Software-Enabled Consumer Products Study

The U.S. Copyright Office completed a study reviewing 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 of the Senate Committee on the Judiciary 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. After seeking input from a wide range of stakeholders in submitted comments and public roundtable hearings, the Office submitted its report to Congress on December 15, 2016.

In its report, the Copyright Office addresses several different aspects of the embedded-software landscape, including issues regarding licensing, resale, repair and tinkering, security research, and interoperability and competition. The report outlines how doctrines such as the idea/expression dichotomy, merger, scènes à faire, first sale, the section 117 exemptions, and other areas of law apply to software-enabled consumer products. The report provides a thorough review of the existing legal framework with respect to software embedded in consumer products, but it does not recommend legislative changes at this time.