Tinker, Hacker, Farmer, Shill

The anti-hacking provisions of the Digital Millennium Copyright Act (DMCA) are strong medicine, no doubt about it. Those provisions, written in the 1990s at the dawn of the internet age, have been critical to the explosion of lawful sources of movies, music, books, and software online. But because copyrighted computer code is now nearly ubiquitous, sometimes companies try to use those anti-hacking provisions to sustain other interests. This has generated blowback that the anti-copyright types are trying to leverage to undermine the DMCA.

Section 1201 of the DMCA prohibits, among other things, circumvention of an access control that protects access to a copyrighted work. Because computer code is protected by copyright, almost any kind of password, access code, encryption, etc. that is used to protect that software is protected by the law.

When it comes to hacking into a streaming service or circumventing consumer software access codes, that is exactly how the law was intended to work. The goal was to make hacking the work its own offence, separate from copyright, along with prohibiting the hacking technology so that it did not become commonplace. That has been a success. Of course there is still hacking and there is still infringement, quite a bit in fact. But the goal is never to eliminate all piracy, just to limit it enough that the market can still function.

Software is Everywhere

The problem arises from the fact that computer code is found in so many everyday products that otherwise would have nothing to do with copyright. This has led to some clever approaches to companies’ trying to protect their distribution channels for refills, repairs, and replacement parts.

Not long after the DMCA was enacted there was litigation over a third-party company that refilled toner cartridges for Lexmark printers. Lexmark claimed that the verification exchange that happened between the firmware in their printers and the firmware in their toner cartridges was protected by the DMCA and that circumventing that was against the law. From a business perspective, it was understandable. Many printer manufacturers reduce the price of the printers knowing they owners of their hardware will need to buy replacement toner many times over the life of the printer. A third-party cutting into the toner market hurts their business model. So they used a tool they found in the law.

While understandable from Lexmark’s perspective, toner cartridges have nothing to do with copyright and the case was used as an example of how the law was too sweeping by those who had opposed the anti-circumvention provisions in the first place. Indeed, the ink was barely dry on the DMCA when those opposed to the anti-circumvention part of that grand compromise were introducing bills to weaken or delete Section 1201. That went on for many years, with none of those bills ever moving, before they finally gave up. And Lexmark lost its case, so any claim that case proved the law was too broad was undercut.

Over time, other instances have emerged. Perhaps the most compelling is the farmer whose harvester is in need of repair right when the crops are ripe. The authorized repair shop is distant and expensive. The farmer knows what needs to be done, but it requires accessing the vehicle’s firmware. If he does that, he will be breaking the law and possibly voiding the warranty coverage.

I have no idea how realistic that scenario is but it’s hard for a Member of Congress to say “no” to. There does not appear to be a copyright interest as stake, so from a copyright perspective I have no basis to object to a law that lets the farmer get his crops harvested. I will note that the vehicle manufacturers (farm equipment, auto manufacturers) have pointed out that there are safety concerns and environmental issues that can arise if people have the ability to change vehicle firmware. Again, that is beyond my expertise and I offer no comment on it.

The latest version of this issue has arisen in the context of the National Defense Authorization Act. That would not amend Section 1201, but it would give the federal government broad rights over software and other copyrightable material delivered as part of a Pentagon contract.

Opportunism

It seems to me the problem could be solved if we could write language that would limit the application of Section 1201 to the cases it should apply to while denying protection in cases where it shouldn’t. Coming up with that language is the hard part. If it is too specific, it will leave out one situation or another. No one can predict the future, certainly not with that much detail. It the language is too broad, then it will create uncertainty and invite wasteful litigation. Plus, the companies that rely on the protections of Section 1201 the most would oppose anything that put that protection into doubt.

Re-enter the same types who fought against Section 1201 from the start. Those farmers gave them a new opportunity. If Section 1201 was up for amendment, they were going to take another run at weakening it as much as they could. At the very least, they could put the supporters of the law on the defensive, trying to make them explain the law that seems so unfair to the farmer. I’m sure the streaming services and software companies don’t have anything against farmers, but they do need to be able to prevent hacking and piracy of their core products. So, we find ourselves yet again in a stalemate.

Conclusion

I’ve said many times that copyright is an intensely practical law and a field that affects Americans’ lives every day. This issue is a perfect example of that. The challenge comes in trying to write a law that applies appropriately in every possible circumstance. Those who seek to weaken Section 1201 have done a disservice by demonstrating that they will use any opportunity to undermine the law. That, in turn, tells the companies that rely on those anti-hacking protections that any accommodation they might be willing to make can and will be used against them. And the farmers should recognize they are being used as the front men for an agenda well beyond what they actually need.