Copyright Office Ruling Issues Sweeping Right to Repair Reforms

["Dave Farber" <farber () gmail com>]

Begin forwarded message:

> From: Richard Forno <rforno () infowarrior org>
> Date: October 26, 2018 5:57:12 JST
> To: infowarrior list <infowarrior () attrition org>
> Cc: Dave Farber <dave () farber net>
> Subject: Copyright Office Ruling Issues Sweeping Right to Repair Reforms
>
> Copyright Office Ruling Issues Sweeping Right to Repair Reforms
>
> written by Kyle Wiens
>
> https://ifixit.org/blog/11951/1201-copyright-final-rule/
>
> Six months ago, on a sunny spring day in LA, I donned a suit—a rare event—and walked into a courtroom at UCLA. With 
> me were Robert Miranda, a 24-year-old entrepreneur who runs an Xbox and smartphone repair shop in the desert town of 
> Barstow, California, and Matt Zieminski, one of the better iPhone repair technicians in the world.
>
> We were there to petition for the freedom to tinker. There’s an obscure aspect of copyright law that is being abused 
> by big manufacturers to take away our ability to fix things. In 2001, Sina Khanifar, a young entrepreneur, was sued 
> by a cell phone manufacturer citing section 1201 of the DMCA, the Digital Millennium Copyright Act.
>
> Simply stated, 1201 makes it illegal to ‘circumvent’ locks put on products by the manufacturer without permission. It 
> shifts control of our products from us, the owners, to the original makers of the equipment. This law has been a 
> significant contributor to the steady erosion of ownership rights.
>
> Over the last twenty years, section 1201 has become notorious for stripping away the freedom of security researchers, 
> cell phone recyclers, and farmers. Right now, General Motors is suing popular auto parts company Dorman for copyright 
> infringement for selling aftermarket transmissions.
>
> Fortunately, Congress built an escape hatch into section 1201, allowing citizens to petition for exemptions to the 
> extraordinarily broad law. So, every three years, someone has to go and ask for the right to tinker with our stuff. 
> I’m that someone—that’s why I was in LA.
>
> On behalf of the iFixit community, I came to ask for permission to circumvent digital locks in order to fix our 
> stuff. Fortunately, I wasn’t alone. Along with Robert and Matt representing Repair.org, I was joined by Cynthia 
> Replogle, iFixit’s rockstar lawyer. And Cory Doctorow, Kit Walsh, and Mitch Stoltz from the Electronic Frontier 
> Foundation, as well as Jay ‘Saurik’ Freeman of Cydia iPhone jailbreaking fame. We also had help from Jef Pearlman and 
> his team of students from Stanford’s IP law clinic. Our allies were met with opposition from a variety of moneyed and 
> acronymed interests—the MPAA, RIAA, and the Auto Alliance, to name a few.
>
> Over three full days in LA, we were grilled by the Copyright Office. They wanted details on how cell phone baseband 
> processors work, how automotive telematics systems are different from OBD II diagnostics, why you can’t simply swap 
> in a new Blu-ray drive into an Xbox, and so forth. It was exhausting—for us and for them. But they had done their 
> homework, and asked intelligent questions on a startling variety of topics.
>
> The final ruling was released today, along with 342 pages of background. Our work, and that of our allies, was cited 
> extensively. The Copyright Office clearly understands the frustration that the repair community is experiencing. In 
> the introduction to their ruling, they include this quote, “[i]t’s my own damn car, I paid for it, I should be able 
> to repair it or have the person of my choice do it for me.”
>
> Unlike past rulings, this goes into effect immediately. Well, almost immediately. The new rules are the law of the 
> land as of this Sunday, October 28. So let’s break it down, and talk about what’s illegal today that will be kosher 
> come Sunday. (Oh, and here’s the decision from 2015 for comparison.)
>
> Major new freedoms:
>
>    • You can now jailbreak Alexa-powered hardware, and other similar gadgets—they call these ‘Voice assistant 
> devices.’
>    • You can unlock new phones, not just used ones. This is important for recyclers that get unopened consumer 
> returns.
>    • We got a general exemption for repair of smartphones, home appliances, or home systems. This means that it’s 
> finally legal to root and fix the Revolv smart home hubs that Google bricked when they shut down the servers. Or 
> pretty much any other home device.
>    • Repair of motorized land vehicles (including tractors) by modifying the software is now legal. Importantly, this 
> includes access to access telematic diagnostic data—which was a major point of contention.
>    • It’s now legal for third-parties to perform repair on behalf of the owner. This is hugely important for the 
> American economy, where repair jobs represent 3% of overall employment.
> The ruling was not without some bad news:
>
>    • Our game console repair petition was denied, meaning repairs of PS4 and Xbox One systems are going to stay 
> expensive.
>    • Products that are not ‘smartphones, home appliances, or home systems’ or ‘motorized land vehicles’ are excluded. 
> So boat and airplane owners are still out of luck.
>    • An exemption request by Bunnie Huang and EFF to bypass HDCP, the copy protection on HDMI for the purposes of 
> expanding the TV ecosystem was denied.
> We are going to continue to have trouble making repair options available for Xbox and Playstation optical drives 
> because they’re cryptographically programmed at the factory. We asked for the ability to pair a replacement drive 
> with an existing console. But the Copyright Office declined, stating that ‘in many cases, manufacturer repair 
> services will be widely available and adequate.’ On behalf of gamers in rural communities around the country, I 
> respectfully disagree.
>
> Taylor Swift and Telematics
>
> You may find this hard to believe, but one major point of discussion at the hearing was whether letting people repair 
> cars and tractors would allow them to pirate music and movies using the vehicle’s entertainment systems. In their 
> 2015 filing, John Deere speculated that farmers might pirate Taylor Swift music using their equipment. Fortunately, 
> the Copyright Office saw through that argument:
>
> Most of opponents’ concerns, while significant, primarily relate to accessing entertainment works through vehicle 
> entertainment systems and related subscription services, not to repairing more functional software installed to 
> facilitate vehicle operation, which may require bypassing TPMs that incidentally protect entertainment systems.
>
> This Ruling is not a Panacea
>
> With those few exceptions, the Copyright Office went as far as they could in granting access to the repair community. 
> There are still significant limits, though, that will need to be addressed by Congress.
>
> One of those being the law against ‘trafficking’ in circumvention tools. From today’s filing, “limiting the exemption 
> to individual owners threatens to render it effectively meaningless for those who lack the technical knowledge to 
> access and manipulate increasingly complex embedded computer systems.” Now that circumvention is required to perform 
> repairs, and most repairs benefit from tools, we need to open up a market for developing and selling those tools. 
> Legislation like Congresswoman Zoe Lofgren’s Unlocking Technology Act would provide the clarity that tool developers 
> need. It would also be helpful for service providers to codify the ability of third-parties to perform service.
>
> A Groundbreaking Decision
>
> Nowadays, just about everything has software. Your ability to fix and maintain the products you own is contingent on 
> being able to modify that software. But our tooling hasn’t kept up. For fear of prosecution, farmers and independent 
> mechanics haven’t developed their own software tools to maintain their equipment. Now, they can.
>
> This ruling doesn’t make that tooling available to the public—we’re going to need actual Right to Repair legislation 
> for that. But it does make it legal to make your own tools. And that’s a huge step in the right direction.
>
> This is a sweeping victory. It’s the result of years of careful, painstakingly detailed work by the community. So pop 
> a celebratory bottle, or maybe pop open a piece of household hardware this Sunday—we did it!



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