Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
| Author | Anthony D. Rosborough |
| Position | Research Associate and Lecturer, The Schulich School of Law at Dalhousie University Halifax, Nova Scotia (Canada). |
| Pages | 26-48 |
2020
Anthony D. Rosborough
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1
Unscrewing the Future: The Right
to Repair and the Circumvention
of Software TPMs in the EU
by Anthony D. Rosborough*
© 2020 Anthony D. Rosborough
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Anth ony D. Rosborough, Unscrewing the Future: The Right t o Repair and the Circumvention of
Software T PMs in the EU, 11 (2020) JIPITEC 26 para 1
Keywords: Intellectual property rights; technological protection measures; software; European Union; copyright;
right to repair; circumvention; EU competition law; compulsory licensing; secondary market
of TPM circumvention, jointly leave little room for pro-
active policymaking. Through these legal protections,
manufacturers can escape the perceived threat posed
by TPM circumvention tools and, by extension, under-
mine independent technicians’ ability to carry out their
businesses.
In assessing the John Deere case study, the analy-
sis proposes that the refusal to allow circulation of the
means of software TPM circumvention may constitute
an abuse of a dominant position in the secondary mar-
ket. In looking to jurisprudence in this area, the analysis
explores the degree to which the refusal to provide the
means of circumvention could amount to the denial of
an essential facility which is indispensable for the sec-
ondary repair market. While some distinctions can be
drawn between TPM circumvention and the types of
intellectual property rights at issue in the EU compe-
tition law jurisprudence, the analysis proposes that the
market effects are in many ways analogous.
The analysis seeks to establish that consumers’ inabil-
ity to conduct repairs to the products that they own is
undesirable for a number of legal, moral and concep-
tual reasons. By prohibiting self-repair, software TPMs
predetermine the relationship between technology,
the law and society. This undermines the fostering of
a morally responsible and technologically inclined cit-
izenry which engages with and contributes to tech-
nological development. The analysis concludes with a
call for a review of software TPM protections in the EU
along with changes which could alleviate the foregoing
market and moral implications while enabling consum-
ers to assert their right to repair.
Abstract: This analysis examines the impact of soft-
ware technological protection measures (“TPMs”) in the
European Union which inhibit the repair and mainte-
nance of products. Using John Deere tractors as a case
study, this analysis addresses the growing number of
products which incorporate computerisation and TPM-
protected software into their design and function. In
utilising software integration and TPMs, many prod-
uct designs now allow manufacturers to retain consid-
erable control over the manner of repair and choice of
technician. In response, consumers and lawmakers are
calling for legal reforms to make self-repair and servic-
ing easier. Both the competition law and moral impli-
cations of this residual control held by manufacturers
are examined in this analysis. The foregoing raises the
question: what are the impediments to establishing a
secondary market for repair of products which utilise
software TPMs, and what are the implications of those
impediments?
The structure of the EU’s software TPM framework acts
a major impediment to establishing a secondary repair
market for these products. The implications of this im-
pediment are both legal and moral. This analysis sur-
veys the development of anti-circumvention law in the
international and European contexts before assessing
the impact of the US approach to anti-circumvention
on global manufacturing and design techniques. In as-
sessing the EU legal framework, the analysis focuses
on the inconsequential and distinct legal status given
to TPMs which protect software from other types of
works. The inability to circulate the means of circum-
vention acts as a key impediment to establishing a sec-
ondary market for repair. Further, the inapplicability of
copyright exceptions and limitations to software TPMs,
and the legal prohibition on circulation of the means
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
2020
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and bolts, each connected by a network of sensors
to a central computer which runs on proprietary
software. This increase in computerisation and the
overall tamper-proof approach to automotive design
disappearance of the oil dipstick on recent BMW car
models.2 The message is clear: what is beneath the
bonnet is a system and consumers should have no
role in understanding how it works.
4
is not merely an innocent by-product of how modern
products are being designed. It is a conscious
decision on the part of manufacturers to ensure that
the products they are selling can only be effectively
serviced and maintained by them. Given this rather
frightening trajectory, the question remains: how do
we ensure that the future is not quite so screwed? This
study proposes that the answer lays in empowering
consumers to take charge of their own repairs and
maintenance.
5
for consumers, manufacturers are taking refuge
in protections offered by copyright. Beyond the
commonplace rights of reproduction, performance
and other rights falling under the larger copyright
umbrella, modern copyright legislation has also
come to protect technological protection measures
3, impede access to the underlying
work protected by copyright. The manner of TPM
prohibit compatibility with non-compliant devices.
Spanning the globe, most copyright statutes prohibit
the circumvention of such TPMs and the circulation
or offering of the means of circumvention.
6
The copyright refuge afforded to product
manufacturers is made possible largely due
to the more widespread use of software and
computerisation to control the workings of various
also smartphones, cameras, televisions, hot tub
controls, and farm tractors.4 In increasing reliance
2 Jonathan Welsh, ‘BMW Removes the Dipstick’, THE WALL
STREET JOURNAL (9 May 2006) online:
com/articles/SB114712089483346960>.
3 Michael Geist, ‘Anti-circumvention Legislation and
Geist, ed, In the Public Interest: The Future of Canadian Copyright
Law (Irwin Law, 2005) at 214.
4 Eberhard Becker et al., Digital Rights Management:
Technological, Economic,
A. Introduction & Background
“They are weaker, not stronger: for though we have put
wonderful machines in their hands we have preordained how
they are to use them.”
C.S. Lewis – Abolition of Man
1
In the not so distant past, a common feature on most
roadways was an institution known as the ‘service
station’. In addition to providing gasoline and other
necessities, service stations offered motorists with
an opportunity to stop and speak with a mechanic to
diagnose troubles and repair their cars. Though the
mechanic would have many of the same tools that
motorists have access to in their homes, his or her
The nature of automotive design also allowed for
deductive reasoning in diagnosing problems. For
of a dead battery might suggest that it is not being
charged properly by the alternator. Rough idling and
an electrical fault in the car’s ignition coil or spark
plug wiring. Regardless of the emblem on the bonnet
or the manufacturer of the car, the mechanic would
motorists were able to get back on the road.
2
By contrast, today’s roadways are populated by a
Removed from sight are the once-ubiquitous bottles
of engine oil for topping up, spare fan belts, head
mechanic. Gone are the garage doors and hydraulic
lifts which allowed mechanics to access cars’
underbodies. What resides on the shelves in the
tasteless coffee, lottery tickets and smartphone
accessories. In some respects, this devolution of
automotive design over the past few decades.1
3
If the mechanic of yesteryear opened the bonnet
on one of today’s cars, that hard-earned intuition
and deductive reasoning would be of limited use.
Instead of the once-familiar sights – the valve
cover, engine oil cap, radiator, coolant hoses, brake
lines, battery, distributor cap, and so on – what
remains visible in today’s cars is a series of plastic
enclosures held together by non-standard screws
* Research Associate and Lecturer, The Schulich School
(Canada).
1 Bryan Grover, ‘What will the gas station of the future
look like?’, THE BOSTON GLOBE (17 January 2017) online:
will-the-gas-station-of-the-future-look-like/>.
2020
Anthony D. Rosborough
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on software integration and ‘onboard computer
systems’ in product design, manufacturers are able
to take advantage of copyright protections for their
software and the TPMs they use to protect it. From
the perspective of repair-inclined consumers, the
repair, but it can be unlawful to do so.
7
limited circumstances under which circumvention
of TPMs is permitted, ‘repair’ is not commonly one of
them. The legislative history of most copyright laws
demonstrates that the widespread use of software
integration in the products that surround us was
not envisioned ten or twenty years ago. This often
rigid legal framework governing TPMs means that
consumers are left at the whim of manufacturers for
repair and servicing, unless they are otherwise able
to devise their own (legally questionable) solutions.
The increasing inability for consumers to repair
and maintain a variety of products and machines
raises legal questions concerning the validity of
this practice under competition law principles, as
well as more profound moral questions regarding
the relationship between society, technology and
technologies around us through the so-called
‘internet of things’, these implications are only set
to become more pressing as times goes on.5
8 The focus of this analysis is on the legal and moral
implications of the rise in ‘unrepairable’ products by
virtue of TPMs which protect integrated software.
The question that the following analysis addresses
is: what are the impediments to establishing a
secondary repair and service market for TPM-
protected products under European Union law, and
what are the implications of any such impediments?
In drawing normative guidance from the growing
‘Right to Repair’ movement in the United States and
Europe, it will be proposed that the legal and moral
validity of software TPM implementation stand on
frameworks by which software TPMs in the European
Union are supported require scrutiny and review
previously analog devices.
9
This analysis will be comprised of four chapters. The
repair movement on a general level before looking
TPMs in its tractors and farming equipment.
Through restricted access to diagnostic software
Legal and Political Aspects (Springer-Verlag, 2003) at 7.
5 Aaron Perzanowski and Jason Schultz, The End of Ownership:
Personal Property in the Digital Economy (MIT Press, 2016), 135.
parts, the impact of John Deere’s use of software
TPMs on the ability to repair will be assessed. The
farmers and independent technicians will be
canvassed. Second, the development of the law of
TPM anti-circumvention will be surveyed, including
the rationale underlying the relevant international
frameworks. Particular attention will be given to the
United States’ implementation of anti-circumvention
law with a view to better understanding an
approach to product design that renders repair
products, the practical effects of the US approach
to anti-circumvention law as felt by consumers
in the EU will be investigated. The United States’
legal framework for TPM protections offers a useful
comparator to that of the European Union because of
its broader impact on design and manufacturing of
commonly used products. Third, anti-circumvention
law in the European Union will be assessed with a
particular focus on its application to software. Anti-
circumvention law under the Directive 2001/250/
EC6
the provisions of the Directive 91/250/EEC7 (the
The challenges faced by those seeking to repair the
things that they own as the result of this bifurcated
software TPM framework, attention will be paid to
John Deere tractor owners as a case study for the
imposed by the prohibition on the circulation of the
means of TPM circumvention.
10
protections afforded to manufacturers under the
EU software TPM framework will be assessed. This
of EU competition law and market fairness for
independent repair technicians, and the moral
implications with respect to owners’ inability to
constitutes an abuse of a dominant position through
the denial of an essential facility for the secondary
11
It will be proposed that access to John Deere’s software
and diagnostic equipment through circumvention
of their software TPMs is essential for the proper
6 Directive 2001/29/EC of 22 May 2001 on the harmonisation
of certain aspects of copyright and related rights in the
Information Society [InfoSoc Directive].
7 Directive 91/250/EEC of 14 May 1991 on the legal protection
of computer programs [Software Directive].
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
2020
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functioning of that market. By prohibiting access to
this software through the use of TPMs, John Deere
is effectively reserving the entire secondary market
for itself and creating a de facto monopoly. This runs
contrary to EU competition law principles.
12
While John Deere’s use of software TPMs may
inevitably present issues under US anti-trust law,
these aspects can be distinguished from competition
law implications in the European Union due to
the special status given to intellectual property
rights under the EU competition law framework.8
Further, there are conceptual and policy differences
the United States’ Sherman Act
9
While the ultimate objectives of each regime operate
in parallel, their prohibitions on unilateral conduct
perspective of their application and enforcement.10
There are also notable differences in the normative
approach given to market interventionism and the
role of regulation.11 For these reasons, a broader
review and analysis of the implications under US
anti-trust law will not be addressed in detail.
13
With respect to the moral implications, it will
be contended that John Deere’s repair-resistant
approach to software TPMs denies owners
considerable agency in choosing how and when
to repair their equipment. In denying consumers
the ability to share information, knowledge and
tools regarding the circumvention of TPMs for
repair purposes, the EU software TPM framework
creates for the automation of moral decision-making
property rights. It is contended that John Deere’s
use of software TPMs results in an undesirable
system characterised by near complete reliance on
manufacturers by consumers.
14
In sum, this analysis proposes that the European
Union’s software TPM framework enables
manufacturers’ retention of considerable control
8 John Lang, ‘European competition law and intellectual
property rights—a new analysis’ (2010) 11 ERA FORUM 411,
422.
9 Harry First et al., ‘The United States Competition Law
Michael Trebilock, eds, The Design of Competition Law
Institutions: Global Norms, Local Choices (OUP, 2012), 378.
10
in Edward Graham and David Richardson, eds, Global
Competition Policy (Institute for International Economics,
1997), 353.
11 First (n 9) 379.
over their sophisticated products. This control is
competition in the market for repair and service.
John Deere’s use of software TPM is particularly apt
to which the use of TPMs can affect products that
are not normally regarded as having any relation
to software. It is demonstrative of how pervasive
the effects of this issue can become. Overall, it is
proposed that legal framework for software TPMs in
the European Union be given greater scrutiny in light
can arise when they are used to inhibit repair and
maintenance.
B. The Growing “Right to
Repair” Movement
15
The ‘Right to Repair’ can mean many things. In
understood as both a defence to otherwise infringing
conduct and a positive obligation on behalf of
manufacturers to assist consumers in repairing and
maintaining products they have purchased. This
positive obligation can come in the form of offering
to consumers repair documentation, spare parts
protected by industrial design and patented special
tools needed to perform repairs.
16
The notion of such a right is not an entirely new
proposition.1213 Until 1988, the right to repair had
formed the basis for a longstanding common law
defence to industrial design infringement in the
UK.14 This defence remained in place until legislative
reforms led to a more permissive framework for
third parties.15 Further, in a relatively recent patent
infringement case involving transport containers
for liquids16, the UK Supreme Court recognised a
patented invention and lawful repair.17 Similarly,
the CJEU has decided that automobile wheel rims,
12 Gavin Llewellyn, ‘Does copyright law recognise a right to
repair?’ (1999) 21 EIPR 596, 598.
13 Robert Masterson, ‘Converting Obsolete Musical Media to
Current Formats: A Copyright Infringement Defense Arising
from the Right to Repair and Implied Warranty of Fitness’
(2009) 82 TEMP L REV 281, 295.
14 British Leyland Motor Corp Ltd v Armstrong Patents Co Ltd, [1986]
1 AC 577; [1986] All ER 850 (UK).
15 Mars UK Ltd v Teknowledge Ltd [2000] ECDR 99 (UK).
16 Schutz (UK) Limited v Werit (UK) Limited, [2013] UKSC 16 (UK).
17 Erika Ellyne, ‘What the difference between making versus
2020
Anthony D. Rosborough
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order to allow for third-party repair.18
17 Though varying intellectual property regimes have
made at least partial accommodation for the needs
of consumers and third parties to perform repairs,
the rise in consumer consciousness
19
and growing
calls for legal reforms20 have been precipitated by
through computerisation and software integration.21
2223, service providers and
industry groups24 calling for ‘Right to Repair’ reforms.
These reforms include allowing for greater choice in
choosing independent repair technicians; greater
access to repair manuals and diagnostic tools; and
for the ability to circumvent protections on device
software.25 The rise in these demands coincide with
a growing DIY culture. Indeed, a 2017 study revealed
26
37:8 EIPR 525, 527.
18 Acacia Srl v Pneusgarda Srl, in insolvency, Audi AG, and Acacia
Srl, Rolando D’Amato v Dr Ing h.c. F Porsche AG (C-397/16 and
435/16), [2017] EUECJ C-397/16; EU:C:2017:992 (CJEU).
19 Matthew Gault, ‘Protesters Are Slowly Winning
Electronics Right-to-Repair Battles in Europe’, VICE (14
December 2018) online:
article/9k487p/protesters-are-slowly-winning-electronics-
right-to-repair-battles-in-europe>.
20 Teresa Nobre, ‘The European Parliament should be
talking about DRM, right now!’, COMMUNIA (11 October
2017) online:
org/2017/10/11/european-parliament-talking-drm-right-
now/>.
21 Frank Vahid, ‘The Softening of Hardware’ (2003) 36
COMPUTER 27, 29.
22 European Environmental Bureau, Homepage, online:
23 Electronic Frontier Foundation, Creativity & Innovation,
online: .
24 The Repair Association, We Are Repair, online:
repair.org>.
25 We Have the Right to Repair Everything We Own, online:
<>.
26 European Parliament, Press Release,
repairable goods for consumers and tackling planned
http://www.europarl.
18
The range of products that are becoming increasingly
unserviceable as the result of software integration
is broadening. Included are consumer items such as
thermostats, home appliances, automobiles, hot tub
controls and cameras.27 Beyond consumer products,
key industrial equipment is sometimes impacted in a
manner that has strong public interest implications.
health pandemic, respiratory ventilators28 and
other medical equipment29 essential for combating
COVID-19 are subject to myriad software TPMs
which present challenges for healthcare providers
and technicians. Public representatives in the United
States have responded by calling upon manufacturers
of ventilators and related equipment to release
information related to circumventing TPMs. These
efforts are not only desirable, but necessary for
the purposes of utilising all available healthcare
resources to assist those in need.30 This urgent and
unprecedented situation demonstrates the growing
relevance of the right to repair movement as one not
only concerned with private consumer rights, but
also in safeguarding the public interest.
19
Thankfully, the Internet has made it easier for
consumers, the public and third-party repairers
to share information31 and tools which enable
repair.
32
europa.eu/news/en/press-room/20170530IPR76313/
making-durable-reparable-goods-for-consumers-and-
tackling-planned-obsolescence>.
27 Claude Thompson, ‘’Right to repair’ your phone’, Washington
Examiner (8 February 2019) online:
phone>.
28
Reason (13 April 2020) online:
reason.com/video/hospital-technicians-ignore-copyright-
>.
29 The Repair Association, Device Companies are Cutting Hospitals
Out of the Loop, online: < https://repair.org/medical>.
30
Pennsylvania Treasury (14 April 2020) online:
patreasury.gov/newsroom/archive/2020/04-14-Call-On-
Manufacturers.html>.
31 John Hartley, ‘A Problem of knowledge – Solved?’ in Ian
Hargreaves and John Hartley, eds, The Creative Citizen
Unbound: How social media and DIY culture contribute to
democracy, communities and the creative economy (Policy Press,
2016), 29.
32 IRepair Guides, online: <>.
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
2020
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behind iFixit.com have been building a library of
at assisting the healthcare sector with ventilator
repair.33 These efforts demonstrate that, with or
without the cooperation from manufacturers,
consumers, citizens, and public representatives are
understanding the importance of repair. Central
circumvent software TPMs.34
I. How Software TPMs are
Hindering Repair
20 In principle, TPMs are meant to act as an additional
layer of protection by providing copyright owners
with greater control over their content. In some
becomes apparent when someone attempts to repair
or service the product that incorporates them. These
less obvious and concealed uses of TPMs can have
particularly negative effects on markets, including
secondary repair and service markets, and in doing
so leave consumers with fewer choices for repair or
servicing.35
21
There are very few boundaries which delineate
software TPMs. These measures can include the use
of encryption, authentication, access control, digital
watermarking and tamper-resistant hardware.36
Software TPMs can also come in the form of hardware
that limits the functionality of software or access
given to the user.37 They can also be used to co-verify
hardware and software in using system on chip38
functionality in a manner that restricts the larger
latter technology is a printer that requires the use of
33
iFixit (14 April 2020)
online: <
treasurers-demand-the-right-to-repair-from-ventilator-
makers>.
34 Thompson (n 27).
35 Geist (n 3) 220.
36 Ian Kerr, ‘Digital Locks and the Automation of Virtue’ in
Michael Geist, ed, In the Public Interest: The Future of Canadian
Copyright Law (Irwin Law, 2005), 273.
37 Kabushiki Kaisha Sony Computer Entertainment Inc et al v Ball et
al, [2004] EWHC 1738 (UK).
38
Vendors Viewpoint’ (Paper delivered at the Proceedings
International Conference on Computer Design, 5-7 October
1998 [unpublished].
3940
Each of these techniques can mean that the use of
third-party components or services will disable the
device entirely; requiring the repairer to obtain
parts or service directly from the manufacturer.
Given that it is possible to circumvent any software
TPM with enough resources and skill41, the above
techniques should be more accurately understood
as ‘repair-resistant’ software TPMs.
II. Case Study: John Deere Tractors
22
Though the list of products incorporating repair-
resistant software TPMs is long and continues to
of repair-resistant software TPMs is John Deere
tractors. Many farmers who ordinarily live a life
characterised by self-reliance and independence still
planned obsolescence dictates much of consumer
behaviour.
42
Unfortunately for farmers, the virtue
underlying this ethic is becoming increasingly
23
Farmers are in many ways the original hackers. They
have been fabricating, building, rebuilding, tinkering
and improvising with equipment for millennia, and
this tradition continues.
43
Nevertheless, when one
thinks of a farm tractor, the object that comes to
integrated computers and software to operate, and
John Deere is leading the way.44 The tools needed to
resolve issues with these modern machines are not
found in tool shops or farmers’ workshops anymore,
39 Lexmark International Inc v Static Control Components Inc, 387 F
(3d) 522 (2004) (US).
40 Michael Geist, ‘’TPMs’: A perfect storm for consumers’,
MichaelGeist.ca, (31 January 2005) online:
michaelgeist.ca/resc/html_bkup/jan312005.html>.
41 Ibid.
42 Jeremy Bulow, ‘An Economic Theory of Planned
Obsolescence’ (1986) 101 THE QUARTERLY JOURNAL OF
ECONOMICS 729, 729.
43 ‘Cordless Drill Powers Portable Winch’, Farm Show Magazine
43 (July 2019) online:
issue.php?i_id=314&vol=43&number=4&year=2019>.
44 Motherboard, ‘Tractor Hacking: The Farmers Breaking
Big Tech’s Repair Monopoly’, YOUTUBE, (1 February
2018) (video) online:
watch?v=F8JCh0owT4w>.
2020
Anthony D. Rosborough
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but instead behind a wall of TPMs safeguarding
proprietary software.
24
The TPMs used in John Deere tractors vary in
their type and application, but generally include a
central computer connected to an array of electronic
sensors. These sensors measure and control a
range of functions, including engine temperature,
GPS location and hydraulic pressure. The onboard
tractor down if it detects a fault.45 Problematically,
this can occur as the result of a fault in a sensor itself
without any underlying mechanical problem.46
25
John Deere also relies on software integration for
diagnostics. In effect, access to the tECU is required
in order to determine the underlying mechanical
issue that needs to be resolved. Access to the tECU
requires both a proprietary cable and software,
neither of which are offered to consumers or
independent technicians.47 Thus, diagnostics which
had previously been determined through deductive
reasoning and troubleshooting is now information
that has become inaccessible.
26 Even further still, disabling the tractor’s automatic
shut down requires access to the tECU running the
proprietary software. Even if a farmer were able
to circumvent the TPMs protecting the software,
he would also likely need a factory password to
effect any changes to the system.48 The result is
that in many cases a farmer or independent service
technician is unable to diagnose or repair a tractor
that has become inoperative without access to
equipment and proprietary software that is held
effectively precludes farmers’ ability to conduct
their own repairs.
27
John Deere tractors also use software TPMs to co-
49 Farmers
frequently look for used parts to repair their
machinery, and indeed used parts are available
for modern John Deere tractors.50 Nevertheless,
installation of these parts without software
45 Kyle Wiens, ‘New High-Tech Farm Equipment is a Nightmare
for Farmers’, Wired (5 February 2015) online: 
wired.com/2015/02/new-high-tech-farm-equipment-
nightmare-farmers/>.
46 Ibid.
47 Motherboard (n 44).
48 Wiens (n 45).
49 Motherboard (n 44).
50 John Deere, ‘Remanufactured Parts & Components’, online:
activation will render the entire tractor inoperative
if the tECU is not accessed to activate them. Much to
the dismay of farmers, the result is that they often
have to purchase new components from John Deere
to then be activated by John Deere’s technicians.51
28
Deere’s software TPMs has motivated farmers to
establish a thriving grey market for used parts,
proprietary connectors and software tools that
circumvent software TPMs used by the tractor’s
computer system.52 Like they always have, farmers
are demonstrating their resourcefulness and
ingenuity in solving many of the problems created
by John Deere’s software by sharing information and
circumvention tools. In some cases, farmers are even
learning to hack John Deere’s software.53
29
Frustration with the obstacles posed by John Deere’s
software TPMs led to a group of farmers in the
United States to lobby for legislative reform. Farmers
became unlikely allies with technology-focused
advocacy groups such as the Electronic Frontier
US Digital Millennium Copyright Act
prohibit the circumvention of TPMs.54 After much
public and media attention, in 2015 the United States
anti-circumvention provisions of the DMCA to allow
circumvention of software TPMs used on tractors
for the purposes of repair.55 Despite this positive
development, it was not long after this ruling before
farmers were reminded of the robust control held
remanufactured/>.
51 Motherboard (n 44).
52 Jason Bloomberg, ‘John Deere’s Digital Transformation
Runs Afoul of Right-to-Repair Movement’, FORBES
(30 April 2017) online:
sites/jasonbloomberg/2017/04/30/john-deeres-
digital-transformation-runs-afoul-of-right-to-repair-
movement/#7b08bb6d5ab9>.
53 Motherboard (n 44).
54 Kit Walsh, ‘John Deere Really Doesn’t Want You to Own That
Tractor’, EFF (20 December 2016) online:
org/deeplinks/2016/12/john-deere-really-doesnt-want-
you-own-tractor>.
55 US, Library of Congress, Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control
Technologies, 37 CFR 201, Docket No 2014-07 (effective 28
October 2015).
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
2020
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by John Deere when it amended the terms of service
associated with its software to prohibit any form of
56
30 The malleability of the terms of service associated
with John Deere’s tractors draws attention to the
broader issue of the vulnerability of copyright
57
products which feature computerisation presents a
new forum for rightsholders to rely on freedom of
contract to augment the copyright balance as set by
legislators. To this end, John Deere tractors are likely
terms of service can be used to undermine both
traditional notions of private property ownership
as well as legislative attempts to further the public
interest dimensions of the copyright system.
31
Despite these challenges, farmers have continued
to carry out repairs. In line with these efforts,
farmers have also established farmhack.org, a global
community of farmers that share tools and resources
for building and modifying their equipment.58 Despite
the 2015 amendments to the DMCA, the legality of
sharing or distributing the means of circumventing
John Deere’s software TPMs remains murky. As will
be discussed in the following Part, the legality of
both circumventing software TPMs and distributing
the means of doing so can violate various copyright
laws in a number of different jurisdictions, including
the EU. This legal framework needs more careful
consideration in light of the larger objectives of
copyright policy and the impact on the secondary
repair market.
C. The Development of Anti-
Circumvention Law
32 The history of the law enabling TPMs is not entirely
linear or straightforward. Through a combination of
international agreements, domestic legislation and
private ordering mechanisms used by manufacturers,
TPMs and their circumvention can be governed by
a variety of legal instruments. As their name would
56 Adam Wernick, ‘The ‘right to repair’ movements wants
INTERNATIONAL (24 December 2018) online:
www.pri.org/stories/2018-12-24/right-repair-movement-
>.
57 Lucie Guibault, ‘Copyright Limitations and Contracts: An
Analysis of the Contractual Overridability of Limitations on
Copyright’ (Kluwer Law International, 2002), 207.
58 Farm Hack, Tools, online: .
suggest, legal protection for TPMs came about
as the effect of rapid changes in technological
development in the 1980s and 1990s which brought
about the advent of digital property.59 Indeed, this
interdependent relationship between TPMs and
technological development has not changed. As
evidenced by their use in John Deere tractors, the
increasing sophistication of everyday products and
the increasing reliance on computerisation has been
the impetus for a variety of new and unforeseen uses
for TPMs.
33
The law surrounding TPMs is best described as
provisions principally determine the consequences
and lawfulness of TPM circumvention and related
activities. Surprisingly, there are comparatively
few legal boundaries setting out the limits of
ambiguity coupled with the rigorous attempts to
curb circumvention of TPMs have created concern
and controversy among lawmakers and the general
public since their inception. Perhaps predictably,
this controversy has generally coalesced around
questions of how to appropriately balance the
interests of rightsholders, users and other relevant
industries.
34
This Part will provide an overview of the origins and
development of anti-circumvention law, including
the larger international framework. Though the
implementation of this framework in the European
Union will be more thoroughly canvassed in Part
D, the surrounding international framework
software TPMs are able to be used as impediments
though the framework governing software TPMs
in the European Union predates the international
regimes creates for additional uncertainty that must
for the purposes of repair. Moreover, in addressing
this international framework, the impact of the
United States’ approach to anti-circumvention
law will be assessed to demonstrate its impact on
manufacturing processes for products that reach
global markets. As will be demonstrated, this latter
subject is particularly relevant for the software TPM
approach utilised in John Deere tractors. Overall,
this chapter will seek to establish that the level of
protection afforded to TPMs protecting software in
its prohibition on the circulation of the means of
those seeking the ability to repair their equipment,
including John Deere tractors.
59 Kerr (n 36) 265.
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1
I. The Pre-World Copyright
Treaty Era
35
placing a piece of adhesive tape over two square
holes on the bottom of an audio cassette to enable
it to be used for recording new music. Without this
piece of tape, the shape of the holes on the cassette
prevented it from being used to allow for recording
technique allowed a cassette with music released
tape’; often by recording newly-released songs from
the radio.60 In its most simple of forms, these holes on
cassette tapes were the type of TPMs contemporary
to the era in which much of the legal regime
surrounding anti-circumvention was established.
This period of technological development was also
marked by the landmark United States decision in
Sony v Betamax61, which was concerned with so-called
recording. It is within this technological paradigm
36
It is thus perhaps not surprising that the earliest
forms of legislative intervention to regulate TPMs
were focused in copy-control technologies.62 As will
be discussed in the proceeding Chapter, technical
protections applied to software in the European
movements. By contrast, the larger international
momentum behind anti-circumvention law was not
early iterations of the UK’s 1988 Copyright, Designs and
Patents Act at section 296 restricted circumvention
of copy-protection incorporated into physical media
63.
Similarly, in the United States, restrictions were
put in place in 1993 to prohibit circumvention or
alteration of Serial Copyright Management Systems,
which were utilised to restrict copying of digital
60 John Kelly, ‘Party like its 1989: What should you do with
(25
February 2018) online:
com/local/party-like-its-1989-what-should-you-do-with-
1a2c-11e8-b2d9-08e748f892c0_story.html?noredirect=on>.
61 Sony Corporation of America et al v Universal City Studios Inc et al,
464 US 417; 104 S Ct 774 (1984) (US).
62 Ian Brown, ‘The evolution of anti-circumvention law’ (2006)
20:3 INTERNATIONAL REVIEW OF LAW, COMPUTERS &
TECHNOLOGY 239, 240.
63 Copyright, Designs and Patents Act, 1988 c 48 [United Kingdom]
at 296 [CDPA].
audio tapes.64 In accordance with the increasing
digitalisation of media throughout the early 1990s,
efforts began to coalesce among countries to
circumvention protections at the international level,
with copy-control technologies at front of mind.
II. WIPO and the Emergence
of an International Anti-
Circumvention Regime
37
By the mid-1990s, the means to access and reproduce
protected works had become within the reach of most
consumers.
65
Though long-standing manual copying
had allowed for relatively simple reproduction and
distribution, these processes were time intensive
creative works meant that an increasing number of
media formats were now easily copied on a relatively
large scale and at low cost.
66
WIPO negotiations began to take shape which would
later establish the 1996 World Copyright Treaty
67 These negotiations
drew reference to earlier discussions surrounding
anti-circumvention, including those which took
place during the drafting of the 1989 WIPO Model
Provisions for Legislation in the Field of Copyright.
68
For industry representatives and lawmakers among
the international community, the time was ripe
for including protections for TPMs as part of the
forthcoming world copyright regime.
38
was responsible for steering the negotiations leading
up to the WCT and WPPT. The Committee did not
envision that TPMs would create new substantive
intellectual property rights. Rather, TPMs were
regarded as a vehicle for aiding in the protection,
64 Digital Millennium Copyright Act, 17 USC § 1002(c) (Supp. V
1993) [DMCA].
65 Simon Stokes, Digital copyright: law and practice (Hart
Publishing, 2014), 11.
66 Pamela Samuelson, ‘The New Economy and information
technology policy’ in Jeffrey A Frankel and Peter R Orszag,
eds, Economic Policy During the 1990s (MIT Press, 2002), 17.
67 Jorg Reinbothe & Silke von Lewinski, The WIPO Treaties
1996: The WIPO Copyright Treaty and The WIPO Performances
and Phonograms Treaty Commentary and Legal Analysis (Tottel
Publishing, 2002), 139.
68 Brown (n 62) 239.
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1
they applied to the newly-established digital
environment.69 As will be demonstrated further
in the proceeding Chapters, this distinction is
important in relation to the myriad uses for repair-
resistant TPMs.
39 The role of TPMs as addressing rapid technological
change is further evidenced by the somewhat
leaving open the possibility of various tools,
mechanisms or approaches which could be taken
to protect copyrighted works. The ambiguity
in this concept lives on to this day. The precise
under many domestic legislative legal regimes
7071
Therefore, from the outset,
legal protection for TPMs has been focused on
the consequences of circumvention rather than
the nature or technology used to implement the
protection measure itself.
40
The WIPO negotiations largely took shape around
whether the circumvention of TPMs should require
knowledge or infringing intent of the person
performing the circumvention. The United States
advocated strongly for no such requirement, and
other parties (including the European Union),
upon was adopted largely from the South African
position.72 Notably, Article 11 provides:
“Contracting Parties shall provide adequate legal protection
and effective legal remedies against the circumvention of
effective technological measures that are used by authors in
connection with the exercise of their rights under this Treaty
or the Berne Convention and that restrict acts, in respect
of their works, which are not authorized by the authors
concerned or permitted by law.”
41
trade agreements73
TPMs recognised by any international agreement.
An analogous provision is found at Article 18 of the
69 Mihály Ficsor, The Law of Copyright and the Internet: The 1996
WIPO Treaties, their Interpretation and Implementation
University Press, 2002), 544.
70 Copyright Act, RSC 1985, c C-42 [Canada], 41.
71 CDPA (n 63) 296ZF(1).
72 Fiscor (n 69) 544.
73 North American Free Trade Agreement Between the Government
of Canada, the Government of Mexico and the Government of the
United States, 17 December 1992, Can TS 1994 No 2, 32 ILM
289 (entered into force 1 January 1994), 1707 [NAFTA].
WPPT. The protections for TPMs found in these
treaties are distinct from the others in that they
constitute wholly new mechanisms74 within the
international copyright framework as opposed to
Berne Convention.
42
legislation that was in conformity with varying
domestic intellectual property strategies. It therefore
serves as the low water mark for anti-circumvention
technological measures; and it sets only minimum
standards and thereby leaves states the option
to domestically legislate more narrow or broad
will be demonstrated in the proceeding chapters
and sections, these two aspects have allowed for
divergent approaches and inconsistencies in anti-
circumvention law more generally.
III. The United States’ Impact
on the Use of Software
TPMs by Manufacturers
43
In some cases, the underlying policy reasons for
adopting a particular legislative measure can be as
law itself. This was certainly the case for the United
during the WIPO negotiations leading up to the
WCT and WPPT. These negotiations served as an
opportunity for the United States to put forward
an approach to TPMs that had percolated vis-à-vis
domestic policy proposals in the mid-1990s. As will
be further discussed in this section, the US view
of anti-circumvention law has impacted various
free-trade agreements7576 and shaped the laws of
various countries7778 since the WCT and WPPT were
concluded. This more absolute approach to anti-
74 Fiscor (n 69) 544.
75 Anti-Counterfeiting Trade Agreement, 15 April 2011, (not in
force) [ACTA].
76 4 February 2016, (not in
force) [TPP].
77 Madison Cartwright, ‘Preferential trade agreements and
power asymmetries: the case of technological protection
measures in Australia’ (2018) 10 THE PACIFIC REVIEW 1, 2.
78 Wenwei Guan, ‘Copyright Anti-Circumvention & Free Trade’
(2018) 52 JOURNAL OF WORLD TRADE 257, 265.
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circumvention law has also enabled manufacturers
to incorporate TPM protections in their product
designs which have far-reaching effects for
consumers globally, including within the European
Union. With these considerations in mind, the
broader impact of the United States’ approach to
anti-circumvention law must be considered in
conjunction with an assessment of the appropriate
framework in the EU.
44
negotiating agenda during the WIPO negotiations
came about as the result of the Clinton
Administration’s commissioning of the Intellectual
Property and the National Information Infrastructure
Report 79 The NII Report
was the impetus for the United States’ desire to
ensure that every type of work could be protected
technologically and that any attempt to circumvent
those protections would be made illegal.
80
As the NII
Report was focused largely on protecting copyright
owners and the content industry within the United
81 and called for swift and strong legislative
intervention -- technological controls on products
were key to this strategy.
45
Shaped largely by a hostile view of the digital
copyright and to enact generally broad measures
to prohibit circumvention. Arguably, this approach
created a sui generis right against circumvention that
is divorced from the larger copyright framework.
Though the United States was not successful in
incorporating this approach into the WCT and
WPPT frameworks, its particularly rightsholder-
centric and sui generis view of anti-circumvention
law has shaped its domestic approach to TPMs. This
framework for TPMs found in the DMCA.
46
For the United States, the DMCA was a major
milestone in moving its copyright law framework
into the digital environment. In 1998, when the DMCA
was enacted, it was described as a comprehensive
digital copyright bill that would criminalise the
79 US, Information Infrastructure Task Force, Intellectual
Property and the National Information Infrastructure: The
Report of the Working Group on Intellectual Property Rights (US
NII Report].
80 Pamela Samuelson, ‘The U.S. Digital Agenda at WIPO’ (1997)
37 VA J INTL L 369, 381.
81 Robert Arthur, ‘Federal Circuit v. Ninth Circuit: A Split over
MARQ INTELL PROP L REV 265, 267.
copies of software, music and videos as literary
82 The addition of the DMCA’s section 1201
in circumvention devices.83 Though many anti-
circumvention regimes prohibit these acts, what
made the overall approach in the DMCA distinct
of TPM protections any such mechanisms which
84 This approach
stands in contrast to the WCT and WPPT’s notion
of a TPM, which is to prevent acts which are not
‘permitted by law’. In the years since its enactment,
section 1201 has been the subject of considerable
debate among academic scholars85 and uncertainty
remains throughout US jurisprudence.86
47
focus their attention on interpretations of the
provisions. In comparison to the WCT’s Article 11,
which calls for protection of measures that are used
87, the
DMCA’s section 1201(a) prohibits circumvention of
88 In comparing the
language of these two provisions, the language in
the DMCA suggests that the prohibition on access
point to the fact that accessibility to works has
always been effectively controlled and managed
through myriad tools within copyright regimes and
that TPMs do not provide any substantive change,
82 John Haubenreich, ‘The iPhone and the DMCA: Locking the
Hands of Consumers’ (2008) 61 VAN L REV 1507, 1514.
83 Arthur (n 81) 268.
84 Timothy Lee, ‘Circumventing Competition: The Perverse
Consequences of the Digital Millennium Copyright Act’
(2006) 564 CATO INSTITUTE: POLICY ANALYSIS, 8.
85 Thomas Heide, ‘Copyright in the EU and U.S.: What Access-
Right’ (2001) 48 J OF THE COPYRIGHT SOCIETY OF THE
U.S.A. 363, 363.
86 Chamberlain Group Inc v Skylink Technologies Inc, 381 F (3d)
1178 (2004) (US).
87 World Intellectual Property Organization Copyright Treaty, 20
December 1996, 2186 UNTS 38542 (entered into force 6
March 2002), 11 [WCT].
88 DMCA (n 64) 1201(a).
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1
prohibition on circumvention. These rulemaking
proceedings have occurred on several occasions since
the DMCA’s enactment, including in 2015 and 2018.
The Librarian of Congress review mechanism is an
essential part of the anti-circumvention framework
in the United States. As will be discussed further in
would enable circumvention of repair-resistant
software TPMs.
50
Most poignant for this larger analysis, however, is the
anti-circumvention law enables new approaches to
product design where access to integrated software
is legally prohibited. The effect of such access-
control TPMs is that manufacturers are increasingly
able to deny consumers the ability to interact with
the inner-workings of their products. As seen in the
case of John Deere tractors, this can have profound
implications for end-users.
51
The review by the Librarian of Congress offers some
however, many software-integrated products
originating from the United States reach foreign
markets and the consequences of repair-resistant
the European Union is without a legislative
mechanism similar to the Librarian of Congress’
ruling procedure. With many of the world’s most
successful and far-reaching technology companies
based in the United States are designing their
products under the DMCA framework, European
consumers are ultimately affected by this regime.
52
Beyond product design, the effects of the access
control model from TPMs can have direct legal effects
in the EU. History shows us that the United States
of the DMCA have been questioned on a number
of grounds, there is little reason to believe that
circumvention of software TPMs in the EU would not
attract similar scrutiny from U.S. law enforcement;
particularly where EU-born means of circumvention
are made available in the U.S. market.97 Though the
public international law dimensions of the DMCA’s
of the access control conceptualisation of TPMs on
foreign markets, including the EU. Therefore, the
DMCA approach to TPMs simply cannot be ignored
in assessing the appropriate anti-circumvention
framework for the European Union.
97
Millennium Copyright Act’ (2003) 35 CASE WESTERN
RESERVE JOURNAL OF INTERNATIONAL LAW Re J Int’l L 89.
copyright owners.89 To a certain degree, this view is
supported by a decision at the District Court level
90 outside
48
Leaving this debate aside for the time being, the
advent of an access right is important within the
guarantee access to a work for the purposes of
carrying out a permitted act under copyright
law.91
circumvention of the measure is prohibited even
in cases where the reason for circumvention bears
no relevance to copyright. Therefore, opponents of
the ‘access right’ theory view the legal standard for
violating this right not as copyright infringement, but
rather the mere act of circumvention.
92
Moreover,
opponents of the ‘access right’ theory generally
view infringement of this right as a distinct cause
of action which is divorced from any of the defences
enumerated elsewhere in the DMCA framework.93
49 It is not all doom and gloom for fair use advocates in
the United States, however. Importantly, the DMCA’s
section 1201(c) contains a release valve whereby
the Librarian of Congress is to consider the anti-
circumvention rule’s impact on a variety of uses
for works that mirror the US fair use framework94,
including education, criticism, parody and review.95
Under this framework, the Librarian of Congress
is to hold proceedings every three years96 wherein
89 Heide (n 85) 381.
90 Los Angeles Times v Free Republic, 56 US PQ (2d) 1862 (CD Cal
2000); 29 Med L Rptr 1028 (2000) (US), 67.
91 Fiscor (n 69) 551.
92 Pamela Samuelson, ‘Intellectual Property and the Digital
Economy: Why the Anti-Circumvention Regulations Need
to be Revised’ (1999) 14 BERKELEY TECHNOLOGY LAW
JOURNAL 519, 543.
93 Efroni Zohar, ‘A momentary lapse of reason: digital
copyright, the DMCA and a dose of common sense’ (2005) 28
COLUMBIA JOURNAL OF LAW AND THE ARTS 249, 294.
94 Mark Gray, ‘New Rules for a New Decade: Improving the
29 BERKELEY TECHNOLOGY LAW JOURNAL 759 at 762.
95 DMCA (n 64) 1201(c).
96 Haubenreich (n 82) 1510.
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D. The European Approach
to Anti-Circumvention
53
The European Union does not possess a single,
Union-wide copyright regime.98 Instead, it has
instituted a patchwork of Directives and Regulations
which addresses a variety of subject matters, and
some of which touch upon copyright.99 This stands
in contrast to most unitary and federal states in
the international community which commonly
have a single source of legislative authority for
copyright. In addition, EU copyright legislation must
be implemented by its member states to be given
effect. For this reason, anti-circumvention law in
the European Union is both fragmented by subject-
matter and varying in its implementation across
various member states.
54
With the above caveats aside, it could be said that on
the one hand, the European Union’s approach to anti-
circumvention law mirrors most closely the terms
of the WCT and WPPT. On the other hand, however,
the European Union’s TPM framework predates
those agreements and is more onerous; particularly
in the case of software. This Chapter will seek to
reconcile these two aspects of anti-circumvention
law in the European Union. The distinct and
inconsequential status given to the Directive 91/250/
attention given to its more restrictive prohibition
on the circumvention of TPMs. Overall, it will be
demonstrated that the Software Directive’s broad
means of circumvention collectively act as strong
impediments to the repair of software-integrated
products in the European Union.
I. The Bifurcation of EU Anti-
Circumvention Law
55 The European approach to anti-circumvention law
is bifurcated in accordance with the subject matter
of the protected work. As opposed to the United
States’ DMCA framework, TPMs protecting computer
programs in Europe are governed by the Software
Directive100, and TPMs protecting all other types of
98 Thomas Dreier & P. Bernt Hugenholtz, eds, Concise European
Copyright Law (Kluwer Law International, 2016), 1.
99 Ana-Maria Marinescu, ‘EU Directives in the Field of
Copyright and Related Rights’ (2015) 1 LESIJ – LEX ET
SCIENTIA INTERNATIONAL JOURNAL 50, 50.
100 Software Directive (n 7).
copyright are governed by the InfoSoc Directive.101
The reason for this bifurcated approach is less
a matter of policy than it is a function of history.
102
protection to computer programs, predates the WCT
and WPPT by several years. As elaborated upon in
Part C, it was this latter international framework
that established the more comprehensive approach
to TPMs and their circumvention.
56
In comparing the two Directives, it must be
established that the Software Directive operates,
in theory at least, entirely separately from InfoSoc.
On this point the CJEU has described the Software
Directive as having the character of lex specialis in
relation to all other Directives, including InfoSoc.103
these Directives, the clear distinction between the
two enactments is made even more clear by recital
50 of the InfoSoc Directive, which provides that:
“Such a harmonised legal protection does not affect the
91/250/EEC. In particular, it should not apply to the protection
of technological measures used in connection with computer
programs, which is exclusively addressed in that Directive…”
57 The result of the bifurcation of anti-circumvention
law in the EU is that TPMs used to protect computer
programs are dealt with in accordance with a distinct
legal regime from other copyrighted works. One key
consequence of this distinction is the fact that the
under the InfoSoc Directive do not apply to the
Software Directive.
58
The subject-matter distinction drawn between
these two directives is not always straightforward.
software can be used in conjunction with other
fall subject to the InfoSoc Directive’s protections.
This was the case in Nintendo v PC Box104, where the
CJEU was deciding over circumvention tools used to
manipulate TPMs on video game consoles to allow
for a broader range of media to be played on them. In
deciding the appropriate legal framework to assess
101 InfoSoc Directive (n 6).
102 Drier and Hugenholtz (n 98) 237.
103 UsedSoft GmbH v Oracle International Corp (C-128/11),
EU:C:2012:407; [2013] Bus LR 911, 60-61.
104 Nintendo Co Ltd and Others v PC Box Srl (C-355/12) EU:C:2014:25;
[2014] EUECJ C-355/12 (CJEU).
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software and other graphic and sound elements.105
not be treated as merely software encryption and
therefore the case was decided under the InfoSoc
TPM framework.106 Though the CJEU’s rationale
therefore subject to the InfoSoc Directive over the
future determinations.
59
work can muddy its treatment as software, so too can
its integration with hardware. The EU’s bifurcated
TPM framework is predicated on the assumption
that computer programs can be easily distinguished
from the hardware and platforms upon which
they run. With increasing convergence of content
formats, transmission media and platforms, along
with more widespread software integration and
tenuous.107 As is demonstrated by John Deere’s use
of TPMs, software can directly govern the functional
and utilitarian aspects of products. This fading of the
distinction between hardware and software or so-
technological advancement and appears likely to
continue.
108
It raises the question as to whether John
Deere is producing tractors that run on software, or
if it is producing software that happens to run on
tractors. It therefore calls into question what the
is. As will be further discussed in
the following sections, this often-blurry distinction
implications for repair-resistant software TPMs in
the European Union.109
105 Ibid 23.
106
107 Irini Stamatoudi & Paul Torremans, eds, EU Copyright Law: A
Commentary (Edward Elgar Publishing, 2014), 91.
108 Vahid (n 21) 33.
109 Pamela Samuelson, Thomas Vinje & William Cornish, ‘Does
copyright protection under the EU Software Directive
interfaces?’ (2012) 34 EIPR 158, 161.
II. The EU Software Directive’s
TPM Framework
60
The impetus for the Software Directive was the
110
concerned with piracy, home copying of audio and
programs.111 Given that the market for computer
programs in 1988 was in its fast-growing infancy,
the European Commission recognised that failure to
recognise them as literary works risked fragmenting
the internal market. Accordingly, the Green Paper put
forward several recommendations for the protection
of computer programs; many of which were later
incorporated into the Software Directive.112
61
was not without controversy. Similar to the US’
NII Report, the legislative proposal that followed
lengthy negotiations to reach a compromise for the
protection of computer programs.
113
controversy was partially addressed in the Green
also warned that failure to limit protection for these
114
62
In many ways, the lex specialis character of
compromises and debates. Indeed, subsequent
Directives have left the Software Directive’s
and limitations from outside the reach of computer
programs.115 Regrettably, this means that judicial
TPM protections under the InfoSoc Directive do not
110 EC, Green Paper on Copyright and the Challenge of Technology –
Copyright Issues Requiring Immediate Action, (1988), COM (88)
172 (EC, 1998) [Green Paper].
111 Ibid 1.6.2.
112 Stamatoudi & Torremans (n 107) 91.
113 Stamatoudi & Torremans (n 107).
114 EC Green Paper on Copyright (n 110) 1.3.5.
115 InfoSoc Directive (n 6) recital 50.
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provide much assistance in the case of software.116
Though the CJEU held that manufacturers must be
able to show117 that their implementation of TPMs
legitimate uses’ in Nintendo v PC Box118, such caveats do
not apply to software TPMs.119 This inconsequential
status of the Software Directive is unfortunate, as
such limitations to software TPM protections would
(including farmers) with access to the means of
software TPM circumvention.
63
limitations to copyright creates inconsistencies
Directive’s framework for TPM’s also creates for
inconsistencies in the level of protection. For
prohibits:
“…any act of putting into circulation, or possession for
commercial purposes of, any means the sole intended
purpose of which is to facilitate the unauthorised removal
or circumvention of any technical device which may have
been applied to protect a computer program.”
[Emphasis added]
64 Article 7(1)(c) is the only provision in the Software
Directive that directly addresses TPMs. Though
the provision itself is brief, it raises a number of
questions for analysis. Notably, Article 7(1)(c) does
not prohibit the act of circumvention itself, but
of circumvention. This distinction is important and,
as will be discussed in the following section, it has
resistant TPMs.
116 Thomas Heide, ‘Copyright, Contract and the Legal Protection
of Technological Measures – Not the Old Fashioned Way:
(2002-2003) 50 J OF THE COPYRIGHT SOCIETY OF THE U.S.A.
314, 316.
117 Heather Newton, Andrew Moir & Rachel Montagnon, ‘CJEU
increases burden on manufacturers of games consoles
to prove the unlawfulness of devices circumventing
technological protection measures and that their TPMs
are proportionate’ (2014) 9 JOURNAL OF INTELLECTUAL
PROPERTY LAW & PRACTICE 456, 456.
118
119
technological protection measures in EU copyright law’
(2015) 37 EIPR 39, 39.
This distinction also stands in contrast to the clear
prohibition on the act of circumvention found in the
InfoSoc Directive.120
65
‘technological measure’ found at Article 6(3):
“…’technological measures’ means any technology, device
or component that, in the normal course of its operation,
is designed to prevent or restrict acts, in respect of works
or other subject-matter, which are not authorised by the
rightholder of any copyright or any right related to copyright
as provided for by law or the sui generis right provided for in
Chapter II of Directive 96/9/EC.”
66 Therefore, the notion of a ‘technical device’ under
the Software Directive’s framework remains broader
than the ‘technological measure’ conceptualisation
under the InfoSoc Directive. All that is required in
order to fall subject to protection under the Software
Directive is that the technical device ‘protect
a program’; regardless of whether it is actually
integrated into the program itself.
67 The degree to which the technical measure must be
integrated into the software it seeks to protect was
Sony v Ball decision121. In that case, the Court of
Chancery held that the physical chips constituting
need not be based in the software itself so long as
its function is to protect software.
68
and suggests that the tool for circumvention need
not be restricted to hardware or software. This calls
into question whether services or information that
provide mere instructions for circumventing would
determinative of the issue, the Finnish Supreme
Court held in Abobe Systems122 that instructions
for circumventing software protections which
prohibited regular updates for unlicenced copies of
decision can be distinguished from the Software
Directive somewhat based on distinct wording in
the Finnish Copyright Act, the holding nevertheless
raises doubt over documentation or instructions
120 InfoSoc Directive (n 6) 6(1).
121 Kabushiki v Ball (n 37).
122 Adobe Systems Inc v A Software Distributor [2004] ECDR (30) 303
(Finish Supreme Court).
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falling subject to the anti-circulation provision.
69
Finally, the requirement that the means have
technical measure is a much higher standard than
the stipulation in the InfoSoc Directive.123 The
124
In comparing these
two provisions, it is possible that the Software
Directive leaves open the possibility of promoting
and advertising the means of circumvention so long
as that is the sole intended purpose for such means.
On this point, it remains to be seen how the ‘intended
purpose’ of the means is actually determined in
practice. Unfortunately, there remains a need for
caselaw and judicial comment in interpreting the
outer limits of this requirement.
70
In comparing the overall framework in the Software
Directive to the US DMCA, an important distinction
must be addressed. Namely, the Software Directive
is without any mechanism analogous to the Library
1201 of the DMCA. The result is that the framework
for circumventing software TPMs in the EU cannot
easily respond to technological and societal change.
software paradigm that could not have envisioned
the modern uses for software or its integration
into everyday products. Moreover, as the Software
Directive requires EU member states to effect
implementation of its terms, making any changes to
this framework through a mandatory review process
its framework is legislatively fragmented among
member states.
71
Directive coupled with the lack of a mandatory
review provision renders the level of protection
afforded to software TPMs in the European Union
particularly strong. Though the Software Directive
permits independent acts of circumvention, its
broad conceptualisation of a ‘technical measure’
combined with the prohibition on the means of
for overcoming the impacts of repair-resistant
software TPMs.
123 InfoSoc Directive (n 6) 6(2)(c).
124 Stamatoudi and Torremans (n 107) 141.
III. Analysis: Circumventing
John Deere’s TPMs in
the European Union
72 As outlined in Part B, farmers in the United States
are challenged to repair their tractors as the result of
John Deere’s use of software TPMs. In the same vein,
it is worthwhile to assess the hurdles that would
be faced by farmers in the European Union. This
question is not entirely hypothetical. Though based
in the United States, John Deere has a truly global
market reach for its tractors and holds the largest
market share in Europe.
125
Tellingly, the software
commonly used by American farmers in Nebraska to
circumvent the TPMs on their John Deere equipment
originates from Ukraine.
126
While the Right to Repair
movement has often coalesced around the John
Deere tractor situation in the United States, farmers
in the European Union are not immune to the causes
of these concerns or the effects of software TPMs.
Accordingly, the impediments caused by the use of
software TPMs must also be assessed under the EU
framework.
73
As opposed to the United States’ prohibition on
acts of circumvention, the obstacle for farmers in
the EU with John Deere equipment is the Software
Directives’ prohibition on circulation of the means of
circumvention. The Software Directive contains
no prohibition on farmers in the European Union
devising their own solutions for circumventing
appear to be more permissive than that of the United
States, but as will be seen, this is not necessarily
the case. Prohibiting circulation of the means of
circumvention creates for numerous legal, market
and moral implications which will be assessed further
in Part E. In such cases where TPMs are rendering
reach, the ability for independent technicians to
for their services to have any practical effect.
125 Jim Breen, ‘Tractor sales: Who topped one of Europe’s
biggest markets in 2018?’, AGRILAND (10 January 2019)
online:
sales-who-topped-one-of-europes-biggest-markets-
in-2018/>.
126 Jason Koebler, ‘Why American Farmers Are Hacking Their
Tractors with Ukrainian Firmware’, VICE (21 March 2017)
online: <
why-american-farmers-are-hacking-their-tractors-with-
>.
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74
The unlawfulness in circulating the means of
circumvention is made more prominent by the ways
in which John Deere is using TPMs. For this reason,
the situation involving farmers and their John Deere
tractors requires more than the right to perform
individual acts of circumvention. These TPMs are
effectively protecting the software that controls the
purely utilitarian dynamic of the software changes
presents and the subject of its protection. Indeed,
this was precisely the type of undesirable use for
TPMs that was cautioned by the EU’s Green Paper.
127
75 Practically speaking, without the ability to circulate
the means of circumvention, farmers may possess
a right under EU law to circumvent the software
TPMs, but they will often not have the ability to do
so. Though farmers have demonstrated ingenuity
and have found creative solutions to problems for
them to develop their own means of circumvention.
However resourceful and inventive farmers may be
their devised solutions. Therefore, if the policy goals
of the Right to Repair movement are to be recognised
by anti-circumvention law in the European Union,
sharing tools and providing assistance must be part
of that framework.
E. The Implications of John Deere’s
Repair-Resistant Software TPMs
76 Repair-resistant software TPMs are put in place by
manufacturers because they are effective. The effect
of these protections, however, are far reaching. From
the perspective of independent repair and service
technicians, John Deere’s software TPMs run the risk
of precluding the ability to run a business. Without
legal access to the tools to circumvent the TPMs
and the ability to offer those means as part of their
services, John Deere effectively reserves for itself the
entire market for repair and service.
77
Alternatively, from an individual consumer
perspective, repair-resistant software TPMs blur
the lines between ownership and a license to
use. If the TPMs protecting software in everyday
products and appliances inhibit our ability to do
with them as we wish, it raises the question – do
we really own our things? Questioning the very
nature of ownership in this way is not outlandish
or sensational. Indeed, in submissions before the
US Librarian of Congress in relation to proposed
Deere’s representatives alleged that John Deere
127 EC Green Paper on Copyright (n 110) 1.3.5.
tractor owners do not actually own their tractors.
Instead, John Deere’s representatives alleged that
128 It
would seem as though TPMs used in this way are part
of a larger transition in the relationship between
manufacturers and consumers.
78
In diluting the concept of ownership through
rigid defence of repair-resistant software TPMs,
manufacturers such as John Deere deny individual
consumers a portion of their own agency by
preventing them from learning, repairing and
this automates the individual consumer’s decision-
making process in determining the morality of
for manipulating the tractor’s tECU software?
Ultimately consumers will not be able to make this
determination for themselves because the TPM
precludes the question from ever arising.
79
The following Part provides an overview of these
implications from the market or competition
perspective as well as the individual owner
or consumer perspective. With respect to fair
amounts to an abuse of a dominant position by failing
to provide an essential facility to independent repair
technicians. The essential facility in this regard is
the access to the software protected by the TPM. The
particulars of this notion will be more thoroughly
canvassed in following analysis. Second, from the
perspective of individual consumers, this Part will
propose that repair-resistant software TPMs deny
choosing when, where and how to repair their own
to and manipulation of proprietary software outside
the realm of decision-making by consumers. In doing
so, software TPMs reduce the moral intelligence of
consumers by automating the permissibility of their
conduct. It will be proposed that this categorical
denial of consumers’ moral decision-making vis-à-
vis software TPMs has deleterious consequences for
society and the objectives of copyright law.
80
In sum, it will be contended that the market effects of
repair-resistant software TPMs necessitates a review
of anti-circumvention policy. Without a malleable
and responsive framework analogous to the United
States’ Librarian of Congress reviews, the EU’s
128 Darin Bartholemew, ‘Long Comment Regarding a
on behalf of John Deere before the Librarian of Congress
Rulemaking, 2014), online:
gov/1201/2015/comments-032715/class%2022/John_
Deere_Class22_1201_2014.pdf>.
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treatment of software TPMs risks becoming tone
deaf to the myriad previously unforeseen ways in
which these tools are being used by manufacturers.
Should such an opportunity for legislative review
occur, the market and moral implications addressed
in the following sections should be taken into
consideration.
I. Market Implications: The
Anti-Competitive Impacts
on the Secondary Market
81
Though the legal protection for software TPMs is
enshrined in the Software Directive, the market
may require protection from software TPMs in
some instances. The appropriate framework to
time of writing reveals a paucity of caselaw in the
European Union involving a challenge to TPMs or
DRM systems as a breach of competition law. While
analogous issues arose in Synstar Computer Services
v ICL129 in relation to computer server software and
hardware bundling, the proceedings were stayed
before reaching the UK competition authorities.130
Nevertheless, it is theoretically possible that
conduct enabled by software TPMs could run
afoul of competition rules.131 Indeed, John Deere’s
software TPM implementation demonstrates that
such controls can directly inhibit the ability for
owners and independent repair technicians to
provide services and activate parts. Though a robust
overview of EU competition law is beyond the scope
of this analysis, the following is a brief survey of the
key EU competition law issues that may apply to
John Deere’s use of software TPMs in its products.
It must be made clear that the competition law
jurisprudence addressing intellectual property is
sparse and remains largely unsettled. Nevertheless,
John Deere’s use of software TPMs may constitute an
abuse of a dominant position in the secondary repair
and service market.
82
The legal inquiry surrounding the abuse of a
competition while being the largest player in the
secondary repair and service market. The prohibition
on the abusive use of dominance is governed by
129 Syndtar Computer Services (UK) Limited v ICL (Sorbus) Ltd.,
[2001] UKCLR 585; [2001] CP Rep 98 (UK).
130 Stokes (n 65) 98.
131 Ibid.
Article 102 of the Treaty on the Functioning of the
“Any abuse by one or more undertakings of a dominant
position within the internal market or in a substantial part
of it shall be prohibited as incompatible with the internal
market in so far as it may affect trade between Member
States.”132
[Bolding and underlining added]
83
It must be borne in mind that all intellectual
or protection from competition in a given market.
under an IPR does not amount to dominance,133
but nevertheless, the ownership of an IPR and
dominance may coincide under the right conditions.
Further, dominance per se is not problematic under
competition rules, but only where such dominance is
occasioned by ‘abuse’. In this regard, the competition
used by a dominant undertaking as an ‘instrument
of abuse’.134
84
the secondary repair and service market. The CJEU
strength enjoyed by an undertaking which enables
independently of its competitors, its customers
135 While in
some cases dominance is established through an
empirical analysis of market share136, a presumption
of dominance can also be found where the mere
market entry.
132 Consolidated Version of the Treaty on the Treaty of the Functioning
of the European Union, [2008] OJ C 115/47, 102 [TFEU].
133 Deutsche Grammophon GmbH v Metro-SB-Grossmarkte GmbH (C-
78/70), [1971] ECR 487, [1971] CMLR 631 (CJEU), 16.
134 Steven Anderman and Hedvig Schmidt, EU Competition Law
and Intellectual Property Rights: The Regulation of Innovation
135 United Brands Company and United Brands Continental BV v EC
Commission (C-27/76), [1978] ECR 207; [1978] 1 CMLR 429, 38
(CJEU).
136 Anderman and Schmidt (n 134) 59.
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85
parts that are protected by design rights. Notably, in
CICRA & Maxicar v Reneault137, at issue was the design
right for bodywork components of vehicles which
had a functional shape and for which there were no
substitutes. Manufacturers of ‘aftermarket’ parts
could not produce a substitute without infringing
on the design right. In assessing dominance,
Advocate General Mischo reminded the Court that
in such cases where the subject matter of an IPR
cannot be substituted, it is ‘beyond doubt’ that the
manufacturer holds a dominant position.138 Similar
reasoning was provided by the Advocate General in
Volvo v Veng.139
86
While distinguishable in some respects, John Deere’s
software TPMs could be analogised to the design
rights over functional automobile components in
the above cases. In particular, many of John Deere’s
replacement parts cannot be activated (and by
embedded in the tECU’s operating system. In this
respect, there are no substitutable options for repair
or replacement which do not encroach upon the IPR
underlying the TPM. Though individual and non-
commercial acts of circumvention are permitted
under the Software Directive, this does not alleviate
the larger competition impediments imposed on the
secondary repair and service market by the TPMs.
Above all, John Deere’s software TPMs prevent
effective competition in this market and enable
John Deere to act independently of its competitors.
Irrespective of the approach taken to establish
dominance, the above reasoning suggests that John
Deere could be found to hold a dominant position
with respect to the secondary repair and service
market for its products.
87
The second matter of inquiry under Article 102 of the
TFEU is to determine whether John Deere is using its
software TPMs as an instrument of abuse. This inquiry
focuses on whether its actual use of TPMs impairs
‘effective competition’ in the repair and service
market.
140
amount to holding a prima facie dominant position,
more than mere ownership of the right is required
in the widely cited Magill
137 CICRA et Maxicar v Renault (C-53/87), [1988] ECR 299. [1990] 4
CMLR (CJEU).
138 Ibid, 54.
139 AB Volvo v Erik Veng (UK) Ltd (Case 238/87), [1988] ECR 6039;
[1988] ECR 6211 (CJEU).
140 Nederlandsche Banden-Industrie Michelin v Commission (C-
322/81), [1983] ECR 3461; [1985] 1 CMLR 282 (CJEU).
provided by IPRs, and refusal to licence those rights,
can amount to abusive conduct.141
88
In Magill, the conduct under consideration was
a television broadcasters’ refusal to provide
broadcasting listing information protected by
copyright to the publisher of a TV guide. Importantly,
the broadcasters did not produce a TV guide of their
own. Seeking relief, Magill, the publisher of the TV
guide, sought an order under Article 102 of the TFEU
for a compulsory licence of the listing information.
The dispute made its way to the CJEU which found
IPRs cannot in and of themselves be abusive, there
be the case.142 The CJEU found that the necessary
the case in Magill for three reasons: there was no
potential substitute to a licence in producing the TV
refusal of the licence; and thirdly, the broadcasters
were ‘reserving for themselves’ the secondary
market for weekly television guides.
89
The CJEU in Magill also built upon the ‘essential
facilities’ concept that was established in the
earlier decision of Commercial Solvents.143 At its core,
the essential facilities doctrine addresses conduct
by a dominant undertaking in denying access
to an essential product or service and in doing
secondary market. In order to satisfy the ‘essential
facilities’ framework established in Magill, it must
be shown that the dominant undertaking: owns an
indispensable product or service for a secondary
market; holds a de facto monopoly; and by refusing
to licence the IPR, the undertaking reserves for itself
144
While the original conceptualisation of the essential
facilities doctrine did not contemplate
141
Publications Ltd (ITP) v Commission of the European Communities
(Magill) (C-241 and 242/91P), [1995] ECR I-743; [1995] 4
CMLR 718 (CJEU).
142 Ibid, 50.
143 Istituto Chemioterapico Italiano S.p.A. and Commercial Solvents
Corporation v Commission of the European Communities (C-6 and
7/73), [1974] ECR 223; [1974] 1 CMLR 309 (CJEU).
144 Anderman and Schmidt (n 134) 105.
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145, subsequent caselaw in this
area has continued to apply this framework to the
146
90
The essential facilities doctrine seems to be
it leaves certain ambiguities with respect to when a
product or service will be recognised as an essential
facility for another market instead of merely being
necessary for another product in the same market. This
John Deere’s software TPMs, this ambiguity is given
argued that access to the software protected by the
TPMs is part of the same ‘product’ as the tractor (and
therefore within the same market), it may prove
is an ‘essential facility’ for a secondary market. In the
alternative, if it is found that access to the tECU’s
software is a separate product or service which forms
an essential facility for the secondary repair market,
result is that, to a large degree, the determination of
the essential facilities issue for John Deere’s software
Indeed, the ambiguity in this regard addresses
the larger question posed in this analysis: what
machines?
91
In assessing the above ambiguity, it can be envisioned
that John Deere and independent repair technicians
would take opposite views on the answer to these
questions. Independent repair technicians would
presumably allege that the tECU’s software is a
diagnostic and repair tool which forms the basis of
a distinct service or product from the tractor itself.
John Deere, on the other hand, would likely contend
that its proprietary software behind the TPMs is
part and parcel of the tractor itself and are integral
parts of the same product. The debate and resulting
ambiguity are in need of further interpretation
authorities; particularly so in light of the increasing
integration of hardware and software. John Deere’s
use of TPMs points to the fact that the essential
to IPRs) sometimes struggles with identifying the
relevant product and market with precision where
hardware and diagnostic software are integrated.
92
Operating on the assumption that indeed the
tECU software and the tractor itself are separate
145 Ian Eagles and Louise Longdin, Refusals to Licence Intellectual
Property: Testing the Limits of Law and Economics (Hart
Publishing, 2011), 153.
146 IMS Health GmBH & Co OHG v NDC Health GmbH & Co KG (IMS)
(C-418/01), [2004] ECR I-5039, [2004] 4 CMLR 1543 (CJEU).
doctrine, access could be compelled by competition
authorities on two grounds. First, access to the
software is indispensable for independent repair
technicians to enter into the secondary repair
and service market and there are no reasonable
used instead of the proprietary software installed by
John Deere, this necessitates unlawful circulation.
Secondly, by putting in place these TPMs, John Deere
is discriminating between new entrants to the repair
and service market and its own service providers for
the purposes of eliminating competition. Based on
Magill and IMS, either of these factors
protections for these TPMs do not amount to abuse
per se, where independent repair technicians are
wholly dependent on the IPR’s subject of protection
to conduct their business, dominant undertakings
such as John Deere may be required to licence or to
provide access.
93
In the caselaw following Magill and IMS, however,
some caveats have developed in relation to dominant
Notably, in the lengthy Microsoft
147
decision, the Court
rule is intended to protect consumers from the
suppression of entirely new products or services,
already offers.
148
Given that the Microsoft decision
was concerned largely with interoperability as
between parallel software products, it can be
distinguished somewhat from cases where repair
and servicing of software-integrated products is
at issue. Nevertheless, the Court of First Instance’s
emphasis on the need to maintain plural sources of
innovation is telling. This calls into question whether
the ‘essential facilities’ and ‘new products’ reasoning
would apply in cases where a manufacturer is able to
preclude any secondary sources of innovation from
developing to begin with. Further still, it calls into
question whether the reasoning from Magill and IMS
would apply in cases where the competition being
allegedly curtailed is not necessarily innovative, but
service oriented.
94 In any event, while the ability to circumvent TPMs
can be conceptually distinguished from the software
licencing seen in the above cases, the end-effect on
the secondary repair and service market can be
the same. Just as the reasoning surrounding the
essential facilities doctrine in Commercial Solvents and
147 Microsoft Corp v Commission of the European Communities (T-
201/04) EU:T:2007:289; [2007] ECR II-3601 (CFI) [Microsoft].
148
EIPR 395, 397.
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Magill were broadened to include IPRs, it is equally
the circumvention of software TPMs. At its core, the
essential facilities doctrine is concerned with access.
Where John Deere is able to preclude competition in
the secondary repair market, the above reasoning
suggests (albeit with some caveats) that John Deere
could be found to have abused its dominant position.
II. Moral Implications: The
Denial of Agency
95
Beyond the effects on fair competition in the market,
repair-resistant TPMs can have broader implications
for individual owners. In particular, software TPMs
machinery reduces the capacity for individual owners
to conduct repairs themselves. Beyond the economic
drawbacks of this reality, the denial of owners’
agency to perform these repairs themselves brings
into focus deeper moral issues. This section contends
that the software TPM framework in the European
Union does not go far enough in allowing owners
to circumvent software TPMs. It will be argued that
the prohibition on the circulation of the means of
circumvention precludes the ability for independent
owners to share knowledge and information that
contribute to a larger ‘repair culture’. In taking
advantage of this legal framework and using
TPMs to inhibit repair, the following brief analysis
proposes that manufacturers such as John Deere
are denying owners individual agency to conduct
repairs. This denial of agency undermines a sort of
moral intelligence of consumers by predetermining
the validity of their conduct. In turn, this ensures
technological supremacy which ultimately renders
consumers and the broader society more dependent
on manufacturers and their systems of distribution.
96
The Software Directive’s prohibition on the
circulation of the means of circumvention is
deeply problematic. The ‘right’ to repair must not
addressed in the foregoing chapters and sections,
merely allowing circumvention is not enough. The
TPM framework in the EU leaves the actual task of
circumvention to consumers, even in cases where it
EU TPM framework is without a requirement for
rightsholders to actually facilitate circumvention by
providing the means to do so.
97
The importance of the distinction between the
self-help remedy currently available under the
Software Directive and a positive duty to facilitate
quo means that software TPMs become the default
private ordering rule, and circumvention is
permitted only where it is successful. Effectively,
this means that only the most technologically
software TPMs in the EU is not concerned with the
ability to circumvent TPMs, but merely makes it
‘permissible to try’. The broader moral implications
98
The ability to conduct repairs to one’s own property
is not ordinarily thought to have a deeper moral
all, every system of property rights must be infused
149
Moreover, our relationship to the things around us
can have a profound impact on our sense of self.
As Martin Heidegger contended in Being and Time,
understanding the workings of the world around
us can enrich our sense of being.150
the handling, using or taking care of things provides
us with deeper knowledge of ourselves and our
relationship to the world. Software TPMs interfere
with this relationship by denying the ability to
world) around us. This, in turn, creates a culture of
technological dependence and betrays the natural
debts we owe to each other and to the world which
we have collectively built.
151
To be responsible for
our world, we must understand how it works -- this
must include the ability to share knowledge, tools
and understanding.
99
Autonomy must not be equated with agency. Though
it can be argued that our interaction with repair-
proof modern devices relieves us from the burden of
understanding their inner workings, it also protects
us from failure. This, we may feel, grants autonomy by
providing freedom and liberation from the headaches
of technology and the toils of manual labour. This
view of freedom is both empty and rooted in a
consumerist logic that ultimately precludes agency
in a world of technological devices.152 Alternatively,
by becoming agents and ‘masters of our own stuff’,
we become not merely those who ‘consume’, but also
153 This type of
149 Thomas W Merill & Henry E Smith, ‘The morality of
property’ (2007) 48 WILLIAM AND MARY LAW REVIEW 1849,
1849.
150 Martin Heidegger, Being and Time (Blackwell Publishers,
1962), 98.
151 Matthew Crawford, Shop Class as Soulcraft: An Inquiry Into the
Value of Work (Penguin, 2009), 205.
152 Ibid.
153 Ibid.
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agency embodies precisely the values that underpin
the consequentialist view of copyright and its larger
societal objectives. Therefore, albeit with some
irony, the antidote to slavish materialism is precisely
a better understanding of the material world around
us. Yet software TPMs used to prohibit repair and
everyone.
100
Software TPMs also predetermine the morality of
consumer conduct. As Professor Lawrence Lessig
wrote in Free Culture Big Media,
free culture is a ‘permission culture’ – a culture
in which creators get to create only with the
permission of the powerful, or of creators from the
154 As for ‘culture’, Lessig refers to not only
arts and innovation, but to the relationship between
humanity, technology and the law.
101
The widespread use of software TPMs which prohibit
the ability to repair facilitate this undesirable
‘permission culture’. It is hardly hyperbolic to
suggest that on this trajectory, TPMs will eventually
become more recognisable for what they permit
rather than what they prohibit.155 Therefore, by
predetermining which conduct is acceptable,
software TPMs may reduce our ability to act as our
own moral agents.156 Indeed, copyright frameworks
have always been shaped by informal norms and
notions of fairness regarding the scope of protection
and balancing of rights. Software TPMs can disrupt
this balance by moving the software and products
into which they have been integrated outside of our
range of moral decision-making.
157
This undermines
the moral intelligence of consumers and creators by
denying the opportunity to judge the appropriate
relationship between the law, technology and
morality.
102
Finally, the ultimate power and control held by
manufactures through the use of software TPMs
creates economic dependence that can in some
154 Lawrence Lessig, Free Culture: How Big Media Uses Technology
and the Law to Lock Down Culture and Control Creativity
155 Kerr (n 36) 251.
156 Ibid.
157 Lametti, ‘How Virtue Ethics Might Help Erase C-32’s
Conceptual Incoherence’ in Michael Geist, ed, In the Public
Interest: The Future of Canadian Copyright Law (Irwin Law,
2005), 334.
respects be described as feudal or ‘neo-colonial’.158
Despite the conceptual distinction between the
‘thing’ and the ‘work’, software TPMs enable
control over the property of others. For instance,
manufacturers can arbitrarily determine that
certain features or entire products are obsolete and
require software or hardware updates. They can
also render entire products or machinery (as they
have in the case of John Deere) inoperative through
software controls that cannot be readily or easily
circumvented. This guarantees a relationship of
almost complete economic dependence. By directly
controlling how consumers interact with these
products and possessing unilateral control over fees
and servicing, legal protection for software TPMs
enable manufacturers to defy the logic of consumer
protection and act similarly to feudal lords.159 This
can hardly be said to portray an ideal (or even
reasonable) balance between owners and users of
intellectual property in the 21st century.
103
In sum, the moral implications of legal protection
that these profound implications could have been
envisioned during the genesis of the Green Paper
and the Software Directive. Nevertheless, by denying
consumers and copyright users the ability to share
knowledge and understanding of the inner workings
of these products, this legal regime denies the
opportunity to better understand the world. This
reduces the ability of individuals to act as their
own moral agents in a world increasingly governed
by technology and the law that protects it. The
framework that supports these tools allows for the
morality of conduct to be largely predetermined and
creates for a relationship of dependence and control.
It ensures that private manufacturers carry on as
rule-makers. Protected by the Software Directive
as they are, these TPMs enable a form of social
legal framework, it is proposed that these broader
social and moral implications of software TPMs be
reconsidered.
F. Conclusion
104
The legal framework for software TPMs in the
European Union is problematic. It was established
during an era where software and hardware were
158 Andreas Rahmatian, ‘Neo-Colonial Aspects of Global
Intellectual Property Protection’ (2009) 12 THE JOURNAL OF
WORLD INTELLECTUAL PROPERTY, 58.
159 Ibid 59.
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conceptually separated as distinct products and
markets. With the increase in software integration
and ‘onboard computer’ design, many modern
devices are beginning to take the backseat to the
software that controls them and farm tractors are
be said that John Deere’s tractors ‘run on software’,
it is probably more accurate to say that in today’s
environment, the software merely happens to ‘run
on tractors’. Indeed, this phenomenon is pervasive.
The utilitarian and essential nature of the software
is such that the effect of protection against acts
related to circumvention is much broader than mere
copy-protection or object code reproduction that is
addressed by the Software Directive. In effect, these
software TPMs are like a second set of keys retained
by the manufacturer. The corpus mechanicum and the
corpus mysticum are becoming one and the same.
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The ability for consumers and independent
technicians to repair and service products is
the longevity and service life of various products,
which reduces costs for consumers. Second, it
reduces waste and obsolescence of otherwise well-
performing equipment or products. Third, it creates
for a thriving secondary market for repair and service
that can spur employment, knowledge-sharing and
should take seriously the right to repair and should
view software TPMs as a hinderance to taking
106
The prohibition on the circulation of the means
of software TPM circumvention is problematic for
owners because the sharing of information, know-
how and tools is essential for the development of an
educated and responsible repair culture. As the case
of John Deere shows, the choice of repair technician
and the ability to use substitute parts can reduce
costs and shorten periods where equipment is not
operational. For independent repair technicians, the
prohibition on the circulation of TPM circumvention
means is effectively a roadblock to market access. It
restricts the ability to lawfully repair or maintain
these machines to the dealer or approved technicians
only. This limits the options for consumers while
As canvassed in Part E, it may also constitute an
abuse of a dominant position by denying an essential
facility for the secondary repair and service market.
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truly be realised if individuals can interact with and
contribute to the high-tech world that surrounds
them. Otherwise, the autonomy provided by
ubiquitous and increasingly sophisticated products
risks becoming an empty promise that ultimately
technology becomes predetermined. Undoubtedly,
the practical limitations imposed by the size,
computing power and capabilities of computers at
the time of the EU Software Directive’s enactment
can hardly be said to remain in place today. To this
end, software TPM law in the European Union is
worth revisiting in light of the myriad new uses for
which software is being used throughout consumer
products and industrial design. Any such legal
reforms must strongly take into consideration the
growing consumer right to repair as the basis for a
of the means of TPM circumvention.
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