Top 5 Legal Issues in the Internet of Things, Part 4: Copyright

Imagine a world in which each box of Lego® bricks you buy is a standalone toy–unable to combine with the bricks from any other set. That, of course, is the opposite of the real world. As was brilliantly depicted in 2014’s Lego Movie, actual kids exercise their creativity by combining the bricks from every set they own into the ultimate space-Barbie-elf-pirate mashups.

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As also depicted by the same (tragically Oscar®-snubbed) film, however, adults don’t always share the same love of creative combinations, and sometimes strenuously insist on keeping each individually sold product neatly separated in its own little world. Those competing mindsets are already beginning to war with each other in the Internet of Things. Specifically, the issue is this: will IoT devices made by different companies be interoperable, or will they remain tied to their own proprietary networks and technology?  The answer will determine whether we end up with a true internet of things or a digital Tower of Babel.

One weapon used by those who would maintain separation between device brands is copyright law. In order to talk to each other, devices need to exchange and understand information. Those acts of exchanging and understanding are powered by software code, and that software is (to a certain extent) protected by copyright law. Copyright law enables owners to control the reproduction, distribution, derivation, public display, and public performance of their works. The Digital Millennium Copyright Act also imposes liability on those who circumvent the mechanisms that a copyright owner sets up to prevent copying.

Copyright law can be used to impede interoperability between devices on at least two levels. First is the actual code transmitted by a device. Obviously, in order for two machines to communicate, they need to reproduce, distribute, create derivatives of, and perform code with each other. Will the owner of that code treat it as proprietary, and thus seek to prevent that interaction? Second, even if the 1’s and 0’s stored on a device are in a readable format, can another device access them, or will they be shielded by anti-copying mechanisms?

As with the other IoT legal issues I’ve been highlighting in this “Top 5” series, this is not an emerging, future problem–it’s very much a here-and-now thing. A watershed moment for device interoperability came on May 9, 2014, when the US Court of Appeals for the Federal Circuit ruled in Oracle America, Inc. v. Google, Inc. that APIs (Application programming interfaces) are copyrightable. An API is a set of routines, protocols, and tools for building software applications. Programmers have traditionally relied on APIs to write code that talks to other companies’ devices–that, after all, is what APIs are for–and until the Federal Circuit’s decision, few had believed that the API owner could (or would want to) use copyright law to prevent that. According to the Electronic Frontier Foundation, the “decision was met with incredulity by technology experts and intellectual property scholars,” and Google warned that it “sets a damaging precedent for computer science and software development.” The Supreme Court is currently considering whether to take the case, and a lot of people are watching closely.

Likewise, copy protections and anti-circumvention law are already commonly used to prevent third parties from creating devices that work with, or substitute for, a company’s product. One of the first to do so were the manufacturers of printer ink cartridges. These companies have fought several legal battles (though not always successfully) to protect the firmware designed to keep printers from using any cartridge other than the manufacturer’s. Manufacturers of K-Cup coffee pods are starting to do the same. Others before me have persuasively argued that continuation of this trend could prevent the IoT from ever truly living up to its potential.

Will the IoT end up resembling the World Wide Web, in which users can choose one of many browsers to see the same information? Or we end up with a thousand walled gardens that operate in parallel, never communicating with each other and thus offering a diminished user experience?

Time–and copyright litigation–will tell.