In the not too distant past, anyone who owned a machine or other device—whether it be a radio, a typewriter, a bicycle, or a car—had an unquestionable right to repair that device if and when it broke down. Often owners could take their devices apart, diagnose problems, and fix or replace the broken parts themselves. Moreover, if the owners lacked skills to repair their own devices, they could take the devices to independent repair shops. It was once common for manufacturers to provide schematics to aid repair efforts and attract customers to purchase their devices.
Well, that was then, and this is now. With software now pervasively embedded in all manner of devices—cars, tractors, toasters, and smartphones, just to name a few—it has become difficult, and sometimes impossible, for owners of devices to repair them when they break down or have them fixed by independent repair shops. Often this is because parts, tools, and schematics are unavailable. But because embedded software is copyright-protected and often subject to license and technical restrictions on reverse engineering, repair, and maintenance, repairing your own devices or hiring others to repair them may also be legally risky.2
Some public interest groups—notably the Repair Association, iFixit, and the U.S. Public Interest Research Group (USPIRG)—have spurred grass-roots advocacy for legislation to grant new rights to owners of devices to enable repairs. As of early 2022, approximately half of U.S. state legislatures had introduced bills to authorize repairs. These bills differ from state to state and tend to focus on specific industry sectors and products, such as electronic devices, medical equipment, and agricultural machines.
Repair rights have also gained traction at the national level. In 2021, the Federal Trade Commission (FTC) published a report entitled Nixing the Fix, which criticized manufacturers of electronic devices for impeding repair efforts. Several bills are now pending in the U.S. Congress to recognize repair rights. Similar initiatives are under way in Australia and the EU.1
In addition, the U.S. Copyright Office has approved some exemptions to anti-circumvention rules that allow bypassing technical protection measures to enable repairs. Yet questions remain about the extent to which manufacturers can assert intellectual property rights and license restrictions to thwart repairs by device owners, hobbyists, and independent repair shops.
Massachusetts' Right to Repair Law
In 2013, Massachusetts became the first state to pass a right to repair law focused on automobiles. The law required car manufacturers to provide independent repair shops access to the same diagnostic and repair information as these companies provide to their authorized dealers. Under a memorandum of understanding among automobile companies, this fair-information-access-to-independent-repair-providers norm became a national standard.
By 2020, however, the widespread deployment of wireless technologies in cars, which were beyond the coverage of the 2013 law, made independent repair of these automobiles infeasible.
To overcome this limitation, Massachusetts voters in 2020 supported an amendment to require car makers to adopt a standardized open data platform so that independent repair shops could get access to real-time telemetric data that manufacturers' cars had been sending to their private servers.
This law has, however, not yet become effective because of a lawsuit filed by the Alliance for Automotive Innovation against the Massachusetts Attorney General, Maura Healey. The Alliance claims that complying with this mandate is impossible and would, moreover, cause the manufacturers to violate federal safety and environmental laws.
New York's Digital Fair Repair Act
In June 2022, the New York legislature enacted the first electronic right to repair law. The law requires original equipment manufacturers (OEM) of computers, tablets, and phones to make diagnostic information, spare parts, schematics, special tools, and firmware available to independent repair providers. The bill, which has been awaiting signature by Governor Kathy Hochul, is scheduled to go into effect one year after enactment.
The original bill would have extended these responsibilities to makers of agricultural equipment (for example, tractors), public service equipment, and home appliances, but the scope of the repair right was narrowed to attract support for its passage.
FTC Report on Repairs
The FTC's May 2021 Nixing the Fix report identified several techniques that manufacturers of devices have been using to impede consumers' ability to repair their devices and to thwart competition in the market for maintenance and repair of these devices:
- Product designs that complicate or prevent repair;
- Unavailability of parts and repair information;
- Designs that make independent repairs less safe;
- Policies or statements that steer consumers to manufacturer repair networks;
- Application of patent rights and enforcement of trademarks;
- Disparagement of non-OEM parts and independent repair;
- Software locks and firmware updates; and
- Restrictions in End User License Agreements (EULAs).
The report asserted "there is scant evidence to support manufacturers' justifications for repair restrictions." It offered numerous proposals about how to expand consumer repair options and how to foster greater competition in the aftermarket for maintenance and repair services. It recommended that the FTC exercise its authority to enforce a consumer protection law regarding warranties and challenge repair restrictions that violate the antitrust laws or constitute unfair or deceptive practices. In July 2022, the FTC followed through on this recommendation by taking action against several companies for impeding repair rights.
In mid-2021, President Biden issued Executive Order 14036, "Promoting Competition in the American Economy." It recognized the anticompetitive effects of restrictions on third-party or self-repair of devices and equipment and directed the FTC to engage in rule-making to prevent manufacturers from imposing such restrictions.
In addition, several members of Congress have introduced bills that would recognize rights to repair various types of devices. One is S. 3830, the Fair Repair Act of 2022, a bipartisan bill to require manufacturers to provide equal access to repair and maintenance tools and information necessary to enable repair and maintenance. Another is H.R. 6566, the Freedom to Repair Act of 2022 to amend the Digital Millennium Copyright Act (DMCA) anti-circumvention rules to provide a safe harbor for engaging in diagnosis, maintenance, and repair of certain types of digital electronics equipment.
Copyright and DMCA Risks
Given that the FTC has yet to promulgate right to repair rules and Congress has yet to act on right to repair bills, independent firms that contract to provide maintenance and repair services to customers of another vendor's software-enabled products run risks of liability if that vendor objects to competition in this aftermarket. Exemplifying these risks is the Storage Technology Corp. v. Custom Hardware Engineering & Consulting lawsuit from the mid-2000s.
StorageTek sued CHE for copyright infringement, violations of the DMCA anti-circumvention rules, and trade secret misappropriation because CHE activated StorageTek's software without that firm's authorization to service StorageTek customers' systems.
The case involved StorageTek's automated tape cartridge library system that enables customers to store massive amounts of data. When customers turn on the StorageTek tape library system, two software programs are automatically activated. Both programs are copyrighted.
StorageTek claimed that CHE's making copies of those programs when providing maintenance services infringed copyright because duplication of that code exceeded the license StorageTek granted to its customers.
Moreover, CHE bypassed a StorageTek password system to gain access to error messages generated by StorageTek's maintenance code. StorageTek argued this violated the anti-circumvention rules.
Finally, StorageTek claimed that the error messages to which CHE gained access when providing maintenance services were trade secrets. It charged CHE with misappropriating these secrets when diagnosing system problems with the StorageTek system.
The Court of Appeals for the Federal Circuit (CAFC) ruled in favor of CHE on each claim, albeit by a 2-1 margin. The majority held that CHE's activities fell within a limited exemption copyright law provides for a machine's owner to make or authorize the making of a copy of software for maintenance or repair. It also held that the language of StorageTek's license applied to use of the system, not to a particular customer, so the customer could hire CHE to act as its agent to activate its machines.
Questions remain about the extent to which manufacturers can assert intellectual property rights and license restrictions to thwart repairs by device owners, hobbyists, and independent repair shops.
Because CHE only bypassed the StorageTek password for the legitimate purpose of providing maintenance and repair services, the CAFC concluded this did not violate the anti-circumvention rules. Congress had adopted those rules to prevent copyright infringement, and nothing that CHE did ran the risk of facilitating piracy of StorageTek's software.
Finally, the CAFC found the trade secret misappropriation claim to be unpersuasive because the error messages were not confidential in the first place.
Is Blocking Third-Party Repair a Misuse of IP Rights?
Because the StorageTek decision is only one precedent and was a split decision, independent service providers should not take too much comfort from that ruling. StorageTek is, unfortunately, not the only firm that has tried to assert anti-circumvention claims against independent maintenance and repair service providers.
Consider the claim in the recent Philips North America v. Advanced Imaging Services case. Philips makes medical devices and diagnostic software for these devices. AIS developed a business to provide maintenance and repair services for Philips' customers. In so doing, it competed with Philips in this aftermarket.
At some point, Philips decided to update software embedded in its devices. The update required Philips' customers to use authorized log-in credentials to access the software controlling operation of the Philips devices.
Without Philips' authorization, AIS managed to obtain a log-in credential so that it could continue to service Philips' customers' devices. To stop AIS from continuing to provide these services, Philips sued AIS in U.S. federal court, claiming, among other things, that AIS's use of an unauthorized login credential violated the anti-circumvention laws because this bypassed the technical measures that Philips had adopted to control access to its copyrighted works.
AIS denied that its use of the log-in credential violated the anti-circumvention laws. But it also claimed that Philips violated the antitrust laws and engaged in copyright misuse by adopting the log-in credential to thwart competition in the aftermarket for maintenance and repair services.
Makers of software-enabled devices may still try to persuade consumers to trade in their old devices for the latest gadgets rather than engage in repairs.
Philips moved to dismiss AIS's counterclaims, arguing that it had a right to update its software and use log-in credentials to protect its software from tampering.
The trial judge denied Philips' motion to dismiss AIS's counterclaims because AIS sufficiently alleged that Philips had adopted the log-in credential to leverage its copyright monopoly in its software to exclude competition in the aftermarket for maintenance and repair services. The court decided that Philips' conduct could constitute copyright misuse and possibly a violation of the antitrust laws.
One may cheer that the court did not dismiss AIS's counterclaim, but this is a long way from a win on the merits.
Copyright Office DMCA Repair Exemptions
In October 2021, the Office published a report on the eighth triennial rule-making concerning proposed exemptions to the DMCA anti-circumvention rules. Several organizations asked for new or expanded exemptions to enable diagnostics, maintenance, repair, and modifications of software-enabled devices. The Office agreed with the petitioners that by-passing technical protection measures for purposes of maintaining or repairing software-enabled devices should qualify for exemptions from anti-circumvention liability.
The Office approved an expansion of a previously granted exemption to allow repair and maintenance of motorized land vehicles so that motorized marine vessels can be repaired as well. It also expanded a previously granted exemption to allow repair and maintenance services for smartphones so that the exemption would apply to lawfully purchased software-enabled consumer devices. A third exemption allowed circumvention to enable repair and maintenance services for medical devices. However, the Office did not support petitions to allow modifications of software-enabled devices.
Conclusion
Momentum has been building toward general recognition of a right of consumers to either maintain and repair their electronic devices themselves or hire independent service providers to engage in such work.
Granting maintenance and repair rights can enable consumers to use and build their skills, extend the useful life of products they have purchased, and enjoy lower prices that independent service providers are likely to offer over services provided by manufacturers or their authorized dealers.
Policymakers have recognized that to fully effectuate a right to repair requires not just an abstract recognition of such a right, but also the availability of parts, tools, diagnostic information and related know-how at reasonable prices and on reasonable terms.
Makers of software-enabled devices may still try to persuade consumers to trade in their old devices for the latest gadgets rather than engage in repairs. Many consumers are likely to find these deals attractive. But as we come to greater realization of the harmful environmental impacts of abandoning our old devices, perhaps repairs will come to be viewed as a better option.
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