Think you own that shiny new car you paid a bundle for? Not so fast.
The software that runs on your car's computer still belongs to the manufacturer. And under the Digital Millennium Copyright Act (DMCA), attempting to repair or modify your car in any way -- say, to make it faster or more fuel efficient -- or even taking it to your neighborhood mechanic instead of a manufacturer-approved dealership, could land you in trouble.
Car manufacturers have not used DMCA to prosecute anyone yet, but they have been putting more and more protective measures in place to lock down control over the cars they build. Farmers know all about this new reality: Manufacturers like John Deere use DMCA to maintain tight control over diagnostic tools needed to repair modern tractors. Farmers previously accustomed to DIY repairs now face a costly and time-consuming nightmare that requires flying in manufacturer-approved technicians to repair their tractors' very proprietary computer systems.
"Farmers are essentially driving around a giant black box outfitted with harvesting blades. Only manufacturers have the keys to those boxes.... The dealer-repair game is too lucrative for manufacturers to cede any control back to farmers," Wired writes.
There is a process for reclaiming control over your hardware. Every three years, the Copyright Office of the Library of Congress considers exemptions to Section 1201 of DMCA, which by default makes it illegal to bypass the encryption on any hardware. This year the EFF applied for exemptions to allow for vehicle repairs -- as well as phone jailbreaking, Internet of things unlocking, security research, medical device research, electronic distribution of literary works by libraries, and a slew of other activities that run afoul of DMCA in a software-driven world unimagined in 1998 when DMCA was enacted.
Consumers are probably most familiar with the seesawing battle to determine the true ownership of cellphones. Unlocking the phone you've paid for so that you can transfer to a new carrier requires making changes to its firmware -- software that is copyrighted -- making it a DMCA violation. From 2006 to 2012, the Copyright Office made an exemption that allowed consumers to unlock their cellphones. Then in 2012 the office decided not to renew that exemption, and unlocking became illegal again.
In 2014, President Obama signed into law the Unlocking Consumer Choice and Wireless Competition Act, which reversed the 2012 decision and allowed consumers to unlock their phones again -- provided it did not violate the terms of their carrier contracts. But that was a temporary solution, and this year, the fate of cellphone unlocking is once more in the Copyright Office's hands.
What are the chances of being granted an exemption to carry out acts that should be legal in the first place, asks Gizmodo? Next to impossible, if you're not a lawyer.
"As a person who's been involved, it's a tremendously time-consuming process," says the EFF's Corynne McSherry. "The Library of Congress is essentially getting a veto right on innovation. The last round, it took three of our lawyers hundreds of hours, plus traveling to and from D.C. to testify for why you need it ... and that's just one round."
Congress could legalize unlocking phones on Monday, tablets on Tuesday, cars on Wednesday, and a different gizmo every day from now until the end of the week let alone year. It won't matter. The day after that, there will be yet another new computerized product, a new thing with code for its connective tissue. As long as companies can make money by keeping users out of their own stuff, they will … and so copyright law will never catch up.
Last week Senator Ron Wyden (D-Ore.) introduced legislation to "boost security research, journalism, and fair use of copyrighted works" by reforming DMCA and expanding the availability of exemptions.
"The DMCA has been applied in anticompetitive ways that were never intended, and that do nothing to combat actual copyright infringement," says Sherwin Siy, VP of legal affairs at Public Knowledge. "Senator Wyden's bill would vastly improve this situation by fixing a number of lingering problems with the triennial rulemaking process designed to ease the burden that the law places on lawful users."
Others, like Gizmodo, would like to see it taken even further. "Forget even trying to streamline the exemption process. Some tweaks would help, like changing the default after your three-year exemption is up to automatically renewing, instead of having to re-apply. But really? Just drop section 1201 of the DMCA, which introduces this whole stupid umbrella of DRM protection."
After all, if Section 1201 was removed, regular copyright law would still apply. Without 1201, under the terms of fair use it would no longer be illegal to copy a file from your Kindle, for instance, and give it to a friend, or to cut and paste a paragraph for a block quote in a paper.
The myriad unintended consequences of Section 1201, the EFF says, include DMCA being used to chill free expression and scientific research; jeopardize the fair use of digital content that consumers have purchased; and impede competition and innovation by, for example, blocking competition in printer toner cartridges, garage door openers, video game console accessories, computer maintenance services -- and perhaps car maintenance as well, if manufacturers assert their DMCA rights.
The world has certainly changed since 1998. Isn't it time DMCA does as well?