MachineryLink

"Ownership" Kerfuffle Continues

Jim Patrico
By  Jim Patrico , Progressive Farmer Senior Editor
Despite the rhetoric, the real issue is: Who has the right to access and modify proprietary software that makes agricultural equipment run? (DTN/The Progressive Farmer photo by Jim Patrico)

By now, you've heard the uproar Wired (the online magazine) created recently with an opinion piece titled, "We Can't Let John Deere Destroy the Very Idea of Ownership." It was a headline and an opinion meant to inflame. And it worked in the way that so much of the misleading media on the Internet is meant to work... it went viral. Meaning, I guess, thousands -- maybe millions -- of people got incensed by the tone, if not the substance, of the piece. After all, how can any red-blooded American not be incensed by someone or something wanting to destroy the right to ownership?

Except the real issue isn't ownership. When you remove the headline and the overwrought prose, the Wired piece actually was about a fairly technical legal struggle: The desire of customers to get into the software guts of their vehicles to repair and modify them versus the desire of Deere and other manufacturers to protect proprietary software. It's a serious subject that deserves deliberation. But it's really not about anyone destroying the idea of ownership.

Still, it's amazing how many other websites, publications and bloggers picked up the ownership chant author Kyle Wiens started. I'm sure it made Wiens' day, week, year. But it also created a public relations nightmare for Deere.

At first, Deere chose to ignore the piece. But as the roar grew and other media got interested, the company did respond to journalists' questions. My colleague Chris Clayton wrote an excellent story that appeared on April 27 in which a Deere spokesman said: "What Deere wants to be clear about is, No. 1, customers own the equipment they purchase from us. That's the first thing; if you buy a tractor from Deere, you own it."

When the media noise didn't quite go away, two Deere regional sales managers quietly sent a letter to dealers outlining the company's stance on ownership and copyrights. It read in part:

"There is no question that Deere customers own the equipment that they purchase.

P[L1] D[0x0] M[300x250] OOP[F] ADUNIT[] T[]

Deere's number one priority is to design and manufacture safe equipment that provides value and performance for our customers. As designed, our software enables equipment to perform safely, efficiently and accurately... Current copyright law makes it illegal to bypass security measures in equipment that prevent unauthorized access to copyrighted works, including software related to guidance, engine performance and entertainment functions."

Of course, in today's world, even snail-mail letters quickly hit the Internet, and the letter to Deere dealers was soon itself a center of attention. It appeared and was analyzed by many, including a snide online response from Techdirt. (Yes, that's really the name of the website. It focuses on government, technology and innovation issues.) "Confused and pedantic," is what the blogger said of the letter to dealers.

To put this affair in context, let's go back to the origin of the story. "Ownership" and software are tremendously complex issues. As the digital and physical worlds become more intertwined in products coming to market, the complexity will only grow. With that in mind, Congress passed the Digital Millennium Copyright Act in 1998. It was a forward-looking move by an institution not now known for foresight. The purpose of DMCA is to help copyright law keep pace with rapidly changing digital innovations in the marketplace. DMCA provides a mechanism so that every three years, users of copyrighted works can appeal to the U.S. Copyright Office for rules changes.

By last year's December deadline, for example, petitioners asked the U.S. Copyright Office to consider new rules about unlocking cell phones to allow freer access to other carriers. Other petitioners asked that owners of e-book readers be allowed to "jailbreak" the devices to allow them to run other software.

Key to our discussion: There were at least two appeals through DMCA for changes in the way purchasers of vehicles (including agricultural machinery) could access and modify software. Here is what the Federal Register reported:

"Proposed Class 21: Vehicle Software -- Diagnosis, Repair, or Modification.

"This proposed class would allow circumvention of TPMs [Technological Protection Measures] 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."

In other words, if proposed changes in copyright law are enacted, owners of tractors would have the right to access and then do work-arounds of manufacturers' software.

Naturally, manufacturers aren't happy about this. Safety is one issue. (Would they be liable if a customer's modifications created an unsafe vehicle?) Necessity is another issue. A Deere attorney responded in a letter to the Copyright Office that, "adequate diagnostic codes were already accessible to vehicle owners for diagnostic and repair purposes without circumvention and violating the manufacturer's copyrights in its software." (Of course, dealers would do much of this diagnostic and repair work.)

Perhaps more important, the attorney's letter said, the proposed exemptions would allow hackers to pirate the costly software manufacturers worked long and hard to create. (Deere is far from alone in this fear. The Association of Equipment Manufacturers filed a document in support of the Deere letter.)

Protection of proprietary software is the real nut of this whole issue, not ownership of tractors. The deadline for comments on the proposed changes was May 1. Now the Copyright Office will consider action. It -- and probably the courts -- ultimately will have to decide who can legally access proprietary software in all sorts of vehicles... from tractors and combines to the family sedan.

In the meantime, look for more online and offline discussions at a high decibel level.

P[] D[728x170] M[320x75] OOP[F] ADUNIT[] T[]
P[L2] D[728x90] M[320x50] OOP[F] ADUNIT[] T[]

Comments

To comment, please Log In or Join our Community .