The Digital Millennium Copyright Act (DMCA) was written 20 years ago. At the time, it was widely regarded as a very thoughtful and comprehensive piece of legislation which would simultaneously keep internet companies happy and their users, while also protecting privacy in the digital space.
Two decades on, however, and technology has progressed so rapidly it has rendered this once lauded legislation obsolete. Back then, there was no Facebook or Spotify for instance.
It was also before the emergence of the growing network of connected devices known as the “internet of things”. These devices – be they kitchen appliances, vehicles or medical implants – run software quietly in the background that is fundamental to their operation. But if you don’t own and can’t control that code, do you really own the device?
Sasha Moss, a technology policy fellow with the R Street Institute – an American non-profit, public policy research organisation, that focuses on intellectual property, open data and digital free speech – extols the virtues and highlights the downside of a connected world.
“I can now check the temperature in my house in Washington, DC, from anywhere in the world and make sure I don’t go over my heating bill. It’s amazing,” she says. “We no longer live in a world where everything is analogue. My cell phone holds the keys to my thermostat, even my car, but what people don’t realise is, in accepting these new conveniences afforded by tech into their lives, they are also giving up true ownership of these goods.”
The key point here is that ownership and licensing are two different things. Everyone is familiar with the button labelled “agree” which commonly follows lengthy terms and conditions on online products. How familiar are we, however, with the actual terms and conditions? “Within those it usually says you have licensed this good from X company, meaning you don’t own it,” she says.
This is important because if you try to repair, say, a faulty smart toaster, you may be breaking its warranty. Why? Because you don’t own the software, just the toaster itself.
“I used to drive a 1988 Toyota Celica,” says Moss. “If I needed to replace a part, I could go to my local car part store, buy the part and replace it. That was the American dream – you could own your car for 20 years and fix it yourself. Now I must go to a specific dealership every time because software enables modern automobiles to run.”
In 2015, John Deere – the world's largest agricultural machinery maker – told the US copyright office that farmers didn't own their tractors. The computer code, they said, so central to the functions of modern tractors, was owned by John Deere. So farmers receive what's known as "an implied license for the life of the vehicle to operate the vehicle."
In short, this means if a tractor breaks down, farmers were legally prohibited from attempting to repair it.
The formal letter from John Deere to the copyright office raised the ire of a group of American farmers. "Last year, several farmers decided to go to the Library of Congress to dispute the ownership conditions for John Deere tractors," says Moss. Arguing that agriculture is one of the country's largest industries, it could not wait around for John Deere repairmen to show up. They basically said, 'if we can't fix our own tractors, you can't eat.'"
“The farmers were granted a three-year exemption from the copyright office so that they could tinker with their John Deere tractors as they saw fit. However, this was the first time a company had said in paper form ‘you only license, you don’t own’ a product.
But it is a loophole, created by the outdated rules outlined in the Digital Millennium Copyright Act, that has been used by numerous other large companies trying to argue similar cases, for over two decades. Manufacturers of all kinds have used the Act to argue consumers don’t actually own the software which operates the products they purchase – be it smartphones, computers, coffeemakers, cars or tractors.
The farmers will have to reapply in 2018, which is no easy task if you’re not totally au fait with IP law, says Moss. “Having to get permission from the copyright owner of anything is imperative to protect one’s goods,” says Moss. “But this is an abuse of that principle.”
“Fair repair’ is what proponents of a new movement have started calling such access. Essentially they want manuals with full instructions on all aspects of a device to be released so that the right to repair returns to owners of hi-tech equipment.
The Repair Association was formed in 2013 and represents everyone involved in the repair of technology – from DIY hobbyists and independent repair technicians, to environmental organisations and the spare parts market. They advocate for "a free, independent market for repair and reuse" which is "more efficient, more competitive, and better for consumers."
But they, and others like them, are fighting a hugely powerful group of industries. “This is a federal-level copyright problem,” says Moss. “The ‘You Own Devices’ (Yoda) Act – which essentially says, if I buy a digital good for a dollar, the copyright is essentially exhausted so it’s mine to sell on – is being introduced for the third time to US lawmakers. We fully support this Act, and, if successful this time round, it is a step in the right direction.”
Why something Moss and others see as legislation almost every individual should support would be undergoing a third attempt at becoming law is not to do with the usual Democrat versus Conservative conflict which so often cripples the US democratic process. Rather it has to do with the “grey vote”.
“I’m constantly asked why this is the third time Yoda has been introduced when it seems to have so much support,” says Moss. “But the answer is simpler than you think. Awareness of this problem didn’t start to fester until very recently. There was no such thing as a smart thermostats or Nest [internet connected home monitoring] just a few short years ago. And, more importantly, my mother – who didn’t own a smartphone until two years ago – is part of the generation who proportionally vote the most.”
In other words, until older people in the US, who actually exercise their democratic rights consistently, have a problem with this, it won’t get solved.
“This is a Bill that should be supported by both sides,” says Moss. It’s a red and blue issue. If we want our marketplace to function at its full capacity new and used goods must be legal to sell on. I believe everyone across the political divide understands this situation.”