Device “Ownership” Is a Civil Liberties Issue

By Kit Walsh

We’re taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what’s at stake, and what we need to do to make sure that copyright promotes creativity and innovation.

The technology you rely on to interact with the world and express yourself should ultimately obey you, not the company that made it. If the devices in our pockets, on our bodies, and all around us are going to help us advance our own values, it has to be possible to control and customize them so they don’t just do whatever their manufacturer envisioned.

A sad fact of modern technology is that many “smart” devices use their smarts to act as their manufacturer’s spy and digital enforcer. They monetize your private data and are designed not to empower you, but to maximize the profits you bring to their manufacturer.

The companies that make mass-market devices often have values that either are at odds with the interests of the human beings who rely on them (e.g., devices laden with secretive spyware or printers that refuse to use competitors’ ink) or simply aim to satisfy what’s perceived as the most common use case without regard to the harms this causes people who don’t fall within the norm, typically members of marginalized demographics (e.g., soap dispensers that can’t see Black people).

One of the neat things about technology is that you can build on what’s come before. If you want to buy something close to what you need and tinker with it to make it suit your purpose, you should be able to.

Yet copyright law has become one of the largest obstacles to this kind of innovation. To be clear, if it were only traditional copyright law being considered, then the fair use doctrine and other limitations on copyright would protect your right to tinker. The culprit is Section 1201 of the Digital Millennium Copyright Act.

Section 1201 makes it unlawful to bypass access controls on copyrighted works–even when those access controls are inside a device you own, controlling access to your copy of a work. Congress intended to prevent infringement by stopping people from, for instance, descrambling cable channels they hadn’t paid for. But secure digital systems often use access controls, such as encryption, and if you don’t have the digital keys to look at and modify the code in your devices, then breaking that encryption can get you into legal trouble, even for devices you’ve bought and own.

This Copyright Week, take a moment to appreciate the tinkering and personalization that improve your life and help you express yourself. Enjoy your rights in the analog world and try out one of the exemptions to Section 1201 that we and our allies have won, such as jailbreaking your phone or reprogramming your electric scooter. Let’s all work on getting rid of this awful law so that our digital future remains in our hands.

Kit is a staff attorney at EFF, working on free speech, net neutrality, copyright, coders’ rights, and other issues that relate to freedom of expression and access to knowledge. She has worked for years to support the rights of political protesters, journalists, remix artists, and technologists to agitate for social change and to express themselves through their stories and ideas. Prior to joining EFF, Kit led the civil liberties and patent practice areas at the Cyberlaw Clinic, part of Harvard’s Berkman Center for Internet and Society, and previously Kit worked at the law firm of Wolf, Greenfield & Sacks, litigating patent, trademark, and copyright cases in courts across the country.

Kit holds a J.D. from Harvard Law School and a B.S. in neuroscience from MIT, where she studied brain-computer interfaces and designed cyborgs and artificial bacteria.

This article was sourced from EFF.org