Mar 232016

As I’ve written about before, last year’s Section 1201 triennial rulemaking exposed quite a few flaws in the rulemaking procedure. The process itself left much to be desired, as did the eagerness of the Copyright Office to take it upon itself to get to decide whether and how people can be allowed to explore the computing technology they legitimately possess.

For background, Section 1201 is a provision inserted into the copyright statute that makes it a separate, independent criminal offense to bypass any “technical protective measure” (aka “TPM”) that prevents a technology use, irrespective of whether that use infringes a copyright. Because, however, this prohibition will inevitably interfere with non-infringing uses, neighboring provisions in the statute instruct the Librarian of Congress to issue exemptions to the otherwise blanket prohibition following a rulemaking process held every three years by the Copyright Office.

The most recent rulemaking concluded last year and left nearly all parties dissatisfied. At minimum it was a long, messy, expensive process, overly burdensome on everyone who participated, the public in general, and even the Copyright Office itself. It also further raised questions of whether and to what extent it was appropriate to have the Copyright Office get to decide how people are allowed to use their computing technology.

In the wake of this past rulemaking Congress called upon the Copyright Office to conduct two studies, one considering potential improvements to the 1201 rulemaking process, and the other considering the role of copyright in governing the use of software-enabled consumer electronics. These were two separate studies, but as we argued in a comment I submitted on behalf of the R Street Institute in both of them, they are inherently interrelated. While the 1201 rulemaking process itself is still unjustifiably obstructive to non-infringing uses of copyrighted works, when it prevents people from using the computing devices they legitimately possess as they would choose to use to use them, the result is particularly perverse.

And so we counseled that both studies’ questions should be considered in light of each other. After all, the essential question in both stories is, what is copyright law doing here?

Copyright law can be traditionally understood to create limited monopolies of a limited set of exclusive rights for limited times for the authors of creative works. We grant these monopolies out of the fear of market failure. In other words, we worry that without this initial monopoly, there would be no way for an author to recoup his or her investment in creating the expressive work if someone else who hadn’t made that investment could swoop in and profit from it first.

But when it comes to tangible things, their producers don’t need that handicap. They can compete on the market for those things, and we *want* them to compete on the market for those things. We want the makers of things to make the best, most innovative, most secure products at the best prices. Monopolies are generally discouraged (if not outright forbidden) because they tend to lead to the worst, least innovative, least secure products at the worst prices. Innovation, and the public, benefit from competition, which ordinarily we go to great lengths to preserve.

As we commented, that public interest value of competition should not be subverted just because a maker of a physical thing has combined its thing with software. While software may sometimes be considered an expressive work that could be subject to copyright protection, it isn’t always, and even when it might seem to be, we still often withhold copyright protection when the software is intertwined with directing the technical function of companion hardware. In any case, the market failure problem that copyright is designed to solve does not need solving when the thing on the market is still a physical thing. Copyright shouldn’t get to be a magic “I don’t have to compete” card just because a manufacturer has decided to incorporate software into its car, TV, toaster, sneaker or other product. And it definitely shouldn’t get to play a role in determining how people may use and explore the things capable of computing logic that they have in their lives in general.

But particularly with Section 1201 that is what is happening for all sorts of products, be they software-enabled objects or other forms of computing devices. People expect to have dominion over the things they own, but thanks to Section 1201 they don’t. Even with respect to a computing device, people’s ability to fully access and exploit the computing logic of that device is hampered by the prohibition against circumventing a TPM. Would you like to tweak the software on your smart TV so that it can’t spy on you? Perform security research on your pacemaker to make sure it can’t be hacked? Fix your broken tractor so that you can harvest your crops before they rot? Put your cell phone on the network of your choice? Thanks to Section 1201 you need the Librarian of Congress to craft a specific exemption (and one that will last only three years!) in order for those things to not be crimes.

What appears to be happening is that because software is ostensibly copyrightable, and because software sits between the hardware and the user’s ability to control the function of the hardware, the anti-circumvention provisions of 1201 are getting implicated because modifying the software means bypassing the TPM controlling access to the underlying computing logic of the device running the copyrighted software. But this result represents circular reasoning that is completely untethered from any policy value copyright was ever intended to vindicate. It might be one thing to bar circumventing TPMs related to “digital rights management” (“DRM”), or mechanisms designed to ensure copyrighted works cannot be reproduced in infringing ways. But Section 1201 has come to prevent all sorts of technology uses that in no way implicate the exclusive rights of any copyrightable work at all.

So while the 1201 study contemplates improvements to the 1201 rulemaking process, such as by presumptively renewing previously-granted exemptions and moving the burdens of persuasion for any particular exemption from the proponent of it to any opponent, we fear these fixes are but mere bandaids that will fail to heal the more serious problem. When the TPM circumvention contemplated does not involve access to a copyrighted work in a way that affects any of the exclusive rights in the market for a work, copyright law, and Section 1201 in particular, should not continue to bar it.

As we concluded our comment, copyright law derives its constitutional authority from the progress clause, which charges it to advance the progress of science and the useful arts. Anything that copyright law attempts to do must always be tested against that directive (and limitation). When, as we see now, copyright law is interfering with that progress, chilling people’s ability to use and develop technology as they would freely choose, it cannot pass that test. The statute must therefore be changed to remove it from the path of progress.

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