This post originally appeared on the OSHWA blog .

Earlier this month OSHWA, along with Public Knowledge, the Digital Right to Repair Coalition, Software Freedom Conservancy, iFixIt, and scholars of property and technology law, filed a brief in the US Court of Appeals supporting the principle that owning something means that you get to decide how to use it. While that principle has been part of US (and, before there was a US, British) law for centuries, recent attempts to protect copyright have worked to undermine it.

We filed the brief in a case that EFF has brought on behalf of Dr. Matthew Green and Dr. bunnie Huang (someone who is well known to the open source hardware community) challenging the constitutionality of parts of the US law that prevent access to digital works.This issue is important to the open source hardware community because owning hardware is a critical part of building and sharing hardware.

The Issue

The case focuses on Section 1201 of the Digital Millennium Copyright Act (DMCA). The DMCA is probably best known for its Section 512 notice and takedown regime for works protected by copyright online (that’s the “DMCA” in a “DMCA Notice” or “DMCA Takedown” that removes videos from YouTube). Section 1201 is a different part of the law that creates legal protections for digital locks that limit access to copyright-protected works.

Basically, Section 1201 is a special law that makes it illegal to break DRM. And as long as DRM prevents you from using your toaster how you see fit, you don’t really own it.

These protections were originally designed to protect digital media – think the encryption of DVDs. However, since code is protected by copyright, and just about everything has code embedded in it, the 1201 protections undermine ownership rights in a huge range of things.

The brief illustrates how 1201-protected DRM undermines traditional rules of ownership in a number of different ways:

  • The right to repair: DRM blocks third-party parts or fixes, monopolizing the repair market or forcing consumers to throw away near-working devices.
  • The right to exclude: DRM spies on consumers and opens insecure backdoors on their computers, allowing malicious software to enter from anywhere.
  • The right to use: DRM prevents consumers from using their devices as they wish. A coffee machine’s DRM may prohibit the brewing of other companies’ coffee pods, for example.
  • The right to possess: Device manufacturers have leveraged DRM to dispossess consumers of their purchases, without legal justification.

The Challenge

This case is challenging Section 1201 on First Amendment grounds. As written, the law imposes content-based restrictions on speech. Tools for circumventing DRM can advise users on how and why to protect their property rights. Prohibiting them means that the law gives legal benefits to anti-ownership DRM software while criminalizing pro-ownership DRM-circumvention software.

Additionally, whatever one thinks about using DRM to protect digital media, the current law is not well tailored to achieve that goal. Today, DRM has been added to all sorts of devices that are very far from “digital media” in any reasonable sense. As the brief notes:

Devices like refrigerators have [DRM] not to stop rampant refrigerator copyright piracy, but so manufacturers can maintain market dominance, block competition, and force wasteful consumerism that boosts those manufacturers’ bottom lines.

These uses of DRM are protected by the current law but have nothing to do with protecting digital media.

What’s Next

This brief is part of an appeal in the U.S. Court of Appeals for the District of Columbia Circuit. It will be argued in the coming months. EFF’s page on the case is here.

We want to end this post with a huge thank you to Professor Charles Duan, the author of our brief. Professor Duan does a great job of bringing clarity to this important issue facing the open source hardware community. Plus, you always know any brief written by him will include citations reaching back centuries. This brief shows that case law reaching back to 1604 is still relevant to questions about ownership today!

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