The U.S. Copyright Office’s report on the role of copyright in the development and use of software-enabled consumer products, released last week, represents a missed opportunity to start an important discussion about the constraints software licenses can place on otherwise lawful activities. While the report acknowledges the existence of these constraints, it concludes that resolving the problems they may cause is beyond the scope of the report. (The Copyright Office views software-enabled consumer products as consumer-grade devices in which software is embedded, such as kitchen appliances, cars, and wireless phones.)
The report examines the impact of copyright law on four core activities relating to software-enabled consumer products, including resale, repair, security research, and interoperability. In each case, the report ultimately concludes that “faithful application of existing copyright law doctrines should provide no barrier to legitimate uses.” To reach this conclusion, however, the report minimizes or avoids the adverse impact of software license terms prohibiting these activities.