Affording Technology with Anti-Circumvention Exemptions and the Right to Repair

Currently, we live in an age of planned obsolescence. Televisions, cellular phones, laptops—they all appear to have a predetermined shelf life guaranteed to obligate us to dip into our pockets every few years. This generally means that we, as consumers, are expected to pay thousands of dollars every few years to have access to the latest technology.

The Right to Repair

With the pandemic and its effect on supply lines as well as growing unwillingness to pay such costs, there has recently been a groundswell of support for the right to repair.  To operate, the right to repair generally relies on anti-circumvention exemptions to the Digital Millennium Copyright Act (“DMCA”), which is endorsed and usually renewed by the government every three years.

Right to repair proposes the right for equipment owners, typically consumers, to repair their devices. The belief is that everyone should have access to original equipment manufacturer (“OEM”) parts, accompanying literature, and the requisite software to administer necessary repairs or adjustments.  Advocates of the right to repair argue that current legal restrictions make repairs extremely costly and time-consuming.  As it stands, current anti-circumvention laws keep parts, diagnostic tools, and repair equipment in the hands of original equipment manufacturers and not in the hands of the public-at-large.  Proponents also argue that right to repair would be more environmentally friendly as it cuts down on trash and refuse.

Anti-Circumvention Exemptions 

Currently, and possibly unbeknownst to the public, the Registrar of Copyrights actively endorses and facilitates circumvention efforts.  Section 1201 of the Digital Millennium Copyright Act serves as the gatekeeper for circumvention efforts, actively prohibiting them in order to curb abuse of digital rights management software.  Digital rights management software typically protects copyrighted media, but section 1201, as written, now has the unintended effect of dampening non-piracy related behavior.  As a result, activity such as “jailbreaking” a phone is explicitly prohibited.  To get around this, the Register of Copyrights previously maintained a list of devices that were “allowed” to be repaired.  As time went on, the exemptions to the anti-circumvention laws became quite extensive, but manufacturers still maintained an extremely tight rein on what repairs were sanctioned and how.  For example, video game consoles can only be repaired if the repair relates to its optical drives and nothing else.

This may all be changing, however, as the federal government has increasingly shown signs of moving away from this practice. For example, President Biden has signed an executive order that promotes the right to repair. Similarly, the Federal Trade Commission has formally announced that they will curb business practices that hedge out third-party repair shops. 

Key Takeaways on Anti-Circumvention Exemptions and the Right to Repair

The Biden Administration and the FTC seem to be making efforts to usher in the right to repair. This means:

• Section 1201 of the DMCA may see more pronounced exemptions in the future;

• OEM parts, accompanying literature, and relevant software may become more accessible; and

• Planned obsolescence may not be as pervasive as before.

For more information about technology law, see our Technology Law Services and Industry Focused Legal Solutions pages.