There aren’t many things more American than the concept of ownership. The whole idea of the American Dream is to work hard, save enough money to buy a house, and then tell everyone else to go to hell while you sit in a rocking chair on the front porch, shotgun in one hand, iced tea in the other. But that dream is vanishing as quickly as the middle class, and with it the concept of ownership.
In July, the U.S. Copyright Office will decide whether tractor-maker John Deere’s claim that its customers don’t really own the tractors they’ve paid for is a valid one. Consumers don’t hold the copyright on the software that runs on John Deere tractors, therefore the company claims that its customers aren’t allowed to modify or repair their equipment in some cases.
As one Reddit user notes, when you buy a car, you take possession of all of the physical hardware that ultimately carries the software — which runs the engine, turns the headlights on, and operates the airbags and traction control. "But the car companies argue that you don't own that software; not even the instance of it that happens to be embedded in the car you bought," he wrote. "The same is true for every technology product, from cell phones to televisions to farm tractors and office printers and industrial machinery."
This means when people buy an Android, Chromebook or Apple Watch, they must go to the manufacturer when something needs to be repaired, and by law, they cannot change the operating system of what is seemingly their product to suit their needs.
This conflict of ownership and copyright has been around as long as digital technology, and as software becomes woven into more and more products, the issue will only create more conflicts. That’s why Rep. Zoe Lofgren (D-California) has been struggling to change that law for the past 17 years.
Lofgren submitted the Unlocking Technology Act of 2015 to committee in March – the newest iteration of her ownership crusade. And if it’s made into law, tractor owners would be allowed to modify the equipment they’ve paid for and otherwise treat their software-enabled property as they would any other object they own. The Digital Millennium Copyright Act of 1998 (DMCA) was originally instated to protect copyright holders from having their intellectual property illegally distributed, but Lofgren said the law hasn’t kept up with the times.
“Although there’s a provision to release technology on a case-by-case basis, it’s turned out a bit arbitrary when it comes to the registrar, who does not seem to be really up with it in the tech world,” Lofgren said, referring to the recent expiration of the DMCA exception that allowed cell phone users to unlock their phones to be used with a carrier of their choice. Though the Cellular Telephone Industries Association (CTIA) reversed that expiration earlier this year, the controversy exemplified the type of conflicts that arise between copyright protection and ownership.
“The basic problem is that we should be concerned about infringement, not technology,” Lofgren said. “It’s not just cell phones, it’s any device and, in fact, those provisions have been used to support monopolistic business practices, not to prevent infringement. There’s money lost when fairness is gained, yes. It’s a fight, and it may be one of the reasons why my bill has never moved forward, but I’m not giving up.”
Software will eventually infiltrate everything; even today, software is finding its way into everything from mopeds to toasters. But the DMCA doesn’t just make it illegal to distribute copyrighted works, it also makes it illegal to bypass the copy protection, said Mark Lemley, professor of law at Stanford Law School. Lofgren’s bill would change that.
“For a DVD, if the reason I’m trying to get around the copy protection on the DVD is that I want to use a 10-second clip as fair use in teaching my class, as long as the law would say it’s OK to use that 10-second clip, then this bill would say it’s also not illegal to have gotten around the copy protection.”
The bill would also allow cell phone users to switch networks if they want. “Doing that might involve things that might otherwise be copyright infringement or cracking through the encryption systems that have been set up on the phone," Lemley explained, "but the bill says it’s OK to do that if you’re just doing so to switch networks."
In short, Lofgren’s bill would align the law with a notion of ownership that most people already agree with: If a person owns something, they are allowed to modify it or use it to do whatever they want with it, so long as that doesn’t involve piracy or some other unrelated illegal activity. In the eyes of today's law, it’s unclear whether a person truly owns their technology if they’re not permitted to do with it as they wish.
“One of the barriers [to this bill being passed] is if you’ve got control, you don’t want to give it up,” Lemley said. “You could imagine why the telephone companies, for instance, might want to make it harder, rather than easier, to unlock and switch to a competitor. I think that’s also true on the encryption side. The copyright owners are going to worry that if people are allowed to crack through this encryption system, it’s going to be hard for us to tell whether it’s been done for illegal purpose or not.”
Whether this bill will be passed or not, Lemley said he was unsure, but the fact that its main sponsor is a Democrat makes it seem unlikely it will be passed by this Congress.
“I think eventually, the answer is probably yes," Lemley said, “and what’s going to drive it is some high-profile instance in which people are denied the right to switch phone service or are prosecuted for doing something that everybody feels they have the right to do.”
The U.S. Copyright Office’s decision in July will provide at least a single precedent for future decisions at the intersection of copyright and ownership. But until then, farmers — and everyone else — must wait.
Colin wrote for Government Technology from 2010 through most of 2016.