Do You Really Own Your Electronics?

The Electronic Frontier Foundation is fighting to make it legal for people to tinker with their software-driven devices and machines

26 August 2016

Imagine you’re a farmer in the United States who owns a tractor made by John Deere, the world’s largest agricultural machinery maker—and it’s now malfunctioning. Like other modern vehicles, the tractor runs on sophisticated proprietary software and to fix it, you need diagnostic tools. If you try to save money by repairing it yourself, that would be illegal. The software is copyrighted; tinkering with it—even to fix the tractor—is against the law under the U.S. Digital Millennium Copyright Act (DMCA).

The DMCA, signed into law in 1998, was meant to strengthen the protection of copyrighted material in an increasingly digital world. It criminalizes the production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works including software, digital manuscripts, and music. People found guilty under the DMCA might have to pay up to US $150,000 for each work infringed, and some could face jail time.

John Deere used DMCA protection to prevent owners of its machines from tinkering with the software until last year, when the U.S. Copyright Office and the Library of Congress established an exemption that allows researchers and vehicle owners to inspect and modify vehicular software. The exemption was granted a month after researchers discovered that Volkswagen had intentionally programmed diesel engines in 11 million cars to meet U.S. emissions standards during testing even though the vehicles actually were emitting up to 40 times more nitrous oxide than allowed.

The Electronic Frontier Foundation, an international nonprofit organization based in San Francisco dedicated to defending civil liberties in a digital world, is attempting to pressure the U.S. Congress to further relax digital copyright laws. The EFF filed a lawsuit last month against the U.S. government to challenge the DMCA’s “anti-circumvention” and “anti-trafficking” provisions. The EFF announced the suit in July in New York City at the Eleventh HOPE, the latest biannual Hackers on Planet Earth conference, organized by 2600 magazine.

THE RIGHT TO TINKER

The EFF is specifically challenging the DMCA’s Section 1201, which states that “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” The law, the EFF argues, is a violation of the First Amendment of the U.S. Constitution, which calls for freedom of speech and expression. Essentially, the DMCA threatens to punish people who are not necessarily attempting to pirate material but, in many cases, are trying to repurpose or make full use of their own electronics.

Almost two decades after the DMCA was passed, software is omnipresent. It’s in smartphones, cars, and home appliances. Software-defined networks are revolutionizing telecommunications, and the advent of the Internet of Things means that more and more of our everyday devices, including refrigerators, lightbulbs, and even rectal thermometers contain copyrighted software.

Restrictions on that software can prevent users from customizing the gadgets they’ve already paid for. It’s illegal to download custom software onto your iPad or iPhone, for example. And as of 2013, it became illegal in the United States to unlock any smartphone in order to switch your service to another provider.

The restrictions also can leave consumers with no choice but to use a specific company’s product. For example, cat owners who paid $200 for the CatGenie self-cleaning litter box are compelled to buy the company’s cleaning-solution cartridges for about $20 each, instead of simply refilling them with water, which users who have reengineered the device said works at least as well. But by doing so, those people broke the law.

Such DRM restrictions can be frustrating and wind up costing consumers more money, but they also have larger consequences.

ABUSING THE SYSTEM

DRM is not just inconvenient, members of the EFF argue—it’s also dangerous. Last year when Volkswagen’s emissions cheat was discovered, EFF staff attorney Kit Walsh argued in a blog post that a researcher with legal access to the car company’s software could have long ago discovered the code that changed how the cars behave in testing. The cheat was discovered almost by accident, when researchers from the West Virginia University Center for Alternative Fuels, Engines, and Emissions noticed that the emissions values obtained by the U.S. Environmental Protection Agency for Volkswagen’s diesel cars were much lower than those of cars from other manufacturers they were testing.

The DMCA “is supposed to protect against unlawful copying,” Walsh says. “But as we’ve seen in the recent Volkswagen scandal—where VW was caught manipulating smog tests—it can be used instead to hide wrongdoing hidden in computer code.”

There’s also the issue of cybersecurity. If researchers aren’t legally able to break into systems to find vulnerabilities, they can’t do their jobs. IEEE Member Jason Hong, a cybersecurity professor at Carnegie Mellon University, in Pittsburgh, said in a Digital Trends article that “even if you put in the most trivial protection method, it’s a copyright violation to circumvent that [protection], unless you get permission beforehand from the copyright owner.” Sometimes, that permission is relatively easy to come by—just another annoyance for researchers, Hong says. But, he adds, some organizations abuse the legislation, using it as a shield to keep researchers silent.

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