The Right to Repair Is Inherent in Ownership

This article was originally published on October 18, 2017 in Real Clear Policy.

Across the nation, an unlikely union of farmers, automobile tinkerers, and technology aficionados is coalescing around an idea that should be intuitive: the right to repair personal property. This coalition seeks to cut across political lines to encourage state governments all over the nation to pass legislation that defines what “ownership” means for consumers in America.

The concerns of this unlikely alliance deserve to be heard by Congress, which should modify the Digital Millennium Copyright Act (DMCA) to incorporate a repair exemption to copyright protections.

As technology pervades the lives and possessions of consumers, many Americans desire access to the resources – parts, manuals, software updates, and diagnostic and repair documentation – needed to mend, service, and safely modify their purchases. Online communities, such as, XDA-Developers, and Reddit, host product repair guides, software downloads, and question and answer forums. Frustration about copyright roadblocks is something that echoes throughout online repair communities. These groups all share the view that consumer electronics are not merely products to use for a short time and discard. Rather, these purchases can be modified for other uses or function beyond the expected or planned product life, so long as consumers have the desire and resources to fix them. However, manufacturers are exploiting copyright law to make it increasingly difficult for consumers to enjoy the full potential or useful lives of their products.

Right-to-repair concerns vary from product to product. In some cases, limited access to manufacturer-authorized repair shops may restrict consumers’ ability to fix their products. For example, there are no Apple stores in Vermont, Montana, the Dakotas, or West Virginia. Other authorized repair outlets exist in these states, but they may be located unreasonably far from an iPhone owner’s hometown. These iPhone owners can also mail their devices to Apple for repair, but may not have a backup phone in the interim. Access to authorized repair shops became particularly problematic last year for iPhone 6 series owners that had their devices’ “home” buttons repaired by third-party repair shops. Upon updating their phones’ operating system post-repair they encountered “Error 53” messages, indicating that Apple had disabled or “bricked” their devices.

In the face of a potential consumer class-action lawsuit in the U.S. and another suit filed by Australian regulators, Apple avoided going to trial in the U.S. by offering affected consumers a software update to “unbrick” their devices and reimbursing those whose devices were out of warranty. However, the courts are beginning to assert that companies cannot abuse copyright protections to limit consumer choice. For example, in Impression Products v. Lexmark International, the Supreme Court ruled that Lexmark could not use patent law to block Impressions from purchasing used Lexmark printer cartridges, refilling them, and selling them to consumers for use in their Lexmark printers.

Though members of the consumer electronics repair community have long been active in the right-to-repair sphere, farmers are a more recent addition. Like most large machines on sale today, modern farming equipment relies on high-end software. Computers measure optimal fuel levels, field size and shape, and the quantity and quality of harvest vegetables. While this new technology has made farming more efficient, it has also made software integral to most farming equipment repairs.

This reliance on software, in turn, has given manufacturers a way to reduce the independence of consumers. By requiring license agreements, companies force farmers to use manufacturer-authorized dealerships and repair shops to run diagnostics or make repairs that involve embedded software. As with Apple’s “Error 53” debacle, if a farmer replaces a part in a tractor, the machinery may not operate again until an authorized party verifies the new part’s authenticity with copyright-protected software. Facing high software repair costs and slow response times from authorized repair entities, farmers report turning to black market hacks and diagnostic cables to help speed up repairs and lower costs.

Automobile owners and independent auto repair shops have had the most tangible success in their right-to-repair efforts. In 2012, Massachusetts passed the Motor Vehicle Owners’ Right to Repair Act. This law required car manufacturers to provide consumers and independent businesses access to the same repair manuals, parts, and diagnostic tools as the manufacturer-affiliated dealerships.

To stave off further advocacy, auto manufacturers entered into a Memorandum of Understanding (MOU) with consumer and independent right-to-repair proponents. Based on the Massachusetts law, the national MOU spelled out the rights and responsibilities of all parties. Manufacturers agreed to provide essential parts and repair manuals in exchange for a commitment from the coalition to forgo engaging in new state legislative initiatives.

Even though the MOU resolved a major complaint of private citizens and independent auto repair shops seeking to do independent repair work, more complicated right-to-repair challenges lie in wait. Much like the difficulties farmers and consumer electronics users face with embedded software and proprietary operating systems, late-model automobiles use telemetric hardware (like GPS systems) run by software that can only be modified by specialized equipment. Starting in 2018, the MOU will also require carmakers to allow third parties to access software remotely, potentially bringing the software access dispute back to the forefront.

In a June report, the U.S. Copyright Office recommended that the U.S. government should permanently adopt exemptions to the DMCA that allow consumers to repair any product they own, including “hacks” (or unlocking) of product software. Previously, such exemptions only existed for a limited array of products, including automobiles and cellular telephones, while excluding items like gaming consoles or farming machinery.

However, farmers may not have to wait for action on copyright law to see national legislation defining their right-to-repair. Next year, one of the biggest tasks for Congress will be passing a new version of the multi-year Farm Bill, the primary federal law governing the nation’s broad range of farming and food security policies. Congress considers the Farm Bill must-pass legislation, and the agricultural community wields extensive sway over the process.

Several states are restoring consumer choice by combating license agreements that prevent consumers from making their own repairs, but a more extensive and effective option exists: Congress should amend the DMCA — a law intended to ensure copyright protection in the digital age — to incorporate a repair exemption. Such an exemption would offer consumers across the nation the repair solution they seek, while still affording companies appropriate legal protections for unendorsed repairs and alterations. Consumers should determine the best way to service their property, whether that means using a manufacturer-authorized repair facility, or absolving the manufacturer of responsibility for self-repair or third-party repair. Anything less subverts the rights of consumers as property owners.

While modern technology has changed many aspects of how society operates, it has not changed the fundamental tenets of personal property rights in the United States. And inherent in ownership is the right to repair.

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Kyle Burgess is the co-founder of two social enterprises and has worked in strategy, communications, and program management for a decade. Kyle received her Master’s degree in International Relations & Economics from the Johns Hopkins School of Advanced International Studies (SAIS) and her Bachelor's degree in Political Science from American University.


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