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.).
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.
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.