October 23, 2015 | By Kit Walsh

Senators Probe Copyright’s Impact on Software-Enabled Devices

Senators Grassley and Leahy, the Chairman and Ranking Member of the Committee on the Judiciary, have published a letter to the Copyright Office asking it to analyze the impact of copyright law on “software-enabled devices” (such as cars, phones, drones, appliances, and many more products with embedded computer systems). This issue is crucial because technology and the law have evolved in a way that no one could have intended when Congress wrote the present copyright laws, and that evolution has restricted customers’ freedoms to repair, understand, and improve on the devices they buy.

Many problems with the current state of the law have been catalogued: Security researchers, patients with networked medical devices, smart phone owners who want to switch carriers or to improve their phones, and auto repair communities have all come forward asking for relief from one of the most problematic laws, Section 1201 of the Digital Millennium Copyright Act. And those communities represent just a handful of the twenty-seven categories being considered for exemption from Section 1201 in this one proceeding.

We’re pleased to see the senators expressing an interest in the problems posed by copyright in software-enabled devices, and we will continue to push for copyright reform as this process unfolds. In our view, there is already an extensive record establishing the need to rein in Section 1201, to protect device owners from copyright abuse enabled by end-user license “agreements,” and to pass other reforms that would generally improve copyright law such as reducing statutory damages and the length of time that copyrights remain in force.

At this time, the senators are not proposing any particular reforms, merely asking the Copyright Office to conduct a study and take input from the public. In particular, they ask the Copyright Office to report on:

  • the provisions of the copyright law that are implicated by the ubiquity of copyrighted software in everyday products;
  • whether, and to what extent, the design, distribution, and legitimate uses of products are being enabled and/or frustrated by the application of existing copyright law to software in everyday products;
  • whether, and to what extent, innovative services are being enabled and/or frustrated by the application of existing copyright law to software in everyday products;
  • whether, and to what extent, legitimate interests or business models for copyright owners and users could be undermined or improved by changes to the copyright law in this area; and
  • identify key issues in how the copyright law intersects with other areas of law in establishing how products that rely on software to function can be lawfully used.

This will be an opportunity to let policy-makers know what small creators, innovators, scholars, and other ordinary people think about copyright law and push back on the one-sided agenda that manifests in secret deals like the TPP. We’ll let you know when the Copyright Office announces its plans for receiving public input, so stay tuned.


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