By MC Forelle
This article summarizes work recently published by the author in New Media and Society, titled “Copyright and the modern car: Colliding visions of the public good in DMCA section 1201 anti-circumvention proceedings”; DOI: 10.1177/14614448211015235
In 2015, tractor manufacturer John Deere made waves for sending its dealers a letter asserting that when farmers repaired their own John Deere equipment, what they were really doing was violating US copyright law. At the time, this came as news to a lot of farmers: as a characteristically self-sufficient community, they’d always repaired their equipment on their own. How did putting a computer on a tractor change this?
The law that John Deere was evoking was the 1998 Digital Millennium Copyright Act (DMCA), a law that was the result of decades of debates over whether, and how, computer software should be protected via intellectual property law like copyright. Although originally written with the content industries – film, music, and publishing – in mind, the law was written broadly enough to apply to anything that runs software. And these days, that includes everything from coffeemakers to pacemakers to, you guessed it, tractors and cars. The consequence of this is that copyright is now being used by corporations to hinder the development of new products and practices that could help us repair, maintain, and modify our stuff. More fundamentally, this copyright creep is also based in, and continues to reify, some troubling aspects about how ownership, progress, and the spread of knowledge are understood and instantiated in US legal thought and mainstream ideology.
In 2015, John Deere was among a cadre of other automotive and farming equipment manufacturers fighting against a movement to exempt automotive software from Section 1201 of the DMCA, which prohibited car owners and repair mechanics from bypassing the technological protection measures that controlled access to that software—access that is essential for many fundamental and commonplace automotive repair, maintenance, or modification activities. Fighting for this exemption was a coalition of digital rights activists, right-to-repair advocates, farmers, and car enthusiasts who believe that owning an object – especially a car – means having the right to repair it yourself, as you see fit.
Looking more deeply into how both sides of the debate engaged in it, however, a troubling dichotomy is evident. As currently written and interpreted, US copyright law constrains the acceptable debate over copyright’s purview to a battle between economic good (almost always understood as profit or income) versus individual autonomy. As a consequence, other perhaps more communal ways of thinking about the purpose of copyright, of how knowledge creation ought to be protected, and what it even means to deem some property “private” in the first place, get sidelined or ignored.
If US law is to continue granting copyright protection to computer software, then copyright law must be re-evaluated. At the very least, Section 1201 of the DMCA has to go, or be fundamentally rewritten, not least because of the impact it is having on the ability to repair, maintain, and modify our everyday devices. It is also doing serious damage to important and longstanding limitations to copyright like fair use (Aufderheide and Jaszi, 2018), as well as creating a chilling effect on speech and innovation (Seltzer, 2010).
But the problems this debate points to extend beyond just the DMCA, and are actually part of a much larger, and more urgent, project. The US copyright paradigm must radically shift to acknowledge that copyright has communal benefits and harms that go beyond economic impact or individual liberty, especially as software-embedded devices are starting to have far-ranging effects on communities and the environment. When corporations are able to argue that copyright is essential to the protection of their profits as they use it to block repair and modification work, they are also blocking efforts at accessibility, creative reuse, and fighting object obsolescence. But when the only possible objection to that approach is to appeal to an individual’s right to autonomy in their use of their devices, how these devices actually exist as parts of enormous networks of labor and resources—in their production, use, and afterlife—gets forgotten. What might the digital future of copyright and ubiquitous computing look like if they were instead reimagined as fundamentally about shared ties rather than personal autonomy or private property? What more equitable and sustainable digital futures might be brought into being (and for whom, where, and under what conditions)?
About the author
MC Forelle is a Cornell Presidential Postdoctoral Research Fellow, the first to be based at the Cornell Tech campus in New York City; she is also a visiting fellow at the Digital Life Initiative at Cornell Tech. There, she is expanding her dissertation into a book project that studies the legal and technical obstacles faced by users, tinkerers, and repair communities working to repair, maintain, and modify software-embedded automotive technologies. Her work broadly examines the intersection of law, technology, and culture, with a particular interest in materiality, sustainability, and practices of resistance and change.
Aufderheide, Patricia, and Peter Jaszi. Reclaiming Fair Use. University Of Chicago Press, 2018. press.uchicago.edu, https://press.uchicago.edu/ucp/books/book/chicago/R/bo28242133.html.
Forelle, MC. “Copyright and the Modern Car: Colliding Visions of the Public Good in DMCA Section 1201 Anti-Circumvention Proceedings.” New Media & Society, SAGE Publications, May 2021, p. 14614448211015236. SAGE Journals, doi:10.1177/14614448211015235.
Seltzer, Wendy. “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment.” Harvard Journal of Law & Technology, vol. 24, 2011 2010, pp. 171–232.