Software-Enabled Consumer Products Study

The U.S. Copyright Office is undertaking a study to review the role of copyright law with respect to software-enabled consumer products. Copyrighted software can be found in a wide range of everyday consumer products—from cars, to refrigerators, to cellphones, to thermostats, and more. Consumers have benefited greatly from this development: software brings new qualities to ordinary products, making them safer, more efficient, and easier to use. At the same time, software’s ubiquity raises significant policy issues across a broad range of subjects, including privacy, cybersecurity, and intellectual property rights. These include questions about the impact of existing copyright law on innovation and consumer uses of everyday products and innovative services that rely on such products.

Senators Charles E. Grassley and Patrick Leahy (the Chairman and Ranking Member, respectively, of the Senate Committee on the Judiciary) have asked the U.S. Copyright Office to “undertake a comprehensive review of the role of copyright in the complex set of relationships at the heart” of the issues raised by the spread of software in everyday products. The Senators called on the Office to seek public input from “interested industry stakeholders, consumer advocacy groups, and relevant federal agencies,” and make appropriate recommendations for legislative or other changes. The Office report must be completed no later than December 15, 2016.

This study is limited only to copyright issues in everyday products. Copyright law has long protected software, and the Office’s study will not be a comprehensive review of copyright in software generally and is instead specifically focused on software in everyday products. Commenters are encouraged to limit their comments to that specific topic.

Additionally, the Office notes that this study is not the proper forum for issues arising under section 1201 of the Copyright Act, which addresses the circumvention of technological protection measures on copyrighted works. Earlier this year, the Register of Copyrights testified that certain aspects of the section 1201 anticircumvention provisions of the Digital Millennium Copyright Act (“DMCA”) were unanticipated when enacted almost twenty years ago, and would benefit from further review. These issues include, for example, the application of anticircumvention rules to everyday products, as well as their impact on encryption research and security testing.