The National Telecommunications and Information Administration (NTIA), a federal agency that advises the president on telecom issues, has sent a letter to the Copyright office detailing a list of exemptions it believes should be made to the Digital Millennium Copyright Act (DCMA). The exemptions are critical because they let people circumvent copyright projections on things like video game consoles, tractors, and smartphones so they can fix their own devices without breaking the law.
Section 1201 of the 1998 Digital Millennium Copyright Act has language in it that manufacturers have used to say that circumventing software locks that prevent repair is a copyright violation or hacking. Under the strict rules of DMCA, breaking the copyright protection on a device to fix it is a violation of the manufacturer’s copyright, but there are certain exemptions that have to be begged for every three years that allow for specific types of repair.
As part of that review, the NTIA makes recommendations to the Copyright office for rules changes and exemptions. This year’s 144 page report is unequivocal: “NTIA recommends expansion of the current exemption to include circumvention of [technical protection measures] (TPM) for the diagnosis, maintenance, and repair of all software-enabled devices, machines, and systems for lawful modification that is necessary for a repair or maintenance, and for modifications of software regarding the functionality of a device,” NTIA said. “NTIA also recommends that the Librarian specify that the exemption permits these activities to be carried out with the assistance of third parties.”
NTIA is advocating that the Copyright office allow hardware and software that prevents tampering with devices to be circumvented to make repairs. Even if the device owner is getting a third party to make the repair. That would mean an independent repair shop could jailbreak your iPhone, or your tractor, or your fridge if it needed to in order to fix it. It would also mean you fix your own video game console without technically breaking the law. In the past, exemptions have been worded in such a way that makes it difficult to understand exactly who is allowed to circumvent TPMs.
NTIA noted that TPMs have become so ubiquitous that device manufacturers are building a future where no one can do any kind of basic repair of their own stuff without violating the law. “TPMs such as passwords and encrypted, locked, and compressed firmware are used to control access to digital cameras, ‘smart’ litterboxes, printers, microcontroller debuggers, camera stabilizers, e-readers, robotic companions, and radios,” it said.
The federal telecom agency also called out the entire process by which people ask for specific exemptions to Section 1201 every three years. “The current approach, which exempts circumvention for repairs to specifically named devices, substantially burdens noninfringing users, who must seek new exemptions for each device as OEMs add capabilities that rely on software,” it said. “NTIA supports expansion of the repair exemption to allow circumvention of TPMs—by a device’s owner or an authorized third party—for the purpose of the diagnosis, maintenance, and repair of software-enabled devices, for lawful modification that is necessary for a repair or maintenance, and for modifications of software regarding the functionality of a device.”
Nathan Proctor, the head of USPIRG's Right to Repair Campaign, told Motherboard he’s hopeful for the future of the right-to-repair. "Right to Repair made serious gains in the latest review of section 1201. We are especially pleased to see that there will now be an exemption for the repair, maintenance and diagnosis of medical equipment,” he told Motherboard in an email. “Many independent service technicians are being sued because the manufacturers claimed that their repairs violated copyright, and this exemption is very helpful to clarifying that, no, repair shouldn't be punished as a copyright violation."
"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,” Kyle Wiens, the CEO of iFixit, told Motherboard in an email. “Unfortunately, the new rules still maintain some absurd limitations—like excluding commercial devices and non-infringing modification of software-enabled devices (like changing the settings on a software-enabled cat litter box).”
Wiens said there’s still a lot of work to do on with the exemptions, noting that some manufacturers use service contracts to deny the exemption carved out for industrial equipment. “If repair is non-infringing then manufacturers' monopoly-preserving service contracts shouldn't prevent the Office from granting an exemption,” he said.
According to the NTIA, the reason why it’s advocating for simplified rules and broad exemptions is that the pandemic forced everyone in the office into remote work situations where they were repeatedly confronted by the need to quickly and easily repair their own stuff.
“Participants in this rulemaking have noted the barriers faced by educators attempting to make use of motion pictures in virtual classrooms, researchers who require access to rare or fragile works undergoing preservation, and even individuals trying to save money by using third party ink cartridges when printing documents at home,” it said. “In order to maximize the relief to Americans attempting to engage in...noninfringing activities, NTIA urges the Copyright Office and the Librarian to adopt exemptions that fully address the adverse impacts of the prohibition against circumvention without introducing unnecessary restrictions on these users.”
Proctor said there’s still a long way to go. "While it's encouraging to see Right to Repair get more support, we shouldn't need to fight every three years to show that fixing things isn't a copyright crime,” He said. “Repair obviously has nothing to do with copyright. And while this progress is important as a proof of concept, it doesn't cover providing tools that bypass protection measures, so it's still illegal to provide such repair tools. It's time Congress fixed this unintended consequence of the DMCA. Repair is not a crime!"
Wiens agreed. "Without access to those tools, the exemptions are largely academic,” he said. “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.”