It almost sounds like a joke. What do ice cream machines, tractors, and your Xbox have in common? Sadly, the answer isn’t funny at all: They all have repairs that are blocked by copyright and intellectual property law. But this week, the US Congress took a significant step toward fixing those laws.
Tuesday, the Intellectual Property subcommittee of the House Judiciary Committee held a hearing on Right to Repair. iFixit CEO Kyle Wiens testified, as did SecuRepairs & Fight to Repair founder Paul Roberts, along with the guy who literally wrote the book on Right to Repair, Aaron Perzanowski. Scott Benavidez, an auto body shop owner, represented the Automotive Service Association, and Devlin Hartline represented the Hudson Institute’s Forum for Intellectual Property.
The hearing took a wide view of the Right to Repair, considering how its absence affects the availability and affordability of repair, and examining the authority that Congress might have to address these issues. The subcommittee members are considering two bills currently in Congress: the SMART Act, which would expand the manufacture and sale of aftermarket auto repair parts; and the REPAIR Act, which would ensure that individuals and consumers have access to the telematics data they need to fix their cars. They also considered bills that were introduced last Congress, such as the Freedom to Repair Act and the Fair Repair Act, which would’ve addressed copyright and parts and tool restrictions on repair.
Only Congress Can Fix Copyright Law
Much of the discussion was centered on Section 1201 of the Digital Millennium Copyright Act (DMCA), which is the law that makes it illegal to hack ice cream machines, XBoxes, and tractors—or to share tools that would let other people hack them. iFixit has fought for exemptions from this law every three years, and we’re fighting again now. But the Copyright Office says that enabling the distribution of tools is out of their jurisdiction and must be addressed by Congress.
As Kyle told the committee members, “In order for someone to take advantage of the 1201 exemption that we have, they have to be a cybersecurity researcher and able to whittle their own tools. That just doesn’t scale. 1201 has to be solved here; it can’t be solved anywhere else.”
Representative Zoe Lofgren, who was involved in the initial writing and passage of the DMCA in 1998, explained that blocking repair was absolutely outside the goals of the original law. The law prohibited getting around technological protection measures (TPMs)—the kind of digital lock that keeps you from watching a region-locked Blu-Ray disc in the wrong country. Lofgren explained that the goal was to prevent piracy, not to prevent repair. “We didn’t do TPMs so monopolies could control products,” she said. “That was never the intent.”
MOU Deja Vu
Members of the subcommittee also questioned the intent of a new memorandum of understanding (MOU) that had been signed right before the hearing, between the Automotive Service Association, the Society of Collision Repair Specialists, and the Alliance for Automotive Innovation. Like the John Deere MOU that was signed right before Colorado’s agricultural Right to Repair law passed, this one also seems intended to quash legislation.
Speaking about both of these MOUs, Perzanowski explained that they lack the two things necessary for effective agreements: “Real buy-in” from the people who actually have decision-making power, and “an enforceable set of rules so these things have real teeth.”
Perzanowski rejected the idea that IP law is at odds with the Right to Repair: “The Right to Repair is not only consistent with nearly two centuries of IP law in the United States; it reflects half a millennium of common law property doctrine that rejects post-sale restrictions on personal property.”
Real People Are Hurt by Repair Restrictions
The effects of these post-sale restrictions on the average consumer are significant and getting worse. Kyle described a farmer friend whose tractor broke down during the growing season. Though Kyle himself could have hacked the tractor to bypass the faulty sensor, or ideally buy a tool to do the same thing, copyright law stood in the way.
As software makes its way into all our things, the implications of repair and software restrictions are expanding to every sector. Roberts argued: “We are facing a crisis in the very near future as manufacturers of everything from home appliances to personal electronics to equipment—as those products age and those manufacturers walk away from their responsibility to maintain them, saying, we’re no longer supporting the software, we’re no longer issuing security updates. Who will step in to maintain those devices, keep them secure, keep them operating?”
Rep. Joe Neguse spoke in favor of Congress addressing these repair restrictions, describing how glad he has been to see Colorado protect the Right to Repair powered wheelchairs and farm equipment. These bills that have passed, he said, “are critical steps, in my view, to protect consumers, improve innovation, spur economic growth, and I’m hopeful that other states will emulate the model that Colorado has adopted.”
Reflecting on the software restrictions of parts pairing—which make it impossible to swap screens between two identical iPhones, radios between identical cars, and transmissions between identical tractors—committee chair Rep. Darrell Issa was incredulous. “Where in God’s green earth or the Constitution are any of those designed to be rights that belong to the manufacturer?”
Everyone Agrees: When You Buy Something, You Should Be Able to Fix It
Issa concluded by seeking to affirm two points: First, when a company abandons its copyright, consumers should have the right to get the previously protected parts and data. Second, “If I buy an authentic product, I should be able to use and reuse it, and any attempt to turn a piece of equipment into a brick simply because it transferred from owner A to owner B is inherently wrong under the many traditions and laws of the United States.” On both points, all in the room agreed—the first two points of full agreement of the day.
Congress has an opportunity to protect our collective right to fix the things we own, by passing the bills before them and introducing more legislation. And the rest of us have the opportunity to take action: Let your leaders know why the Right to Repair is important to you.