CD300: Right to Repair
- CD300: Right to Repair Jennifer Briney 1:17:32
You do not have the right to repair your own belongings because of intellectual property rights granted to corporations by Congress in 1998. In this episode, listen to the debate happening in Congress about if and how they should grant customers the right to repair and get a status update on the multiple efforts under way in the current Congress, including one with a good chance of becoming law. Please Support Congressional Dish – Quick Links Contribute monthly or a lump sum via Support Congressional Dish via (donations per episode) Send Zelle payments to: Donation@congressionaldish.com Send Venmo payments to: @Jennifer-Briney Send Cash App payments to: $CongressionalDish or Donation@congressionaldish.com Use your bank’s online bill pay function to mail contributions to: Please make checks payable to Congressional Dish Thank you for supporting truly independent media! Background Sources Recommended Congressional Dish Episodes McDonald’s Ice Cream Machines Andy Greenberg. December 14, 2023. Wired. Joseph Fawbush. March 29, 2022. FindLaw. John Deere Luke Hogg. January 8, 2024. Reason. Internet of Things Updates and Maintenance Márk Szabó. August 27, 2024. WeLiveSecurity. Massachusetts Auto Repair Law Massachusetts Office of the Attorney General. DoD’s Revolving Door OpenSecrets. OpenSecrets. Karl Evers-Hillstrom and Reid Champlin. June 18, 2019. OpenSecrets. OpenSecrets. Salary.com. Military Right to Repair Issues Kyle Mizokami. February 11, 2020. Popular Mechanics. Max Finkel. February 8, 2020. Jalopnik. Elle Ekman. November 20, 2019. The New York Times. Lucas Kunce and Elle Ekman. September 15, 2019. Technological Protection Measures (TPMs) Jennifer Zerkee. November 8, 2023. Simon Fraser University. Cyber Risks Sam Curry et al. January 3, 2023. samcurry.net. Apple Lawsuit Brandon Vigliarolo. December 18, 2023. The Register. NDAA Sec. 828 Jason Koebler. August 28, 2024. 404 Media. AdvaMed et al. July 30, 2024. DocumentCloud via 404 Media. Laws Bills Sec. 828 : REQUIREMENT FOR CONTRACTORS TO PROVIDE REASONABLE ACCESS TO REPAIR MATERIALS. Fair Repair Act Audio Sources May 16, 2024 Senate Armed Services Committee Witnesses: Carlos Del Toro, Secretary of the Navy Clip Sen. Elizabeth Warren: So the Navy acquires everything from night vision goggles to aircraft carriers through contracts with big defense contractors, but the contractors often place restrictions on these deals that prevent service members from maintaining or repairing the equipment, or even let them write a training manual without going back through the contractor. Now the contractors say that since they own the intellectual property and the technical data underlying the equipment, only they have the right to repair that equipment. These right to repair restrictions usually translate into much higher costs for DOD, which has no choice but to shovel Money out to big contractors whenever DOD needs to have something fixed. So take the Navy’s littoral combat ship, General Dynamics and Lockheed Martin considered much of the data and equipment on the ship to be proprietary, so the Navy had to delay missions and spend millions of dollars on Travel costs, just so that contractor affiliated repairmen could fly in, rather than doing this ourselves. Secretary Del Toro, when a sailor isn’t allowed to repair part of their ship at sea, and a marine isn’t allowed to access technical data to fix a generator on a base abroad. One solution is for the Navy to buy the intellectual property from the contractors. So can you say a little bit about what the benefits are of the Navy having technical rights for the equipment that it has purchased. Sec. Carlos Del Toro: The benefits are enormous, Senator, and we’ve actually had tremendous success, I’d say, in the last year and a half to two years, through the taxpayer advocacy program that we initiated when I came in. There have been three examples, one, gaining the intellectual property rights for the new ACV class of ships that will replace the AAVs. The F-35 negotiations really proved themselves out in a significant way as well, too. And lastly, the 20 F-18s that the Congress authorized in ‘22 and ‘23, we were able to make significant gains in terms of the government finally getting the intellectual property rights that were necessary for us to be able to properly sustain those moving forward. Sen. Elizabeth Warren: So I am very, very glad to hear this. I like the taxpayer advocacy project and how you’re training contract officers to secure technical equipment that the Navy buys, but I think you should have the support of Congress on this. Senator Braun and I have introduced the Stop price gouging the military act to give DoD more tools to get cost and pricing data so that you will be in a better position to negotiate better deals with contractors. There’s also more that we can do to ensure that the Navy and the rest of the services have the rights they need to bolster readiness. So let me ask you, Secretary Del Toro, would having a stronger focus on right to repair issues during the acquisition process, like prioritizing contract bids that give DoD fair access to repair materials, and ensuring that contract officers are looking into buying technical rights early on, would that help the Navy save costs and boost readiness at the same time? Sec. Carlos Del Toro: Very much. Senator, in fact, one of the things that we have prioritized since I came in as Secretary of the Navy, given my acquisition background, is actually those negotiations need to happen as early as possible before that we even as we develop the acquisition strategy for that contract to go out to bid, and by doing so, we will reap tremendous returns. July 18, 2023 House Judiciary Committee Witnesses: Aaron Perzanowski, Thomas W. Lacchia Professor of Law, University of Michigan Law School , Legal Fellow, Hudson Institute’s Forum for Intellectual Property Kyle Wiens, Co-founder and CEO, iFixit Paul Roberts, Founder, SecuRepairs.org; Founder and Editor-in-Chief, the Security Ledger Scott Benavidez, Chairman, Automotive Service Association; Owner, Mr. B’s Paint & Body Shop Clips 41:25 Scott Benavidez: My name is Scott Benavidez. I’m the Chairman of the Automotive Service Association’s Board of Directors. I am also a second generation shop owner from Albuquerque, New Mexico, Mr. B’s Paint and Body Shop. Scott Benavidez: We do have concerns when some insurers insist on repairs that are simply cheaper and quicker, without regard to quality and safety. Repairers understand better than anyone the threat of replacement crash parts or lesser quality. We can and should have a competitive marketplace that doesn’t compromise quality or safety, deciding to only cover the cheapest option without understanding implications for quality leaves collision shops and their customers in a tough position. Very few consumers have the knowledge about these types of crash parts used on their vehicles as numerous crash parts in the marketplace, such as OEM (original equipment manufactured) parts, certified aftermarket parts, aftermarket parts, reconditioned crash parts, and recycled crash parts. Repairers can make recommendations, but their customers are unlikely to hear if the insurance won’t cover them. 46:45 Paul Roberts: My name is Paul Roberts, and I’m the founder of Secure Repairs. We’re an organization of more than 350 cyber security and information Technology professionals who support the right to repair. 46:55 Paul Roberts: I’m speaking to you today on behalf of our members to make clear that the fair access to repair materials sought by right to repair laws does not increase cyber risk, and in fact, it can contribute to a healthier and more secure ecosystem of smart and connected devices. Paul Roberts: Proposed right to repair legislation considered by this Congress, such as the Repair Act, or last session, the Fair Repair Act, simply asks manufacturers that already provide repair information and tools to their authorized repair providers to also provide them at a fair and reasonable price to the owners of the devices and to third parties that they may wish to hire to do their work. 47:35 Paul Roberts: By definition, the information covered by right to repair laws is not sensitive or protected, as evidenced by the fact that the manufacturers already distribute it widely to hundreds, thousands, or even tens of thousands of workers for their authorized repair providers. This could be everyone from mechanics working at auto dealerships to the folks staffing the Geek Squad at Best Buy. 48:00 Paul Roberts: Also, we have yet to find any evidence that the types of information covered by right to repair laws like schematic diagrams, service manuals, diagnostic software and replacement parts act as a portal to cyber attacks. The vast majority of attacks on internet connected devices – from broadband routers to home appliances to automobiles – today exploit weaknesses in the embedded software produced and distributed by the manufacturers, or alternatively, weak device configurations so they’re deployed on the internet in ways that make them vulnerable to attack. These security weaknesses are an epidemic. A recent study of the security of Internet of Things devices, by the company Phosphorus Labs, or a Cybersecurity company, found that 68% of Internet of Things devices contained high risk or critical software vulnerabilities. As an example, I’d like to call attention to the work of a group of independent researchers recently led by Sam Curry, who published a report, and you can Google this, “Web Hackers vs. the Auto Industry” in January 2023. That group disclosed wide ranging and exploitable flaws in vehicle telematics systems from 16 different auto manufacturers. At a leading GPS supplier to major automakers, the researchers claimed to obtain full access to a company-wide administration panel that gave them the ability to send arbitrary commands to an estimated 15.5 million vehicles, including vehicles used by first responders, police, fire and so on. Hacks like this take place without any access to repair materials, nor is there any evidence that providing access to repair software will open the doors to new attacks. 50:05 Paul Roberts: For the last 25 years, Section 1201 of the Digital Millennium Copyright Act has given manufacturers an incentive to deploy software locks widely and to limit access to security researchers. That’s kind of a model what we call in cybersecurity, security through obscurity. In other words, by keeping the workings of something secret, you’re making it secure. But in fact, that doesn’t work, because cyber criminals are very resourceful and they’re very determined, and they don’t really care what the law says. 50:35 Paul Roberts: Section 1201 has also enabled what one researcher has described as dark patterns in the design and manufacture of hardware that includes everything from locking out customers from access to administrative interfaces, administrative features of the products that they own, as well as practices like part pairing, which Kyle will talk to you more about, in which manufacturers couple replaceable components like screens and sensors and cameras to specific device hardware. Such schemes make manufacturers and their authorized repair providers gatekeepers for repairs, and effectively bar competition from the owners of the devices as well as independent repair providers. 54:45 Kyle Wiens: You think about what is local? What is American? Main Street you have a post office and a repair shop. And unfortunately, we’ve seen the whittling down of Main Street as the TV repair shops went away when the manufacturers cut off access to schematics, as the camera repair shops went away when Nikon and Canon decided to stop selling them parts. We’ve seen this systematically across the Economy. In the enterprise space, you have Oracle and IBM saying that you can’t get security updates to critical cyber infrastructure unless you buy a service contract with them, so they’re tying long term service contracts with the security updates that are necessary to keep this infrastructure secure. 56:45 Kyle Wiens: Over the last decade plus, I’ve been working on Section 1201, trying to get exemptions for the ability to repair products. The challenge that we’ve had in the section 1201 process every triennial I go back and we ask for permission to be able to fix our own things is that the exemptions we’ve gotten really only apply to individual consumers. They aren’t something that I could use to make a tool to provide to one of you to fix yourself. So in order for someone to take advantage of a 1201 exemption that we have, they have to be a cybersecurity researcher and able to whittle their own tools and use it themselves, and that just doesn’t scale. 57:45 Devlin Hartline: My name is Devlin Hartline, and I’m a legal fellow at the Hudson Institute’s forum for intellectual property. 57:50 Devlin Hartline: I’d like to start with a question posed by the title of this hearing, is there a right to repair? And the answer is clearly no. A right is a legally enforceable claim against another, but the courts have not recognized that manufacturers have the duty to help consumers make repairs. Instead, the courts have said that while we have the ability to repair our things, we also have the duty not to infringe the IP rights in the process. So it is in fact, the manufacturers who have the relevant rights, not consumers. 58:30 Devlin Hartline: Right to repair supporters want lawmakers to force manufacturers to make the tools, parts, and know-how needed to facilitate repairs available to consumers and independent repair shops. And the assumption here is that anything standing in the way of repair opportunities must necessarily harm the public good, but these tools, parts and know-how, are often protected by IP rights such as copyrights and design patents. And we protect copyrighted works and patented inventions because, as the Constitution recognizes, this promotes the public good. We reward creators and innovators as an incentive for them to bring these things to the marketplace and the public benefits from the introduction of new products and services that increase competition. Thus, the right to repair movement isn’t based on a pre-existing right. It’s instead asking lawmakers to create a new right at the expense of the existing rights of IP owners. 1:00:45 Devlin Hartline: IP owners are merely exercising their federally protected IP rights, and this is not actionable anti-competitive conduct. It is instead how the IP system is supposed to work. We grant IP owners exclusive rights so they can exclude others, and this, in turn, promotes the investments to create and to commercialize these creative innovations in the marketplace, and that promotes the public good. Aaron Perzanowski: My name is Aaron Perzanowski. I am a professor of law at the University of Michigan, and for the last 15 years, my academic research has focused on the intersection of personal and intellectual property rights in the digital economy. During that time, the right to repair has emerged as a central challenge to the notion that we as consumers control the devices that we buy. Instead consumers, farmers, Small Businesses, all find that manufacturers exert post-sale control over these devices, often in ways that frustrate repair. Aaron Perzanowski: Repair is as old as humanity. Our Paleolithic ancestors repaired hand axes and other primitive tools, and as our technologies have grown more complex, from the Bronze Age through the Renaissance, to the high tech devices that we all have in our pockets here today, repair has always kept pace. But today, manufacturers are employing a range of strategies that restrict repair, from their hardware and software design choices to clamp downs on secondary markets, and we also troublingly see attempts to leverage IP rights as tools to restrict repair. These efforts are a major departure from the historical treatment of repair under the law, the right to repair is not only consistent with nearly two centuries of IP law in the United States, it reflects half a millennium of common law property doctrine that rejects post-sale restrictions on personal property as early as the 15th century. English property law recognized that once a property owner sells an item, efforts to restrain how the new owner of that item can use it are inconsistent with the essential nature of private property and obnoxious to public policy. As the Supreme Court has repeatedly recognized, IP laws’ respect for the property interests of purchasers of copyrighted and patented goods was profoundly shaped by this common law tradition. In 1850, the Supreme Court recognized that the repair of a patented machine reflected “no more than the Exercise of that right of care, which everyone may use to give duration to that which he owns.” A century later, the Court held that the repair of a convertible car roof was justified as an exercise of “the lawful right of the property owner to repair his property.” And just a few years ago, the court reaffirmed the rejection of post-sale restrictions under patent law in Impression Products vs. Lexmark, a case about refurbishing printer ink cartridges. Copyright law, not surprisingly, has had fewer occasions to consider repair restrictions. But as early as 1901, the Seventh Circuit recognized “a right of repair or renewal under US copyright law.” When a publisher sued to prevent a used book dealer from repairing and replacing damaged components of books, the court said that “the right of ownership in the book carries with it and includes the right to maintain the book as nearly as possible in its original condition.” A century after that, Congress itself acknowledged repair as a right that owners enjoy, regardless of copyright restrictions, when it enacted section 117 C of the Copyright Act. That provision was designed to undo a Ninth Circuit decision that allowed copyright holders to prevent third party repairs of computers. Section 117 C explicitly permits owners of machines to make copies of computer programs in the course of maintenance or repair. And finally, the US Copyright Office over the last decade has repeatedly concluded that diagnosis, repair, and maintenance activities are non-infringing when it comes to vehicles, consumer devices, and medical equipment. So the right to repair is firmly rooted in basic principles of US IP law. Aaron Perzanowski: Section 1201 of the DMCA makes it practically impossible for consumers to exercise their lawful right to repair a wide range of devices, from tractors to home electronics, even though the copyright office says those activities are not infringing, and the weakening of standards for design patents allow firms to choke off the supply of replacement parts needed to repair vehicles, home appliances, and other devices. Aaron Perzanowski: One way to think about a right is as an affirmative power to force someone else to engage in some behavior, and in some cases, that is what we’re talking about. We’re talking about imposing, especially on the state level, regulations that impose requirements on manufacturers. I think that’s true of the Repair Act on the federal level as well. But, I think part of what we also need to keep in mind is that sometimes what you need to effectuate a right is to eliminate barriers that stand in the way of that right. So we can think about this, I think, helpfully in the context of tools that enable people to engage in repair. The state level solution has been to require manufacturers to give their own tools to repair shops, sometimes compensated under fair and reasonable terms. The other solution would be to change section 1201 to say, let’s allow independent repair shops to make their own tools. I think both of those solutions have some value to them. I also think it’s really important to keep in mind that when we’re talking about IP rights, there are always multiple sets of interests at stake, and one of the key balances that IP law has always tried to strike is the balance between the limited statutory exclusive rights that the Patent and Copyright Acts create and the personal property rights of consumers who own these devices. And so I think a balancing is absolutely necessary and appropriate. 1:15:20 Aaron Perzanowski: I think the best solution for Section 1201 is embodied in a piece of legislation that Representatives Jones and Spartz introduced in the last Congress, which would create a permanent exception to Section 1201 for repair that would apply not only to the act of circumvention, but would also apply to the creation and distribution of tools that are useful for repair purposes that does not open the door to broad, unrestrained, creation of circumvention tools, but tools that are that are targeted to the repair market. 1:16:40 Devlin Hartline: He cited a case about where you can repair a cover on a book. That’s very different than recreating the book, every single word in it, right? So there’s a difference between repairing something and then crossing the line into violating the exclusive rights of IP owners in the patented product or the copyrighted book. And so the things that repair supporters are asking for is that, if somebody has a design patent that covers an auto body part, well, they have the right to exclude other people from making that part, but repair supporters say they shouldn’t have that exclusive right, because, you know, we could increase competition if we just took away their design patent and now other people could make that part, and so that’s competition. But that’s not the type of competition that IP law and competition law seek to support. That’s like saying, if we just let the Pirate Bay copy and distribute all of the Disney blockbuster movies, then that’s competition, and prices would go down. But that’s not the way that we do it, right? So competition means other people come up with new products and new services, and so that’s what we should be trying to support. 1:26:45 Rep. Jerrold Nadler (D-NY): Repair advocates argue that section 1201, prevents non-infringing circumvention of access controls for purposes. But Congress contemplated this use when it passed the DMCA in 1998, allowing for a triennial exemption process. Is the exemption process working as intended? And if not, are there actions Congress can take to expand exemptions or make them easier to acquire? Devlin Hartline: What’s important about the triennial rulemaking is that the proponent of an exemption has to come forward with evidence and demonstrate that there’s actually a problem and it relates to a certain class of works, and then they can get a temporary exemption for three years. And so it is true that the Librarian of Congress, the last few rulemakings, has said that because using a copyrighted work in a way for repair, maintenance, etc, is Fair Use that they grant these exemptions. But these exemptions are quite narrow. They do not allow the trafficking of the computer programs that can crack the TPMs. And so it’s very narrowly done. And the concern is that if you were to create a permanent exemption that opens things all the way up with access controls, copy controls and trafficking thereof, is now you’re getting to the point of why we even have these TPMs under 1201 in the first place, and that’s because they guard against piracy. And so the concern is that you’re opening the piracy floodgates. You make these devices less secure, and then content owners are going to be less likely to want to put their content on these devices. Rep. Ben Cline (R-VA): How does section 1201 of the DMCA impact the ability of consumers and independent repair shops to modify or repair devices that have proprietary software and data in the consumer electronics industry? Aaron Perzanowski: Thank you so much for the question. As we’ve been talking about the copyright office in 2015, 2018, 2021, and they’re in the process for the current rulemaking, has determined that engaging in circumvention, the removal or bypassing of these digital locks for purposes of repair, is perfectly lawful behavior, but there is a major practical mismatch here between the legal rights that consumers enjoy under federal law today and their practical ability to exercise those rights. And that’s because, as Devlin was just describing, the section 1201 rulemaking does not extend to the creation or distribution of tools, right? So I have the right under federal law, to remove the technological lock, say, on my video game console, if I want to swap out a broken disk drive. How do I do that? I’d like to think of myself as a pretty technologically sophisticated person. I don’t have the first clue about how to do that. I need a person who can write that code, make that code available to consumers so that I can. All I’m trying to do is swap out a broken disk drive on my video game. But you would argue that code is proprietary, correct? So I’m talking here about a third party making their own code that is simply allowing me to engage in activity that the Copyright Office has repeatedly said is non-infringing. Rep. Ben Cline (R-VA): So you want to give them a map. Is that, essentially, what you’re saying? Aaron Perzanowski: Absolutely, yes, I do. Rep. Ben Cline (R-VA): Do trade secrets play a role in the right to repair debate? Aaron Perzanowski: There are occasions where trade secrets are important. I don’t think in the context that we’re talking about here with section 1201, that we’re typically running into trade secret issues. The state-level bills that have been introduced do typically address trade secrets and often have carve outs there. And I think that’s something worth considering in this debate. But I think it’s important to keep in mind that just because we have some hypothetical worry about some unknown bad actor taking a tool that I use to fix my video game console — Rep. Ben Cline (R-VA): It’s not unknown. The Chinese do it all the time. Aaron Perzanowski: I don’t think the Chinese are particularly worried about whether or not I can fix my video game console, and in fact, I think that point is important, but the bad actors already have these tools. All we’re trying to do is get very targeted tools in the hands of law abiding citizens who just want to repair the stuff they buy for their kids for Christmas, right? If the Chinese are going to hack the PlayStation, they’ve already done it. 1:32:25 Aaron Perzanowski: So the 1201 process is what established the legality of circumvention for repair purposes. But when Congress created that rulemaking authority, it only extends to the act of circumvention, the actual removal. Congress did not give the [Copyright] Office or the Librarian [of Congress] the authority to grant exemptions to the trafficking provisions, and that’s where I think legislative intervention is really important. 1:39:00 Kyle Wiens: One of the challenges was section 1201. It doesn’t just ban repair tools, it also bans the distribution of cybersecurity tools. And so we’ve seen security researchers….Apple sued a company that made a security research tool under 1201 and that tool has markedly made the world more secure. It’s very popular amongst government security researchers. So I think that’s kind of the sweet spot is, allow some third party inspection. It’ll make the product better. 1:41:25 Kyle Wiens: These ice cream machines are made by Taylor, and there is an incredibly complex, baroque set of touchscreens you have to go through. And then there’s a service password you have to be able to get past in order to access the settings that really allow you to do what you want. And so, in an ideal world, you’d have an entrepreneur who would come along and make a tool to make it easier for McDonald’s, maybe they could have an app on their phone that they could use to configure and help them diagnose and repair the machine. Unfortunately, the company who made that tool is struggling legally because of all these challenges across the board. If we had Innovation outside of the manufacturers and to be able to develop new tools for fixing ice cream machines or anything else, you have a whole flowering ecosystem of repair tools right now. It doesn’t exist. The US is like this black hole where innovation is banned in software repair. There’s all kinds of opportunities I could see, I had a farmer ask me for help fixing his John Deere tractor, and I had to say, I can’t do that particular repair because it’s illegal. I’d love to build a cool app for helping him diagnose and fix his tractor and get back back in the field faster. We don’t have that marketplace right now. It’s like farmers have been forced to, like, use cracked Ukrainian versions of John Deere diagnostic software, right? Rep. Russell Fry (R-SC): So it’s not just ice cream machines. I led off with that, but it’s farmers, it’s farm equipment, it’s iPhones, it’s somebody’s Xbox, right? I mean, these are all things…. in your experience, what are the challenges that these customers and stakeholders face when they’re trying to repair their own devices? What are some things that they face? Kyle Wiens: It’s absolutely infuriating. So my friend, farmer in San Luis Obispo, Dave grows all kinds of amazing products. He has a $300,000 John Deere tractor, came to me and said, Hey, there’s a bad sensor. It’s going to take a week to get that sensor sent out from Indiana, and I need to use the tractor in that time. Will you help me bypass the sensor? I could hypothetically modify the software in the tractor to do that. Practically, I didn’t have the legal ability, and so he had to go and rent an expensive tractor for the week. This is impacting people’s lives every single day. 1:43:50 Rep. Russell Fry (R-SC): So, to pivot a little bit, what role do you see from a federal side, from legislation, and what specific measures do you think might be included in such legislation? Kyle Wiens: So we’ve seen the solutions being approached from two angles. At the state level, you have states saying John Deere and other manufacturers, if you have a dealership that has fancy tools, sell those tools to consumers and to independent shops, allow that competition. At the federal level, what we can do is enable a competitive marketplace for those tools. So rather than compelling John Deere to sell the tool, we can say, hey, it’s legal for someone, an entrepreneur, to make a competing tool. And you have this in the car market. You can take your car down the AutoZone, you can buy a scan tool, plug it into your car, and it’ll decode some of the error messages. Those tools exist on the auto market because we have a standard diagnostic interface on cars that you can access without circumventing a TPM. We don’t have that for any other products. So another farmer in my town, he showed me how if he has a transmission go out on a truck, he can fix that. But if he has a transmission go out on his John Deere tractor, he can’t. He can physically install the transmission, but he can’t program it to make it work. I’d love to be able to make a software tool to enable him to replace his transmission. Aaron Perzanowski: So I think if we see passage of the SMART Act, we can anticipate significant reductions in the expenses associated with auto collision repairs. Estimates are that design patents on collision parts are responsible for about $1.5 billion in additional expenditures. We see price premiums on OEM parts over third party parts often reaching into like the 40% range, right? So these are pretty significant cost savings associated with that. Part of this problem, I think, does relate back to the kind of unique structure of this market. Most consumers are not paying out of pocket for collision repairs. Those costs are being covered by their auto insurance provider, and so the consumer doesn’t see that the – I’m pulling this from memory, so don’t hold me to this figure – but the side view mirror of a Ford Fiesta costing $1,500, that’s not something that the consumer is confronted with, right? So this goes back to the question of notice. Do consumers know when they buy that vehicle that the repairs are going to be that expensive? I think in most cases, they don’t. And so I think the SMART Act is a very targeted solution to this problem. I do think it’s important to note that the design patent issue for replacement parts is not limited to the automotive industry. I think it’s the most, I think that’s the area where the problem is most pressing. But home appliances, consumer electronics, we see companies getting design patents on replacement water filters for refrigerators so that they can charge three times as much when the little light comes on on your fridge to tell you that your water might not be as clean as you want it to be. So I think we have to think about that problem across a range of industries, but the automotive industry, I think, is absolutely the right place to start. Paul Roberts: I mean, one point I would just make is that with the Internet of Things, right, we are facing a crisis in the very near future as manufacturers of everything from home appliances to personal electronics to equipment, as those products age and those manufacturers walk away from their responsibility to maintain them. So we’re no longer supporting the software. We’re no longer issuing security updates. Who will step in to maintain those devices? Keep them secure, keep them operating right? The manufacturers walked away. Do we just get rid of them? No, because the equipment still works perfectly. We’re going to need a market-based response to that. We’re going to need small businesses to step up and say, hey, I’ll keep that Samsung dishwasher working for another 20 years. That’s a huge economic opportunity for this country, but we cannot do it in the existing system because of the types of restrictions that we’re talking about. And so this is really about enabling a secure future in which, when you buy a dishwasher with a 20 year lifespan, or 25 year lifespan, it’s going to last that 25 years, not the five to six years that the manufacturer has decided, you know, that’s how long we want to support the software for. Paul Roberts: My understanding is the use of design patents has increased dramatically, even exponentially, in the last 10 to 15 years. If you go back to the 90s or 80s, you know, parts makers, automakers were not applying these types of patents to replaceable parts like bumpers and rear view mirrors. Somebody had a business decision that, if you can do so, then we can capture more of that aftermarket by outlawing identical aftermarket replacements that has a huge downstream impact on car owners and on insurers and on all of us. 2:10:15 Paul Roberts: Both of the things that we’re really proposing or talking about here, which would be changes to Section 1201 of the DMCA as well as passage of robust right to repair laws, would empower a market-based response to keeping the internet of things working, secure and functioning. DMCA 1201 reforms by making it clear that you can circumvent software locks for the purpose of repair and maintenance and upkeep, right? So that would take the threat of the federal crime away from small business owners as well as security researchers who are interested in, you know, plumbing that software for purposes of maintenance, upkeep and repair. And on the right to repair by making the tools available to maintain and upkeep products – diagnostic software, schematic diagrams, service manuals – available. Once again, you’ll be empowering small business owners to set up repair shops and say, I’m going to keep your smart appliance running for its full 25 or 30 year lifespan, and I’m going to support my family doing that locally, and not be basically choked out of business by a company that says, Well, you don’t have the right to access this product. From a cybersecurity perspective, that is really important, because one thing we don’t want is a population of millions or tens of millions of out of date, unsupported, unpatched, insecure internet connected home appliances, webcams, home routers out there available to nation state actors, cyber criminal groups, to compromise and use for their own purposes. And that’s something we already see, particularly around broadband routers and other types of devices, and it’s a real threat going forward that I think this type of these types of changes would support. Aaron Perzanowski In a lot of instances, this conversation, and we’ve touched on this earlier, focuses on cost savings, right? And cost savings are an important consideration, right? Farmers aren’t thrilled that they have to pay a technician from the John Deere dealer to drive maybe hours to get to their farm and connect their laptop and, you know, download these payload files to enable their equipment to work. But in the agricultural space, the thing I hear most often in the conversations I have with farmers is and Kyle touched on this a bit earlier, is a real concern about the time sensitivity of their work. If your tractor is out of commission for a week or two in the wrong part of the season, that is going to have disastrous effects, right, not only on that farm’s economic outlook, but collectively, it can have an impact like, not to be hyperbolic here, but on our national food supply, and so I think it’s really important that farmers have flexibility in terms of where and how they execute repairs, so that they can get their equipment back up and running. If my laptop breaks and I can’t get it fixed for a week or two, I’m annoyed there will be emails that go unanswered, but like the world will continue to spin. That is not the case in the agricultural space where we, I think, have to be much more concerned. Rep. Darrell Issa (R-CA): If I remove from my BMW, at least during certain models, I remove the radio, unplug it, and then plug it back in, simply because I was fiddling around with the dash, I now have to go back to the dealer to reinstall it. Similarly, the transmission example. I’ve got two John Deere tractors. One’s got a busted engine, the other’s got a busted transmission. Currently, they will prohibit you from moving the transmission from one to the other. From a standpoint of intellectual property, where, in God’s green earth or the Constitution, are any of those designed to be rights that belong to the manufacturer, rather than rights that belong to the owners of those two John Deere tractors? Devlin Hartline: So those are a bunch of different situations, and so I think there would be underlying facts that differ with each right. So we started on the iPhone, and I was going to point out that iPhone will actually give you the tool to synchronize it. In those other situations, I don’t know the business justification for it. How is that an IP problem? Right? So if that’s locked up with the TPM, and you have to bypass the TPM, well then that’s a violation of 1201, so that’s how they can that’s how they can lock — Rep. Darrell Issa (R-CA): So what you’re saying is that Congress has created impediments to the right to repair. Mr. Roberts, would you say that is correct? That, in fact, the right to repair, were Congress never to have done anything since, you know, George and Thomas were our presidents, so to speak, knowing those two presidents, we’d be able to do things we’re not able to do because they’re now prohibited by acts of Congress. Paul Roberts: Yes, and we certainly know going back to the 50s, 60s, 70s, there was a much more you know….First of all, companies would ship products with service and repair manuals with detailed schematic diagrams with the understanding that owners would want to replace and service them. And what I would say is, yes, absolutely. I doubt very much. And I know we had members who were here in 1998 authoring the DMCA. I think if you had said to them, in 25 years time, this law will be used to prevent somebody with a broken dishwasher from getting that serviced by their local repair shop or by for fixing it themselves, this law will prevent them from doing that, I doubt very much they would have said, yeah, that’s pretty much what we want. Rep. Darrell Issa (R-CA): Well, I will tell you that the I was the chairman of what is now the Consumer Electronics Association in 1998 and we did predict a lot of these items were going to be expanded beyond the scope of the original. Paul Roberts: Right now this is not an urgent issue, because most of the cars out there are older vehicles. As we move forward, as telematic systems evolve, as automakers continue their trend of moving more and more information to telematic systems, this is going to become a bigger problem. I’ll point out another problem, which is the Massachusetts law is contingent on data transfers of diagnostic and repair information via the OBD or onboard diagnostic two port under the dashboard. That’s only there because of federal Clean Air law. Electronic vehicles don’t have that port because they don’t have emissions, and so in the very near future, as we shift to electronic vehicles, that data access port will no longer be there. It will all be telematics data, and so the utility of the Massachusetts law is going to decline over time, going forward. And again, I you know, when you start talking about right to repair, you become like this crazy person who talks about right to repair every time it comes up. But one thing I try and Stress to people when I talk to them about auto repair is, if you live in Michigan or California and you have taken your vehicle to the local independent repair shop, you have only done that because the voters in Massachusetts passed a ballot measure over a decade ago and then updated it in November 2020. That is the very thin thread that our right to use independent auto repair hangs by in this country. That’s not the way it’s supposed to be. This is something that affects vehicle owners, hundreds of millions of them in all 50 states. And it’s a type of thing that the federal government needs to address with federal legislation. It should not hang by this very thin thread. 2:30:20 Rep. Hank Johnson (D-GA): Are software updates new creations, and thus copyrightable? Devlin Hartline: Software updates, yeah, they’re computer programs, and so Congress said explicitly in 1980, but it was understood before then, that computer programs are literary works and they’re protected, just like any other copyrighted work. Rep. Hank Johnson (D-GA): Thank you, Professor Perzanowski, do you disagree? Aaron Perzanowski: I don’t disagree at all that software updates are protectable subject matter under the Copyright Act. But what I think is important to keep in mind right is the Copyright Act and copyrights exclusive rights, and all of the exceptions and limitations to copyrights exclusive rights are created by Congress, and so if you think those rights are interfering with other important issues and concerns, then I think Congress clearly has the power to make changes to the copyright law in order to best serve what you ultimately determine to be in the public interest. 2:35:30 Aaron Perzanowski: Access to firmware and other code is really essential to the functioning and repair of lots of devices. I think there’s some important differences between the standard essential patent context and kind of what we’re talking about here in that in the standard essential patent context, we’re relying on standard setting bodies to identify technologies and to require companies to license their patents under fair, reasonable and non-discriminatory terms. We don’t quite have that infrastructure in place in the copyright context, but what we do have are compulsory licenses that exist within the Copyright Act already, one of which you were alluding to earlier, the mechanical license for musical works. We also have compulsory licenses for retransmissions of satellite and broadcast content that essentially say the copyright owner is entitled to compensation of some form, but they’re not entitled to prevent people from using or accessing that underlying work, and I think that could be a useful framework here for getting owners of devices access to the firmware that they need. Music by Editing Production Assistance
