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Where Copyright Fails, New Laws and Guidelines Help Secure Your Right to Tinker

DEEPLINKS BLOG
January 20, 2015

Where Copyright Fails, New Laws and Guidelines Help Secure Your Right to Tinker

It may seem odd to say so during Copyright Week, but copyright in itself isn't very important. Sure, EFF expends a lot of time and energy arguing about copyright law, and some of our adversaries spend even more. But we don't do so because copyright has any independent value. Rather, its value is derived from its ability to “promote the Progress of Science and useful Arts” (in the words of the US Constitution), as well as to promote other important values such as the rights to freedom of expression, privacy, education, and participation in cultural life.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of the law, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

Conversely, the menace of copyright law lies in its potential, when enacted or applied without due balance, for it to subvert those very values. When copyright monopolies are misused to attack the rights or hinder the freedoms of users, we often instinctively turn to copyright law for a remedy—but just as often, we may not find it there. (Fair use, although important, only goes so far.)

That's when we need to turn to other areas of law for recourse, including competition or antitrust law, consumer protection law and privacy law. We can also look outside the law altogether, to norms and technology that can also help rebalance the interests of copyright owners with those of users; for example open access policies, and (so far as the law allows) circumvention tools.

Consumer Law and Your Digital Devices

Take, for example, the right to tinker with your own digital devices. Why does copyright law interfere with this at all? It flows from the rather flimsy legal construct that a device vendor is also licensing you the software that powers that device, and can tack on various conditions about how you use that software, and thereby the device it runs on.

Remember that brochure of small print that you received along with your product warranty? Or the 20 pages of text that you scrolled through before clicking “OK” when setting up your device? Chances are, the vendor intends that these non-negotiable tracts of legalese will control how you can lawfully use your device, typically purporting to prohibit you from reverse-engineering it, and perhaps allowing them to monitor your use of the device or to push software updates that you might not want.

While copyright law does little or nothing to stop this, consumer protection law increasingly does. In Europe and Australia [PDF], courts have long held much more power than in the United States to rule the terms of End User License Agreements (EULAs) invalid if they are unfair for consumers. Similar rights to nullify unfair contract terms will commence in New Zealand this March.

Canadian Law Outlaws Covert Installation of Software on Your Device

In Canada, new provisions of its Anti-Spam Law came into effect last week, requiring consumers to give their express consent before any software is installed on their device, in addition to explicitly notifying the consumer if that software would collect their personal information, interfere with the settings or data on the device, “phone home”, or include a backdoor allowing software to be activated remotely.

Although routine software updates are exempted from this law (as are Web scripts and operating systems), notification would be required for updates that contain functions the user hasn't previously consented to—such as the notorious Sony Playstation 3 update that clobbered the ability for users to run other operating systems.

UN Guidelines for Consumer Protection

Whilst these provisions are all well and good, what about the rest of the world that doesn't have such laws? Last week we drew attention to a proposal at the United Nations for the revision of its Guidelines for Consumer Protection, that although non-binding, would raise the bar for consumer protection worldwide. We also raised concern that the scourge of DRM has been completely overlooked in the draft. Since then, we have been joined by global NGO Consumers International who backed up our criticisms [PDF], stating that “insufficient weight is attached to consumer rights in terms of usage and transfer of digital products”.

As we pointed out in our submission, where copyright falls down in protecting consumers of digital products and services, consumer law can and should step in. The proposals that we support for the Guidelines would help to partially address the DRM problem, by upholding users' expectation of having similar rights over digital products as physical products, preventing vendors from locking up devices to prevent reasonable, lawful and safe uses, safeguarding user privacy, and ensuring any DRM and interoperability limitations are fully and clearly disclosed.

The meeting to discuss the amendment of the Guidelines for Consumer Protection takes place in Geneva on Thursday and Friday of this week, and there is still time to add your voice in favour of our proposals by telling the FTC or your country's consumer agency to read and support our submission.

Ultimately there is no single strategy that will fix the problems created by unbalanced copyright law. Rather, real change will require the sustained and coordinated application of a combination of measures from law, policy and technology. Amongst the legal avenues that we have, strengthening and making better use of consumer protection laws looks like one of the most promising.

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