Recently, Deere & Co., makers of John Deere tractors and other equipment, sent a letter to the United States Copyright Office asking that it not allow owners of the company’s tractors to circumvent or modify the software it builds into its machines. It was just the latest vehicle or equipment manufacturer to file an application opposing requests by the Electronic Frontier Foundation (EFF) for a blanket exemption to bypass these digital protections.
Critics view Deere’s assertion that a tractor is fundamentally a software system with machine parts as an example of digital rights management (DRM) and copyright laws run amok. The Globe spoke to one of the leading opponents of DRM, Canadian author and technologist Cory Doctorow. He is co-ordinating the EFF’s Apollo 1201 project, which aims to strike down chunks of the 1998 Digital Millennium Copyright Act (DMCA) through the U.S. court system. In Canada, Bill C-11, the 2012 Copyright Modernization Act, updated our existing rules to enshrine many of the same prohibitions against breaking digital locks that make the DMCA a target for reformers.
What do you make of this John Deere application?
John Deere’s insistence that you have “licensed” your tractor and can’t really own it neatly demonstrates that anti-circumvention rules are actually anti-property rules.
Laws like Canada’s Bill C-11 and the U.S. DMCA say that if a manufacturer uses computer code to control what you do with the things you buy, you can’t overrule them. These laws say that it’s a crime to remove DRM even if what you’re doing is otherwise allowed. So, it’s a lock on something that belongs to you, that even for legitimate reasons you can’t remove.
As the John Deere petition to the U.S. Copyright Office made clear: The presence of a digital lock in a manufactured good means that you don’t own it and can’t decide how to best use it.
How do copyright rules like this affect traditional definitions of ownership?
In this world, “property” becomes the exclusive purview of manufacturers. You don’t get to own your computerized devices: You are only and forevermore a tenant of them, and the manufacturers are the landlords and they get to decide how you use the goods they deign to allow you to pay for.
It used to be that if you bought something and figured out how to get extra value out of it – using an old blender to mix paint; fixing your own car; or ripping your CDs and loading the music in an MP3 player instead of buying it again – that extra value was yours to keep.
In the world of C-11 and the DMCA, all that value is retained by the manufacturer. So automotive companies can put software locks on the engine computer, then insist that the mechanics they license source all their parts from the manufacturer at full retail, meaning that you can’t choose a mechanic who’ll use cheaper third-party spares.
If your dishwasher can detect and reject “unauthorized” dishes in it, it can refuse to run its load. It’s the inkjet printer model, metastasized into the Internet of Things where everything we own – cars, houses, hearing aids, phones – is just a computer with a fancy case.
The amazing thing about this is that there is support from all quarters for the idea that if you bought it, you own it.
This is not just an idea that appeals to people who worry about income inequality and social justice. This is also an idea the appeals to people from the Chicago School. This is a real Wildrose party core issue.
What’s so controversial about a computer manufacturer writing code that stops you from doing unauthorized things with devices they make?
I think it’s just a really bad idea to design computers to disobey their owners. The idea that designing those computers so that the people who that rely on them aren’t allowed to know what they are doing, that idea to me is frankly a terrifying one. And I think that this is a deeply problematic idea for democracies as computers become woven more deeply into our world. … When your thermostat is a computer, when your car is a computer and your building is a computer, the mischief that you can get up to with a world that’s made of computers is really unlimited. In the U.S. there are a million cars on the road that were leased out on subprime leases. And the way they work is that they have ignition overrides, and if you miss a payment or you go out of the area that your lease allows you to drive in, you can’t start the car any more.
Those things are going to look like chump change next to, for example, the dictator of Belarus using a Stingray [a device that pretends to be an innocuous cell tower but is used to capture user data from any cellphone that it connects to] to figure out who shows up at a protest and then using everyone’s Nest thermostats to turn off their heat that night in the middle of January and basically freeze out anyone who dares challenge their authority.
Does Canada’s copyright legislation enforce the same controls the DMCA does?
C-11 prohibits you from exercising [fair dealing] rights if you have to break a digital lock. Another way of saying that is: ‘Industry, if you want to monetize any of these uses that otherwise would be available to the public for free, all you need to do is take the thinnest, least-effective digital lock that’s cheapest to implement and slap it on your work and we’ll use as many tax dollars as it takes to hunt down any company that tries to enable those features.’
So this creates this really weird regime where effectively you get to make up your own laws: You put a lock on, you prevent something from happening and suddenly it becomes illegal to do that. Even if Parliament or Congress never sat down to do that. Can that law really pass constitutional muster?
I had quite a heated argument with James Moore [Minister of Industry] on Twitter when he was working on C-11. I asked him “How can you say that you believe in markets and property, and then have a rule that says if I own a device I’m not allowed to choose how it works?” And he said “Well if you don’t like it, you should buy a different device.” And I’m like, “That’s not how property works!” If I don’t like how the decorator paints my house, I get to repaint it.
How then is the EFF going to challenge the DMCA?
As a Canadian, one of the things I’ve come to appreciate is the U.S.’s really strong constitutional tradition makes their independent judiciary a really effective check on their legislative branch.
If you haven’t had a lot of experience with American impact litigation it’s really hard to get your head around just how powerful it can be to find a case where it really reflects the law in the light that shows its problems most dramatically … and then have a judge overturn something that you could never overturn through lobbying congress or parliament. Finding the right case and designing the defence and joining the right defendants to it such that we ask as many of the important questions as possible and as broadly as possible is going to be key in this.
This is a long process. I am not confident that we’ll get in front of the Supreme Court in less than a decade.
So, for you the stakes in this are much higher than whether farmers can modify their tractors?
I feel like we’ve got this narrow window to delegitimize the already technologically bankrupt idea that you can solve problems by redesigning computers to control their owners, instead of the other way around. And if we miss that window it’s going to be much harder to turn this around and the problems that we’re going to face are going to be much more grotesque than the parade of horribles we’ve already seen.
This interview has been edited and condensed.Report Typo/Error