Before I Can Fix This Tractor We Have To Fix Copyright Law

Oh, you thought just because you bought the machine you owned the right to the operating software that makes it work? How quaint. JL

Kyle Wiens reports in Slate:

When the repair involves a tractor's computer, it actually takes an army of copyright lawyers, dozens of representatives from U.S. government agencies, an official hearing, hundreds of pages of legal briefs, and nearly a year of waiting. Waiting for the Copyright Office to make a decision about whether people like me can repair, modify, or hack their own stuff.

How many people does it take to fix a tractor? A year ago, I would have said it took just one person. One person with a broken tractor, a free afternoon, and a box of tools.

I would have been wrong.When the repair involves a tractor's computer, it actually takes an army of copyright lawyers, dozens of representatives from U.S. government agencies, an official hearing, hundreds of pages of legal briefs, and nearly a year of waiting. Waiting for the Copyright Office to make a decision about whether people like me can repair, modify, or hack their own stuff.

But let’s back up—why do people need to ask permission to fix a tractor in the first place? It’s required under the anti-circumvention section of the Digital Millennium Copyright Act—a law that regulates the space where technology and copyright law collide. And boy, do they collide. In 2014, Washington had to intervene to make it legal again to unlock your cellphone, after the Copyright Office disastrously ruled that the practice violated copyright. Phones are just the beginning.

Thanks to the “smart” revolution, our appliances, watches, fridges, and televisions have gotten a computer-aided intelligence boost. But where there are computers, there is also copyrighted software, and where there is copyrighted software, there are often software locks. Under Section 1201 of the DMCA, you can’t pick that lock without permission. Even if you have no intention of pirating the software. Even if you just want to modify the programming or repair something you own.

Enter the tractor. I’m not a lawyer. I’m a repairman by trade and a software engineer by education. I fix things—especially things with computers in them. And I run an online community of experts that teaches other people how to fix broken equipment. When a farmer friend of mine wanted to know if there was a way to tweak the copyrighted software of his broken tractor, I knew it was going to be rough. The only way to get around the DMCA’s restriction on software tinkering is to ask the Copyright Office for an exemption at the Section 1201 Rulemaking, an arduous proceeding that takes place just once every three years. A record-breaking 27 proposed exemptions were considered last year—including one for repairs made to the software in farm equipment.

Unfortunately, getting an exemption is easier said than done. Anyone can petition the office for an exemption, but realistically speaking, you can only shepherd an exemption through the process if you possess (a) limitless free time and a superhuman knowledge of copyright law or (b) the funding to hire expensive intellectual property lawyers.

I did everything a layperson could do. I wrote comments in support of several exemptions; I helped document how difficult it was for local farmers to repair their equipment; I testified in front of the Copyright Office; I helped collect 40,000 public comments in support of copyright reform. But when it came down to it, the Copyright Office required a well-defended legal argument for proposed exemptions. And a well-defended legal argument meant lawyers—lots of them—working on the issue for a year.

Regular people can’t hire an army of copyright lawyers. The financial burden would be crippling. The only people who have enough money to participate in the process are the people trying to defeat the exemptions in the first place. Almost every exemption, including security research for vehicles and DVD ripping for educational uses, was met with opposition from the well-funded, well-lawyered Big Copyright interests—the Motion Picture Association of America, the Recording Industry Association of America, the Entertainment Software Association, and the Alliance of Automobile Manufacturers.

The rulemaking process is stacked heavily in the favor of copyright interests. It’s up to supporters to show that an exemption is necessary, and that it meets the legal standard for fair use. Which means petitioners are caught in a Catch-22: In order to meet the standard for relevance, they need to show that there’s overwhelming market demand if only it were legal. But in order to argue they are practicing fair use, they have to admit to already breaking these locks, and therefore the law. Consequently, the very people who need the exemption most are often reluctant to participate. Especially since few proposed exemptions historically survive the rulemaking.

Last year, however, was different. A huge group of pro bono intellectual property lawyers—from the Electronic Frontier Foundation, Public Knowledge, the University of Southern California’s Intellectual Property and Technology Law Clinic, and other organizations—donated their time and expertise to get exemptions passed. And following Congress’ support for cellphone unlocking, the Copyright Office granted more exemptions than ever before in 2015, including one for tractor repair.

It’s a victory, but an imperfect one. Even when an exemption like tractor repair is granted, it’s often been whittled down by the Copyright Office until it’s so narrow as to become functionally useless. By the time we got an exemption to repair tractors, the Copyright Office said that only the farmer, and not her mechanic, could tinker with the software. This restriction is out of touch with the real world, where independent technicians are a critical part of our food supply chain.

Even worse? These hard-won exemptions last only until the next rulemaking. (That’s how unlocking your cellphone went from legal to illegal, before Congress stepped in.) In three years, proponents will have to find a way to do this all over again.  This is not sustainable process—not for participants and not for the Copyright Office.

It’s time to level the playing field. Let’s make these exemptions less restrictive and shift the burden of proof a little. Instead of making supporters go to extreme lengths to show that an exemption is absolutely necessary, how about asking the opposition to show that an exemption is absolutely unnecessary? At the very least, Congress should remove the expiration date on exemptions. Once granted, exemptions should be permanent.

I’m a repairman. I recognize broken things when I see them. I got into this fight because I wanted to help people repair their broken stuff. Turns out, copyright law is the thing that was broken all along.