IP Law Daily, COPYRIGHT NEWS: FTC and Antitrust Division file joint comment in favor of renewal and expansion of DMCA exemptions for ‘right to repair’, (Mar 18, 2024)

By Seth Abrams, J.D., M.A.

DMCA exemptions for technology prevention measures are currently being considered by the U.S. Copyright Office.

The FTC announced that it and the Justice Department’s Antitrust Division submitted a joint comment to the U.S. Copyright Office supporting the renewal and expansion of temporary exemptions to the Digital Millennium Copyright Act (“DMCA”). These exemptions facilitate both consumers’ and businesses’ right to repair their own products. The comment was submitted as the Copyright Office is considering renewing and expanding temporary exemptions to the DMCA’s ban on circumventing technology protection measures (“TPMs”) that control access to copyrighted content.

Background. Section 1201 of the DMCA prohibits the circumvention of TPMs that control access to a copyrighted work. Even though TPMs have legitimate uses, they can also be used to prevent “DIY” or third-party repair. TPMs can be used to eliminate competition for replacement parts, repair, and maintenance. The Librarian of Congress had previously granted exemptions from Section 1201 of the DMCA for “computer programs that control devices designed primarily for use by consumers and computer programs that control motorized land vehicles, marine vessels, and mechanized agricultural vehicles.” New exemptions currently proposed would allow for further circumvention of TPMs that “control access to software for industrial and commercial equipment . . . and restrict access to vehicle diagnostic and telematics data for monitoring purposes.”

In July 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy which made it the “policy of the United States to promote competition in repair markets.” The FTC voted 3-0 to approve filing of the joint comment.

Comment. The FTC and DOJ argued that the renewal and expansion of these exemptions would promote competition in markets for repair, maintenance services, as well as replacement parts. They contended that this competition would make products easier and cheaper to fix. It also would eliminate barriers that prevent independent services providers from providing repair services. The FTC and DOJ argued that these TPMs function to prevent third-party repair, leaving only the original manufacturer able to do maintenance and repair. This has the result of reducing or eliminating competition for maintenance and repair and limits consumer and business choice. As a result, the FTC and DOJ contended that these TPMs raise costs.

The FTC and DOJ argued that the current exemptions “facilitate non-infringing diagnosis, maintenance, and repair.” As a result, they recommended renewing the existing exemptions. The FTC had previously found little evidence to support the claims of manufacturers that repair restrictions are necessary to protect repair workers and consumers as well as to reduce cybersecurity risks.

The FTC and DOJ also argued that the exemption for “computer programs that control devices designed primarily for consumers for diagnosis, maintenance, or repair of the device” be extended to commercial and industrial equipment. They highlighted commercial, industrial, and agricultural devices that would benefit from such expansion. The expansion would “alleviate costly downtime due to broken equipment that results in a significant loss of revenue for businesses.” In addition, the FTC and DOJ noted that the factors in the DMCA favored expanding the exemption to industrial and commercial equipment.

In addition, the FTC and DOJ argued that the exemption for “computer programs that control motorized land vehicles, marine vessels, and mechanized agricultural vehicles” be extended to allow “vehicle owners or the repair shop of their choice to access, store, and share vehicle operational data.” This would provide more options for maintenance and repairs and thus enhance aftermarket competition. The expansion of this exemption also is supported by the DMCA factors.

FTC history in area. The FTC noted that it has opposed repair restrictions for over fifty years starting with its early support of the Magnusson-Moss Warranty Act, which prevents the voiding of warranties if consumers use third-party parts or independent repair shops. In 2019, it held a “Nixing the Fix” workshop focusing on repair restrictions. In 2021, it released a policy statement stating that it would seek to enforce repair restrictions that violate antitrust and consumer protection laws. In 2022, it secured settlements making it simpler and less expensive to repair grills, motorcycles, and outdoor power equipment. Additionally, the FTC has been involved at the state level in California and Colorado supporting efforts to ensure consumers can repair products they own.

News: Copyright TechnologyInternet