Take Action: Right to Repair - Digital Millennium Copyright Act Exemptions

09/21/2017

Issue:

The Digital Millennium Copyright Act (DMCA) was enacted by Congress to prohibit the circumvention of technological measures employed by copyright owners to protect access to their work. Manufacturers of agricultural machinery rely on the DMCA to employ technological protective measures such as proprietary software, passwords and memory modification to prevent access that may be necessary to diagnose, repair and modify farm equipment.

The DMCA criminalizes circumventing an access control, whether or not there is actual infringement of the copyright itself. This means equipment owners are often prohibited from making repairs to devices with copyrighted software and instead are required to take their equipment to an authorized dealer. Bypassing built-in security codes voids most warranties and can result in fines of up to $500,000 and even time in prison.

 

Background:

In 2015, the Library of Congress granted an exemption allowing farmers to fix their tractors, planters, combines, etc., without fear of legal repercussions. The exemption was based on the fact that the restricted access places the livelihood of farmers at risk because they must sometimes wait significant periods of time before their disabled vehicles can be repaired by a technician authorized by the manufacturers.  Exemptions expire after three years and must be resubmitted.

In 2015, ten exemptions were issued including some for computer programs that are contained in and control the functioning of a mechanized agricultural vehicle. The exemption for agricultural vehicle repair applies only to the owner of that vehicle and not an independent mechanic and only for purposes of repair, not to infringe on legitimate copyright issues. In addition, the exemption restricts circumvention for telematics, entertainment, and anything that violates Environmental Protection Agency or Department of Transportation regulations.

While the Copyright office did not define telematics in the decision, a reasonable viewpoint would be that it includes systems associated with automatic guidance. Farm Bureau also believes that controllers that manage emission performance would be excluded under this exemption, as modification of these units could result in emissions not meeting EPA requirements.

In general, copyright law favors copyright interests. It is up to those seeking an exemption to show that it is necessary and that it meets the legal standards for fair use.   AFBF filed a petition a month ago to extend the current exemption for another three years.  Yesterday, AFBF, the National Farmers Union, the National Corn Growers Association and the University of Southern California filed an exemption petition to expand the exemption from farmers only to also include independent repair dealers.

 

(Attachments: DMCA New Exemption Petition and DMCA Petition for Exemption Renewal)

 

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