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Technology Law & Policy Clinic Students Represent iFixit To File Comment with Copyright Office and Protect the Public’s Right To Repair

This post is part of a series exploring the Clinic's work during the 2020-21 year

Working on behalf of iFixit, an organization that advocates for the Right To Repair, NYU Law Advanced Technology Law and Policy Clinic student attorneys Adrienne Lewis (’22) and Shivani Morrison (’21) filed a comment on iFixit’s behalf with the Copyright Office in March 2021, in support of a Section 1201 exemption for the repair of software-enabled devices. The comment was submitted as part of the Eighth Triennial Section 1201 Rulemaking Proceeding. During this proceeding, the Copyright Office weighs and grants exemptions to the general prohibition on the circumvention of technical protection measures, to protect certain socially beneficial uses of technology from copyright infringement liability.
 
iFixit’s overall mission is to encourage and empower people to fix their own devices, from smartphones to farm machinery, and everything in between. iFixit’s primary policy goal is to expand what is broadly known as the Right to Repair: if a person purchases and owns a product, that person should have the right to repair it, or to hire a technician of their choice to perform the repair.

In order to repair and maintain software-enabled devices, owners and their repair technicians often need to be able to access certain software elements that may be difficult to access because of technological protection measures (TPMs), such as passwords and other access codes. For example, to repair most modern cars, technicians need to access the car’s diagnostic software to understand the nature of the car’s problem. Yet some car manufacturers won’t provide these codes, even to the car owner. A federal statute—Section 1201 of the Digital Millennium Copyright Act (DMCA)—generally prohibits the circumvention of TPMs. However, the Copyright Office can and does grant exemptions to the DMCA’s prohibition. Within such an exemption, users may lawfully circumvent TPMs. The Copyright Office has already created a limited exemption to Section 1201 for the right to repair software-enabled devices, and, as part of its triennial review, is currently considering expanding the exemption. The Copyright Office is currently reviewing comments and testimony from the public and is expected to publish its official recommendation later in 2021. An exemption would allow device owners to repair their own devices or to use the repair technician of their choice.

Lewis and Morrison represented iFixit to prepare iFixit’s comment, which was submitted jointly with The Repair Association (Repair.org). The comment advocates a broad exemption to protect the public’s right to repair software-enabled devices. The comment explains that, beyond safeguarding users’ ability to fix and use their devices, expanding the right-to-repair exemption under Section 1201 would have significant external benefits as well. For example, repair extends the life of the device, making it more environmentally sustainable and keeps the device from ending up in landfills or e-waste tips. Repairing devices rather than replacing them also reduces the strain on the environment caused by manufacturing and shipping. Repair can also create jobs, protect consumers’ rights, and increase accessibility of services for rural communities and people with limited mobility.

In their work, Lewis and Morrison studied the Copyright Office’s administrative processes as well as underlying substantive copyright doctrines. They spotted, researched, and described new challenges that have arisen as copyright law has struggled to adapt and respond to rapid technological change, including an explosion of software-powered, networked devices (the “Internet of Things”). With these challenges in mind, the student attorneys and iFixit crafted a comment that emphasizes the need for a broad, proactive exemption that serves society for years to come, instead of the piecemeal, device-specific, limited, reactive exemptions that the Copyright Office has granted in the past.

Morrison and Lewis hope that the comment, and iFixit’s additional testimony, will secure a broad exemption protecting the right to repair software-enabled devices.

TLP Clinic Director Jason Schultz supervised this project.