Back in 2015, John Deere attracted attention for telling the Copyright Office that farmers don’t own their tractors. Deere was trying to prevent access to the software keys that allow for repairs to the machinery, basing its reasoning on the Digital Millennium Copyright Act (DMCA), which governs the copyright protection of software. Essentially, because tractors require software to run, and because that software is licensed (not sold), then purchasers may not own their tractors after all. Recently, farmers have been trying to push back by finding ways to get around the software locks.
In 1998, Congress passed the DMCA to keep up with the rapid expansion of the Internet and software technology. The DMCA both extended the reach of copyright while limiting the liability of Internet service providers.
Importantly, the DMCA criminalized the production of technology that can circumvent digital rights management (DRM). DRM is the technology that is used to control access and modification of copyright protected software. The DMCA also criminalizes the act of circumventing DRM on a copyrighted work, regardless of whether or not it is actually infringed.
There are exemptions, however, to what would otherwise be an unlawful circumvention of DRM. These exemptions typically arise in circumstances where DRM prevents people from making a lawful use of a copyrighted work. For example, in 2012 an exemption was made for getting around the Content Scrambling System utilized by many motion pictures hosted on the Internet for the purpose of providing closed captioning.
Attention was drawn to this previously unremarkable provision of the DMCA when John Deere fought hard against a proposed exemption that would allow for circumventing DRM used for electronic control units in vehicles. Deere drew a lot of criticism for their position that farmers did not own their tractors, and instead had “an implied license for the life of the vehicle” to operate it. Opponents accused Deere of eliminating the concept of ownership and devouring the idea of personal property.
However, Deere does have a good reason for wanting to keep tight control over the software used in their tractors. When someone who isn’t a licensed Deere technician tries to fix the software, they could end up damaging the machine, which would have a detrimental effect on their brand image. Bypassing the DRM could also be used to modify the machine in illegal ways, such as increasing the maximum speed or cheating emissions controls to get better horsepower.
The Copyright Office addressed issues raised by both sides in adopting an exception that reads:
Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle…when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law.
The exemption for owners circumventing DRM to repair their own vehicles seemed like a home run for those farmers who didn’t want to have to pay a Deere-licensed repair expert to come out every time their tractors needed a simple repair. However, just because the Copyright Office has the power to make a regulation doesn’t mean they have the power to force copyright owners to abide by it.
Immediately after the exemption passed, Deere changed their end user license agreements (EULA) to prohibit modification and third party repairs of their tractors, placing farmers back at square one and making the exception purely symbolic.
Not to be deterred, farmers have recently turned to the Ukrainian black market of all places to get access to firmware that can hack into their own tractors. Using these types of methods to circumvent software locks, however, is in violation of the EULA that the farmers agreed to when they started the tractor, which could put them at risk of legal action.
DRM is used in almost every type of technology. From smartphones to garage door openers, televisions to e-book readers, most of our electronic devices have some sort of proprietary software that is protected through access control technology. Trying to get around the DRM to modify the device is criminalized through the DMCA, and even if there’s an exception, it is easy for the copyright owner to prohibit modification through the EULA.
So what does this mean for the owner of any kind of technology? Most people are aware that it is illegal to “jailbreak” their phone by installing unsupported software, but it could also be illegal to make even a basic repair. It’s important for those who want to modify any device to understand what’s in the EULA, that they most likely agreed to without reading, and it’s important for them to understand that they may not own that device after all.{{cta(’29b47d10-02c7-4a8d-9faa-025c4397f3be’)}}
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