The real answer, according to McSherry, is to reform the DMCA to get rid of the anti-circumvention restrictions “and reform contract law to make clear that contract provisions that restrict fair use and the freedom to tinker and repair are against public policy.”
In the meantime, those unwilling to wait for DMCA reform are moving ahead on other fronts. For instance, in Massachusetts, a bill is making its way through the legislature (House 3383) that, after allowing some exceptions for trade secrets and other protections for manufacturers, proposes that manufacturers shall:
1) make available to independent repair facilities or owners of products manufactured by the manufacturer diagnostic and repair information, including repair technical updates, diagnostic software, service access passwords, updates and corrections to firmware, and related documentation, free of charge and in the same manner the manufacturer makes available to its authorized repair providers; and
2) make available for purchase by the product owner, or the authorized agent of the owner, such service parts, inclusive of any updates to the firmware of the parts, for purchase upon fair and reasonable terms.
Further provisions of the bill require manufacturers of digital electronic products sold or used in the state to “make available for purchase by owners and independent repair facilities all diagnostic repair tools, incorporating the same diagnostic repair and remote diagnostic capabilities that such manufacturer makes available to its own repair or engineering staff or any authorized repair providers, upon fair and reasonable terms.”
While that bill is a long way from passage, Adam Aft, an attorney at Baker & McKenzie in Chicago offers cautionary words. Aft says the digital right to repair effort may not succeed as easily as the automotive right to repair, which was not focused as much on the DMCA but more on traditional terms of trade. Furthermore, says Aft, digital right to repair legislation at the state level that is intended to somehow bypass or override a federal law would probably run afoul of federal preemption.
Aft explains that the DMCA has been subject to some interpretation under a triennial process operated by the copyright office, which might give reformers some hope. Furthermore, in 2014, Congress hurriedly passed legislation exempting the act of “jailbreaking” a mobile device from potential prosecution under DMCA. And, he says, it is not impossible that similar action could be taken to pry some right to repair from DMCA.
On the other hand, says Aft, “My impression is that once you begin to open DMCA to something like right to repair, you may also potentially open some additional security concerns, so that would quickly become a political issue on its own,” says Aft. “That may be the kind of headwind advocates won’t be able to overcome,” he adds.
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