In this day and age, there’s an app for everything. Sort of.
Would it be nice to be able to install Google Maps or, even better, Waze onto your car? How about a weather app so you can see whether it’s sunny at your destination or a warning that heavy rain might slow your trip? As more and more “smart” devices come onto the market, from watches to home appliances to flying selfie-cams (aka drones), more and more everyday products, and the ways consumers can use them, run headlong into copyright—and anti-circumvention—law.
Section 1201(a) of the Digital Millennium Copyright Act (DMCA) prohibits circumvention of technology that controls access to a copyright-protected work. The classic example would be getting around digital rights management software on a DVD in order to copy a movie. But because copyright law also covers software, product manufacturers have argued that Section 1201 prohibits circumvention of essentially any software. Back in 2003, a printer manufacturer sued to prevent the sale of refilled and aftermarket (and thus cheaper) printer cartridges that used a line of authentication code to “trick” the printers into accepting these cartridges. The printer manufacturer eventually lost in the Sixth Circuit, but now 3D printer manufacturers are making nearly identical arguments. Tractor and car manufacturers are arguing that car owners cannot access the computers on their cars for diagnostic (or any other) reason.
All of this is happening in the context of the Copyright Office’s hearings on exemptions to Section 1201(a). The DMCA itself requires that every three years the Copyright Office publish a list of classes of works exempted from the prohibition of the anti-circumvention subsection. On May 19-21 in Los Angeles and May 26-29 in D.C., the Copyright Office held the latest round of hearings.
Up for debate are classes covering consumer devices, vehicle software, smart TVs, mobile devices, medical devices, and of course, 3D printers, among others. Many of the exemptions up for consideration (and the Copyright Office is unlikely to grant all of them) concern educational, research, or non-commercial uses. But only a handful—primarily mobile devices, smart TVs, and gaming consoles — cover compatibility issues or “jail-breaking.” Section 1201 and the lack of a specific exemption closes off many potential markets that have nothing to do with copyright infringement, such as better navigation software on cars, better monitoring programs for homes or medical devices, and more device-compatible apps. Because the Copyright Office only engages in rulemaking every three years, companies must anticipate the market in considering whether to seek (or oppose) an exemption. With each hearing cycle, the Copyright Office also considers whether to renew previously-granted exemptions. The hearing agenda and a list of testifying participants is available through the Copyright Office’s website here:http://copyright.gov/1201/2015/Proposed_1201_hearing_agenda_20150501.pdf. Companies should keep an eye on the rulemaking process and the arguments (good or bad) others are making. Otherwise they risk being left behind or boxed out as new technologies emerge.