US Copyright Office Advances Right to Repair: Victory for Consumers for Now

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

The US Copyright Office on October 26 issued a final rule that extended the right to repair, nationwide. The new framework went into effect virtually immediately, on October 28.

Many companies, including Apple and John Deere, have tried — and thus far largely succeeded — in thwarting customer attempts to  repair products they have purchased, either by their own efforts or by using third-party services. (See these posts for further background: Right to Repair Redux: The Economist Gets with the Program, While Alas, Apple Continues to Lag; Four Rs: Reduce, Reuse, Recycle, and…Repair ;Apple Battery Debacle: Yet Another Reason to Support a Right to Repair; US Copyright Office Wimps Out on Right to Repair; Supreme Court Lexmark Patent Decision A Win for State Right to Repair Legislation; Apple Spends Big to Thwart Right to Repair in New York and Elsewhere; Waste Not, Want Not: Right to Repair Laws on Agenda in Some States).

There new rule only covers ‘smartphones, home appliances, or home systems’ or ‘motorized land vehicles’ – meaning boats and airplanes are still excluded.

And as this post published by iFixit, one of the major entities pushing for the right to repair, made clear in Copyright Office Ruling Issues Sweeping Right to Repair Reforms, the rule is not a panacea, and further legislation by Congress will be necessary to create a robust right to repair. As an aside, I note this gives the anti-right-to repair Empire an opportunity  to strike back, but at the moment, I won’t develop that thought. (Although when it happens– as I’m virtually certain it will – I promise readers an update.)

Over to iFixit:

the Copyright Office went as far as they could in granting access to the repair community. There are still significant limits, though, that will need to be addressed by Congress.

One of those being the law against ‘trafficking’ in circumvention tools. From today’s filing, “limiting the exemption to individual owners threatens to render it effectively meaningless for those who lack the technical knowledge to access and manipulate increasingly complex embedded computer systems.” Now that circumvention is required to perform repairs, and most repairs benefit from tools, we need to open up a market for developing and selling those tools. Legislation like Congresswoman Zoe Lofgren’s Unlocking Technology Act would provide the clarity that tool developers need. It would also be helpful for service providers to codify the ability of third-parties to perform service.

And, another problem, again as summarized by iFixit:

Nowadays, just about everything has software. Your ability to fix and maintain the products you own is contingent on being able to modify that software. But our tooling hasn’t kept up. For fear of prosecution, farmers and independent mechanics haven’t developed their own software tools to maintain their equipment. Now, they can.

This ruling doesn’t make that tooling available to the public—we’re going to need actual Right to Repair legislation for that. But it does make it legal to make your own tools. And that’s a huge step in the right direction.

Or, as Motherboard explains,In Groundbreaking Decision, Feds Say Hacking DRM to Fix Your Electronics Is Legal :

Specifically, [the new rule] allows breaking digital rights management (DRM) and embedded software locks for “the maintenance of a device or system … in order to make it work in accordance with its original specifications” or for “the repair of a device or system … to a state of working in accordance with its original specifications.”

…

“I read it as the ability to reset to factory settings,” Nathan Proctor, head of consumer rights group US PIRG’s right to repair efforts, told me in an email. “That’s pretty much what we’ve been asking for.”

While this is a huge win on a federal level, this decision does nothing to address the practicalities of what consumers and independent repair professionals face in the real world. Anti-tampering and repair DRM implemented by manufacturers has gotten increasingly difficult to circumvent, and the decision doesn’t make DRM illegal, it just makes it legal for the owner of a device to bypass it for the purposes of repair.

Despite these limitations, the new Copyright Office rule will allow consumers to repair their own devices– or turn them over to third parties. This means that consumers won’t necessarily have to pony up for a replacement– or lay out beaucoup bucks for manufacturers to repair a defect. The new rule promises to save consumers money- just how much, I cannot hazard a guess at this time.

For as Motherboard warns:

The Copyright Office decision also does nothing to address the many ways that manufacturers have monopolized repair that have nothing to do with copyright or software. Companies have made it difficult to acquire parts or repair tools needed to fix the things you own, and many companies have weaponized the Department of Homeland Security to crack down on grey market and aftermarket parts that are imported from places like China. Two prominent right to repair activists, Louis Rossmann and Jessa Jones, have had their Apple repair parts seized by customs in recent months.

Another Benefit: Waste Reduction

Another obvious side benefit of the rule: waste reduction.

As regular readers know, I’ve written about the problem of waste before, not only in the context of the right to repair, but also about the issue of plastics fouling the environment.

This recent Citizen Truth post makes clear, Why E-Waste is so Dangerous and How the ‘Right to Repair’ Will Save the Environment, advancing the right to repair will reduce the generation of e-waste, estimated to comprise 50 tons in 2018 alone:

The costly expense of repairing many electronics has developed a throwaway culture where people just throw away appliances once they break down rather than fixing them. Others will just throw them away because a newer model with more enticing features has been released into the market. With no knowledge of how to properly dispose of these appliances, they just dump them, and this has led to a toxic pile of electronic waste.

“E-waste is the next big environmental challenge in today’s digital society, a time bomb waiting to explode,” says Jean-Pierre Schweitzer, an officer with the European Environmental Bureau (EEB). “As recyclers struggle to deal with the growing amount of waste, our smartphones and white goods are buried in landfills or illegally exported to developing countries where they’re often treated in informal or dangerous conditions,” he added.

E-waste harms human and animal health and also degrades the environment. Specifically, according to Citizen Truth:

1. According to the United Nations, electronics with batteries or plugs such as mobile phones, laptops, TVs, fridges, electrical toys, etc. contain toxic chemicals such as lithium, mercury, lead, etc. which, if improperly disposed, can leak into the environment. Such chemicals are carcinogenic to humans.
2. In the U.S., e-waste is not only the fastest growing stream of waste but also makes up 70 percent of all toxic waste in landfills all over the country. Sometimes e-waste is burnt, an unsafe method of disposal because it releases toxic gases into the air that can cause respiratory diseases.

What Is To Be Done

This doesn’t mean this war is over. Those forces that oppose a right to repair are undoubtedly exploring what they can do to get Congress to overturn the new rule. And, as I mentioned, the new rule isn’t a panacea, and further legislation would be necessary to move beyond the Copyright Office’s rule on what consumers can now do – and providing dissemination of necessary tools to create robust third party repair services.

In the interim, before any final Congressional action, state right to repair initiatives will remain important – and I promise another post, sometime soon, summarizing such initiatives, and letting readers know how they can help support their enactment.

I would mention that Gizmodo is even more underwhelmed by the Copyright Office decision, and also emphasizes the importance of pending state initiatives, as discussed in It’s Now Legal to Hack DRM to Repair Your Own Devices:

Practically speaking, the repercussions of this decision aren’t that big of a deal. Nathan Proctor leads consumer advocacy group US PIRG’s right to repair initiatives. He told Motherboard that his reading of the new rules essentially gives people the ability to restore their devices to the factory settings. Making modifications to the firmware is still prohibited and hackers are only allowed to break the DRM in order to bring the product back “to a state of working in accordance with its original specifications.”

It’s a small victory. And the wider effort to get right to repair laws for hardware on the books in multiple states continues.

But, for the time being, although it’s not perfect, the Copyright Office’s new rule is to be applauded – and, I would add, is somewhat unexpected, given the agency’s past actions (as I discussed in this post from last year, US Copyright Office Wimps Out on Right to Repair).