GM Among Opponents of Copyright Office's Proposed Software Exemptions Under DMCA Section 1201
The Copyright Office’s proposed exemptions for the circumvention of particular software under Digital Millennium Copyright Act Section 1201 received the most attention in the second round of comments from businesses, trade groups and nonprofits. The second round of comments were due Friday but were posted Tuesday (see 1503310058), and were limited to parties opposed to some of the office's proposed exemptions (see 1503300053). Comments in favor of the exemptions were due Feb. 6 (see 1502110062). Comments by those who support or oppose specific proposals and neutral parties wishing to reply to other comments are due May 1.
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The comment period on the CO’s proposed exemptions for 27 classes of goods is part of the office’s sixth triennial rulemaking process for Section 1201, which prohibits the circumvention of technological protection measures (TPMs). The Joint Creators and Copyright Owners (JCCO) asked the CO to oppose the “jailbreaking” of video game consoles and specific cases for the circumvention of literary works, in comments advanced to us Friday (see 1503300053). Groups like the Electronic Frontier Foundation have criticized the technology protection measures in Section 1201, saying the law curbs consumer innovation (see 1501200062).
Fourteen comments in total were filed under two proposed software exemptions; six for the repair or modification of vehicle software and eight for software for security research. “Although Class 25 is characterized by its proponents as an exemption to enable ‘good faith security testing,’ the proposal would in fact authorize the public disclosure of security vulnerabilities in ways that would expose the public to heightened security risks,” said the Software Alliance, referring to security research software. “The proposed exemption is not expressly limited to acts that do not constitute copyright infringement,” it said. Nor is the exemption “limited to lawful acts,” and it doesn’t “reference closely related laws, such as the Computer Fraud and Abuse Act,” it said.
General Motors also asked the office to deny the proposed exemption. “The proposed exemption presents a host of potential safety, security and regulatory concerns that the proponents have not fully considered,” it said. “The broad exemption sought would allow dissemination of highly sensitive copyrighted information regarding the functioning and operation of [Electronic Control Units] in cars,” said GM. “Allowing unauthorized circumvention of TPMs in medical devices can harm patients, compromise patient privacy, and place valuable intellectual property at risk,” the Advanced Medical Technology Association said in opposition to the exemption. “Permitting unauthorized circumvention for security and vulnerability research or to ‘fix’ medical devices without oversight by [the Food and Drug Administration] and without a manufacturer’s consultation will endanger patients and conflicts with the existing regulatory framework,” it said.
Groups like the Auto Alliance, John Deere and the Eaton Corporation opposed the proposed exemption for circumvention of TPMs for the repair or modification of auto software. “Adequate diagnostic codes” are available to consumers that wouldn’t require the circumvention of auto TPMs, said John Deere. The exemption could make it possible for “pirates, third-party software developers, and less innovative competitors to free-ride” superior technology, it said. “Proponents of the proposed exemption claim that modification of the software embedded in vehicle software does not result in any loss of sales to customers,” said Eaton. “However, presuming that a party seeking to modify Eaton Software will need to make a copy of ServiceRanger, the claim of no lost sales is not correct,” it said: “Permitting the copying of ServiceRanger software, or development of a substitute based on the decompiling of Eaton Software or ServiceRanger software, deprives Eaton of the sale of ServiceRanger software and the benefits associated therewith.”