The role of copyright in software embedded in everyday devices

In 1976, as the U.S. Congress was in the midst of major overhaul of copyright law, it commissioned a thorough study of emerging uses of computers, recognizing the public benefit that would accrue from promise of widespread computing. That study ultimately led Congress to codify copyright protection for software, while also implementing several important exceptions to balance interests among consumers, creators and technology companies.

Forty years later, this careful balance has proven remarkably effective and flexible in dealing with complex issues raised during a period of technological advance arguably unrivaled in our history. Software and the computing it enables today is ubiquitous, and the computing power of smartphones, tablets and other mobile devices has empowered individuals and businesses in a way that transcends the original ambitious vision of Bill Gates and Paul Allen of “a computer on every desk and in every home.”

Today, we are in the midst of another transformational period in software innovation, one in which advances in sensors and data analytics are ushering in an entirely new generation of always-connected, “Internet of Things” (IoT) devices. Powering these new devices is a synergistic mix of embedded software, apps and cloud computing that connects hundreds of millions of Americans to a rich and increasingly innovative and diverse array of cloud-enabled services including email, online storage, office productivity, games and entertainment and phone services.

Microsoft commends Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Ranking Member Patrick Leahy (D-Vermont) for directing the Copyright Office to undertake a careful study of the role that copyright plays in embedded software in everyday consumer devices. In Microsoft’s comments to the Copyright Office, we explain the role embedded software plays as part of a much larger software ecosystem. This ecosystem includes general-purpose software, apps, cloud-based software and online services (including the enterprise software that runs such services), all of which would be affected by any change to the copyright regime for embedded software. To the extent changes are warranted, Microsoft believes that improvements in related areas (such the process of reviewing exemptions to the Copyright Act’s Anti-Circumvention provisions, which is the subject of a concurrent study) can add additional refinement.

As consumers continue to adopt smart devices and related cloud services at rapid pace, it is important to ensure that copyright continues to provide the right balance of interests so that this next generation can benefit from the incentives that have spurred dramatic levels of software innovation over four decades. Microsoft believes that the balance afforded under the current copyright regime is responsible for the success of the current software ecosystem and continues to enormously benefit consumers and the public.

About the Author

Assistant General Counsel of IP Policy & Strategy (Copyright & Trade Secrets)