Nathan Potter, Associate Member, University of Cincinnati Law Review
Consumers must continue their efforts to reclaim ownership of their purchased goods. Over the last twenty to thirty years, computer systems have been integrated into everything from watches to tractors to kitchen appliances. With this integration came software. And with this software came control. This control comes in many forms, but most common is the ability for a manufacturer to prevent a consumer from choosing where, how, and who may repair the purchased device.[1] This arises out of the copyright over the device’s software, not the physical components of the computer or the machine.
In 1998, the Digital Millennium Copyright Act (DMCA) inadvertently (or possibly intentionally) destroyed consumers’ right to choose who can repair devices. The DMCA was enacted to combat the unique challenges of protecting and regulating digital media. Title 17 of the DMCA, along with subsequent court decisions, barred non-authorized companies and tradespeople from accessing some of the information in the consumer’s device. Beginning in subsection (d), 17 U.S.C. § 1201 also provides exemptions to companies’ ability to gatekeep their software.[2] These exemptions are reviewed every three years and the public may petition the continuation or broadening of existing exemptions, or they may introduce a new category of exemptions.[3] Previous exemptions include: “unlocking” cellular phones so that they can be used on different networks;[4] accessing data from medical devices such as pacemakers and insulin pumps;[5] and granting access to the computer programs used by motorized land vehicles (namely cars and tractors).[6]
Many organizations, including The Repair Association, argue that DMCA exemptions are too slow and not robust enough to adequately protect consumers.[7] Many initiatives were enacted or were retained in 2018 due to very public outcries over consumer goods. In one instance in January 2018, Apple changed its battery repair program due to consumer reports of inadequate device longevity and performance issues, as well as a “miscommunication” which Apple sent directly to its consumers in late 2017, indicating a capping of phone performance.[8] This controversy, in addition to Apple’s demand that customers only use Apple-authorized repair services, contributed to numerous suits throughout the year. Apple is currently involved in ongoing litigation because consumers are seeking a resolution to the battery- and Apple-created system slowdown software that is adversely affecting the consumers’ devices.[9]
Apple claims the slowdown is necessary to increase the battery life of older devices because Operating System (OS) updates continue to require the usage of more system resources from iPhones and iPads. The more resources that are required, the quicker the battery will drain. Additionally, Apple will not create or allow consumers to turn off these system-slowing measures unless the consumer “jailbreaks” their device.
Thankfully, “jailbreaking” was granted a DMCA exemption in the 2015 triennial amendments.[10] Unfortunately, only a small percentage of consumers are aware of jailbreaking or can perform the process (which is actually very simple but could damage the device if performed improperly).
Alarmingly, companies are lobbying to get consumers to sign away their right to repair regardless of DMCA exception. One such example is the agreement between John Deere (and other tractor and farm supply manufacturers) and the California Farm Bureau.[11] In the agreement, John Deere agreed to supply consumers with manuals, diagnostic tools, and more. In exchange, John Deere retained control over the source code and other software utilized by the machinery. This agreement seemed beneficial to both parties. However, what it really accomplished was an assurance that John Deere retained a monopoly to repair John Deere’s products. This allowed John Deere to set prices without the threat of third-party companies legally offering identical repair services at lower rates. It is still unclear how the 2018 amendments to 17 U.S.C. § 1201 will affect this agreement. Consumers, however, are often given the benefit of contracting away their rights and the amendments specifically exclude exemptions for subscription-based services provided by the manufacturer.[12]
The Right to Repair effort continues and is expanding in 2019. Consumers can contribute in many ways. First, consumers can follow this link to select a state and write to the local representatives about the need for consumers’ right to repair. Next, consumers can vote with their wallet. Some companies have such a stranglehold on certain markets that it is not possible to purchase other brands, but in the case of cellular phones and other smart devices, there is an extremely large assortment of products and companies from which to purchase goods. Also, try to avoid purchasing goods that require a subscription service for premium usage (such as John Deere tractors). And lastly, remember that one should own what is purchased, let companies know this through social media and other outlets. Let your voice be heard!
[1] See e.g., 17 U.S.C. § 1201(d).
[2] 17 U.S.C. § 1201(d).
[3] 17 U.S.C. § 1201(a)(1)(C).
[4] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 71 Fed. Reg. 68476 (Nov. 27, 2006) (codified at 17 U.S.C. § 1201).
[5] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 80 Fed. Reg. 65958 (Oct. 28, 2015) (codified at 17 U.S.C. § 1201).
[6] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 83 Fed. Reg. 54022 (Oct. 26, 2018) (codified at 17 U.S.C. § 1201).
[7] It’s Time to Fix the DMCA, repair.org, https://repair.org/copyright/ (last visited Jan 16, 2019).
[8] Mikey Campbell, Apple Replaced 11M iPhone Batteries under 2018 Repair Program, 9M More than Average, AppleInsider (Jan. 14, 2018 1:52 AM), https://appleinsider.com/articles/19/01/15/apple-replaced-11m-iphone-batteries-under-2018-repair-program-9m-more-than-average.
[9] In re Apple Inc. Device Performance Litig., No. 18-md-02827-EJD, 2018 U.S. Dist. LEXIS 169606 (N.D. Cal. Oct. 1, 2018).
[10] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 80 Fed. Reg. 65953 (Oct. 28, 2015) (codified at 17 U.S.C. § 1201).
[11] Kyle Wiens and Elizabeth Chamberlain, John Deere Just Swindled Farmers out of their Right to Repair, Wired (Sep. 19, 2019 1:12 PM), https://www.wired.com/story/john-deere-farmers-right-to-repair/.
[12] Copyright Office, Library of Congress; Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 83 Fed. Reg. 54022 (Oct. 26, 2018) (codified at 17 U.S.C. § 1201).
