Digital right to repair: You bought it, but do you own it
That has direct implications on the extent to which the “owner” is legally permitted to modify or repair a product and it is true for both consumers and for businesses. It is a situation that has prompted multiple groups to rally around a concept called the “digital right to repair.”
“Repair is not a sexy topic but when people can’t get things fixed, it is a problem,” says Gay Gordon-Byrne, executive director of the Digital Right to Repair Coalition, based in North Haledon, NJ. Her own interest in the topic began, she explains, when she was working in the large scale enterprise IT leasing business. She says part of the challenge that sector experienced was the steady change in how manufacturers operated. “It used to be that IBM mainframes were open to tinkering – you could change memory, reconfigure them, keep them going, or trade them for parts – until IBM made that impossible,” she says.
[ See also: How the DMCA may have let carmakers cheat clean air standards ]
Byrne says she was personally motivated to get involved in right to repair because she was selling a database product for the IT service industry and saw a substantial part of her prospect base disappear after Sun was acquired by Oracle and many of the existing terms and conditions affecting Sun products were altered, shortening their service life.
Todd Bone, founder of XS International, Inc., an Alpharetta, GA-based provider of maintenance and repair services for IT, says manufacturers have a near monopoly on hardware maintenance and make 85-90% profit in what he believes is nearly a $100 billion market. “They force obsolescence by ending a product’s lifecycle at five years when some of this equipment has mean-time-between-failure of 32 years,” he says. This forced obsolescence just creates a lot of e-waste, he says. “Meanwhile, they have raised annual maintenance prices by 15% per year; consumers, businesses and the government are getting screwed,” he says.
In truth, the digital part of the right to repair movement has come as something of an afterthought to an automotive right to repair campaign, which has been underway for more than a dozen years. But there is an implicit digital component there, too. In essence, as cars have grown more suffused with electronics, local and independent repair shops have faced more difficulties diagnosing and repairing vehicles because more and more of the value is engineered into the electronics – and the software.
Aftermarket.org led the fight for 14 years – attempting, unsuccessfully, to get automotive right to repair legislation through Congress. Instead, a state ballot initiative in Massachusetts managed to evade industry blocking efforts and was approved by voters, by a comfortable margin. Faced with that bellwether event and the threat of 49 additional similar measures coming to fruition, says Byrne, the automakers decided to negotiate to come up with a national approach. “The automakers said the sky would fall but it didn’t happen,” she adds. However, she notes, so far the legislation only covers cars, not trucks, boats, or agricultural equipment. And certainly not electronics.
Digital right to repair advocates seek to similarly protect “your right to repair and tinker with your devices, whether it be a phone, a car, or any other device that has embedded software,” explains Corynne McSherry, legal director at the Electronic Frontier Foundation in San Francisco.
Unfortunately, she notes, manufacturers frequently try to use their copyright in the software to impose restrictions on consumers, either through license agreements or through the use of technical restrictions that, if circumvented, could subject the consumer to legal liability under the Digital Millennium Copyright Act (DMCA), the bête noire of the digital rights people.
There are two main provisions in the DMCA that are the source of the problems, according to the EFF. The first is the anti-circumvention provisions (sections 1201 et seq. of the Copyright Act), which prohibit trying to subvert access controls and technical protection measures. The purported intent of that provision and of the act as a whole, when it was passed in 2000, was to stop pirates from defeating digital rights management (DRM) and other content access or copy restrictions on copyrighted works -- and to ban any devices designed for that purpose. However, as events have shown, DMCA hasn’t been very effective in its intended role, while it has been altogether too effective in eroding previously accepted notions of “fair use,” according to EFF. Indeed, circumventing DRM for what would previously have been regarded as acceptable purposes now invites a lawsuit, says McSherry.
In October, a small crack, very small, appeared in the DMCA. The Librarian of Congress, who serves as the judge, jury, and executioner on such matters, agreed to make a small exemption from the DMCA to permit "good-faith security research" in cars, tractors and other motorized land vehicles; medical devices designed to be implanted in patients and their accompanying personal monitoring systems and some other kinds of consumer products.
However, notes McSherry, the very need to ask for this exemption “shows that copyright law has veered for from its central purpose.” Furthermore, the exemption is subject to a host of limitations and caveats, so it falls well short of guaranteeing a right to repair.
The real answer, according to McSherry, is to reform the DMCA to get rid of the anti-circumvention restrictions “and reform contract law to make clear that contract provisions that restrict fair use and the freedom to tinker and repair are against public policy.”
In the meantime, those unwilling to wait for DMCA reform are moving ahead on other fronts. For instance, in Massachusetts, a bill is making its way through the legislature (House 3383) that, after allowing some exceptions for trade secrets and other protections for manufacturers, proposes that manufacturers shall:
1) make available to independent repair facilities or owners of products manufactured by the manufacturer diagnostic and repair information, including repair technical updates, diagnostic software, service access passwords, updates and corrections to firmware, and related documentation, free of charge and in the same manner the manufacturer makes available to its authorized repair providers; and
2) make available for purchase by the product owner, or the authorized agent of the owner, such service parts, inclusive of any updates to the firmware of the parts, for purchase upon fair and reasonable terms.
Further provisions of the bill require manufacturers of digital electronic products sold or used in the state to “make available for purchase by owners and independent repair facilities all diagnostic repair tools, incorporating the same diagnostic repair and remote diagnostic capabilities that such manufacturer makes available to its own repair or engineering staff or any authorized repair providers, upon fair and reasonable terms.”
While that bill is a long way from passage, Adam Aft, an attorney at Baker & McKenzie in Chicago offers cautionary words. Aft says the digital right to repair effort may not succeed as easily as the automotive right to repair, which was not focused as much on the DMCA but more on traditional terms of trade. Furthermore, says Aft, digital right to repair legislation at the state level that is intended to somehow bypass or override a federal law would probably run afoul of federal preemption.
Aft explains that the DMCA has been subject to some interpretation under a triennial process operated by the copyright office, which might give reformers some hope. Furthermore, in 2014, Congress hurriedly passed legislation exempting the act of “jailbreaking” a mobile device from potential prosecution under DMCA. And, he says, it is not impossible that similar action could be taken to pry some right to repair from DMCA.
On the other hand, says Aft, “My impression is that once you begin to open DMCA to something like right to repair, you may also potentially open some additional security concerns, so that would quickly become a political issue on its own,” says Aft. “That may be the kind of headwind advocates won’t be able to overcome,” he adds.
Barring reformation of DMCA, Aft says “tinkering” – as long as it stays away from items covered under DMCA, would probably have some protection under common law notions of personal property. “Typically, if you own it you acquire the bundle of rights associated with that property,” he adds.
Indeed, McSherry says EFF and others are fighting for what they regard as “a crucial and settled consumer expectation. And as I think we are learning in the wake of the VW scandal, an important one,” she says.
“If we can’t tinker with our devices, including our cars but also other equipment, how can we be sure those devices are safe, working correctly, and not, for example, sending information back to the manufacturer without our knowledge,” she asks.
“Our basic theme is: You bought it, you own it!,” she adds.