Right to Repair: Infringement or Exhaustion Part 3March 5, 2021

This post is part 3 of a series of posts relating to a person’s right to repair their purchased products. Parts 1 and discussed the general background and several policy arguments surrounding both sides of this issue and the main patent laws and legal doctrine related to the right to repair. This part will discuss the issues involving copyright, specifically Section 1201, contracts, and their interactions.

Section 1201 of the Digital Millennium Copyright Act (DMCA), which passed in 1998 to help protect the movie industry, has been used to protect essential material needed to repair products with hardware and software. Simply put, Section 1201 makes it illegal to break copyright protection to fix a device when it breaches the manufacturer’s copyright. Only the Library of Congress may make exceptions through petitions every 3 years.

This protection under Section 1201 provides manufacturers with several options for preventing access to their products by consumers. They can copyright the repair manuals, copyright the output error codes generated by diagnostic tools, or keep the diagnostic tools as proprietary software. These copyrighted tools are generally termed Digital Rights Management (DRM) tools and include encryption, verification, anti-tampering, tracking, and copying restrictions. For example, manufacturers may use a Trusted Platform Module (TPM) as an anti-tampering tool. The TPM is used to check to make sure any component, such as a hard drive, is approved by the manufacturer. If the component is not registered in the TPM, the TPM will then lock the entire system.

Also considered a kind of DRM are End User Licensing Agreements (EULAs), which bridge copyright and contract law. EULAs license the copyrighted protected software and hence circumvent the first-sale provisions of copyright law because it prevents a sale. These EULAs are considered a DRM as they generally include restrictions on reverse-engineering, transfer, and using unauthorized repair sources. However, the courts are split on the enforceability of EULAs, as some consider them unconscionably one-sided, or contract formation is not met by a “clickwrap” or “shrinkwrap” license. All cases involving EULAs have only dealt with specific provisions or when the customer was notified of the license, no court has opined on EULAs generally, so their enforceability may still be challenged.

Therefore, even if a product would be repairable under patent law, copyright and contract law allows for several restrictions on products containing software. Currently, the only remedy is to petition the Library of Congress to add in specific exemptions. In 2018, exemptions were added for voice assistant devices, new phones, home devices, and motorized land vehicles to allow access to the operating system. However, exemptions for game consoles, boats, and airplanes were specifically denied.

As discussed in part 1, there are arguments on both sides, and the right to repair is still developing. This year the Library of Congress will consider exemptions. Advocates of the right to repair are already planning to ask for an exemption for game consoles. These petitions are based on the loss of support from companies such as Microsoft for the repair of old consoles. Microsoft no longer repairs the Xbox 360s, but the TPM is still in place on these consoles. This makes third party repair expensive or even impossible as the optical drive is locked to the specific console and putting in a new drive will lock the system. However, there will likely be no new developments until late fall when the Library of Congress holds their exemption hearings.

Oliver Couture, Ph.D. is an Associate Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website, or contact Oliver directly via email .

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