Many people hate the Digital Millennium Copyright Act, and for good reason. The legislation from 1998 has been weaponized by copyright holders and trolls for all sorts of reasons. Section 1201 is a particularly absurd portion of the DMCA that says breaking copyright protection to fix a device is a breach of the manufacturer’s copyright.
That means a whole host of mundane technology repairs technically violate U.S. copyright law. Or they would, if not for the every-three-years ritual in which digital rights activists beg the Librarian of Congress for exemptions to the law.
Six years ago, we called this rulemaking process an “unsustainable garbage train” and that remains the case today.
“We are gathered here today to talk about copyright, which is not something that should involve repair,” Kyle Wiens, CEO of iFixit, said at a recent joint press conference with the Electronic Freedom Foundation, Public Knowledge, and other right to repair advocates. “Section 1201 of the DMCA is the law that says you do not have the right to fix certain kinds of things. It says you can not circumvent a lock that is protecting a copyrighted work.”
The DMCA was written in 1998, and lawmakers did not understand the future that was coming. As software has become ubiquitous in everything from tractors to toasters, copyright locks on devices have become the norm. When it passed the DMCA, Congress knew it might run into trouble down the line so it added what it called a “safety valve” to the law. Every three years, the public can petition the Copyright Office and the Librarian of Congress to grant explicit exemptions to the law to make sure no one gets a fine for repairing their PlayStation.
“Historically the copyright office has granted exemptions for the things we’ve asked for,” Wiens said. “Things like farmers being able to repair their tractors, but they have denied other requests.”
Three years ago, iFixit asked for an exemption to repair video game consoles. The Copyright Office denied the exemption: “1201 is a law that says you have to ask for permission to do something with a product that you own.”
iFixit and the other groups are, once again, asking for an exemption that allows normal people to repair video game consoles this year. They will also need to argue again that other exemptions, like ones that make it legal for farmers to hack tractors for the purposes of repair, should be renewed.
Microsoft no longer will no longer repair broken Xbox 360s and often won’t repair broken optical drives in the Xbox One. Newer models of the Xbox One come with a custom circuit board built into the optical drive that verifies its presence in the machine. Replace a busted optical drive for another without Microsoft’s approval and the machine won’t work. The new PlayStation 5 and Xbox Series of consoles have similar features.
If an exemption for consoles isn’t carved out of 1201 for video game consoles this year, anyone with a broken next-gen system will be at the mercy of Sony and Microsoft for repairs.
“Since the 2018 hearings, repair services for game consoles have become substantially less available; one of the three major console manufacturers has discontinued repair services for pre-2016 consoles with TPM-locked drives,” iFixit said in its filing with the Copyright Office. “Owners of affected consoles have no repair option except to circumvent the manufacturer’s TPMs. Moreover, evidence and common sense suggests that as consoles ‘age out’ of market popularity, and are discontinued, more such incidents will occur.”
There’s no guarantee the government will grant any of the exemptions people are asking for and it’s likely we won’t have rulings on the requested exemptions until early next year. Getting the exemptions is just a stop gap though. Activists will still have to beg for them again in another three years.
This is a problem that requires a long term solution. “The legal fix is that we should just repeal 1201 and then we’re good,” Wiens said.