By Cody Andrushko (Syracuse College of Law Class of 2019)
The ‘80s and ‘90s saw to the creation of a technological revolution that has spawned a digital age. Congress adopted section 1201 of the Digital Millennium Copyright Act (“DMCA”) in 1998, as one of many ways Congress sought to promote technological growth. “Congress recognized that the development of the online marketplace for copyrighted works required a legal framework that adequately addressed the harm of internet piracy and encouraged copyright owners to make their works available to the public in emerging digital formats.” Section 1201 has served to offer legal protection against those who circumvent technological measures intended to prevent unauthorized access to copyrighted works, in particular both physical and functional alterations that are reliant on software.
Why is section 1201 so important? Encompassed and impacted by section 1201 is a consumers’ and 3rd party commercial repair services’ right to repair. The electronic and computer repair industry generates in excess of 18 billion dollars each year in the United States. Section 1201 acts as one device that corporations have employed to maintain a “monopoly” on a large percentage of repairs for electronic devices they commercialized. Without competition, corporations such as Apple can maintain high costs for parts and repair, as their only competition would be illegally operating entities. While Apple does not publish their revenue numbers on the repair (AppleCare) of Apple products, Warranty Week estimates that current world wide revenue for Apple’s service contracts is 5.9 billion. While revenue gains for repairing electronic devices in the United States proves fruitful for corporations, the control afforded by section 1201, in addition to the unique design strategy used for electronics, has allowed for the employment of shrewd market strategies for even greater profit. Corporations have developed strategies that impede or prevent the upgrading or repairing of consumers’ electronic device without their aid. Through this control they offer an ultimatum, pay a high cost to repair/upgrade or buy the new version.
While this ultimatum appears unsympathetic to consumers, it ultimately facilitates the purpose of a corporation – to generate profit – for its employees and shareholders. In addition, corporations design products in novel ways, and maintain strict control over their software, as a means of maintaining a secure device. Devices that are “open” and/or “customizable” afford freedom to consumers, but also open the possibility of malicious exploitation by 3rd parties.
To ensure a degree of balance is met between corporations and consumers, Congress included a “fail-safe” mechanism within section 1201(a)(1). The mechanism incorporates a triennial rulemaking process that comprises a petition phase, public comment phase, and public hearing phase on potential 1201 exceptions. Ultimately, the proceeding concludes with a recommendation to the Librarian of Congress who gives the final rule. Since the inception of section 1201 in 1998, there has been seven proceedings. The most recent final rule was published by the Library of Congress in the Federal Register/Vol. 83, No. 208 on October 26, 2018. The seventh proceeding served to implement new exemptions, and streamlined procedure for the renewal of exemptions from the sixth triennial proceeding, renewing prior exemptions for an additional 3 years (until October 2021).
The newest publication from the Library of Congress brought some significant changes, as highlighted by Kyle Weins of iFixit.org, allowing exemptions for:
- Jailbreaking Alexa-powered hardware, and other similar gadgets—they call these ‘Voice assistant devices.’
- Individuals can unlock new phones, not just used ones. This is important for recyclers that get unopened consumer returns.
- A general exemption for repair of smartphones, home appliances, or home systems, meaning that it’s finally legal to root and fix an array of home devices.
- Repair of motorized land vehicles (including tractors) by modifying the software is now legal. Importantly, this includes access to telematic diagnostic data—which was a major point of contention.
- It’s now legal for third-parties to perform repair on behalf of the owner.
In contrast, certain exemptions were not accepted:
- iFixit’s game console repair petition was denied, meaning repairs of PS4 and Xbox One systems are going to remain expensive (this issue is inherent to the relationship between repair/replacement of the optic drives in the systems and the requisite software).
- Products that are not ‘smartphones, home appliances, or home systems’ or ‘motorized land vehicles’ are excluded. So boat and airplane owners are still out of luck.
- An exemption request by Bunnie Huang and EFF to bypass HDCP, the copy protection on HDMI for the purposes of expanding the TV ecosystem was denied.
A complete list of exemptions can be found here, starting on page 54028, section 201.40.
In conclusion, it seems that the Copyright Office and Congress understand the issues inherent within section 1201 of the DMCA. However, the fight for the right to repair will remain. Devices and software will continue to evolve and to meet this evolution; new exemptions will have to be sought.