President Joe Biden’s broad executive order aimed at enhancing competition indirectly targets a contentious area of copyright law: a ban on thwarting copyright protection mechanisms, even by a product’s owner for noninfringing reasons like repairs.
The order, issued July 9, urged the Federal Trade Commission to target a number of practices, including “unfair restrictions on third-party repair or self-repair” of goods. The intent of the order is to make it easier for owners of products to get them fixed without having to return to the seller.
The order could signal to big tech and other companies that the right to repair could be a consideration in antitrust enforcement if they effectively block others from making repairs on their products. That could affect how companies looking to avoid antitrust scrutiny design their products.
Companies already abuse a section of the Digital Millennial Copyright Act that outlaws circumvention of copyright protection technology so people have to go to them for repairs, supporters of the right to repair say. Such technology is often used to prevent piracy of music or software, but it can also hinder or prevent owner-authorized repairs of things such as software bugs in products ranging from tractors to medical equipment.
“I think it’s hugely significant. It’s the first time a sitting president of the United States has endorsed right to repair,” said Kerry Sheehan, an intellectual property attorney and right-to-repair advocate for iFixit, a supplier of repair parts and publisher of fix-it-yourself guides. “It indicates that right to repair change is coming, and companies have to get in line,” she said.
But Kristian Stout, director of innovation policy for the International Center for Law and Economics, said right to repair is a copyright issue, not an antitrust issue.
Stout said there are valid arguments that copyright law overreaches, but that’s a copyright question. Pushing the FTC to address it as an antitrust problem signals that enforcing copyright may be seen as anti-competitive, and companies’ products are built upon their ability to control access to their software, he said.
“You might see a ripple effect with how these firms offer their services,” such as either making their goods less secure or less user-friendly to avoid antitrust scrutiny, Stout said. He said a better approach would be for repair advocates to ask Congress to make changes in copyright law instead of antitrust law.
Repairing a Right
Critics say companies including
Section 1201 of the Copyright Act, passed with the DMCA, prohibits the circumvention of technological measures as well as trafficking in circumvention tools. There doesn’t have to be any connection to any infringing activity, and willful violations for commercial gain can carry criminal as well as civil liability.
While designed to inhibit pirating of movies and music, its potential application expanded with proliferation of various access-restriction technology. The law allows the Copyright Office to publish a list of exemptions through a rulemaking process every three years.
Exemptions in the most recent version, from October 2018, included security research and the need to repair computers contained in farm equipment and vehicles. Right of repair advocates want to allow owner circumvention of protection measures for all non-infringing purposes.
Joshua S. Lamel, executive director of a coalition of creators called Re:Create, said that copyright law, as well as patent law, is by its nature “embedded in antitrust.” Both copyrights and patents “are grants of monopolies, full stop.”
“Of course antitrust law needs to contemplate when this system is being abused,” Lamel said. “The idea that only IP authorities could have authority over IP issues is ridiculous. It’s only IP attorneys and rightsholders that say that. You don’t hear that from legitimate economists, or constitutional lawyers.”
The FTC has said it will vote at a July 21 meeting on whether to issue a new policy statement on repair restrictions imposed by manufacturers and sellers. The agency’s agenda item cited a FTC report issued in May that identified various repair restrictions for which sellers couldn’t offer legitimate justification, and recommended legislation to address the problem.
Stout said that while Biden’s recommendations didn’t push any specific action, their vagueness left the door open for problematic interpretation.
“They’re throwing IP protection into a very complicated and chaotic mix at the moment,” Stout said. He said he would prefer the Copyright Office, a legislative branch agency, set the table for legislation.
But Sheehan said the order is a “significant milestone” that, while not the end, pushes the issue in the right direction. Legislation remains necessary as neither the president nor the FTC can change the law, she said. But she said the order “should empower legislators” and “let them know the administration has their back.”
“It’s also an indicator of the momentum right to repair has behind it. It’s been building momentum and snowballing for years,” Sheehan said. “People realize they need government actors to step in and get companies to leave them alone, and let them repair their stuff in the face of abusive practices from these big tech companies and hardware manufacturers.”
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