COVID-19 Highlights Why IP Shouldn’t Limit the Right to RepairMay 22, 2020
The right to repair consumer goods such as gaming systems, appliances, and even medical equipment is more important than ever now that we are living in a pandemic. Disruptions in global supply chains and production facilities due to COVID-19 have cut down our access to an endless stream of brand new consumer goods, and have made it more difficult to get replacement parts and repair services through “official” channels. Repairing what we have is not just economical and environmentally friendly — it could be our only option.
There are a multitude of ways to look at the right to repair. Proposals to restore a meaningful right to repair include (1) designing products with repairability in mind, (2) requiring manufacturers make service manuals and repair parts available, and (3) preventing warranties, terms of service, and consumer contracts from limiting consumer rights in this area. At a minimum, intellectual property should not prevent people from repairing goods they legally own.
Without measures like these, companies are able to limit the right to repair by adopting policies and practices that make it incredibly difficult if not impossible to actually repair a product when it breaks. Limiting the right to repair is wasteful because it encourages people to dispose of goods instead of repairing them, contributing to a whole host of environmental harms. And, it is a farcical deviation from the very purpose of IP — promoting scientific and creative innovation — because it punishes people who like to tinker with, modify, and improve the goods they own.
Over the last few decades corporations have found increasingly creative ways to monopolize the repair of their own products at the expense of the consumer — including incorporating locking software designed to prevent unauthorized tinkering into almost all consumer goods. Today, appliances, vehicles, and even many children’s toys run on software. Repairing these goods is practically impossible without violating the law by breaking the technological locks built into the goods’ software.
This is because Section 1201 of the Digital Millennium Copyright Act makes it illegal to “circumvent a technological measure that effectively controls access to a [copyrighted] work.” Because the underlying software in consumer goods is often (but not always) protected by copyright, manufacturers have used this provision to prevent owners from repairing their own goods, claiming that doing so violates this law. And as the internet of things took off, it became impossible to repair most consumer goods without violating Section 1201.
Additionally, while it may be easy to get people on board with the idea that people have the right to repair things that they own, companies often try to claim that people do not “own” copies of software, which could limit their rights under the “first sale” doctrine. This is because “owners” of software have the right under the Copyright Act to actually use their software without a separately-negotiated license, but if you merely “license” a copy of software, you need permission — which can have conditions placed on it — just to use it. As PK has discussed before, this entire legal framework makes little sense; nevertheless, courts have sometimes accepted it.
Over time, consumer groups have chipped away at this position, rightfully reclaiming the right to repair. After Massachusetts passed the Automotive Right to Repair Law in 2012, the auto industry agreed to recognize the right to repair nationally. And, in 2018 the Copyright Office recognized a Section 1201 right to repair exemption for most consumer goods.
Despite these right to repair victories within the copyright space, manufacturers of consumer goods still try to limit this right through warranties and shrink-wrap contracts that claim to prohibit consumers from repairing their own goods. But, terms of service and warranties that limit the right to repair are void.
This is not a radical position. Since 1975, when Congress adopted the Magnuson-Moss Warranty Act, it has been illegal for companies to condition their warranties on the use of specific parts or service providers unless such repairs were provided for free. In 2018 the Federal Trade Commission warned automobile, cell phone, and video game manufacturers that by using phrases such as “this warranty shall not apply if this product . . . is used with products not sold or licensed by [company name]” in their warranties they were breaking the law.
These FTC warnings demonstrate that the right to repair is about more than copyright protection; it is also about competition and ensuring that consumers have meaningful choice in service and repair options — an issue that has become more apparent during this pandemic, not just for consumers but also for medical facilities overwhelmed with patients.
During the peak of the COVID-19 crisis in Italy, hospitals struggled to find official replacement valves for their ventilators, and eventually partnered with a 3D printing company to make unofficial replacement valves. California needed to refurbish out-of-service ventilators; after failing to get quick results from official repair providers, California ultimately turned towards the tech entrepreneurs in its own backyard to find a solution. Even though the state-of-emergency has made such measures necessary, it still has not stopped IP protectionists from clamoring that such measures are wrong and illegal.
If even hospitals and states during a state-of-emergency face outcry over side-stepping IP barriers to repairing goods that they own, then we have obviously created a system that is broken. As we rethink how our world is shaped in light of COVID-19, making sure consumers have a meaningful right to repair is one issue space that can help ensure our world is more sustainable.
Image credit: U.S. Air Force
About Kathleen Burke
Kathleen Burke is a Policy Counsel at Public Knowledge, working on telecom and copyright. Kathleen received her J.D. from Case Western Reserve University School of Law where she served as the Editor-in-Chief of the Journal of Law, Technology, and the Internet and earned the CALI awards in Property and Copyright Law. In 2020, Kathleen served as a Public Knowledge Policy Extern. In 2019, she worked as a Google Policy Fellow at TechFreedom and was accepted into the Internet Law and Policy Foundry's third class of Fellows. Prior to law school, Kathleen worked as the Director of Education and Outreach at Fayette Alliance, an organization focused on achieving sustainable growth in Lexington, KY. In that role, she discovered her passion for technology policy while working on rural broadband access. She also ran her own wedding photography business. Kathleen recently orchestrated an interactive performance art on Twitter during quarantine titled The Zoom School of Law Memes and Trolling Clinic’s Law of Memes and Trolling Seminar (#trollseminar, #memelaw). Her interests also include collecting all the National Parks Passport stamps and canning jam.