That’s how Corynne McSherry, Legal Director of the Electronic Frontier Foundation (EFF), began her discussion of the current issues facing free speech, privacy, transparency, and fostering innovation in the electronic age.
On September 28, the Intellectual Property Law Society welcomed McSherry to the Boyd Law Building, where she described the EFF’s ongoing mission to ensure expansive copyright laws do not infringe on consumers’ ability to use the products they buy.
“About 20 years ago, there was a massive national freak-out that basically started with Napster,” she said. “The [entertainment] industry responded by putting protections on music and DVDs. Then Hollywood went to Congress to ask for legal backup, seeking a legal cause of action against hackers.”
Congress acquiesced, but the broad copyright protections they passed generated unforeseen consequences. These protections included a legal claim against anyone who modifies software without permission, including licensees. Those protections may have been apt for DVDs and music in the 1990s, but legislators could not have anticipated the technological developments of the next two decades.
“It’s a fact of life today that software is everywhere: in your phone, your house, refrigerator, car, tractor, etc.,” said McSherry. That ubiquity is one reason why software is such a pressing issue in modern copyright law. When a consumer buys a piece of technological hardware—like a cellphone, computer, or modern automobile—she does not necessarily own the software in that device. Rather, the consumer is merely a licensee of the software.
This distinction generally means consumers cannot modify the software without violating the manufacturer’s copyright. And courts tend to enforce the lengthy user agreements that come with software, even though it is common practice that no one reads them.
Even the software in one’s car can be covered by these agreements, and with newer cars, basic mechanical fixes may require modifying software. A typical corner mechanic may or may not be licensed to make these modification, which could, at best, void the warranty and, at worst, lead to litigation. “A law designed to protect DVDs should not get in the way with your ability to mess with your car,” said McSherry. “It’s ridiculous.”
Faced with this dilemma, some groups are fighting back.
One way McSherry and the EFF have been combatting this limitation on consumer freedom is through the exemption process. Every three years, you can apply for an exemption with the Library of Congress. These exemptions provide a legal workaround to permit specific activities that would otherwise violate the Digital Millennium Copyright Act.
So far, consumers have been granted exemptions to jailbreak their phone’s operating system, meaning they can enable their iPhone to run third-party applications and free it from other limitations Apple has imposed. Consumers may also, to a degree, modify the programming in their cars. But the Library of Congress has yet to grant similar exemptions for computers or game consoles.
Though it has facilitated some victories for consumers, the exemption process can also be tedious.
“First, you have to submit an application for what you want them to exempt, then submit a ton of evidence, which is difficult to get because you’re basically asking a bunch of people to admit to the government that they want to do something that’s technically illegal,” said McSherry. “After that, there’s a whole back-and-forth with arguments that takes months. Finally, the Library of Congress determines if they’ll allow an exemption for the activity. Even then, though, you still have to go back every three years to reapply, since every exemption is temporary.”
“It’s a lot of work to create a world where people are allowed to do what they thought they were allowed to do already,” added McSherry.
On the other side of the argument are companies that want to protect their copyrights against everything from piracy to minor modifications.
Farming equipment manufacturers, for example, argue that allowing customers to modify the software in their tractors could result in emission standards violations that would open the door to lawsuits from the Environmental Protection Agency.
But McSherry counters that argument on a fundamental level, saying it is not the job of copyright law to police things like emissions standards. “Copyright should govern copyright,” she said. “Let the EPA worry about environmental violations.”
When it comes to policy, McSherry expressed skepticism for the possibility of Congress making any big changes to copyright law. But she is more optimistic about state legislatures.
“There is some interesting stuff happening at the state level,” she said. “I’d like to see states make certain contract terms unconscionable, so citizens will have a cause of action to get those contract terms thrown out.”
“My dream is that we [establish], on a national scale, a policy that certain rights can’t ever be waived,” she said, referring specifically to user agreements that include binding arbitration clauses. “There are already areas like this in copyright—like the right of reversion for authors to get their work back after 35 years—so there’s some precedent for doing something like this [with software].”
In addition to enhancing customers’ freedom to modify products, eliminating arbitration clauses (or other waivers concerning litigation) would have a positive effect on the legal process.
“When we waive all these rights and agree to arbitration, we can’t bring the issues to court,” said McSherry. “By extension, if we don’t have the opportunity to try these issues in front of a judge, then we end up stifling the development of the law.”