By Kristen Koepsel
Editor’s Note: Today we are grateful to have a post from Kristen Koepsel. Kirsten M. Koepsel, JD, LLM analyses and writes on the intersection of agriculture, intellectual property, and animal law issues. She may be reached at kirstenpatents@mac.com. We are grateful Kristen for allowing us to include a post on this important developing topic that includes not only agriculture but other areas as you will see.
Until a few months ago, a farmer asked the question, “who owns your tractor or any of your other agriculture machinery?” would most likely have answered, “me.” But a recent submission by John Deere (the brand name of Deere & Company) to the U.S. Copyright Office provides a different answer: “In the absence of an express written license in conjunction with the purchase of the vehicle, the vehicle owner receives an implied license for the life of the vehicle to operate the vehicle, subject to any warranty limitations, disclaimers or other contractual limitations in the sales contract or documentation.” Several news articles picked up on the “John Deere ownership” comment, including Wired Magazine. But how does ownership of a tractor and copyright come to intersect?
In 1998 Congress enacted the Digital Millennium Copyright Act (DMCA) so that World Intellectual Property Organization Copyright Treaty “to protect copyrighted material in the digital environment” could be implemented in the United States. The Copyright Treaty included the prohibition on circumvention of technologies, such as encryption, which copyright owners use to protect their digital works, such as software. The House of Representatives Committee on Commerce was concerned that any fair use of digital works might decline over time and added a “fail-safe” mechanism which would “allow the enforceability of the prohibition against the act of circumvention to be selectively waived, for limited time periods.” The “fail-safe” mechanism in the DMCA is a rulemaking proceeding conducted by the Library of Congress every three years.
A notice of inquiry requesting possible exemptions for the sixth triennial rulemaking proceeding was published in the September 17, 2014 Federal Register. Forty-four petitions were received. Two of the petitions were from the Intellectual Property and Technology Law Clinic, University of Southern California (USC) specifically addressing copyrighted software for agricultural machinery such as tractors, transplanters, etc.
One petition requested a proposed exemption to allow farmers to circumvent Technological Protection Measures (TPMs) “for the purpose of modifying their own agricultural machinery to improve efficiency and/or functionality.” The petition argued that current TPMs prevented farmers from easily modifying the agricultural machinery for easier access by persons with disabilities; increasing the engine power of the high capital cost machinery for non-designed uses such as timber harvest; and increasing the environmental efficiency of the machinery which could reduce fuel cost and environmental impact.
The other petition requested an exemption to allow farmers to circumvent TPMs “for the purpose of diagnosing and/or repairing their own agricultural machinery.” Adverse effects of not being able to circumvent TPMs include waiting for technicians to travel to the farm for diagnostics and repairs particularly impacting small farms; the original equipment manufacturers will continue to have an anti-competitive monopoly on repair services; and the prices of older and simpler machines will continue to increase as some farmers resort to purchasing them.
The Copyright Office reviewed the submitted petitions and published a notice of proposed rulemaking requesting comments on proposed classes of exemptions in the December 12, 2014 Federal Register. One such was Proposed Class 21: Vehicle Software － Diagnosis, Repair, or Modification which would “allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement” and “circumvention would be allowed when undertaken by or on behalf of the lawful owner of the vehicle.”
The first round of comments was submitted by parties supporting the exemptions. For Proposed Class 21, over 10 submissions were received including 2,284 comments submitted through Digital Right to Repair. The USC Clinic again submitted comments as to why the exemption should be granted for agriculture machinery and included anecdotes from farmers on the impact of TPMs on farming, including added costs and delay in repairs as well as the impact on smaller farms which often have one machine for a task.
The second round of comments was from parties opposing the adoption of the proposed exemptions. Several comments were submitted by the automotive and agricultural machinery industries. Comments from John Deere noted that circumventing TPMs for Class 21 “is against public policy because individual vehicle owners do not have the technical resources to provide safe, reliable and lawful software for repair, diagnosis, or some dubious ‘aftermarket personalization, modification, or other improvement’ that is not directed toward repair of diagnosis of the vehicle.” John Deere also noted that third-party tinkering could impact any regulatory requirements on vehicles as mandated by the U.S. Department of Transportation or the Environmental Protection Agency. Several news articles appeared on the internet noting the John Deere comment regarding vehicle ownership.
Until the U.S. Copyright Office publishes the accepted exemptions in July 2015, farmer should continue to respect any copyrights and TPMs in use.