Pamela Samuelson (University of California, Berkeley - School of Law) has posted Freedom to Tinker (Theoretical Inquiries in Law, Forthcoming) on SSRN. Here is the abstract:
People tinker with technologies and other human-made artifacts for a variety of reasons: to have fun, to be playful, to learn how things work, to discern their flaws or vulnerabilities, to build their skills, to become more actualized, to tailor the artifacts to serve one’s specific needs or functions, to repair or make improvements to the artifacts, to adapt them to new purposes, and occasionally, to be destructive. This article aims to explain why the law should protect a zone of freedom to tinker because of the many benefits that tend to arise from tinkering.
I conceptualize freedom to tinker as having several dimensions: it entails, first, an intellectual freedom to imagine what one might do with existing artifacts to learn more about them; second, an intellectual privacy and autonomy interest in investigating and exploring those artifacts in which one has a property or other legitimate interest, especially when the investigation is done in one’s own premises; third, a right to build one’s skills by testing, analyzing, and interacting with existing artifacts; fourth, a liberty interest to become more actualized as a person through tinkering; fifth, a right to distill what one has learned from tinkering and disseminate the results of one’s research to others; sixth, a right to repair that which is broken and make other uses of artifacts as long as one is not harming the interests of others; seventh, a right to innovate based on what one has learned through tinkering; and eighth, a right to share innovations that result from tinkering with others if one chooses to do so and build a community around the innovation.
Freedom to tinker has existed for millennia. Yet it has existed largely without a formally recognized legal identity. It has simply been an unregulated zone within which people were at liberty to act unobstructed by others (so long as they did not harm others). The main reason why it now seems necessary to articulate what freedom to tinker is and why it needs to be preserved and legally protected is because freedom to tinker is being challenged by several recent legal developments.
Part I observes that users have considerable freedom to tinker with artifacts that are not encumbered by IP rights and are thus in the public domain. Trade secrecy, patent, and trademark laws have doctrines that generally provide user-innovators with considerable freedom to tinker. Although copyright law permits a modest degree of tinkering with existing products, it restricts freedom to tinker more than other IP laws. Part II explains the substantial limits that copyright law and sometimes contract law place on user rights to tinker with and modify computer programs. These constraints are of particular concern to tinkerers because computer programs are embedded in such a wide range of technologies these days. Part II also discusses the constraints that anti-circumvention rules place on freedom to tinker. These rules outlaw most reverse engineering (“circumvention”) of technically protected copyrighted works and the making or offering of tools to enable such reverse engineering. Part III concludes that because tinkering with existing artifacts generally “promote[s] the progress of science and useful arts,” as well as other fundamental values, IP rules should be interpreted, or if necessary, adapted, to permit user tinkering that achieves this constitutional goal.