video game controller

Over the past 10 months, the U.S. has experienced a constant state of flux, enduring the COVID-19 pandemic, a major cultural divide, and a tumultuous transition of power between presidential administrations. Many sought refuge in the virtual worlds offered by video game consoles in order to cope with the stress, causing a major spike in industry sales. As the pandemic rages on, what happens if your units break? What do you do with your old consoles when you upgrade to shiny, new systems? And how can these answers impact policy during the Biden administration?

In most cases, attempting to repair consoles on your own would be a fruitless endeavor. This is because console-makers like Sony and Microsoft use technological protection measures (TPMs) to lock devices in order to prevent users from tinkering with console hardware. Under Section 1201 of the Digital Millennium Copyright Act, consumers are prohibited from circumventing digital “locks” that prevent unauthorized access to a copyrighted work. This restriction isn’t unique to game consoles. Owners of other machinery such as tractors and computers face the same problem and are greatly limited by Section 1201 as well. This means components, parts, and pieces within these items are protected by copyright law, so when those pieces break, users are locked out and have no simple way to “DIY” repair their devices.

Console manufacturers use TPMs to lock devices by linking motherboards to original pieces within that specific console. Use of these TPMs mean that replacement parts — even identical makes and models — will be rejected by the motherboard. In other words, whatever pieces come with the device are the only pieces you can use for the device. Manufacturers like Sony and Microsoft use these locks to restrict a gamer’s right-to-repair by only authorizing a small number of repair services (usually their own) to bypass them. These tactics create unfair control for console-makers over the repair of popular consumer products, leaving consumers with two options:

  1. Sending their console back for an extended period of time to be repaired at a hefty price; or
  2. Purchasing a new console for a hefty price, potentially equal to the cost of repair, at the risk of losing the data stored on the original unit.

If a user or repairer breaks the lock herself, she risks facing fines of up to $150,000 and possible imprisonment for attempting to fix the console directly.

This presents a clear lose-lose situation for consumers. However, it also creates a clear lose-lose situation for the economy and environment, two items at the top of President Biden’s list of priorities. Public Knowledge and iFixit are advocating for an exemption to Section 1201 that would allow users to bypass the locks that prevent repairing or replacing broken components within the console. If consumers win this right-to-repair exemption, it would encourage growth for the U.S. economy by allowing small businesses like repair shops to open and grow, and provide services to local gaming communities around the country. An exemption would also allow the repurposing of obsolete and unused consoles, cutting down on trashed products and, thus, decreasing the amount of electronic waste generated.

Revitalizing the National Economy

Research and data collected by the U.S. Small Business Administration Office of Advocacy shows between 1998 and 2014, 44% of the U.S. economy derived from small businesses. Due to the COVID-19 pandemic, small businesses are closing at an alarming rate. As of September 2020, nearly 100,000 small businesses nationwide have closed permanently and the unemployment rate sits at 6.7%. The tragic downfall of the national economy has caused so much concern that getting it back on track is one of President Biden’s top priorities.

Since the start of the pandemic, revenue streams derived from gaming have skyrocketed tremendously. This leap in sales can partially be attributed to stay-at-home orders, quarantining, and a much-needed mental reprieve from the world’s “new normal.” Gaming revenue jumped from $150.2 billion in 2019 to an estimated $179.7 billion in 2020, with a 19% increase in console sales. With more product consumption comes a higher likelihood of the need for repairs. By relying solely on big corporations, we squander a significant opportunity to keep the doors of small gaming stores and repair shops open. An exemption would create the opportunity for independent, third-party businesses to serve the local community, stimulate growth and development, and encourage innovation by generating revenue and creating jobs for techies, engineers, and all around tinkerers.

Decreasing E-Waste

As for the environment, President Biden said it best: “Folks, we’re in a crisis.” Currently, earth’s annual e-waste is on track to grow to 75 million metric tons by 2030. E-waste is made up of electronics that are no longer useful, such as out-dated consoles. These numbers have not slowed the high-purchase rate for gaming consoles. According to industry insiders, Sony’s latest product release, the PlayStation 5, had the best domestic console launch in history. This begs the question: What happens to the obsolete models — the PS4s, the PS3s, and so on?

When consoles have reached the end of their lifespans, many are indeed sold to other gamers who are looking for a good deal when new merchandise hits the shelves (or who appreciate the old unit’s nostalgia). However, because 1201 prevents repair and salvage shops from de-linking parts so that they can be reused for later repairs, many consoles are simply thrown away. A 1201 exemption would mean that functional parts from old consoles could be repurposed and used for repairing malfunctioning devices. Consumers and third-party entities should have the right to circumvent TPMs in order to reuse, refurbish, and repurpose unused gaming consoles. This would drastically cut down on the amount of discarded product. If third parties and DIYers had a right-to-repair, consumers could get more use out of the consoles and ultimately stop contributing as much to climate change.

What’s Next?

We advocate. It is clear that the Digital Millennium Copyright Act currently bars gamers from repairing their own consoles, limiting the growth of repair shops and negatively impacting the environment in the midst of both an economic and climate crisis. There is no way around this absurdity; the law must (and can) be changed. Every three years, the Register of Copyrights, in conjunction with the National Telecommunications and Information Administration and the Librarian of Congress, determines whether the general Section 1201 prohibition against circumvention should be waived for the following three years, in limited circumstances. They do this by adopting limited temporary exemptions. The exemptions granted (or, in some cases, renewed) in this cycle will be in place until October 2024. While this three year process gives many hope, it has provided much disappointment as gaming consoles continue to be excluded from exemption.

The Library of Congress should eliminate this unnecessary three-year cycle for good by replacing it with permanent exemptions and overall reform of the DMCA. (You can help by telling them to do so here.) Those affected by digital locks like these shouldn’t have to prepare extensive filings for the Library of Congress every three years and simply hope that their business will survive, that the environment will not suffer, that they can continue the hobbies they love, or that they can use the devices they purchased. Gamers should be granted the freedom to game in peace.


About Montana Williams

Montana is an Policy Fellow where she focuses on broadband access, free expression, platform competition, and intellectual property. Prior to joining Public Knowledge, Montana worked in Government Affairs for Evans & Associates, advocating on behalf of clients on issues dealing with telecommunications, health care, and state infrastructure. While working in the era of the COVID-19 pandemic, Montana realized her passion and absolute need to focus on technology policy and broadband accessibility after seeing first-hand the impact that the lack of reliable, affordable internet connectivity has on underserved and marginalized communities, distance learners, the elderly, and medical patients. Montana received her Bachelor of Science in Telecommunications with a specialization in News from the University of Florida. Later, she earned her J.D. from American University Washington College of Law. During her time at AU, she worked with several firms dealing with copyright issues, immigration matters, and compliance. Montana was raised in Orlando, FL and currently lives in Bowie, MD with her Chocolate Dalmatian, Belgium, and her Hungarian Vizsla, Jupiter. She is a fashion and pop culture enthusiast, a relatively new baker, and a true adventure seeker.