©2015. Published in Landslide, Vol. 8, No. 2, November/December 2015, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
Feature
Copyright Battles over the Internet of Things
Franklin S. Graves
At this year’s Consumer Electronic Show (CES), the Internet of Things took over the show floors—pushing aside 3D printers and pulling ears away from Sony’s hi-res audio initiative. The Internet of Things, or IoT abbreviated, is all about leveraging wireless technologies to enhance the interoperability of objects and items that consumers interact with on a daily basis. Single-use coffee pods, cars, smoke detectors, power outlets, light bulbs, and more have all been transformed to communicate both with each other on a local level and across networks miles apart.
The Internet of Things Explained
IoT has become a popular buzzword across multiple industries. The basic concept for IoT started as an opportunity to turn everyday objects into “smart” objects capable of improving operability and efficiency. The objects are programmed to communicate by way of wireless standards as common as Wi-Fi and Bluetooth or as specialized as protocols such as ZigBee and Z-Wave.1
Objects can be transformed into “smart” objects through two basic methods: by design and by retrofitting. IoT objects by design are manufactured with built-in wireless communication capabilities. A common example is the Nest thermostat, which not only allows remote control functions but also learns behavioral patterns of its users. Non-IoT objects can be retrofitted by way of adapters or other technological innovations that provide the necessary wireless capabilities. For example, a basic way to transform any non-IoT electrical object in the home, such as a lamp, into an IoT object would be to purchase an adapter for the power outlet that allows basic controls—i.e., “on” or “off”—by way of an in-home Wi-Fi network or radio signals.
Maintaining Corporate Control
Over time, IoT has encountered a variety of high and low points throughout its implementation. Most of the issues have stemmed from corporations seeking to use IoT technologies as a way of maintaining control over the devices they sell. The IoT provides opportunity to utilize copyright law to lock down consumer devices and hardware in often divergent efforts for maintaining functionality and safety of products and continued financial gain once a product is in the consumer’s hands. Utilizing copyright law provides protection of computer code and other IoT devices that, when combined with end-user license agreements, can prevent tampering and reverse engineering by consumers and third parties. The result places consumers in a situation where they are unable to “tinker” with their cars or brew their own choice coffees.
Through public backlash and steady profit losses, numerous corporations have been forced to retreat in their decisions to utilize copyright laws in an effort to lock down ecosystems.
Coffee: Green Mountain
It’s hard to find a home or office that doesn’t have a single-serve coffee or espresso pod brewing machine, more commonly known by the brand name Keurig or K-Cup. Up until September 2012, when several of the key patents owned by Green Mountain Coffee Roasters for the single-cup brewing pods2 expired, Keurig was the only authorized outlet for K-Cup supplies. The market for single-serve pods changed dramatically, as forecasted, with competitors able to sell their own version of coffee pods that are compatible with the Keurig brewing systems.
The company’s response to the issues faced through competition included a new line of Keurig 2.0 machines launched in August 2014. The 2.0 machines were implanted with IoT technology that would require a special seal printed on top of the K-Cup pod, which was only available on authorized Keurig-produced pods. Users would be given an error message on their machine if an unapproved pod, even the eco-friendly reusable pods previously sold by Keurig, were inserted into a new machine.
Backlash to the new systems ranged from negative customer reviews to antitrust lawsuits3 to competing brands offering hacks to bypass the technology. Keurig recently announced a return of the My K-Cup pod to allow customers the option of brewing their own coffee; however, it still leaves open the question of how non-Keurig branded pods are supposed to interact with the system—if at all.
Printer Ink: Lexmark
Printers are practically given away when purchasing a new computer system because large amounts of money come from the sale of replacement ink cartridges. As a result, corporations needed a way to make sure that revenue stream didn’t run out due to third-party cartridges and toner refill services undercutting the cost of a brand-new cartridge from the manufacturer. For Lexmark, one option included implementing chip technology that would reject anything but “valid” cartridges manufactured by Lexmark. The technological measure was reverse-engineered by Static Control, a company which then sold the necessary chips to third-party toner manufacturers for use in the Lexmark printers.
A powerful Digital Millennium Copyright Act (DMCA) case in 2004, Lexmark v. Static Control answered the question of whether circumventing the protection measure put in place by Lexmark violated copyright law.4 Section 1201 of the DMCA makes illegal the act of circumventing technological protections designed to prevent the unlawful copying of a work, with a few limited exceptions.5 The Sixth Circuit ultimately held that reverse-engineering did not violate the DMCA in this particular case.
Convenience is another powerful tool printer manufacturers can use in bypassing third-party cartridge makers. Harnessing the power of IoT, a printer can be programmed to automatically order replacement toner from the manufacturer before running out, or perhaps even order from its owner’s retail store of choice.
Vehicle and Equipment Manufacturers
In 2014, the U.S. Copyright Office published a list of proposed exemptions to the DMCA’s anticircumvention of copyright protection measures.6 The list of exemptions is updated once every three years, including periods of public comment on any proposed exemptions. One of those exemptions, Proposed Class 21, would make it legal for anyone to repair, diagnose, or modify the software running on their vehicle or equipment. General Motors LLC7 and Deere & Company (known by the brand name John Deere)8 submitted comments against the exemptions, citing safety and policy concerns further supported by their copyright interests in the vehicle and equipment software. Software systems in cars power the transformation into the IoT category by integrating smarter and more connected features, but are also the source of contention within the automotive industry.
The foundation of the argument for automakers is that ownership rights to a vehicle do not extend to the software, but rather the purchase includes only a license to that software. As John Deere stated, “the vehicle owner receives an implied license for the life of the vehicle to operate the vehicle.”9 Manufacturers are able to exhibit more control over how the end consumer can interact with the software by granting a restrictive license to the software on the vehicle. A license that doesn’t grant the right to use or inspect the code can prevent owners, in addition to third parties, from lawfully servicing, modifying, or diagnosing their vehicle. In 2014, Ford Motor Company filed a lawsuit against the diagnostic equipment company Autel US Inc., claiming Autel hacked into a Ford diagnostic software system in order to improve the Autel diagnostic system.10
This level of control could limit consumers’ choice of where to have their vehicle serviced, and allow the manufacturer to control variables such as how much the services cost to perform and where the services can be performed. The other side of the argument in favor of these controls is that safety measures and regulatory requirements are often met during the initial manufacturing process. The concern would be that third-party modifications could seriously interfere with and create unknown variables to vehicle systems designed to operate in a specific manner. However, if the automotive sector of the IoT is ever going to have an open environment, then automakers will need to implement technologies that promote and enhance interoperability.
What Does Copyright Mean for IoT Going Forward?
The current IoT landscape is being driven the way of operating systems—such as Windows, Apple OS X, or Linux. Some IoT products will communicate within one standard, while others may only communicate within another. Both Google and Apple have released home automation standards, Brillo/Weave11 and HomeKit12 respectively, and each are currently only compatible within each company’s ecosystem. Additionally, both technology companies launched separate automotive operating systems, Apple’s CarPlay13 and Google’s Android Auto.14 The IoT marketplace is headed toward a segmentation based upon consumers’ decision as to which ecosystem in which they invest.
Intellectual property laws will continue to play important roles as more complex items are introduced and everyday lives begin incorporating the IoT technologies. Consumers and companies alike will seek ways in which one “thing” can interoperate with another “thing.” Licensing of key technologies and a basic level of cooperation among competing brands will become a prerequisite to achieving a goal of openness and interoperability for the future of the IoT.
Endnotes
1. For more, see Bonnie Cha, A Beginner’s Guide to Understanding the Internet of Things, Re/code (Jan. 15, 2015), http://recode.net/2015/01/15/a-beginners-guide-to-understanding-the-internet-of-things/.
2. U.S. Patent No. 5,325,765 (filed Sept. 16, 1992).
3. In re Keurig Green Mountain Single-Serve Coffee Antitrust Litig., No. 1:14-md-02542-VSB (S.D.N.Y. June 5, 2014).
4. Lexmark Int’l, Inc. v. Static Control Components, Inc., 387 F.3d 522 (6th Cir. 2004).
5. 17 U.S.C. § 1201.
6. U.S. Copyright Office, 1201 Rulemaking: List of Proposed Classes 2014, http://copyright.gov/1201/docs/list-proposed-classes-1201.pdf.
7. Comments of General Motors LLC, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. 2014-07 (U.S. Copyright Office Mar. 27, 2015), http://copyright.gov/1201/2015/comments-032715/class%2021/General_Motors_Class21_1201_2014.pdf.
8. Long Comment Regarding a Proposed Exemption under 17 U.S.C. 2101, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, Docket No. 2014-07 (U.S. Copyright Office Mar. 27, 2015), http://copyright.gov/1201/2015/comments-032715/class%2021/John_Deere_Class21_1201_2014.pdf.
9. Id. at 5–6.
10. Ford Motor Co. v. Autel US Inc., No. 2:14cv13760 (E.D. Mich. Sept. 29, 2014).
11. Project Brillo, Google Developers, https://developers.google.com/brillo/ (last updated June 3, 2015).
12. HomeKit, Apple Developer, https://developer.apple.com/homekit/ (last visited Sept. 7, 2015).
13. Apple CarPlay, Apple, http://www.apple.com/ios/carplay/ (last visited Sept. 7, 2015).
14. Android Auto, Android, https://www.android.com/auto/ (last visited Sept. 7, 2015).