Fair Use as Consumer Protection
Talking about fair use often means talking about your right to re-use existing copyrighted works in the process of making something new - to make remixes and documentaries, parodies, or even to build novel Internet search tools. But now that copyright-protected software is in almost everything (including our cars, our toasters, our pacemakers and our insulin pumps) fair use has a new critically important role: basic consumer protection.
We entrust a lot of our lives to the devices we use on a daily basis – and to the software inside them. We trust them to get us from one place to another safely, to monitor our health conditions accurately and securely, and to keep us warm on a cold night. But what if those devices break? What if we want to make sure they aren’t collecting information about us without our consent, or infecting our systems with malware? What if we just want to be able to use third party apps and so on to make them work better?
If we want to do any of those things, chances are we’ll need to tinker with or make intermediate copies of the software. And that means we’ll need to turn to the fair use doctrine. It protects your ability to reverse engineer your stuff (so you can see what the software is doing), to make intermediate copies of your software (which is necessary to run your devices, test the software, and design interoperable products), and to make transformative uses of the underlying software (to modify it, tweak it, or use it to create new and better things).
- Want to make sure the software in your kids’ toys isn’t exposing their private conversations and information? You need fair use.
- Want to make sure software installed on your computer isn’t leaking your personal information? You need fair use.
- Want to keep your smart TV from recording all your private conversations? You need fair use.
- Want your smart phone (or other mobile device) to run independent applications or interface with applications of your choosing? You need fair use.
- Want to unlock your phone so you can use it with another carrier? You need fair use.
- Want to fix your car (or take it to your trusted mechanic)? You need fair use.
- Want to know if your car is vulnerable to hackers? You need fair use.
- Want to fix your thermostat when a glitch bricks it in the middle of winter? You need fair use.
- Want to make sure your heart monitor is working correctly? You need fair use.
- Want to build a better mousetrap (or app)? You need fair use.
We could go on. Simply put, we need fair use to protect the activities that make our software-enabled devices safer and better.
But there’s a problem. Laws like Section 1201 of the Digital Millennium Copyright Act and companies’ abusive End User License Agreements (EULAs) are keeping fair use from doing its job. They’re chilling security research, preventing you from fixing or tinkering with your stuff, suppressing innovative and competitive new applications and devices, and stifling the independent repair industry.
If we want fair use to continue to work as consumer protection – we need to get rid of section 1201. Last year, we filed a lawsuit to do just that. Members of Congress have taken up the fight as well. Rep. Zoe Lofgren’s bill, the Unlocking Technology Act, would keep section 1201 from interfering with lawful fair uses like those listed in this post. We’ll also need to curb abusive EULAs – when companies can claim you only “license” the software in the devices you purchase, they can use End User License Agreements (that few people understand or have a meaningful option to reject) to force you to waive your fair use rights. Fortunately, we’re seeing a few states stand up for your fair use right to repair – Nebraska, New York, Massachusetts, Minnesota, and Kansas are all considering laws that would protect your right to repair. If you live in one of those states, you can make yourself heard and support those efforts.
This Week is Fair Use Week, an annual celebration of the important doctrines of fair use and fair dealing. It is designed to highlight and promote the opportunities presented by fair use and fair dealing, celebrate successful stories, and explain these doctrines.