IP Law Daily, COPYRIGHT NEWS: Lawmakers, witnesses debate right to repair in House panel hearing, (Jul 19, 2023)

By Lynn Stanton,TR Daily

Some witness cautioned that legislative proposals need to balance consumer rights and IP protection.

Provisions of the Digital Millennium Copyright Act (DMCA) aimed at safeguarding digital copies of songs, movies, and other copyrighted content from efforts to circumscribe technological protections have been harnessed by manufacturers of agricultural equipment, cars, household appliances, smartphones, and other devices to limit consumers’ ability to obtain third-party repair services, according to some witnesses and lawmakers at a hearing held yesterday before the House Judiciary Committee’s Courts, Intellectual Property, and the Internet Subcommittee.

States are beginning to respond with “right to repair” laws, which could mean that IP (intellectual property) rights holders will soon face a patchwork of 50 different legislative solution, subcommittee Chairman Darrell Issa (R., Calif.) said. He emphasized that “the right to repair a product that you have purchased is a fundamental right.”

Full committee ranking member Jerry Nadler (D., N.Y.) said that it is “incumbent on us in Congress to protect innovation while making sure every day Americans aren’t left holding the bag.”

In some cases, manufacturers claim that restricting third-party repairs are needed to ensure that cybersecurity protections aren’t weakened, but witness Paul Roberts (testimony), founder of SecuRepairs.org and founder and editor-in-chief of the Security Ledger, said his group has not found any evidence that restrictions on third-party repairs do anything to protect against cybersecurity vulnerabilities, which, he said, “are usually in the embedded software.” He urged the Judiciary Committee to support right-to-repair legislation and the reform of section 1201 of the DMCA, such as the REPAIR Act, the SMART Act, and the Fair Repair Act.

However, Scott Benavidez (testimony), Chairman of the Automotive Service Association’s Board of Directors and owner of an auto repair business, cautioned that the absence of quality standards in the SMART Act could negatively impact the quality of replacement automobile crash parts.

Kyle Wiens (testimony), co-founder and chief executive officer of iFixit, said that when he tried to repair his own computer in college, he discovered that “Apple had sent DMCA takedown [notices] to every website that hosted [the repair guide] online.”

He added that the exemptions his company has obtained from the Copyright Office during its triennial DMCA exemption process “have only been for individual consumers” and don’t “allow me to make tools that consumers can use.”

However, Devin Hartline (testimony), legal fellow at the Hudson Institute’s Forum for Intellectual Property, said that “the courts have not recognized that manufacturers have the duty to help consumers repair their products.” He argued that the right-to-repair movement is asking legislators to create a new right at the expense of IP rights holders.

University of Michigan law professor Aaron Perzanowski (testimony) said that the common law tradition provides for the lawful right of the property owner to repair his property.

Subcommittee ranking member Hank Johnson (D., Ga.) asked the witnesses what they recommended Congress do.

Mr. Perzanowski suggested a permanent exception to the DMCA circumvention prohibition for repairs and tools that are useful for repairs.

Rep. Cliff Bentz (R., Ore.) questioned whether consumers should not be presumed to have waived any rights “if you’re told at the time of purchase that you need to get it repaired at Apple.”

Mr. Perzanowski argued that consumers are often not informed and that “10,000-page” disclosure documents are “designed to be difficult to read.”

Mr. Hartline, however, agreed that “as long as there’s adequate disclosure and no fraud on the public,” repair restrictions should be allowed.

Rep. Nadler asked, “Is the DMCA exemption process working as intended?”

Mr. Hartline said that it’s appropriate because the “proponent of an exemption has to come forward and demonstrate that there’s a problem.”

In response to a question from Rep. Ben Cline (R., Va.) about whether right-to-repair mandates could expose trade secrets to foreign actors, among others, Mr. Perzanowski said, “Bad actors already have these tools. … If the Chinese are going to hack the PlayStation, they’ve already done so.”

Rep. Deborah K. Ross (D., N.C.) suggested there should be a distinction between repair regulations for airplanes, medical equipment, and other products where health and safety are implicated and repair regulations for household appliances.

Mr. Perzanowski said that “safety has to be an important concern no matter who is making the repairs,” adding, “I don’t think IP law is the way to address safety concerns.” Companies like Volkswagen and Abbot had problems despite their IP control over repairs, he said.

Mr. Wiens said that “access to information helps security researchers,” but section 1201 bans security research tools.

Rep. Zoe Lofgren (D., Calif.) asked whether there is a “way for Congress to narrowly define the exemption” for repairs.

Mr. Perzanowski said, “I’m a little reluctant to start drafting statutory language on the fly.”

In response to a question from Rep. Glenn Ivey (D., Md.), Mr. Roberts said, “From a cybersecurity perspective, we don’t want a population of millions of unsupported, unpatched webcams, home routers” when manufacturers stop supporting them but still won’t allow third parties to fix them.

Mr. Wiens said that some school districts have had to throw away Chromebooks purchased for students because they can’t get security updates for them anymore.

Rep. Joe Neguse (D., Colo.) noted that his state’s legislature last year enacted a right-to-repair law for power wheelchairs and this year is doing so for agricultural equipment.

Mr. Perzanowski said that there is a time sensitivity for farm equipment repairs implicated by the inability to access local, third-party repair services. “Not to be hyperbolic, but in the aggregate it could affect our national food supply,” he said.

Rep. Neguse asked, “Are repair manuals copyrightable?”

Mr. Perzanowski said, “To the extent it exists, it’s thin. Copyright law doesn’t protect facts, ideas, systems, or processes.”

Rep. Issa asked whether “Congress has created an impediment to the right to repair.”

Mr. Roberts said, “We know going back to the 1950s and 1960s, manufacturers would ship products with repair manuals.”

Rep. Issa suggested that something similar to the right to license a patent that has been incorporated into a standard should apply to the right-to-repair situation.

Mr. Perzanowski noted that Congress has granted compulsory licenses in other areas, such as broadcast retransmission.

In a letter sent to the subcommittee ahead of the hearing, TechNet said, “[W]e are extremely concerned that these proposals require OEMs [original equipment manufacturers] to provide unvetted, third-party repair providers with the ability to disable security-related functions or disable backdoor access to bypass locks on a device while imposing liability on OEMs for failure to provide such access. These legislative proposal[s run] counter to consumers’ prioritization of increased cybersecurity and data security protections for their personal devices, an expectation that is in effect from the time of purchase.”

TechNet added, “Imposing design constraints that discourage these security protections violates consumers’ privacy and cybersecurity expectations.” In addition, according to a recent study, privacy violations in the context of computer or phone repair occurred during at least 50 percent of repairs [citing a November 2022 article]. Third-party repair conducted outside authorized repair networks poses fundamental risks to the integrity of these products. Requiring OEMs to provide unvetted, third-party repair networks the documentation, parts, and tools, irrespective of protections for trade secrets under federal law and existing agreements with authorized repair providers, undermines consumer confidence in the safety and security of digital products at a time when an overwhelming majority of consumers prioritize digital trust and will take their business elsewhere if that trust is violated.

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