Last Friday, Wikileaks released the copyright chapter of the Trans-Pacific Partnership (TPP). The chapter included a section stating that “judicial authorities shall, at least, have the authority to […] order the destruction of devices and products found to be involved in” any activity that circumvents software controls that manufacturers build into their devices, known as Digital Rights Management (DRM) technology. What effect will this language have on users and white hat security researchers who try to modify the software of the products they buy?
The Electronic Frontier Foundation summarized how this language may negatively affect users who tinker with a product’s software:
The odd effect of this is that someone tinkering with a file or device that contains a copyrighted work can be made liable (criminally so, if wilfullness and a commercial motive can be shown), for doing so even when no copyright infringement is committed. Although the TPP text does allow countries to pass exceptions that allow DRM circumvention for non-infringing uses, such exceptions are not mandatory, as they ought to be.
The language from the copyright chapter may also have an adverse effect on the work of private security researchers—sometimes referred to as “white hat” hackers—in detecting and preventing security defects. Privacy advocates should be concerned about the effect this text will have on the efforts of white hat hackers, who work to improve products’ security vulnerabilities before they become massive privacy breaches.
The “first sale doctrine,” which limits the ability of copyright holders to control uses of copies of their work after it has been sold or transferred to a consumer, has long been a feature of copyright law. The copyright chapter of the TPP, along with other recent developments in copyright law, represent a significant shift away from the first sale doctrine. This shift threatens not only the rights of consumers to tinker with and modify the software in the products they buy, but also the security of those products. While copyright should continue working to protect rights holders in the digital era, the costs imposed on consumers by the TPP copyright chapter may prove too high.