digital Millennium Copyright Act (DMCA), the anti-circumvention provisions can be read to make the very act of circumvention of a technological protection measure (TPM), or “digital lock,” an infringement of copyright — even if there is no underlying copyright violation. While logic would suggest that there is a violation only if the circumvention is being used to infringe copyright, some courts have held otherwise. As a result, circumventing TPMs can be risky, even if the user is simply trying to engage in a fair use, which would be completely permissible in the analog world.

The Supreme Court has never ruled on this ambiguity, but a case decided at the end of its term last year involving exhaustion of rights in a patent case, included some dicta that seemed to favor the ability of individuals to repair the items they own. In Impression Products v. Lexmark International, the Court found in favor of international exhaustion of rights, finding that a patent holder cannot enforce contractual restrictions on downstream sales in patent infringement cases.

While issues regarding TPMs and anticircumvention were not raised in the case, as a policy matter, the majority opinion detailed the dangers that would occur without exhaustion and used the right to repair as an example:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.  Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits.  Either way, extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain.  And advances in technology, along with increasingly complex supply chains, magnify the problem.

The use of auto repair as an example of the problems created through overzealous claims of intellectual property protection is a compelling one given the issues of embedded software in automobiles and anti-circumvention measures. With a growing number of vehicles containing embedded software, some rightholders are claiming that purchasers of these vehicles should not be free to modify, repair or tinker with these items. An article in Wired in 2015 highlighted the fact that John Deere (and other automakers) opposed an exemption to allow circumvention of technological protection measures in order to repair purchased vehicles during the DMCA 10201’s triennial exemption process.

While the use of embedded software continues to proliferate in our everyday household objects, a common sense approach must be adopted to ensure that we can repair objects we’ve purchased in the same way a consumer would have been free to repair his car, toaster or washing machine in an era before “smart” technology.

LCA Submits Comments on Section 1201 to the Copyright Office

*This post is written by Caile Morris, ARL Law and Policy Fellow*

The Copyright Office published a notice of inquiry on December 29, 2015, announcing a public study to “assess the operation of section 1201 of title 17, United States Code, including the triennial rulemaking process to adopt exemptions to the prohibition against circumvention of technological measures that control access to copyrighted works.” ARL, along with the American Library Association and the Association of College and Research Libraries, submitted comments and reply comments through the Library Copyright Alliance (LCA). Both the comments and reply comments expanded on section 1201’s fatal flaw: that the language of the statute has the potential to prohibit circumvention of technological protection measures (TPMs) for lawful purposes.

Comments

On March 3, 2016, LCA filed comments on section 1201 in response to the Copyright Office’s notice of inquiry. The core message is that the failing of 1201 is its potential to prohibit not just unlawful infringing activities, but also circumvention for lawful purposes. The comments explore section 1201 prior to enactment, efforts to amend 1201 following enactment, the circuit split that has resulted from the flawed language, and recommendations for how 1201 might be amended.

LCA points out the difficulties in applying 1201, as evidenced by the current circuit split. Critics have noted that 1201 could chill legitimate purposes, such as research into computer security and prevent lawful copying under the fair use doctrine or library exception codified in the Copyright Act, and generally promote anti-competitive effects. As LCA’s comments point out,

These critics’ worst fears about the anti-competitive effect of the statute seemed to be validated when two dominant companies attempted to use section 1201 to threaten competitors in aftermarkets. The [Federal Circuit’s] Chamberlain case involved universal transmitters for garage door openers, while the [Sixth Circuit’s] Lexmark case involved toner cartridges for printers. Fortunately, the judges in these cases interpreted section 1201 in a manner that prevented its anti-competitive use. The Ninth Circuit’s decision in MDY v. Blizzard, however, has challenged this interpretation.

The LCA comments address the triennial rulemaking to adopt temporary exemptions to section 1201(a)(1)’s prohibition on circumvention as “an exercise in legal theatre” because the rulemaking only applies to the prohibition against circumvention of TPMs, but not to the prohibition of the development and distribution of circumvention tools. This, in effect, makes a legally permitted activity difficult to carry out, as the tools necessary to do so are potentially illegal to acquire. Other burdens of the process include high costs in time and money, lack of representation for the average member of the public, the language of the exemptions becoming increasingly convoluted, and having to petition for previously granted exemptions every three years de novo.

LCA’s comments recommend several possible amendments to section 1201 in order to resolve the flaws. For example, LCA endorses the approach of the Unlocking Technology Act of 2013 which attaches liability to circumvention only if infringement is enabled. In the alternative, additional permanent exceptions should be enacted for educational uses, the print disabled, and embedded software. Additionally, the rulemaking should apply not only to section 1201(a)(1), but also to sections 1201(a)(2) and (b). LCA also recommends that final rulemaking authority be shifted to the Assistant Secretary of Communications and Information of the Department of Commerce, because that office has more expertise in evaluating adverse effects of a circumvention prohibition. Furthermore, an opponent of a previously granted exemption should bear the burden of demonstrating why the exemption should not be renewed or modified, which is under the purview of the Copyright Office to change; nothing in the language of section 1201 dictates that review of the triennial rulemakings should be de novo. Finally, the language of the exemptions should be broader and simpler, promoting easier application of the exemptions by the public.

Reply Comments

On April 1, 2016, LCA submitted reply comments primarily responding to the comments of other participants in the notice of inquiry, while reiterating the importance of amending the central flaw of section 1201.

The reply comments identify a “leap of logic” by many content and rights holders industries comments that TPMs would fail but for the legal prohibitions on their circumvention and the creation and distribution of circumvention tools. In particular, the joint comments of the Association of American Publishers, the Motion Picture Association of American, and the Recording Industry Association of America argues that “the protections of Chapter 12 have enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive….” In reply, LCA points out, “if TPMS are so weak that they must be bolstered by legal protections, then why employ TPMs in the first place?” Just because TPMs are important for a business model does not diminish their effectiveness absent legal protection. In addition, there is no real evidence that legal protection of TPMs has contributed to how effective they are. LCA argues that even if there is positive impact from section 1201 as currently written, that the negative impact far outweighs the positive, and revision is justified.

Going forward, the Copyright Office will hold public roundtables to continue its study of section 1201 on May 19 & 20, 2016 in Washington, DC, and May 25 & 26, 2016 in San Francisco, CA. Members of the public are invited to participate, and must submit a request form by April 18, 2016.

LCA Applauds Re-Introduction of the Unlocking Technology Act

On March 24, 2015, U.S. Representatives Zoe Lofgren (D-CA), Thomas Massie (R-KY), Anna Eshoo (D-CA) and Jared Polis (D-CO) re-introduced the bipartisan Unlocking Technology Act, a bill that would permanently allow consumers to unlock their cell phones and also allow the opening of digital locks for other legitimate uses.  LCA applauds the re-introduction of this legislation which would facilitate legitimate uses of digital media and technology.

This bill improves on the Unlocking Consumer Choice and Wireless Competition Act, passed by Congress in July 2014, which renewed the previously granted exemption to allow consumers to unlock their cell phones after the Copyright Office failed to renew the cell-phone unlocking exception in its 2012 triennial rulemaking process.  The Unlocking Technology Act permanently fixes a central flaw of the Digital Millennium Copyright Act (DMCA) which can be interpreted to allow for liability for opening a digital lock even where there is no copyright infringement.  The bipartisan bill would free non-infringing uses of digital media and technology and allow the creation and distribution of the tools necessary to facilitate such legitimate uses.