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Digital right to repair: You bought it, but do you own it?

Alan Earls | Nov. 5, 2015
There's a lot at stake for companies that may find they must rely on OEMs for everything, potentially cutting out roles once filled by VARs and specialized repair outfits. 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.


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