It seems clear enough that copyright law ought not prevent users from programming a digital device that they own outright. We at R Street have said this before about tractors and in our recent filing with the Copyright Office, we got the chance to say it about digital toasters, too.
The fact is, lots of things we buy these days have software in them. Even toasters. And for various reasons that mostly don’t have anything to do with the things copyright law is intended to protect, it may be illegal for you to sidestep built-in “technological protection measures” to alter, upgrade or replace the software on a device you own.
In our recent filing to the Copyright Office, we support exemptions that seek the ability to bypass technical protection measures, sometimes called TPMs. Section 1201 of the Copyright Act provides a broad definition of what qualifies as a TPM. As we wrote in our filing:
Section 1201 is presumed to reach all sorts of circumventions done by people simply trying to fully use, modify, or otherwise explore the computing logic of the devices they legitimately possess. Whether it is to be able to connect a mobile device to another network, discover the vulnerabilities of a medical device, repair a broken tractor, or simply ensure that one’s TV is not spying on them, Section 1201 deters all these non-copyright activities because of the overly expansive definition of a TPM. A default assumption appears to have evolved that for all intents and purposes a TPM is anything that controls any access, including access to the computing logic of a device. This definition appears to be predicated on the fact that a TPM may itself be a piece of software, and software may be copyrighted, even though the circumvention has little to do with affecting the exclusive rights of whatever copyright that software might have.
Our view is that significant restraint should be exercised before the Copyright Office decides that a person is bound by law not to modify anything that has software in it. Here are some highlights from our filing:
- Problems are created by copyright law having extended its reach far beyond where it was intended.
- Copyright law should not interfere with how people may freely use, modify or transfer electronic devices generally.
- Changes we support: reducing the burden of petitioning for and substantiating needed exemptions; creating permanent exemptions, though every exemption sought represents a use that has already been chilled; and recognizing that no amount of exemptions can possibly cover the universe of presumptively lawful uses, yet to be imagined, of things with software inside them.
- Neither the Librarian of Congress nor the Copyright Office is endowed with the authority or expertise to be an all-purpose evaluator of how people use their computing technology or judge its effects
It seems pretty clear to us that non-copyright interests have no place in a Section 1201 rulemaking proceeding. Thus, circumventing TPMs for activities that do not infringe copyright and in ways that do not affect copyright interests should not result in a civil or criminal penalty. The body of copyright law should not be used to chastise people for violating interests which are not properly within the ambit of copyright law to begin with.
Copyright law exists “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That’s it and that’s all. The Founding Fathers saw fit to put it in Article I Section 8 Clause 8 of the Constitution. I feel safe saying they didn’t intend that clause to put people in jeopardy because they want their bread toastier or for any other similarly trivial reason.