US Copyright Office provides a path to allow for more device repairs

The rulemaking follows a pro right to repair decision from the FTC.

Toronto, Canada - May, 23,2020: Close up of disassemble game controller repairing, cleaning or diagnostic. (aldarinho via Getty Images)

The right to repair movement just got a big boost from the US Copyright Office. Responding to proposals from a variety of organizations, including the Electronic Frontier Foundation and iFixit, the office on Wednesday recommended new exemptions to Section 1201 of the Digital Millennium Copyright Act as it relates to the repair of consumer electronics. The statute prohibits the circumvention of software copy protection and has been the target of right to repair advocates for years.

As reported by The Verge, the Copyright Office recommends additional protections for many consumer-facing devices that rely on software to function. As one example, it adopts a recommendation from Public Knowledge and iFixit that involves video game consoles. It says “the repair of software-enabled consumer devices is likely to be fair use, the Register finds that certain video game console repair is also likely fair use.”

It notes consumers can access the firmware on their systems as long as it’s with the intention of fixing the device’s optical drive and they restore any protective measures afterward. The rulemaking stops short of protecting non-consumer devices. However, the Library of Congress has signed off on the recommendations, paving the way for them to go into effect on October 28th. In a statement to Engadget, the EFF applauded the decision but said Congress needs to modify Section 1201.

The new rules enacted by the Librarian of Congress represent a victory for security research, accessibility, education, preservation, and repair. While the exemptions do continue to contain unnecessary and harmful limitations, we're pleased with the additional freedom to operate that the Librarian granted in this rulemaking. The largest disappointment, however, is that the agency failed to protect the public's ability to make non-infringing modifications of device software as we requested. This kind of user innovation has been a profoundly important driver of advances in technology and lets communities who are not served by a technology's default functions to customize them to their own needs. We are also mindful that the rulemaking process is inherently limited: while the Librarian can authorize people to engage in circumvention, they cannot create exemptions to the part of the law (Section 1201(a)(2)) that prohibits the dissemination of the technology needed to achieve circumvention. Congress needs to remove that restriction in order to give these legal rights to circumvent their full practical effect.

iFixit had a similar take on the decision.

We're glad the Register of Copyrights finally agreed that copyright law shouldn't keep you from fixing your stuff — regardless of what 'type' of device it is. A legal solution for repairing optical drives on Xboxes and PlayStations is long overdue, and will help put desperately needed bricked consoles back in service. Unfortunately, the new rules still maintain some absurd limitations — like excluding commercial devices and noninfringing modification of software-enabled devices (like changing the settings on a software-enabled cat litter box). Particularly troubling is the Register's reliance on potential service contracts with manufacturers in order to deny the exemption for repair of commercial or industrial equipment. If repair is non-infringing (which it is) then manufacturers' monopoly-preserving service contracts shouldn't prevent the Office from granting anbear on the issuance of the exemption. Moreover, the Copyright Office's process has some fatal flaws: exemption proponents have to return every three years to argue that their exemptions be renewed (a process that is both time and resource intensive), and it doesn't address whether people can make or distribute repair tools that circumvent manufacturer's digital locks. Without access to those tools, the exemptions are largely academic. This is why Congress needs to step in an permanently exempt repair, and repair tools, from Section 1201. Copyright Law should never stand in the way of repair. 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.

The decision will complement the efforts of the Biden administration on the same front. At the start of July, the president ordered the Federal Trade Commission to draft new rules to empower consumers and businesses to repair their devices on their own and at independent shops. The executive order marked the first time a US president had ever weighed in on the right to repair movement. Later that same month, the FTC complied with the directive, voting unanimously to tackle unlawful repair restrictions. At the time, it said it would work with law enforcement and policymakers to update existing regulations to protect small businesses and companies that would prevent them from fixing their own products.

Update 2:03PM ET: Added comment from the Electronic Frontier Foundation. We've also changed the headline to better reflect the nature of the Copyright Office's rulemaking.

Update 2:51PM ET: Added comment from iFixit.