US Copyright Office Extends Repair Rights For Software-Compatible Devices | McDermott Will & Emery
The US Copyright Office has issued new regulations expanding and strengthening consumers’ rights to repair software-enabled digital devices (such as video game consoles and medical devices) through exemptions from the Digital Millennium Copyright Act.
Under 17 USC Â§ 1201, it is generally illegal to âcircumvent a technological measure that effectively controls access toâ copyrighted works. The Copyright Office issued the new exemptions to make it easier to repair software-enabled devices in response to petitions from several organizations, including the Electronic Frontier Foundation and the iFixit and Repair Association. Regulation on this subject takes place every three years, with the first regulation taking place in 2000. In previous regulatory sessions, the Copyright Register recommended – and the Librarian of Congress adopted – 17 groups of exceptions. This session, the Registry recommended 14 additional categories of exemptions.
Among the 14 categories of exemptions that were recommended and adopted, we find the following:
- Computer programs that exploit the following types of devices, to enable diagnosis, maintenance and repair:
- Land vehicles or motor ships
- Devices primarily designed for use by consumers
- Medical devices and systems.
This proposed class initially included “modification” in addition to diagnosis, maintenance and repair, but the exemption for modifications was eventually removed. The Registry considered that the inclusion of all “modifications[s]Would encompass both infringing and non-infringing activities and involve the right to prepare derivative works, as well as other matters.
This proposed class, âComputer Programs – Repairâ, was initially divided into four general categories: â(1) all devices compatible with the software; (2) vehicles and ships; (3) video game consoles; and (4) medical devices and systems. Not all categories were successful because the registry removed all software-compatible devices from the recommendations. The recommendations indicated that this category would have made the class too broad and would have raised the complex question of what types of devices would be eligible for authorized repair.
After examining all the questions, the Registry determined that the following three classes had enough in common to recommend them: computer programs in devices primarily designed for use by consumers (such as repairing optical drives in video games ), computer programs in ships and computer programs and data in medical devices and systems. The enacted exemptions expand the current exemptions for the repair of vehicles and devices and added an exemption for the repair of medical devices and systems.
The rules also extend the exemptions to devices intended for consumers only. In recommending exemptions for device repair, the registry found important commonalities between uses and users in terms of the diversity of software devices designed for use by consumers. The registry determined that the limited uses of “diagnostic, maintenance and repair” were supported by the fair use factors, and that the exemption was “not accomplished for the purpose of accessing other copyrighted works by copyright â. The recommendations also contained a special subset for video games, which restricts the exemption only to repairing optical drives. The rules state that if the video game console does not contain an optical device, it does not qualify for the exemption. This specification was designed to address “legitimate concerns about the connection between console bypassing and hacking”.
The rules also expand the existing exemption for land vehicles to include ships. The Registry considered that the proposed uses would likely be non-infringing on ships and that the similarities between ships and land vehicles left no reason to differentiate them.
Finally, the rules included a new exemption to bypass restrictive access to firmware and maintenance equipment for medical devices and systems for diagnosing, maintaining and repairing these devices. The registry determined that the prior ban on circumvention of technological protection measures (TPM) made “medical equipment software and manuals less available for use in non-infringing diagnostics, maintenance and repair.” The registry further determined that the narrow categories of diagnostics, maintenance and repair would limit potential damage to the market because such uses support programs rather than displace them.