We Can't Let John Deere Destroy the Very Idea of Ownership
WIENS K., We Can't Let John Deere Destroy the Very Idea of Ownership, wired.com, 21.04.2015
|Topics||Intellectual Property, Property|
In John Deere's opinion, its tractors are not sold, but only licensed: "Because computer code snakes through the DNA of modern tractors, farmers receive “an implied license for the life of the vehicle to operate the vehicle"".”
"This is an important issue for farmers: a neighbor, Kerry Adams, hasn’t been able to fix an expensive transplanter because he doesn’t have access to the diagnostic software he needs. He’s not alone: many farmers are opting for older, computer-free equipment".
Here, we are in the US context. But if we were in the EU legal framework, probably - thanks to Oracle v. UsedSoft decision, this wouldn't apply: ownership would be considered as transferred , and besides independent fixing of the product would be possible (see the comments contained here).
However, in the recent years, companies have even leveraged the para-copyright legislation to stop owners from modifying the programming on their products. "This means you can’t strip DRM off smart kitty litter boxes, install custom software on your iPad, or alter the calibration on a tractor’s engine". In fact, in order to do things like that, it may be necessary to overcome TPMs (i.e. digital locks) placed by the manufacturers over the copies of software sold: but this behaviour is forbidden by the law.
Here, the problem remains not only in the US context, but also in the European legal framework: in fact, the InfoSoc Directive, art. 6, forbids the circumvention of those measures, and the exceptions to this prohibition don't seem to be adequate.
Perhaps, some help could come from the Nintendo v. PC Box case. In fact, it deals with art. 6 of the InfoSoc Directive. The CJEU states that the legal protection of article 6 applies only to protect the right holder against unauthorized acts of reproduction, communication to the public, making available and distribution, i.e. only against acts covered by the exclusive rights conferred by copyright law. This means that acts that don't require the copyright holder's authorization under copyright law (limitations established by the contract seems not to be relevant in this context) - e.g. those acts which are over the boundaries of the exclusive rights or which are exceptions to these exclusive rights - don't deserve to be protected by para-copyright law. However, it is true that maybe TPMs which prevent the realization of acts covered by exclusive rights also prevent not covered acts: and the problem is that art. 6(1) and (2) forbids the circumvention independently from the circumstance that it is implemented to accomplish covered or not covered acts. If this can to some extent be recognised as acceptable from a prevention viewpoint (circumvention is the best predictor of an infringement intent), on the other hand copyright holders may feel encouraged to apply TPMs apparently to avoid the violation of their exclusive rights, actually to strengthen their position vis à vis of competitors (for example, in the case of car manufacturers forbidding access to the software, if the claimed purpose may be to avoid violation of their reproduction rights, actually the aim could be to force customers to ask for repair and fixing to them, instead of recurring to independent mechanics). Nintendo v. PC Box case tries to correct this possible deviation, in order to make the paracopyright legislation equitable: the judge therefore states that TPMs that prevent acts covered by exclusive rights receive legal protection only if they respect the proportionality requirement contained in Recital 48 of the Directive: if there were alternative measures that would have prevented those acts without also impeding free acts, the TPM implemented by the copyright holder doesn't deserve to receive protection.
This decision could therefore help against John Deere's argument against allowing people to alter the software even for the purpose of repair: "[t]he company argues that allowing people to alter the software—even for the purpose of repair—would “make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software"". Indeed, European courts should verify if the TPM's impeding software alteration respect the proportionality principle or not.
Moreover, we should highlight that the CJEU, in the Nintendo v. PC Box case, also states that - among the aspects to examine in order to verify if TPMs deserves protection or not - there is also the purpose of the circumvention (actually, it deals with the purposes of the use of circumvention devices, therefore dealing with art. 6(2), but we could expect to be able to apply them also to circumvention itself, so to art 6(1), because Recital 48 - dealing whit "purpose" - makes reference both to devices and activities): if it takes place mainly for purposes that don't infringe copyright, this element could tip the balance in favour of the denying of protection.
Tesla didn't join Deere on this argument; however, many other auto makers did. For example, General Motors has corrected Deere's position, but only to say that there is no manufacturer's ownership on the car, but only on the software. We can find many real terms and Conditions in the world of IoT products stating that ownership is transferred to the customer only for which concern the hardware part, not the software.
A striking affirmation by WIENS is the following: "And, somehow, the notion of actually owning the things you buy has become revolutionary. [...] If you bought it, you should own it — simple as that.".