...the reaction to these industry comments should be of concern to anyone who values copyright protection.

The Digital Millennium Copyright Act (DMCA) criminalized production and dissemination of any technology, product, service, device or component circumventing a technological measure that controls access to a copyrighted work. It supplements copyright protection by making it a crime to defeat technological measures (often called “digital rights management” or “DRM” technologies) that control access to a copyrighted work. In fact, it can be a crime to circumvent DRM technologies, even if there is no infringement of the underlying copyrighted work.

There are a number of safe harbors and exemptions built into the statute (17 U.S.C. §1201), as well as provision for the Librarian of Congress to issue additional exemptions for particular classes of works where DRM technologies are adversely affecting the ability to make non-infringing uses of particular classes of copyright works. 17 U.S.C. 1201(a)(1)(C).  These exemptions are reviewed and revised every three years, and in the Spring of 2015, the Copyright Office is in the midst of the sixth such review.

In establishing exemptions, the Librarian considers:

1. the availability for use of copyrighted works;
2. the availability for use of works for nonprofit archival, preservation, and educational purposes;
3. the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research;
4. the effect of circumvention of technological measures on the market for or value of copyrighted works; and
5. such other factors as the Librarian considers appropriate.

17 U.S.C. §1201(a)(1)(C).

There is an inherent tension between copyright owners and many consumers over DRM technologies...

DRM vs. Free Access

There is an inherent tension between copyright owners and many consumers over DRM technologies. Copyright owners claim that DRM technology is necessary to fight copyright infringement, and maintain control over the work (and the resulting revenue stream). To copyright owners, DRM technology is simply a lock that prevents their property from being taken. Opponents to DRM technology reply that these “locks” inconvenience legitimated users, prevent users from making legitimate, non-infringing uses of the copyrighted material, and stifle innovation and competition.

The Current Exemption Process

The Copyright Office received forty-four petitions for proposed exemptions in response to its September 17, 2014, Notice of Inquiry. The Office distilled these proposals into twenty-seven proposed classes of works. The Office received more than one hundred fifty comments in support of the exemptions, and more than fifty comments opposing the exemptions. Replies to the comments in opposition are due May 1, 2015.  Public hearings will be held in May 2015, in Los Angeles and Washington, DC.

The tension over DRM continues in the current exemption process. For example, there were ten comments in favor of an exemption for Proposed Class 21 “Vehicle Software – diagnosis, repair , or modification”  led by a submission from the Electronic Frontier Foundation, and including a summary of more than 2200 individual comments. General Motors, Eaton Corporation, and John Deere, as well as several industry groups have opposed the exemptions, pointing out that the exemptions will facilitate infringement of this software, making it possible for “pirates, third-party software developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software designed by leading vehicle manufacturers and their suppliers.” They further point out that the vehicle owners do not have the resources to make safe and reliable modifications to the software.

The industry commenters point out that exemptions will facilitate modifications of the software which can “have safety consequences” for vehicle operators and others; and negatively impact durability of the vehicles, and are “highly likely to result in unintended consequences.” The consequences can include adversely affecting unmodified devices that rely upon data from modified devices, and increased vulnerability to hacking. The modifications may result also in violations of federal safety and environmental regulations. Furthermore, if undetected, these modifications could unfairly increase the copyright owner’s liability. The end result of these modifications could impact the perceptions of the copyright owner’s products, and their resale value.

The comment conflates ownership of an object – in the case of John Deere, a tractor – with the ownership of the copyright in works incorporated into that object...

The reaction to these industry comments should be of concern to anyone who values copyright protection.  A recent comment on wired.com accuses John Deere and General Motors of trying to “eviscerate the notion of ownership.” It is not a “twisted vision of ownership,” by John Deere, but a misunderstanding of copyright law by the author. The comment conflates ownership of an object – in the case of John Deere, a tractor – with the ownership of the copyright in works incorporated into that object.

For this reason when you purchase a book, you own the book, but you still can’t rewrite the ending – this is preparing a derivative work, one of the exclusive rights belonging to the copyright owner, not to the owner of a copy of the work. Ironically, the author acknowledges that General Motors pointed out the conflation of “ownership of a vehicle with ownership of the underlying computer software in a vehicle” and bets that “most Americans make the same conflation.” But rather than correcting this misunderstanding, he perpetuates it by accusing the copyright owners of eviscerating the notion of ownership, when it is he who is eviscerating the notion of copyright. He rails against shutting down “reasonable” and “legal” modifications people can make to the things they paid for, without acknowledging that these modifications are not legal.

Proponents of DMCA exemptions also argue that the DMCA is an innovation killer. However, hacking someone else’s work is not innovation. True innovation is making something new – something the DMCA incentivizes by giving additional protection for innovators’ investment of time and resources.

It is not the DMCA that makes software modification illegal, it is the underlying copyright laws. The DMCA simply protects the DRM technologies employed by copyright owners to protect their copyrights from being infringed. By claiming a right to modify and hack as a justification for a DMCA exception, these proponents are asking the Librarian of Congress to facilitate infringement. There may be instances where the DMCA interferes with legitimate non-infringing uses of a copyrighted work and an exemption is appropriate.  However, a desire to make infringing derivative works is not a good reason to reduce the protection for copyrighted works.

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[Bryan Wheelock is a principal at law firm Harness Dickey. His practice includes preparation and prosecution of patent and trademark applications and drafting of intellectual property agreements, including non-compete agreements.]