Congress To Consider National Right To Repair Law For First Time

from the baby-steps dept

About five years ago, frustration at John Deere’s draconian tractor DRM culminated in a grassroots “right to repair” movement. The company’s crackdown on “unauthorized repairs” turned countless ordinary citizens into technology policy activists, after DRM and the company’s EULA prohibited the lion’s share of repair or modification of tractors customers thought they owned. These restrictions only worked to drive up costs for owners, who faced either paying significantly more money for “authorized” repair, or toying around with pirated firmware just to ensure the products they owned actually worked.

Since then, the right to repair movement has expanded dramatically, with a heavy focus on companies like Apple, Microsoft, Sony and their attempts to monopolize repair, driving up consumer costs, and resulting in greater waste.

It has also extended into the medical arena, where device manufacturers enjoy a monopoly on tools, documentation, and replacement parts, making it a nightmare to get many pieces of medical equipment repaired. That has, unsurprisingly, become even more of a problem during the COVID-19 pandemic due to mass hospitalizations and resource constraints, with medical professionals being forced to use grey market parts or DIY parts just to get ventilators to work.

Hoping to give the movement a shot of adrenaline, Senator Ron Wyden and Representative Yvette D. Clark have introduced the Critical Medical Infrastructure Right-to-Repair Act of 2020 (pdf), which would exempt medical equipment owners and “servicers” from liability for copying service materials or breaking DRM if it was done so to improve COVID-19 aid. The legislation also pre-empts any agreements between hospitals and equipment manufacturers preventing hospital employees from working on their own equipment, something that’s also become more of a problem during the pandemic.

From a Wyden statement:

“There is no excuse for leaving hospitals and patients stranded without necessary equipment during the most widespread pandemic to hit the U.S. in 100 years,? Wyden said. ?It is just common sense to say that qualified technicians should be allowed to make emergency repairs or do preventative maintenance, and not have their hands tied by overly restrictive contracts and copyright laws, until this crisis is over.”

While numerous states have attempted to pass right to repair legislation, none have succeeded so far. In large part because companies like Apple have lobbied extensively to thwart them, (falsely) claiming that letting customers and independent repair merchants fix devices (usually for far less money) would be a privacy and security nightmare. In Nebraska, Apple even tried to claim that such legislation would turn the state into a mecca for hackers (sounds pretty cool to me, but what do I know). Apple has also spent years bullying a small repair shop in Norway because he used refurbished Apple parts to fix devices.

This is the first time such legislation will be proposed on the federal level. As such, likely seeing it as a gateway to broader legislation, companies like Apple, Microsoft, Sony, and John Deere will now likely do their best to (quietly) kill it, despite the positive impact it could have during a pandemic.

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Comments on “Congress To Consider National Right To Repair Law For First Time”

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42 Comments
This comment has been deemed insightful by the community.
Thad (profile) says:

Re: Magnuson Moss anyone?

The DMCA’s anti-circumvention clause means that (with a small and periodically-changing list of exceptions) breaking DRM is illegal, even if you do it in order to do something that is legal.

It’s basically an end-run around fair use. Sure, it’s legal to repair your own device — it’s just not legal to break DRM in order to do it. Sure, it’s legal to make a backup copy of software you bought — it’s just not legal to break DRM in order to do it. And so on.

Anonymous Coward says:

Re: Re: Magnuson Moss anyone?

A question I’ve always had: DMCA doesn’t make it illegal to possess software with no DRM, right? It just makes the tools to strip it and the act of doing so illegal.

So if this part is done somewhere the DMCA doesn’t apply, things fall back to copyright violation on import, right?

This comment has been deemed insightful by the community.
Koby (profile) says:

Re: Magnuson Moss anyone?

The main problem is DRM, and although a 3rd party repair could be attempted, the manufacturer effectively prevents it through a code scheme. Hardware will deliberately stop working until the DRM protected program is given the right code that tells it that a proper repair has been completed. And the manufacturer isn’t going to give you that code.

So unless the 3rd party repair can crack the DRM and then re-program the components to work without a "repair completed" code, 3rd party repair is prevented. This is mostly what the Right To Repair advocates want: equipment that is not protected by DRM such that 3rd parties can access the onboard diagnostics so that repair is easier, and then provide it the "repair completed" code such that the equipment will begin working again.

united9198 (profile) says:

Re: Magnuson Moss anyone?

You are correct, but the battle has changed. You are free to fix your stuff all you want, but the manufacturers still control access to the data that is need to do the repair. If you were able to obtain the necessary access to the data, you would be able to do your own repair, but manufacturers are encrypting the info or otherwise preventing you from getting it under the guise of data security, personal privacy, or any other false pretense that they can use to keep competition away.

Ben S (profile) says:

Re: Magnuson Moss anyone?

It doesn’t. Previously, the free market gave you the right to repair anywhere you wanted, including with third parties. No laws were needed. The Magnuson Moss Act was a set of disclosure laws associated with warrantees, that if a manufacturer warrantied something, they had to disclose certain details on the warranty and how it would work. Things such as what specifically was warrantied, duration, limitations on the warranty, and things like that.

What you’re likely thinking of is the "tie-in clause", which states that a manufacturer can not tie the warranty to repairs by certain parties or with certain parts.

Ben S (profile) says:

Re: Re: Magnuson Moss anyone?

Did some searching to get the exact text, if you’re curious.
§2302
(c) Prohibition on conditions for written or implied warranty; waiver by Commission. No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer’s using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the Commission if–
(1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and
(2) the Commission finds that such a waiver is in the public interest.

The Commission shall identify in the Federal Register, and permit public comment on, all applications for waiver of the prohibition of this subsection, and shall publish in the Federal Register its disposition of any such application, including the reasons therefor.

Ben S (profile) says:

Re: Re:

You’re close, but the act doesn’t actually state anything about being able to void a warranty based on proving a third party caused the damage or defect. Of course, it doesn’t really need to. If you make something, and sell it with a warranty, then work by a third party breaks the device and you can prove it, then you’ve also proven there was no manufacturer’s defect, and as a result, the warranty wouldn’t apply anyway.

The point when a manufacturer can get a warranty to require specific parts or parties for repair is when they can prove that other parts or parties doing the work would cause the product or service to not function properly and that such a requirement would serve the public interest. I quoted the relevant law above, if you want to see the exact wording.

That Anonymous Coward (profile) says:

Sorry but I am not going to hold my breath for this.
It sounds nice & oh ventilators we needed but couldn’t fix blah blah blah…
Its a short term problem that will be abandoned after a couple donations.

They can’t be bothered to punish the insulin makers who hold people’s lives hostage, do you think a couple vent makers are scared?

This comment has been deemed insightful by the community.
Thad (profile) says:

Re: Re:

Its a short term problem that will be abandoned after a couple donations.

You know, if you’d get over this "all politicians are the same" hard-on you’ve got and learn to start distinguishing between different people in Congress, you might learn something about this Wyden fellow. Techdirt’s mentioned him before once or twice.

That Anonymous Coward (profile) says:

Re: Re: Re:

Members can have great ideas, but its getting the rest of them to support it where it falls apart.

We see things suggested that are then just shoveled to the side & the publics attention span forgets about it.

We still today have people dying b/c it was insulin or rent, and other than a photo op of them buying cheap insulin (that couldn’t meet the needs of most diabetics) nothing has changed.

150k+ people are dead & they still can’t do anything for us without making sure they & their donors get something out of it.
While it sounds nice history as a guide says nothing will come of this & people will forget it was ever mentioned.

Carlie Coats (profile) says:

DMCA and Constitution

As a matter of logic, I still don’t see how the DMCA passes Constitutional muster: The Constitutional requirement is "for a limited time", and if those "technological measures" do not disable themselves after a limited time, then they are Constitutionally illegal.

And the legislators who enacted this have sworn to uphold the Constitution, and so are oathbreakers.

Anonymous Coward says:

Re: DMCA and Constitution

Ah, but look at the actual name for the DMCA. It’s the Digital Millennium Copyright Act. Key word being Millennium, which is a "limited amount of time." If something made today is still being protected by the DMCA a thousand years from now, then we might start looking at possible charges of oath breaking.

Anonymous Coward says:

Re: Re: DMCA and Constitution

didn’t convince SCOTUS

…..over the massive outcry of companies screaming of lost profits.

Any sane person would read "for a limited time" to mean within a life expectancy. (Otherwise for all intensive purposes the duration is indefinite to anyone alive at the time of creation.) That didn’t stop the current 2+ life expectancy limits from being upheld though.

Remember who they serve: It isn’t you.

Cdaragorn (profile) says:

Re: DMCA and Constitution

You’re partially right, but for the wrong reasons.
The DMCA cannot pass Constitutional scrutiny because it doesn’t allow for fair use. Any Copyright law that does not allow for fair use is absolutely unconstitutional. The real problem is that no one has been willing to fight that issue all the way to the Supreme Court.

united9198 (profile) says:

Not New

Right To Repair has been around a lot longer than 5 years. Nearly 20 years ago, independent auto repair fought this battle and won. Independent repair shops maintained their right to fix their customer’s vehicles. Unfortunately, no one had the ability to foresee the changes in how data is captured, transmitted, and stored by the vehicle manufacturers. We are back at it right now and trying to get a law passed in Massachusetts. It is on the ballot this fall. Given the penchant of manufacturers to want a monopoly, this battle will never truly be won, but it needs to be fought.

Anonymous Coward says:

Re: Not New

this battle will never truly be won

Sure it can be. Just remove the anti-circumvention clause in the DMCA. No legal teeth will make any expenditure on DRM implementation a net loss, and companies will abandon the concept.

DRM only serves to restrict the rights of the law abiding citizen. The people that rightsholders claim to stop using it, laugh in everyone’s faces along with the rightsholders.

Anonymous Coward says:

as with all of this type of thing and, of course, everything to do with copyright, it’s down to nothing other than greed, pure, unadulterated greed, with a hearty helping of control added in! what seems to be ommitted is that whoever is doing the repair screws up, either they or the device owner will buy a new, more recent device so the manufacturers are never going to truly lose out anyway. the biggest issue, as usual is that because this type of lobbying (substitute BULLYING!) goes on in the USA and as always the USA thinks it runs the world and has the right to dictate to every other nation on the Planet what can be done, by ahom, to what but refuses point blank to accept the same conditions itself from others, totally kicks off when it is attempted! goose and gander are words that then come to mind!!

Anonymous Coward says:

would exempt medical equipment owners and "servicers" from liability for copying service materials or breaking DRM if it was done so to improve COVID-19 aid.

Such limited exemptions raise an obvious problem: where are these "servicers" going to come from, and where will they get their software? We can’t expect people to appear from nowhere, solve our COVID problems, and then disappear without having any larger effect on copyright.

It’s like with DVDs. There have been occasional DMCA exceptions granted to bypass that DRM, but everyone doing that relied on software that had been previously declared illegal under US law. If nobody had broken the law, it’s doubtful that anyone later wanting to use 10 seconds of a DVD in a documentary would’ve found anyone to reverse-engineer the entire DRM system just for that.

Some medical device is going to use general-purpose software, like maybe an operating system that doesn’t allow unsigned software. Then what? We’ll need people who understand how it works, how to break it. Do we get a bunch of security researchers to append "to fight COVID" to the titles of their papers, and hope that’ll keep them out of prison even though people could use it for anything else? If all we get are these tiny loopholes, most investigations will occur underground, which means a lot of people who could help won’t.

ECA (profile) says:

Tech.

Love tghe idea that in the EU, you cant CR, programming. It was until recently.(think they changed it)
And in the USA you could CR a piece of Code, HW or SW, so that no one could get/hold/change/augment…or anything to it.
Even that little box(s) in your car that control your engine/transmission and/or the lighting/security/other..
ITS KINDA stupid that you are paying for about $50 MAX of hardware to control your car, and to replace it costs $200-500.
At one point they wanted to have a Emergency bypass in the car incase they REALLY needed to MOVE the car.(wont happen)

I think your phone has Over 40 CR products inside, and it the majority of the cost, which adds up to about $100-150 worth of electronics.
What is inside a Apple phone? Thats worth More than an adroid? The OS? which gets changed and augmented by Apple, and if it Screws up, you have lost everything. They have done it before with MP3 players..
Im from the old days when a CMOS/BIOS chip that controls your computer checks at startup, was SOCKETED..and could be changed IF it really failed.
There are a few repair persons on YT, that have shown the problems with TRYING to fight the corps, even when they show up to give information. The corps are there. and Lying Badly.

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