By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
As more and more devices require software to operate, copyright holders employ a number of measures that thwart an end user’s right to repair a product s/he ostensibly owns.
As the Electronic Frontier Foundation (EFF) recognizes, although in theory one may own a device outright, one’s only allowed to license the software necessary to make the device work properly. The terms of that license may preclude any efforts to tinker with the device, reverse engineer it, or have a third party undertake a repair.
To elaborate (according to the EFF):
Further complication: the software may come with digital locks (aka Digital Rights Management [DRM] or Technical Protection Measures [TPMs]) supposedly designed to prevent unauthorized copying. And breaking those locks, even to do something simple and otherwise legal like tinkering with or fixing your own devices, means breaking the law, thanks to Section 1201 of the Digital Millennium Copyright Act (DMCA).
The United States Copyright Office on 22nd June released a report analyzing in great detail just these controversial Section 1201 provisions.
A Boing Boing article, US Copyright Office recommends sweeping, welcome changes to America’s DRM laws, spells out the DMCA’s broad sweep:
DMCA 1201 says that bypassing a computer program that controls access to a copyrighted work is a potential felony, punishable by a five-year prison sentence and a $500,000 fine (for a first offense!). This has allowed entertainment companies to take away many of the public’s rights under copyright — for example, by locking your ebooks to your account and your ebook reader, so you can’t lend or sell your used books when you’re done with them.
But DMCA 1201 goes much farther than this: because any “smart” device has software in it, and because that software is copyrighted, device manufacturers have used [DRMs] and DMCA 1201 to control who can diagnose and repair your gadgets (from phones to cars and beyond), and also who can make parts for them, who can make or remanufacture their consumables (from coffee-pods to inkjet cartridges), and how you can use them.
Pending State Measures
Many companies have taken full advantage of Section 1201 and other provisions to insert software that prevents consumers from using third parties to repair products they’ve purchased. About a dozen US states– including Massachusetts and New York– are mulling state legislation that would create a right to repair within their jurisdiction (see Waste Not, Want Not: Right to Repair Laws on Agenda in Some States. Unsurprisingly, some companies such as Apple and Samsung– which has heavily invested in limitation strategies– and vehicle manufacturers such as Ford and John Deere– are fiercely resisting such initiatives (see Apple Spends Big to Thwart Right to Repair in New York and Elsewhere.)
Additionally, a recent landmark US Supreme Court decision, Impression Products v Lexmark International struck down restrictions a patent holder sought to place on subsequent use of its products after their sale also has implications for the right to repair movement (see the further discussion in this post, Supreme Court Lexmark Patent Decision A Win for State Right to Repair Legislation.)
Copyright Office Recommendations
Section 1201 allows for some permanent exemptions from its provisions, for certain activities of libraries, archives, and educational institutions, law enforcement activities, reverse engineering, encryption research, and security testing.” (report, p. i).
In addition, it also permits the Copyright Office to grant exemptions that allow limited exemptions from its provisions. These exemptions are subject to renewal every three years, industry by industry, according to formal rule-making procedures (The Report goes into an excruciating review of these at pp. 20-29.)
The result: “This has led to a patchwork set of exemptions where modifications and repairs of some types of technology are allowed, but others aren’t,”, according to this report in The Hill, Copyright Office voices support for giving consumers the ‘right to repair’:
Consumers have increasingly criticized the Section 1201 restrictions. The first of six sets of rulemakings on limited exemptions were conducted in 1999, and attracted 392 comments. By 2015, this figure had skyrocketed to 40,000 in 2015.
Source: U.S. Copyright Office, Section 1201 of Title 17, p. 25.
With the surge in public interest has come an increase in permitted exemptions. According to the Copyright Office Report:
In the first rulemaking, the Office recommended only two exemptions, for lists of websites blocked by filtering software applications, and literary works (including computer programs) protected by [TPMs] that fail to permit access due to malfunction, damage, or obsoleteness.144 In contrast, the most recent rulemaking yielded a set of exemptions covering 22 types of uses, ranging from use of motion pictures for educational, documentary, and noncommercial purposes and jailbreaking and unlocking smartphones, tablets, and other devices, to accessing computer programs controlling motorized land vehicles for purposes of diagnosis, repair, and modification and accessing computer programs operating medical devices for purposes of security research (Report, pp. 25-26, citations omitted).
As Motherboard reports in The US Government Wants to Permanently Legalize the Right to Repair, the volume of public complaints has certainly provoked some pushback from the Copyright Office:
Thursday, the US Copyright Office said it’s tired of having to deal with the same issues every three years; it should be legal to repair the things you buy—everything you buy—forever.
“The growing demand for relief under section 1201 has coincided with a general understanding that bona fide repair and maintenance activities are typically noninfringing,” the report stated. “Repair activities are often protected from infringement claims by multiple copyright law provisions.”
Rationale for Copyright Office Position
My reading of the Copyright Office’s Report suggests that policymakers are indeed fed up with having to revisit the same sets of issues every three years. To the extent that any policy change makes it easier for consumers to have greater control over things they’ve purchased– to make it easier to get repairs done, for example, or to to eliminate situations “in which manufacturers of products such as garage door openers and printer toner cartridges have invoked section 1201 to prevent competitors from marketing compatible products, including replacement parts, because of the TPM‐protected software in those products” (Report, pp. ii-iii) — I’m all for it.
But I noticed that another rationale for relaxing Section 1201 had also crept into the analysis– one I’m definitely not on board with:
These challenges will only become more commonplace, these users argue, as the Internet of Things expands and growing numbers of everyday products—automobiles, refrigerators, medical devices, and so on—operate using software protected by TPMs. While consumers historically have been free to repair, modify, or tinker with their own goods without implicating copyright, such activities now may require circumvention of a TPM to access the software that enables the device to function. For many, it is not clear why copyright law should apply at all in these contexts (Repor,t p. iii).
Real Problem, Weak Response
The Copyright Office report identifies a real problem– Section 1201 has been stretched far beyond what Congress (ostensibly) claimed to be its scope. Many secondary accounts of last week’s report zero in on this language:
The growing demand for relief under section 1201 has coincided with a general understanding that bona fide repair and maintenance activities are typically noninfringing. (Report, p. 90)
The Report then continues:
As described in detail below, to the extent section 1201 precludes diagnosis, repair, and maintenance activities otherwise permissible under title 17, the Office finds that a limited and properly‐tailored permanent exemption for those purposes, including circumventing obsolete access controls for continued functioning of a device, would be consistent with the statute’s overall policy goals (Report, p. 90).
I have no quibble with that position.
Where I think the report falls short is in the incrementalist remedies it proposes: mere tweaks to the existing rule-making framework, while leaving the DMCA largely intact. The paragraph cited immediately above continues– and shies away from endorsing anything but the most limited right to repair:
The Office does not, however, recommend that such a permanent exemption extend to circumvention for purposes of making other lawful modifications to software, or “tinkering.” Instead, the Office recommends that these activities continue to be addressed through the rulemaking process, which is able to tailor exemptions to specific classes of works, based on the evidentiary record (Report, p. 90).
See also this further discussion:
Copyright owners strongly opposed an exemption for “tinkering” on the ground that it would be vague and overbroad….
These concerns of copyright owners are valid, and the comments received in response to this study suggest that tinkering is hard to define, and that there is no accepted meaning or limitations on what it involves. To be sure, in many cases modification activities may not implicate significant copyright interests. On the other hand, some tinkering activities may result in the creations of new works in ways that implicate the copyright owner’s exclusive right to prepare derivative works. Commenters have suggested no reliable way to define with any precision a category of lawful adaptations, generally, for purposes of section 1201. Accordingly, in contrast to diagnosis, repair, and maintenance, the Office cannot say that lawful modification of software is categorically unlikely to result in harm to the legitimate interests of copyright owners.
The Office therefore concludes that such activity does not provide an appropriate basis for a permanent exemption at this time. The triennial rulemaking process, however, will continue to provide a means to obtain exemptions for these uses, and the Office is hopeful that the streamlining changes outlined below will lessen the burden of renewing exemptions found to satisfy the statutory requirements. Moreover, as described above, the Office believes that section 1201(f) should be available to accommodate many concerns related to software interoperability. Collectively, these exemptions may cover a substantial portion of circumvention activities involving software‐enabled products in which there is a legitimate consumer interest. (Report, pp. 96-97, citations omitted).
And there is much more similar material, in a similar vein, especially in the latter part of the Report (Report, pp. 132-147).
I here spare readers more extended analysis of this legalese– all 152 pages of it, sans appendices. And I instead turn to this short piece, in The Register UK, US Copyright Office suggests ‘right to repair’ laws a good idea— which despite its chirpy headline, admirably does:
Further: “virtually all agree that section 1201 was not intended to facilitate manufacturers’ use of TPMs to facilitate product tying or to achieve a lock‐in effect under which consumers are effectively limited to repair services offered by the manufacturer”. [Jerri-Lynn here: The netted quotation is from the Report.]
Sorry, tinkerers, you’re not included: the shift in policy is specific to repair (and recovering kit that’s obsolete, that is, unsupported by the manufacturer anyhow). If you want to circumvent TPMs to modify a product, you’ll have to go through Copyright Office rulemaking processes.
Indeed, the report specifically disdains a more sweeping overhaul of the DMCA framework– and more generally, copyright law. Indeed, the Copyright Office concludes that the existing system works well:
The past twenty years have witnessed the rise of an array of new platforms and formats for delivering creative works to the public, and in this respect, section 1201 has succeeded in fostering a thriving, innovative, and flexible digital marketplace, as Congress envisioned. The basic framework of section 1201—including its treatment of circumvention as a standalone violation independent of copyright infringement and robust anti‐trafficking provisions—remains sound, and the Copyright Office does not recommend broad changes to the statute’s overall scope. Within this existing framework, however, it may be appropriate to recalibrate provisions in section 1201 to better reflect changes in technology since the DMCA’s enactment nearly two decades ago (Report, p. 150).
Now, call me cynical, but haven’t we seen too many similar pages from this master playbook before– a rhetorical flourish, followed by a tepid or otherwise inadequate statutory or regulatory response?