'No Need To Change' Copyright Law To Suit Software-Embedded Products, Industry Groups Say

The CO had sought comments through Tuesday night on its planned study of the interplay between U.S. copyright law and software-embedded products, including whether copyright law hurts innovation in the creation of software-embedded products and whether changes to copyright law would improve the landscape for such products (see 1512150050). The CO is conducting its study in response to a request by Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, and ranking member Patrick Leahy, D-Vt. (see 1510230036). The CO hadn’t publicly released comments on the study by our deadline.

The Copyright Alliance believes “there’s no need to change” U.S. copyright law at this point to accommodate the rising use of embedded software in consumer products, CEO Keith Kupferschmid said in an interview. The CO’s study fails to identify “specific problems surrounding software-embedded products” and points to potential problems that “seem to be largely hypothetical, with no basis in fact,” the Alliance said in its comments. Potential changes to copyright law “should not receive serious consideration unless there is evidentiary support to validate the concerns raised,” the Alliance said. “Since we have seen little such evidence, the study’s attempt to distinguish and categorize different types of software, in order to afford lesser protections to certain types of software or products[,] is both premature and unwarranted.”

SIIA noted that the Department of Commerce’s Internet Policy Task Force found in a white paper released in late January that “the case has not been made in the record to change [U.S. copyright law] to address the sale of” software-embedded products (see 1601280065). SIAA said it “shares that conclusion” and that the CO’s study “is proceeding from a false dichotomy: there is no such distinction between ‘embedded' and other kinds of software. There is merely software -- some of which is licensed, and some of which is sold.” Existing copyright law “both enables our members to make their software and information products more widely available and permits them to maintain the integrity of their products and services,” SIIA said. “This principle of product integrity protects not only the public interest in copyright’s economic incentive and healthy marketplace competition, but also broader health and safety interests.”

New America’s Open Technology Institute (OTI) and Public Knowledge (PK) jointly urged the CO to make a distinction between software-embedded products and “pure” software “to prevent existing software-specific doctrines from overrunning other areas of law.” Such a distinction is needed to ensure that the legal framework is the same for software-embedded products and similar versions of products that don’t include embedded software, said PK Senior Staff Attorney John Bergmayer in an interview. A software-embedded Nest thermostat “shouldn’t be treated any differently” from other thermostats for legal purposes, Bergmayer said.

OTI and PK argued that legislation is needed to put an end to attempts to require the owner of a software-enabled product to obtain a license to operate the software embedded in the products. Owners of software-embedded products can own copies of the embedded software as a material object without granting the product owner any of the embedded software’s underlying copyright interest, OTI and PK said. “It is not possible to ‘license’ a physical copy of software, any more than it is possible to ‘license’ a cinder block,” OTI and PK said. Legislation should “specify that essential transient copies are not infringements,” OTI and PK said. “This would assure that users do not need licenses from rightsholders to simply to use software (which often involves the creation of RAM and network buffer copies).” Legislation like Rep. Blake Farenthold’s, R-Texas, You Own Devices Act (HR-862) may also be needed to “clarify the rights of owners of copies of computer programs, including that they are owners,” OTI and PK said. HR-862 would amend Section 109 of the Copyright Act to allow consumers to resell or lease their software (see 1502110039).

Knowledge Ecology International (KEI) raised concerns in its filing about how copyright law affects users’ privacy in their use of software-embedded products. Consumers “have an interest in retaining control over private information contained in software embedded in consumer products,” KEI said. “One can imagine any number of reasons a consumer would be interested in controlling the data collected and transmitted by the software that controls their smart thermostat,” including to prevent that data from being used to “determine the optimal time to break into a home.”

The Motor & Equipment Manufacturers Association (MEMA) urged the CO to allow its members greater access to software-enabled components, as current copyright law limits consumers’ ability to have their vehicles repaired or serviced. The Library of Congress’ 10 granted exemptions last year to the Digital Millennium Copyright Act’s Section 1201 anti-circumvention rules included an exemption allowing a vehicle’s owner to circumvent technological protection measures on a vehicle’s software for repairs and other legal modifications, but this exemption didn’t extend to third parties (see 1510270056). “Vehicle owners must also retain the freedom of choice regarding the servicing and repair of their vehicles by third parties,” MEMA said in its comments. “In order to do this, the independent aftermarket must also have the freedom to repair and maintain vehicles, which will more often than not include access to vehicle software.”

It will be interesting to see how the CO handles what is “certainly an overlap” between the CO’s software-embedded products study and its separate study of Section 1201, Bergmayer and Kupferschmid separately told us. The CO explicitly told potential commenters that the software-embedded products study wouldn’t tackle issues related to Section 1201, but there is potential for many parties to want to address the “right of repair” issue, Kupferschmid said. The overlap between the two studies could also extend to the issue of interoperability of products since it will be “hard to address interoperability without addressing anti-circumvention issues,” Bergmayer said.