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In a particularly spectacular display of corporate delusion, John Deere—the world’s largest agricultural machinery maker —told the Copyright Office that farmers don’t own their tractors. Because computer code snakes through the DNA of modern tractors, farmers receive “an implied license for the life of the vehicle to operate the vehicle.”

It’s John Deere’s tractor, folks. You’re just driving it.

I don't have any sympathy for what John Deere is trying to to in using the DMCA to restrict how people repair their own tractors.

But the legal issues need to be better delineated than this article attempts to do.

1. John Deere does not "own" your tractor when you buy it from them and it is not asserting that it does. Software is automatically protected by copyright. It is a tangible form of expression of something that is creative and, the way copyright law works, a developer of software does not need to do anything except his normal work in order to gain copyright protection. You code it, you own it. That is the default. If you code it while being paid by someone else as his employee hired to invent, then that someone else owns it. Or if you code it as a work for hire paid by someone else, again, that someone else owns it. The situations vary. But, almost universally, for commercial, proprietary software, the customer almost never owns the software he uses when buying and operating a piece of hardware operated by that software. We all take this for granted when we buy a computer or mobile device. We own the hardware but not the software. We license the software and that is it. That license gives us a right to use the software for its intended purposes but it is almost invariably accompanied by terms that restrict us as consumers from reverse engineering the code or otherwise using the code for any purpose beyond the limited scope of what the license itself allows. For example, we cannot reverse engineer the software to attempt to create a competitive form of software product. People may have philosophical objections to this - usually falling under the "all information ought to be free" rubric - but, unless and until that philosophy prevails and works to change the law, that is by no means what the law is today. Today, when you have commercial software, you have copyright protection and hence a lack of ability to use or do anything else with that software without the permission of the copyright holder. And that means a license.

2. What John Deere is doing with its tractors is not claiming ownership of them once you buy them. Just as when you buy a Mac, Apple is telling you, you own the hardware and you have a license to use the software during the life of the product, so too John Deere is saying the same thing with its tractors. You own the tractor and you can do what you want with it until the product dies but, in once it dies, you have no further license to use the software on anything else besides that product. That is the legal effect of what a license does. There is nothing whatever controversial about this unless you have a philosophical resistance to the very idea of copyright (I realize many people do, of course). Under the law, however, John Deere is claiming nothing more here than what every computer manufacturer has claimed since the beginning of modern computing. To say, as this article does, that John Deere is claiming to own your tractor is wrong. Since the author is hardly ignorant of this, it seems the above statement is inserted for emotional effect and not as part of any reasoned argument.

3. All that said, copyright law is not absolute and never has been. When one gets a copyright, it is time-limited (or at least should be, notwithstanding the absurdly long extensions granted in recent years under the Bono Act, etc.). It also is not absolute even while the rights exist. The huge category limiting its effect is that of fair use. In some cases, public policy requires that certain uses of otherwise copyrighted materials be permitted regardless of what a copyright holder might claim. Classic cases include digital video recording, select permissible copying from books, etc. In the case of the John Deere software, and that of every other vehicle manufacturer that seeks to monopolize the market for repair of its vehicles through use of the DMCA's non-circumvention rules, the issue is not whether its software ought to be subject to copyright protection but rather whether they can use that protection to prevent people from conducting basic repairs on the vehicles they own. And that is a public policy question.

4. So, what is the proper public policy: should the DMCA be allowed to be used as a legal sledgehammer by which manufacturers can bludgeon owners and thereby force them to do their repairs in ways that lock them forever in to the manufacturer? It would certainly seem not. Indeed, when framed in this way, the manufacturers' position becomes extreme and even outrageous. Well, EFF, et al. are doing a good job of arguing this in the relevant places to try to shape the law fairly on this point. They are to be commended for this and, in this sense, what John Deere is arguing is pretty despicable.

5. But none of this means that they own your tractor after you buy it. Nor does it mean that copyright doesn't apply to the software they develop. It can and it does. It is just that copyright has limits and, when pushed beyond those limits, loses its salutary purpose and becomes obnoxious and damaging.

6. As a final point, nothing in John Deere's position challenges the idea of "ownership" as we know it. By framing the issue in this way, this article (in my view) tries to play on common sympathies but does so in a very misleading way. I believe this only weakens what is otherwise a sound position on preventing misuse of the DMCA. It also misstates the law pretty badly. So here are my two cents trying to correct this.

Your logic is sound. Point 4 is the real argument about what the actual intent of these companies is; The fact that these companies are using the DMCA as a thinly veiled attempt to limit consumer choice and destroy competitive secondary markets. Both of which are repeatedly upheld when legislation or courts take action. Hence the the banning of "Tie in Sales" provisions in warranties on goods.

>Generally, tie-in sales provisions are not allowed. Such a provision would require a purchaser of the warranted product to buy an item or service from a particular company to use with the warranted product in order to be eligible to receive a remedy under the warranty. The following are examples of prohibited tie-in sales provisions.[1]

Regardless of how the DMCA arguments play out, at least the automakers will have difficulties moving forward as there is a long fought battle over not releasing service information on in-car computer and diagnostic information to third-party repair service provides. There hasn't been legislation over the issue because automakers volunteered to release information on service and tools required to service in car computer systems.[2] It would most likely be easy to build a legal case against an auto company that required you to take your warrantied car to a franchised dealership for warrantied replacement of a defective circuit board. So in a not too hard to imagine hypothetical scenario where a bug in the car's cam timing software cause mechanical failure, but the auto manufacturer refuses to sell the replacement part (replacement software) or tools required to perform service to third-party service providers because of software licensing, would that not fall under Magnuson-Moss Act if the repair would be warrantied?



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