In a world where electronics and embedded systems are becoming increasingly sophisticated, protecting them against theft, piracy, or unauthorized modification is becoming increasingly important for designers and manufacturers.

There are many competing parts to ownership of hardware and design—is it the designer who owns it? The manufacturer? The purchaser and user?

As it is with many tech industry domains, the area of intellectual property and copyright legislation is far behind the actual industry that is rapidly changing. We now question the ownership of everything from smartphone hardware to vehicles with fully embedded systems integrated into them. This uncertainty about ownership has an impact on how a device is used and how we may repair it.

Here’s a look at some of the major components involved in this debate and why this uncertainty exists in the first place. 

 

About Intellectual Property

Intellectual Property is “a work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.” (source: Google Dictionary). 

In hardware, Intellectual Property Cores defines chips, integrated circuits, and other designs owned by a company, designer, or manufacturer. IP Cores can be licensed and used by others, similar to how software is licensed and used. The licensing of an IP Core allows companies and designers to profit from their designs without having to worry about their designs being stolen. And for the users licensing the IPs, this helps them skip steps of having to reinvent the wheel every time they want to make something new. 

IP Core licensing has existed since the 90s, and today IP licensing is a multi-billion dollar industry. Initiatives like DesignShare also exist to help facilitate IP Core licensing and sharing, creating opportunities for both the licensor and licensee.

In this case, it’s pretty clear who owns the hardware since licensing an IP isn’t a passive act.

However, when purchasing a device, the owner isn’t licensing anything. So what stops them from opening up their device and tinkering with it?

One factor at play is the Digital Millennium Copyright Act (DMCA).

 

The DMCA (and Why Farmers Are Using Ukrainian Software in John Deere Tractors)

The DMCA was established in 1998, right around the time when the Internet began to open up new doors to how content is shared—and right before the release of Napster, a peer-to-peer music and media sharing service that spurred change to how we treat copyrights in media. Copyright law wasn’t quite ready for the challenges the digital world would bring to content ownership and distribution. 

In terms of how DMCA impacts our ownership of devices, it plays more on the software side of things. The act prevents the modification, copying, or unauthorized use of software owned by someone else, which has become more relevant now that every electronic device relies on some software abstraction for use. 

 

Image courtesy of DMCA

 

There was a period of time, once again right around another shift in consumer electronics paradigm, when jailbreaking a personal device like a smartphone was technically illegal according to the DMCA. This was described in section 1201 on bypassing access control in copyrighted work. Jailbreaking is the act of modifying a device, allowing the user elevated access to features and hardware. 

In 2015, this changed for the first time when the DMCA began to host hearings and relegate exemptions—a process that will now repeat every three years. Today we can jailbreak our smartphones, tablets, smart TVs, and cars (with some limitations), but not video game consoles, laptops, e-readers, and desktop computers. Most likely this is because jailbreaking these devices would enable piracy (downloading video games, etc.). 

Of course, phone manufacturers, automakers, and everyone in between producing consumer electronics were against these exemptions, citing everything from misuse to safety concerns. Today, even though the DMCA does not make it illegal, if you tamper with your device’s software, the warranty would likely become void since it would probably violate the device’s terms of use. 

Why do some people think this sort of access is important? Car owners are within their rights to open up the hood of their car to make repairs or changes without violating legal terms; however, embedded systems are introducing more electronics and software to the mix, making this sort of access increasingly important for owner management. 

A classic example is the case of John Deere tractors. Farming and hacking might not be a pairing you think of immediately, but modern day tractors are built on a system augmented with embedded systems and software. This means that they come full of software locks that become gatekeepers between the farmer and the ability to repair their tractors and modify hardware.

According to the terms of use provided by John Deere, all modifications, repairs, updates, or upgrades must be authorized by John Deere. If a farmer has a mechanical component replaced by a third-party or by themselves, before that component can be integrated back into the rest of the system, a technician must show up to provide authentication. Further, the terms of use describe that John Deere is not responsible for any loss incurred due to the failure of their tractor and their software to perform. The losses can be significant in the farming industry if equipment does not work when needed. 

 

John Deere Tractors rely more and more on embedded systems and software. Image courtesy of the Bull Vine

 

This is all of course completely crazy as far as most farmers are concerned, which has led to many to turn to “black market” software, suspected to be managed and maintained in Ukraine and Poland, in order to take back control over the hardware. While the DMCA exemptions now make this technically legal, the end user agreement provided by John Deere still consider this a violation. 

So, while DMCA focuses more on software, and even though the regulations have loosened a bit over the years, there are still ways manufacturers are using it to maintain control over hardware. 

 

The Right to Repair

The Right to Repair movement argues that electronics manufacturers must provide parts and information to enable users to repair their devices or to bring their devices to a third party to repair. This removes the reliance on the manufacturer, as well as reducing the manufacturer's control.

 

Image courtesy of iFixit.
 

Major electronics and tech companies are opposed to this movement, presumably based largely on safety and security concerns. Further, some manufacturers state that information about how to repair a device is proprietary information. 

The current DMCA exemption does not make it necessary for the tools or information to repair or modify an electronic device to be provided—so, while you can go ahead and make such modifications, it is usually without particularly in-depth knowledge or experience. 

The "Right to Repair" movement wants to change that, taking it a step further so that users and third parties have access to the information necessary to make informed repairs and modifications. According to some Right to Repair advocates—such as Gay Gordon-Byrne, the Executive Director of The Repair Association—the issue is not about safety and security but rather about control and profits. "Buyers of technology products already have a right to repair under copyright law and patent law," Gordon-Byrne told AAC last February. "There shouldn’t be any issue and we shouldn’t be having this battle."

 

Does Regulation Stifle Creativity?

IP protection is obviously important because it gives designers and manufacturers a sense of security that their investment and time can result in a reward—it theoretically prevents someone else from swooping in, stealing an idea, and then profiting off of it without prior investment. But it could also stifle creativity or stall innovation.

One example is regulation that passed in the European Union that stipulated phone manufacturers must now adhere to a single universal charging port—the microUSB. This was primarily an attempt to limit electronic waste. But, on the other hand, the microUSB might not be the best charger available—Apple’s Lightning charger has faster charging, faster data transfer rates, and no longer depends on orientation to be plugged in as opposed to the classic plug in your USB (which is the wrong side so you flip it, but somehow it’s still the wrong side so you flip it again and now it fits). By limiting Apple to using the microUSB (or an adapter they plan to include), it is also limiting the ability to improve.

 

Different mobile phone charging connectors. Image courtesy of Mobile Fun.

 

On the other hand, in the case of IP sharing, companies and manufacturers may feel more secure about sharing their IPs if they know they’ll be protected, and give designers the means to quickly build new products without having to reinvent the wheel. 

 


 

At the end of the day, everything must be balanced. Designers, manufacturers, and companies require protection of their ideas. But also, can not overstep control. In a world where so much is changing so quickly, finding the sweet spot in regulation and access is proving tough to find. ​

 

Comments

11 Comments


  • sbkenn 2018-06-01

    On the track of repairable devices, replacement parts should be priced at a level that reflect the cost of component manufacture, rather than a price the makes a completely new product more attractive.  This should apply particularly to large domestic appliances.  Casein point, a washing machine costing €700, with a replacement control board, build cost about €10, but sold for €300, AND it needs a technician to configure the firmware to suit that particular machine.

  • jtljohn 2018-06-01

    Correct me if I am wrong, but the intent of IP rights and patents is to prevent people from making copies or clones to sell or otherwise distribute.  The copy that the individual already owns is no longer any of the manufacturers’ business as long as the individual is not distributing it or making money from it.

    Automotive is my big peeve in this regard.  Older cars take a screwdriver to tune and adjust, but today you have to be able to edit the firmware and settings in the engine control unit. Lately manufacturers have been want to completely lock out owners.  Since when do we live in a world like that, where you cant make your car run how you want it to? Where your car has to be an exact clone of the one your neighbor has, because the manufacturer didn’t authorize some tweaks to the motor?

    Anyway, if they do manage to do this, one can just simply throw the OEM engine control unit in the trash and install a fully configurable and programmable aftermarket engine control unit.  But, they are a bit costy.

    I grew up in an time where cars and computers both were a world of exploration, experimentation, “hacking” and learning, and making things work better than the manufacturer did.  It kind of scares me, the direction this stuff is starting to go.  I don’t want to see a world where no one can take their own property and change it, attempt to improve it, and learn.

  • dirtmover 2018-06-01

    Hmm, not sure how requiring Apple to provide an adapter that allows owners to charge their devices using a standard MicroUSB charger is limiting the ability to improve. All manufacturers are free to innovate but they must still support the lowest common denominator.

    Proprietary parts, high spares costs, design complexity, “special” tools and unwillingness of manufacturers to share information can be easily countered with mandatory warranties that cover the fair and expected life of the product.

  • byoungblood 2018-06-01

    My biggest complaint about the IP argument is that companies have been abusing it to push consumers into buying new, or hold a monopoly on the repair process, even on products that are long since obsolescent/obsolete in their eyes.

    I can’t count how many times I’ve inquired to a company for a schematic to a 15-20 year old product, only to be told that it isn’t available because they consider it to be proprietary intellectual property. Doesn’t matter that their current products only slightly resemble what I’m trying to fix, and the technology contained therein has radically changed to the point that even if I were to try to completely reverse engineer and manufacture a clone, I would have no market.

    I can understand protecting code or proprietary black box components that required millions of dollars of R&D to develop and bring to market. But refusing to release service information or to require the use of proprietary tools is just to develop a secondary revenue stream back to the manufacturer, nothing more.

  • CASKSCOB 2018-06-01

    This right to repair movement is a tad silly.  If you only want products you can repair then purchase products that have open documentation and/or source code.  If you think for 1/2 a second that providing documentation on a product, (especially schematics and parts lists) won’t result in someone copying your product then you are just naive.  Despite the law, illegal copying of circuits and software/firmware is rampant, especially with foreign countries who don’t respect our patents at all.  Good luck suing them too, it will cost you a fortune and you’ll probably fail.  I would repair a product for free before I would hand out the design.

  • DKWatson 2018-06-01

    Having spent a significant portion of my career in R&D I can appreciate the need to recover costs. Without some form of protection, manufacturers are disinclined to expend those funds. I also firmly believe that if you buy it. you own it. Unfortunately, the business handbook dropped the chapter on ethics about the same time that the door was opened to globalization. All’s fair in love and war and business. Nothing is illegal unless you get caught. These are real, unwritten rules and its a ridiculous notion that they can be policed. The reality of business today is that to avoid competition, you must get a product to market such that the profit margins discourage copying/pirating. Trade sanctions, import duties, taxes and quotas may hold off the inevitable, for a while, but the North American market no longer commands the respect, or interest it once did. Global markets are quickly catching up and in some cases surpassing domestic demands. In economies where the per capita purchasing power is significantly less, value for dollar rules supreme and the consumer could care less as to the origin of the goods.You can’t turn back the clock. The playing field has changed and no rules or regulations are going to control it.

  • ronsoy2 2018-06-01

    This is all about cash flow. Especially auto manufacturers now that want to FORCE you to buy a new car every few years by making it so expensive to repair a car out of warranty you will give up. So I keep my old 88 lincoln town car in good shape! I don’t want all that proprietary software in my car!

  • Questor 2018-06-02

    Regarding the “intent of IP rights and patents”, i disagree with jtljohn’s post that IP laws and regs intent is to “prevent people from making copies or clones to sell or otherwise distribute”. 

    In a nutshell, the primary purpose and intent of “IP rights and patents” is to enable an IP copyright holder/owner (individuals or business entities) a legal method and forum so they can protect IP property rights they can prove they own.  The IP copyright property/ownerhip rights are registered with the US Patent and Trade Organization (USPTO) in association with the Federal Trade Commission (FTC) and must be renewed on a periodic schedule.  The responsibility and initial discovery for policing any registered intellectual property is clearly the responsibility of the IP Holder and not the state or federal government. 

    If the IP copyright holder/owner discovers any infringement upon their IP copyright, they must:
    1.) contact the person or company in writing in a power-of-attorney registered letter as soon as possible showing the purported copyright infringement and detail any legal harm experienced by the IP holder/owner,
    2.) document a legal demand that the infringement must immediately stop by a specified date/time,
    3.) forward the IP holder/owner’s legal representation contact information to the the person or company to enable discussion and possible negotiations between the parties about possible ways to settle or remove the alleged IP infringement concerns.

    If no legal agreement can be reached between the parties about the disputed IP infringement, the IP copyright holder/owner can sue the person/company supposedly breaking the IP copyright in federal court for legal redress.  A federal court lawsuit decision in favor of the IP holder/owner may enable that IP copyright holder/owner to initiate legal enforcement actions with USPTO, FTC, or other government agencies against the peron or business entities found guilty by the federal court of breaking the IP copyright.

    If the IP holder/owner chooses or is unable to protect/control their IP rights or ownership, that individual or business risks losing some or all of their legal copyright protections for their IP in the USA.

  • Questor 2018-06-02

    I want to also point out that companies or individuals must actively police their IP protected by copyrights, or else they risk legal harm to their companies.  As an example, I will briefly discuss Volkswagen of America (VOA) past legal concerns about protecting their IP rights when a 3rd party company made defective VW replacement parts and falsely identified them as VOA part numbers…  These same ideas and concerns apply towards the electronics industry when consumers or businesses advertise or use 3rd-party add-on products that will modify or change the original design, purpose, or intent of the IP copyright holder/owner or OEM.
    VOA had an IP problem that may also relate to the electronics industry IP concerns…  As a member of a local Volkswagen Car Club, I have owned a 1968 VW Beetle for many years. Approximately 15 years ago, the VOA legal department angered VW clubs like the one I belong to, when VOA abruptly started to issue cease and desist warning letters to VW clubs, VW 3rd party parts distributors, and 3rd party VW aftermarket parts manufacturers ordering us to license the use of the VW name through an expensive IP license agreement or else to stop using the VW name. 

    The warning letters from VOA claimed the letter recipient (like my VW club) was not authorized, nor licensed to use the VW name in any of their part names, descriptions, or advertising.  The reason for this abrupt VOA change became apparent when I contacted VW for more information on behalf of our VW club and discovered we had to sign a pricey license agreement to use the VW name with association to our club…  VW and VOA had to crack down on unregulated and unlicensed public use of the VW copyrights due to a lawsuit at that time.  Otherwise, VOA could be held responsible for consumers’ defective part claims caused by an unaffiliated 3rd party manufacturer from an overseas country.  These abrupt cease-and-desist letters from VOA angered VW club members across the USA and was a marketing blunder that should have been handled differently.

    VOA’s US Headquarters had lost at that time an initial federal court lawsuit regarding an overseas 3rd party parts manufacturer that advertised for many years in the USA when VOA finally said they were selling VW replacement brake pads and parts with VW parts id numbers.  The problem was the 3rd party parts manufacturer had no connection with VOA, they were not licensed nor approved by VOA to use the VOA copyrights or trademarks, and the 3rd party OEM’s manufactured parts were substandard and subject to premature part failure.  Even though the the 3rd party parts manufacturer were deemed a safety hazard, the trial judge ruled against VOA in their copyright lawsuit.

    The defendant company basically claimed they had the legal right to use VW part numbers for their 3rd part manufactured parts because the VW numeric part numbers could not be copyrighted since the entire replacement parts industry used those same VW part numbers for their competing parts.  The defendant also said VOA had not notified the defendant about alleged copyright violations for years after their products were sold in the USA market. 

    The Judge said VOA’s lawsuit before him only concerned VOA copyright enforcement and did not include a product safety legal complaint about parts made by the 3rd party manufacturer that should have been included in a separate federal court venue and lawsuit.  The Judge initially ruled against VOA as plaintiff because VOA had not adequately policed, not monitored, nor contacted the defendant company for many years regarding the IP copyright concerns.  The legal decision at that point was expensive legally for VOA because the Judge’s decision opened VOA to consumer product liability claims for defective failed parts from the 3rd party manufacturer.  VOA eventually won the lawsuit on appeal and if I recall correctly, the defectively manufactured parts were permanently removed from the US market.  VW clubs across the USA (includingthe VW club I belong to) eventually negotiated and signed IP license agreements with yearly payments to VOA, but at a reduced rate due to complaints from VW fan clubs across the USA.

  • jtison 2018-06-03

    “Major electronics and tech companies are opposed to this movement, presumably based largely on safety and security concerns. Further, some manufacturers state that information about how to repair a device is proprietary information.”

    This is the license (forgive the pun) that the DMCA gave to the global corporate cartel to cloak nefarious revenue strategies in public platitudes and legally defensible behaviors. A truly free marketplace would see these companies go out of business; but true freedom was lost long ago: the DMCA was only the final nail in its coffin.

    From a personal standpoint (40 years in the IT business, software & hardware), I think IP is highly overvalued, although I do understand the need to recoup R&D cost and to profit from initiative. How much—and for how long—should someone be rewarded for an idea? US patent law used to be clear on these issues. US copyright law has become a muddy vortex of conflicting precedent, and the DMCA has only made it all worse.

    If we were to “clear the table”, we’d see that the DMCA was an inappropriate response to technology advances since the 19th Century: the word “concrete” now means something intangible (and in some cases, indescribable) whereas it used to mean something you could touch, hold, or see. I’m no Luddite. But I do see a legally flawed statute whose flaws all benefit the IP owner.

    Fixing the DMCA is next to impossible. It’s one of those structures which needs to be totally destroyed and rebuilt with the benefit of experience. We engineers wouldn’t try to rebuild a house, would we, over a frame with progressive rot? And if the corporate cartel ever allows this “rebuild” to take place (fat chance), please PAY ATTENTION THIS TIME. EVERYBODY. Think about what the DMCA means to you as a customer, a “licensee”, a user. Be aware that the corporate cartel is looking for any loophole, any hook they can use to increase revenue, even if it means dishonorable behaviors in the marketplace.

  • bobscoff 2018-06-04

    I do wonder if the John Deere policy is costing them business.