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.
Congress has been spinning its wheels on comprehensive copyright reform, but it could do a lot of good with one simple fix: forbid manufacturers from using EULAs to force consumers to waive their fair use rights.
Traditionally, once a person has purchased a product, she has been free to use it however she sees fit without oversight or control from the copyright owner. Purchasers have also been free to use competitors’ add-on software and hardware that interoperate with the goods they buy, because innovators have been able to develop and distribute such technologies.
That expectation is upended when it comes to products that come with embedded software, from tractors to refrigerators to toasters and children’s toys. That software is supposed to make our stuff smarter, but it also makes our stuff not really ours. We own the hardware, but supposedly we only license the software in it. And those licensing agreements sharply limit your ability to repair, test, and reuse your stuff. They inhibit both add-on innovation and security and privacy research that keeps you safe.
Those limits usually take two forms. First, they force you to waive rights like fair use granted to you under copyright law, such as the rights to:
- Remix media elements such as video game imagery or patch software (i.e. to prepare noninfringing derivative works);
- Reverse engineer (to understand non-copyrightable elements or to create interoperable software and hardware);
- Perform security or other research involving the software; and
- Perform otherwise lawful acts of circumvention, such as device jailbreaking.
Second, they impose conditions on your use of the product, including:
- Forbidding use of “unauthorized” hardware or software in conjunction with the device (such as third-party replacement parts for repair, competing peripherals, or privacy-protecting software on mobile phones);
- Forbidding second-hand sale of a used device; and
- Requiring the user to agree to ever more onerous EULAs to continue using their device at all.
Users who violate these terms can find themselves threatened with a copyright lawsuit, but that is relatively rare. A more common tactic is to threaten third parties who want to offer add-on products or services (including repair) that might conflict with the EULA terms.
It’s time for Congress to take a step towards meaningful copyright reform: restrict the ability of manufacturers to force customers to waive their rights. Such a limitation is not all that unusual; for example, the current Copyright Act prevents authors from waiving their right to terminate a transfer of copyright ownership (which just makes sense – if publishers could require such a waiver the termination right would be meaningless). Legislators commonly restrict waiver by contract in all kinds of situations, as this table from the Association of Research Libraries shows.
In the meantime, several states (New York, Massachusetts, Minnesota and Nebraska) are considering legislation to protect one basic right that’s often waived: the right to repair. If you live in those states, you can take action now to support those efforts. But we need a cleaner, simpler, national fix. As software proliferates, onerous outdated copyright rules and contract terms shouldn't stop us from making sure our devices are safe, much less inhibit innovation and creativity. After years of talk about copyright reform, it's time for Congress to take real steps to protect user rights.