Recently, several news outlets have covered John Deere refusing to share their source code of their software in their new tractors with the farmers who purchase them. Do not blame John Deere for this decision. John Deere’s primary concern is that ‘giving farmers free rein over the software would “make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression, and ingenuity of vehicle software.’
Recently, laws have been passed, policies have been enacted, and court decisions rendered that significantly reduce protection for publicly distributed software and source code.
So what are you to do if you are a company and you want to protect your software? You are very limited in terms of protection via the patent system. You are similarly limited in the copyright system. How do you insure that your competitors cannot copy and distribute your software or versions of it? The remaining options are trade secret protection or pursing a copyright claim under the Digital Millennium Copyright Act (DMCA). This is the new normal. Now, persons who buy the product do not own the software that comes with it. Hacking or circumventing administrative protection is not only a civil action, it is criminal. This seems to fly in the face of underlining policy behind the Intellectual Property Clause in the constitution:
Article I, Section 8, Clause 8, of the United States Constitution grants Congress the power “To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”
John Deere has the incentive to develop the software, because they can protect it, own that monopoly, for a significant amount of time. How does it promote the progress of science if only John Deere has access to the software code and the people who use it do not? It would seem much more ideal to grant John Deere a limited monopoly (20 years via a patent) and eliminate the protection under DMCA. This maintains an incentive to innovate (20 year protection), but also promotes the progress of science, allows users to access, utilize, and further develop/improve the existing software and develop new applications.
The solution is to codify the protection of software under the U.S. Patent System, and reduce that protection under Copyrights, especially under the DMCA.
Adam Baumli
IP Portfolio Manager