17 U.S.C. 1201, the “anti-circumvention” provision of the Copyright Act, makes it illegal for a user of a “digital good” to access certain copyrighted information, like a computer program’s code, if the code is so written to disallow access to it. For example, if a user purchases a new smartphone that implements a measure to block access to its operating system’s code, and the user “circumvents” that measure to see the code, that user has committed copyright infringement. This limits the ability of the user to control his purchase, and often grants the copyright owner the exclusive right to modify and update the software. This has been the source of much controversy lately. One of the big concerns is how this law changes what it really means to “own” one of the fancy new gadgets that we all love.
Most anything from Xboxes to iPhones to new cars now come with networked technology that is helpful and convenient to those who do not program (though constant needs to update can get frustrating). For those that do program, the end user license agreements are sources of much frustration and anxiety. First off, you have to agree to the end user license agreement or you can’t use the software. If this license contains an “anti-circumvention” provision for some of its software, which is most likely does, then there are things in your product that you cannot control.
An example comes from back in February of this year when a drunken employee of a United States intelligence agency flew a DJI drone onto the White House’s lawn. Almost immediately after that, DGI “updated” its software to prohibit its civilian drones from being able to fly within 25km of downtown Washington DC. Unilateral decision-making and control like this is what has some people worried. Some smartphone apps require access to the phone’s camera or microphone and even contact list and call history. All of this software certainly comes with an anti-circumvention provision that prohibits anybody from changing the app so that it cannot access these things. Further, the anti-circumvention provision prohibits independent developers from improving upon certain software if they cannot access the required codes without permission from the manufacturing company.
What, then, are we buying when we buy a “networked” device? How much control do we actually have over these gadgets?
By Brian Unger
