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.