Dismantling The Repair Monopoly Created By The DMCA's Anti-Circumvention Rules

from the tractor-liberation-front dept

One of the biggest victories of the copyright maximalists was the successful adoption of the 1996 WIPO Copyright Treaty, implemented by the DMCA in the US, and the Copyright Directive in the EU. Its key innovation was to criminalize the circumvention of copyright protection mechanisms. That strengthens copyright enormously by introducing yet another level of legal lockdown, and thus yet another powerful weapon for copyright holders to wield against their customers. But as Techdirt has reported, the anti-circumvention laws are now being used to prevent people from exploring or modifying physical objects that they own.

The DMCA's anti-circumvention rules not only strengthen an old monopoly -- copyright -- they create a new one. Because it is forbidden to circumvent protection measures, only the original manufacturer or approved agents can legally repair a device that employs such technologies. Motherboard has an interesting profile of efforts by the wider repair industry to dismantle that new monopoly before it spreads further and becomes accepted as the norm:

Repair groups from across the industry announced that they have formed The Repair Coalition, a lobbying and advocacy group that will focus on reforming the Digital Millennium Copyright Act to preserve the “right to repair” anything from cell phones and computers to tractors, watches, refrigerators, and cars. It will also focus on passing state-level legislation that will require manufacturers to sell repair parts to independent repair shops and to consumers and will prevent them from artificially locking down their products to would-be repairers.
The advocacy group is not exactly new, more of a re-branding and re-launching of "The Digital Right to Repair Coalition", which was formed in 2013. Its aims are ambitious:
The Repair Coalition will primarily work at a federal level to repeal Section 1201 of the DMCA, which states that it's illegal to "circumvent a technological measure that effectively controls access to a work protected under [the DMCA]." Thus far, activists have tried to gain "exemptions" to this section -- it's why you're allowed to repair a John Deere tractor or a smartphone that has software in it. But the exemption process is grueling and has to be done every three years.
Given the power of the industries that support Section 1201, it's hard to see it being repealed any time soon. However, the other part of the Repair Association's strategy looks more hopeful:
On a state level, the group will push for laws such as one being proposed in New York that would require manufacturers to provide repair manuals and sell parts to anyone -- not just licensed repair people -- for their products. The thought is that, if enough states pass similar legislation, it will become burdensome for manufacturers to continue along with the status quo. At some point, it will become easier to simply allow people to fix the things they own.
As software is routinely added to yet more categories of everyday physical objects, so the issue of the repair monopoly created as a by-product of the DMCA will become more pressing. It's good that there is now an advocacy group focussed on solving this problem. Let's hope it succeeds.

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Filed Under: anti-circumvention, copyright, dmca, dmca 1201, repair monopoly, right to repair
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  1. icon
    Kal Zekdor (profile), 3 Mar 2016 @ 8:51pm

    Re: Re: Re:

    You have no knowledge of recent history, do you? You sit here enjoying the fruits of the Computer Revolution, yet are gleefully trying to clamp down on the rights and abilities that brought those fruits to bear.

    Ok, I guess I need to give a quick history lesson.

    The Dark Ages

    In the '60s and '70s, personal computing was a laughable pipe dream. This is despite the commercialization of the silicon transistor in the '50s. Computers were proprietary mainframe/terminal setups, and cost exorbitant sums of money. This was because each seller had to build their system from the ground up, hardware and software. Now, as we approach the '80s, hardware costs have started to go down, but software costs were going up. Companies still had to write the complete codebase for their proprietary system. Compatibility was unheard of, and costs were still too expensive for personal computing for the general public. Hobbyists could put together relatively cheap kit computers, but the retail desktops cost $5000-$10000, adjusted for inflation.

    Enter "Open Architecture"

    The early commercially successful computers, the Apple II and the IBM 5150, both utilized a published, card-based, open hardware architecture. This meant that any company could follow the spec and produce hardware components compatible with the machines, and allowed third-party software to enter the mainstream. Now, instead of using whatever proprietary word processor came on the machine, you could run WordStar, or any other software. This meant that the computer manufacturer didn't need to develop all that software in-house, lowering the cost of the machine.

    The Clone Wars

    It's the early '80s, and home computing is starting to take off. IBM dominates the market, but they're still too expensive for most households. Still, they've built up an ecosystem of third-party software that consumers demand. "Does it run Lotus 1-2-3?" is the death knell of many a new entrant. Things look bleak for everyone but Big Blue.

    Then inspiration strikes. IBM's machines ran PC-DOS, provided by a small company called Microsoft. Microsoft also sold the OS, as MS-DOS, to any interested third-party. Some companies try to break into the market by using MS-DOS, but differences in the BIOS mean that programs needed tweaking before they could run on each machine.

    Compaq wants to build a fully-compatible IBM Clone, but they can't just copy IBM's BIOS due to Copyright law (See Apple v. Franklin). They could, however, independently create their own BIOS that behaved identically. They proceeded to do a clean-room reverse engineering of the IBM BIOS, and built the first true PC clone. When IBM's lawyers could do nothing to stop Compaq, the floodgates opened. The new competition enabled by these "knockoffs" drastically lowered the price of computing hardware, bringing about the commoditization that we enjoy today.

    That's only a brief overview, there's much more to the story, and I encourage you to read up on it. It should make clear the pivotal role that reverse-engineering and third-party compatibles had in bringing about ubiquitous computing, though.

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