The Librarian of Congress and US Copyright Office just proposed new rules that will give consumers and independent repair experts wide latitude to legally hack embedded software on their devices in order to repair or maintain them. This exemption to copyright law will apply to smartphones, tractors, cars, smart home appliances, and many other devices.
The move is a landmark win for the “right to repair” movement; essentially, the federal government has ruled that consumers and repair professionals have the right to legally hack the firmware of “lawfully acquired” devices for the “maintenance” and “repair” of that device. Previously, it was legal to hack tractor firmware for the purposes of repair; it is now legal to hack many consumer electronics.
Specifically, it allows breaking digital rights management (DRM) and embedded software locks for “the maintenance of a device or system … in order to make it work in accordance with its original specifications” or for “the repair of a device or system … to a state of working in accordance with its original specifications.”
New copyright rules are released once every three years by the US Copyright Office and are officially put into place by the Librarian of Congress. These are considered “exemptions” to section 1201 of US copyright law, and makes DRM circumvention legal in certain specific cases. The new repair exemption is broad, applies to a wide variety of devices (an exemption in 2015 applied only to tractors and farm equipment, for example), and makes clear that the federal government believes you should be legally allowed to fix the things you own.
“I read it as the ability to reset to factory settings,” Nathan Proctor, head of consumer rights group US PIRG’s right to repair efforts, told me in an email. “That’s pretty much what we’ve been asking for.”
While this is a huge win on a federal level, this decision does nothing to address the practicalities of what consumers and independent repair professionals face in the real world. Anti-tampering and repair DRM implemented by manufacturers has gotten increasingly difficult to circumvent, and the decision doesn’t make DRM illegal, it just makes it legal for the owner of a device to bypass it for the purposes of repair.
A good way to think about this is to consider MacBook Pro repair. As Motherboard reported earlier this month, Apple has a built-in kill switch that can prevent new MacBook Pros from functioning if they have been repaired by anyone who is not authorized to do so by Apple. It uses embedded software to do this, by requiring the computer to connect to Apple’s servers in order to verify that a repair is “authorized.” This decision by the Copyright Office will make it legal to bypass that software lock, but actually doing it is another matter altogether.
“Getting an exemption to reset the device is pretty different from having access to the firmware to actually do that,” Proctor said.
Tractors, cars, air conditioning systems, smart appliances, internet of things devices, and smartphones all have similar software locks, and they can all now be legally circumvented. The thing is—as DRM becomes legal to crack, companies are committed to making it much harder to do so. The federal government has shown no interest in requiring manufacturers make it easier to break DRM, which is one of the reasons why the right to repair movement is pursuing state-level legislation to force manufacturers to allow it to be circumvented for the purposes of repair.
“They have this pretense that [DRM] is ‘effective’ but then they grant a ‘use exemption’ and assume that people will be able to bypass [DRM] to make the exempted uses, because they know DRM is a farce,” Cory Doctorow, a special consultant to the Electronic Frontier Foundation and anti-DRM advocate, told Motherboard in a Twitter DM. “The thing is that there's these two contradictory pretenses: 1. that DRM is an effective means of technical control, even in the absence of legal penalties for breaking it, and; 2. That once you remove the legal stricture on breaking DRM, it will not be hard to accomplish this.”
The Copyright Office decision also does nothing to address the many ways that manufacturers have monopolized repair that have nothing to do with copyright or software. Companies have made it difficult to acquire parts or repair tools needed to fix the things you own, and many companies have weaponized the Department of Homeland Security to crack down on grey market and aftermarket parts that are imported from places like China. Two prominent right to repair activists, Louis Rossmann and Jessa Jones, have had their Apple repair parts seized by customs in recent months.
The win demonstrates that right to repair advocates are making progress, but there’s still a long way to go until repair becomes easier for everyone.
"Companies use the anti-piracy rules in copyright laws to cover things that are nowhere near copying music or video games,” Proctor said. “We just want to fix our stuff. We're pleased with the progress being made, and ultimately we want to settle this by establishing Right to Repair."