COPYRIGHT OFFICE REPORT ON SOFTWARE-ENABLED CONSUMER DEVICES

March 29, 2017

By: Mitch Tuchman

Software-enabled consumer devices are ubiquitous.  Think not only personal computers—desktop, laptop, handheld—but thermostats, cameras, refrigerators, power tools, self-driving cars, even dolls, toys and games, among others devices too numerous to mention.  This was not so in 1976 when Congress enacted the present Copyright Act (the “Act”), including computer software for the first time among protected “literary works.”  Software was not then, as it is now, in the palms of toddlers.

In an effort to ascertain whether the Act remains adequate with respect to embedded software, leaders of the Senate Judiciary Committee requested that the United States Copyright Office (the “Office”) provide its expert advice.  Specifically, the Committee asked, does current law permit today’s consumers to resell their devices, particularly if the embedded software is subject to a license rather than an outright sale?  Can consumers repair and tinker with embedded software if doing so requires unauthorized reproduction of the code?  Can consumers engage in good faith security research or adapt their devices for purposes of interoperability with other devices?  If no, Congress asked, does the Office recommend remedial legislative measures?

The Office responded recently with a voluminous, but comprehensible report found at https://www.copyright.gov/policy/software/software-full-report.pdf.  In short, the Office does not recommend legislative changes at this time, relying instead on the thoughtful judicial application of such provisions of copyright law as fair use, the first sale doctrine and statutory limitations on exclusive rights as well as various common law defenses against claims of infringement.

If you have questions about the issues discussed in this alert, please contact Mitch Tuchman at mtuchman@morningstarlawgroup.com or (919) 590-0390 or consult any member of the firm’s intellectual property law and information technology practice group.

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