Software is no longer limited to computers, tablets, and phones. Everyday objects from sneakers to refrigerators contain software, which often allow our apparel and appliances to communicate with mobile devices, the internet, and each other. As all of our possessions become “smart,” they are also becoming subject to laws that were never intended to regulate our morning cup of coffee or trip to the gym.
Last week, the US Copyright Office received petitions from consumers, company owners, and educators who believe that their lives and livelihoods are suffering because of the 1998 Digital Millennium Copyright Act (the DMCA). And for the first time, the majority of petitions asking for exemptions to the DMCA have nothing at all to do with the original intent of the antipiracy law. We have entered a world that legislators had not envisioned when they drafted the DMCA, and the Copyright Office has to decide how to apply an aging policy in a new century.
The DMCA prevents users from unlocking digital media or software. It was originally adopted to deter piracy and thus encourage companies to release media in a digital environment and on the web. DVDs, for example, contain a locking (or encryption) system, ensuring that the only devices that have an authorized unlocking key can play DVDs. The same rules apply to streaming or downloaded media, which is why iTunes videos cannot be played (legally) on Android devices; Apple has not given Google its decryption key.
In 1998, Congress considered some of the potential dangers of the DMCA: most significantly, it could interfere with legitimate uses of digital media by librarians, journalists, and many others. Documentary filmmakers, for example, could no longer take excerpts from videos and incorporate them into their films, even if the practice had a long and well-established history. No video editing software contains the necessary decryption key. In a telling and unanticipated example, enthusiasts of Sony’s Aibo digital pets could not make their robot dogs dance to jazz. Sony held the decryption key, and the company got to choose the dance mix.
To remedy this situation, Congress empowered the US Copyright Office to conduct a rulemaking every three years and create exemptions where the DMCA clearly harms legitimate uses. In 2006, I successfully petitioned for an exemption for media professors who need to make clips for use in classes. That exemption has been expanded over the years to include K-12 teachers and university professors across disciplines as well as many students. Other exemptions have been created for documentary and noncommerical filmmakers, ebook authors, and computer security researchers. Another exemption allows cell phone owners to “jailbreak” their iPhone or Android phone and install third party applications.
The DMCA was intended to protect digital media from piracy, but since 1998 it has increasingly been used to block competition and frustrate consumers. Digital locks backed by the DMCA have been used to prevent companies from selling interchangeable garage door openers and printer cartridges. Digital locks have also been used to prevent Kindle owners from using the read aloud function on their devices, and the Keurig company has threatened to release a system that blocks its popular coffee makers from using non-Keurig coffee pods. Where these uses of digital locks have been the subject of legal challenges (as the garage door openers have), courts have found them to be outside the scope of the DMCA. But that has not stopped companies from placing digital locks in more and more of the objects we interact with everyday.
In the latest Copyright Office rulemaking, exemptions are being sought to access software in cars, 3D printers, agricultural equipment, and televisions in addition to exemptions for DVDs, Blu-ray discs, streaming media, and video games.
The connectivity of the internet is moving out of cyberspace and into what is often called the “internet of things,” the smart devices in our lives. The locks that were intended to prevent pirates from copying movies and video games are now locking us out of our own possessions.
Where we once worried about how real-world laws apply in cyberspace, we now have to consider how cyberlaw will govern our domestic and commercial environments.
This is only the beginning of the Copyright Office’s rulemaking process, which could stretch on for a year or more. I hope you will join me in watching the process unfold and see how the Copyright Office takes command of its expanding role.
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