The people can now repair and tinker with their own devices under copyright law. The US Copyright Office (USCO) submitted recommendations, approved today by the Librarian of Congress, to add exemptions to the Digital Millennium Copyright Act (DMCA)’s rules governing access to devices and software. (This section.) The big one is the new right to get into any consumer software-enabled device (cellphone, laptop, etc) for the purposes of diagnostics, repair, and maintenance.
The new exemptions align with Joe Biden’s mission to expand the right to repair, included as a directive to the FTC in a July executive order. That order was more broadly aimed at cracking down on monopolistic companies that make consumers pay too much for services we have no choice but to get.
The update is meaningful for anyone who wants to cheaply replace a phone screen, as well as students and tinkerers who’d like to learn how things work. But copyright law still can’t do much to fix the fact that Google, Amazon, Apple, and Microsoft have deadbolted their devices, shot down right to repair bills, and hoarded parts, all forcing us to simply throw out an otherwise fixable device and purchase a new one.
So the change doesn’t mean that manufacturers have to make it any easier on users to crack open the back panel or provide the parts, but it gives you the right to try.
You’re now also allowed under the DMCA to unlock your cell phone, meaning you can switch carriers without buying a new device. And justifiable jailbreaking has been expanded to routers and smart TVs—meaning you can work around the manufacturer’s software limitations in order to, for example, download previously inaccessible streaming apps. (Previously approved exemptions allowed users to jailbreak Alexa and Google Assistant.)
But the Electronic Frontier Foundation (EFF), which proposed some of the exemptions, told Engadget that it was disappointed that the jailbreaking allowances didn’t go further. While happy with the fact that the right to repair more broadly covers consumer devices, it stated that non-infringing modifications are critical to “communities who are not served by a technology’s default functions.”
Expanding on what the EFF would have liked, senior staff attorney Kit Walsch told Gizmodo that the organization had submitted various examples of non-infringing modifications that should be allowed, including “improving digital camera software to enable new artistic options for photographers, making your smart litter box accept third-party cleaning cartridges, customizing a drone to operate on a wire instead of flying, improving the interface on a device to make it less distracting or more accessible (e.g. for colorblind users), and more.” Those mods, she said, were “left out without much discussion.”
iFixit, a marketplace for repair parts which also offered exemption recommendations, also pointed to the “absurd limitations” of new rules. The exemptions have to be renewed every three years. And iFixit CEO Kyle Wiens told Gizmodo via email that the USCO still allows the obstructive service contracts manufacturers can use to deny exemptions for commercial and industrial products, anyway. “If repair is non-infringing then manufacturers’ monopoly-preserving service contracts shouldn’t prevent the Office from granting an exemption.”
“Until Congress finally fixes Section 1201 and grants a permanent right to repair, we’re going to be stuck on this ferris wheel with the Copyright Office every three years,” Wiens added.
Over on the John Deere war front, farmers didn’t get any further. Equipment operators, who’ve paid up to $800,000 for equipment, have been battling the company for years over the right to repair software that operates equipment. Though they technically do have the right to make repairs, John Deere argues that copyright bars users from accessing the software, and it won’t give them the components to fix it.
“[Farmers] really haven’t been able to fix their owned equipment because [original equipment manufacturers] have refused to sell the necessary parts, tools, diagnostics, firmware and manuals,” Gay Gordon-Byrne, executive director of the Repair Association, told Gizmodo via email, adding that federal or state right to repair legislation is really what matters.
“The exemption process is a huge waste of time for the United States Copyright Office, for service providers and for attorneys on all sides,” Gordon-Byrne added. “We would be much better served by a law that separates actual evidence of infringement from theoretical speculation.”
The new exemptions also include some that benefit libraries, which have battled to make free digital copies of works. Educators can rip movies if they’re solely on DVDs or Blu-rays that are no longer playable. And libraries and museums are now allowed to create archival copies of computer programs (with tight access restrictions). Furthermore, some accommodations have been made for people who need accessibility features, allowing educators to add captioning and audio alterations to video works for accessibility.
But elsewhere, manufacturers can imagine innumerable ways to stop people from accessing their own devices. Apple can still obstruct third-party repairers by upping its technology so that certain features don’t work unless you use their equipment, like tying face ID to its own screens. Which they do and they will.
10/28/2021 9:30am: Updated to include comment from iFixit.