US Finds Existing Copyright Law Suited For Software Embedded In Everyday Products

The United States Copyright Office has released a study that finds that existing copyright laws are sufficient to cover issues arising over software embedded in everyday consumer products. But it does call for some flexibility for consumers to tinker with their devices.

The report, which followed hearings and research in the field, is available here. The report was requested by Sens. Charles Grassley (R-Iowa) and Patrick Leahy (D-Vermont), the chair and ranking member of the Senate Judiciary Committee.

“[T]he Copyright Office believes that existing copyright law is, at least at this time, well-suited to handle this new age of embedded software, so that innovators can continue to improve our lives and revolutionize our world,” the report states.

The conclusion reads:

“The development of software embedded in everyday products is unique and promising, and has helped usher in an era in which consumers have products offering new functionality and convenience. Although these uses of software are new, that software benefits from the same existing rights and limitations as all software. This use of software does raise new issues, but the Copyright Office believes that the existing, flexible structure of the Copyright Act will serve well the needs of both copyright owners and users of software embedded in everyday products. For that reason, the Office does not recommend any legislative changes at this time. Nevertheless, the Office will continue to monitor the technological and legal landscape for further developments to ensure that copyright law moves forward and continues to promote the progress of science as envisioned in the Constitution.”

According to the report summary:

• The Office’s study did not reveal evidence that consumers have been prevented from reselling or otherwise disposing of their software-enabled consumer products. The Office does not see a current need for legislative change relating to resale, so long as courts properly apply the first-sale right embodied in section 109 of the Copyright Act.

• The Office recognizes the value of allowing the public to freely repair defective consumer products and tinker with products to improve their function. But establishing a new statutory framework explicitly permitting repair and tinkering does not appear to be necessary at this time. Properly understood, existing copyright law doctrines – including the idea/expression dichotomy, fair use, merger, scènes à faire, and section 117 – should continue to facilitate these types of activities.

• Similarly, the Office recognizes the value of allowing the public to engage in good-faith security research of software-enabled consumer products. Again, however, statutory changes (at least outside the context of the anticircumvention provisions in section 1201) do not appear to be necessary at present. Existing copyright law doctrines should protect this legitimate activity.

• The Office recognizes the significance of preserving the ability to develop products and services that can interoperate with software-enabled consumer products, and the related goal of preserving competition in the marketplace.

While a new statutory framework might help reduce some uncertainty in this area, such action does not appear to be necessary at this time. Again, faithful application of existing copyright law doctrines can preserve the twin principles of interoperability and competition.

The Copyright Office also examined the reach and scope of licensing practices for embedded software, an issue that implicates several subsidiary issues, including: the relationship of the Copyright Act to state contract law; whether, and in what circumstances, violations of the terms of software licenses would constitute copyright infringement; and confusion among consumers regarding licensing terms for embedded software.

The Office’s study found that, in certain circumstances, such as resale, there is only limited evidence regarding real-world restrictions.

Accordingly, the Office believes that the question of ownership versus licensing, while very important, is one that can be resolved with the proper application of existing case law.

Below is the Copyright Office release in full:

Copyright Office Releases Report on Software-Enabled Consumer Products

The U.S. Copyright Office today released its report “Software-Enabled Consumer Products.” The report follows a year-long process, during which the Office studied how copyright law interacts with software-enabled consumer products, from cars, to refrigerators, to cellphones, to thermostats, and more. Requested by the Senate Judiciary Committee, the report explores the various legal doctrines that apply to this subset of software, which is increasingly present in everyday life, including important copyright doctrines such as fair use, merger, scènes à faire, first sale, and the section 117 exemptions. The report focuses on specific issues raised in the public comments and hearings, including how copyright law affects licensing, resale, repair and tinkering, security research, and interoperability.

The Copyright Office’s report found that current legal doctrines support a wide range of legitimate uses of the embedded software in consumer products while also recognizing the importance of copyright protection to the creation and distribution of innovative products. The report provides a thorough review of the existing legal framework with respect to software embedded in consumer products, but it does not recommend legislative changes at this time.

The full report and executive summary are available on the Copyright Office’s website at http://copyright.gov/policy/software/.