One of the world’s largest agricultural machinery makers has stated that farmers do not acquire ownership rights in software embedded in their tractors. Instead, they receive an express or implied licence to use the software needed to operate the vehicle.
This was in response to a proposal made by the US Copyright Office, on 12 December 2014, to allow the circumvention of Technology Protection Measures ("TPMs") used in vehicles, including agricultural vehicles, in certain circumstances. These TPMs protect computer programs that control the functioning of agricultural vehicles by restricting access to software embedded in the machinery. The US Copyright Office intended that circumvention would be allowed for the diagnosis, repair, or modification of the vehicles. The exception for vehicles was part of a larger package of proposed exceptions from the prohibition (contained in the Digital Millennium Copyright Act ("DMCA")) against the circumvention of TPMs. In total, the US Copyright Office notice of proposed rulemaking contemplated exemptions from TPMs for 27 classes of works.
Modern tractors have complex computer software that controls many component parts of the vehicle. In order to help prevent others from stealing this technology, manufacturers of tractors who design this software, rely on TPMs in addition to copyright protection. The difficulty for famers is that TPMs can prevent them from repairing their machinery. Farmers often require access to the protected software for diagnostic information in order to repair complex electrical systems in their vehicles. TPMs can also block farmers and enthusiasts who, quite legitimately, want to tinker with or repair their machines. The Intellectual Property & Technology Law Clinic of the University of Southern California Gould School of Law has pointed out that farmers specifically require unfettered access to this vehicle software ‘‘to make any significant modifications to the efficiency and/or functionality of . . . their increasingly sophisticated agricultural machinery.’’
There are however, legitimate reasons for manufacturers to want to protect their software. Aside from the risk that pirates could purchase a vehicle to copy software that has taken years to develop, there is also a risk that individual tractor owners will not have the technical resources to repair or modify their vehicles in a way that complies with regulatory standards. Individual's enthusiasm for "tinkering" could also interfere with manufacturers abilities to resolve software problems, conduct recall and fulfil warranties because of modifications to the original software. In addition, manufacturers have claimed that the circumvention of TPMs is not necessary as TPMs do not impede repair or access to diagnostic codes for vehicles. They point to the availability of authorized technicians who can reprogram or update software for vehicle owners and to the fact that diagnostic codes can be read by commercially available readers.
At the time of enactment in 1998, the DMCA provisions relating to TPMs were controversial. As a result, the US Congress instructed that these provisions be reviewed within two years of enactment, and every three years after that. In addition to categories of work that have already been exempted from TPMs, this latest proposal represents the potential erosion of the effectiveness of TPMs as a means of protecting computer software from copyright infringement.