I have always thought that repairing a broken product is better than throwing it away, even though quite a few products are designed in ways that don’t help or directly encourage not to repair. In general, repairing is good for your personal wallet and good for the environment, right? Now that digital fabrication tools are spreading out like wildfire, it has become much easier to design and produce a spare part and repair your product. It gets even better as online communities share howtos and even design files. However several legal challenges may occur. Some examples. Anti-circumvention rules in copyright legislation restrict vehicle owners from diagnosis, repairing and modifying the software in their own vehicles. Manufacturers use patent and copyright legislation to refrain people from making their own spare parts. Let us see what this means and what we can do about it.
Corporate lobbies are trying to limit this possibility of tinkering, arguing that their intellectual property excludes you to modify “their” product, if when you acquired it legitimately. This is for example the case with John Deere, the tractor manufacturer, that claims its customers have just bough a license to operate their machine. They use the Digital Millenium Copyright Act’s (DMCA) anti-circumvention rules. In other to remedy such restrictions the EFF requests exemptions on the DMCA for the owners of vehicles and agricultural machinery. They refer to fair use, as defined in US Copyright law: “Copying and manipulating vehicle software in the course of diagnosis, repair, and modification is authorized by fair use”. However the US Environmental Protection Agency (EPA) requests the Copyright Office to deny those exemptions. EPA considers that vehicle owners should not be allowed to access vehicle software “for purposes of lawful diagnosis and repair, or aftermarket personalization, modification or other improvement” and “for reasons of researching the security or safety of such vehicles.” Or more generally this means that you’re not allowed to install custom software on your iPhone, take DRM control off of your ereader or calibrate your vehicle software, or even protect your anonimity on the road, as some vehicles emit identification signals, without the owner even knowing it.
John Deere has argued that allowing people to alter the software—even for the purpose of repair—would “make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software,” (see Wired article). I can’t avoid to note that the term “pirate” as used by John Deere is so far away from its original meaning that one can only laugh.
The Volkswagen scandal that became public recently shows who is really the “pirate” here; not the enduser but the manufacturer itself tampering with the emissions control software.
In the context of vehicle software two main questions arise. First, is restricting access to vehicle software really a good thing? Especially given that this is complex software with very large code bases and at the same time security flaws may have fatal consequences. Research shows that free software, that can be audited publicly due to the open access to the source code, tends to have less bugs than proprietary, closed software.
Second, is it effectively enforceable? History has shown us so many cases where such restrictions were circumvented in practice (PGP, DeCSS DVD codecs, filesharing in general).
Given the importance of sustainability of planet and people there is a strong case that we as society should strengthen the right to repair, and encourage manufacturers to design for repairability and publish design files allowing local makers and repair shops to extend their products’ lifes.
The Right to Repair in fact exists already in a large extent. Especially if we consider that Digital DIY empowers people to do it themselves. That’s a case of private, non-commercial use, which happens to be an exemption to most intellectual property rights in many legislations. Bradshaw, Bowyer and Haufe make the case for UK legislation. In short they review the case of using 3D printing a spare part for repairing one’s own product. These authors review the UK legislation and suggest that:
- copyright doesn’t apply when creating a design file that looks like the part to be replicated.
- furthermore copyright in a design document is not infringed by making an article from it (CDPA 1988 s51)
- private, non-commercial use exempts design rights and also patent rights from being applicable
- “trademarks are infringed by use in the course of trade of the same mark on similar goods”, but there’s no trade at all, so these should not be applicable. Furthermore one could also simply avoid printing the trademark in question and avoid possible causes for litigation
- however uploading and sharing such design files will be considered infringing patent law (when patents exist), as it provides others with the means to infringe on a patent
Even if these exemptions exist, corporate lawyers may try to threaten with infringement claims. Considering the importance of repair for people and planet, for ethical, sustainability and economic reasons, we might need to strengthen these exemptions and raise awareness that repairing ones’ own goods has been and should be a “fair use”. Combine that with the reality that individual makers are engaging in this practice in the private sphere, or in collective spaces like FabLabs and outside the market.
It recalls the War on Filesharing (Part I) where the copyright industry ran campaigns at schools to make clear that copying is illegal. Copying of course is one of the most fundamental aspects of human nature; an important step in the learning process. Similarly studying, repairing and modifying one’s products is a fundamental freedom – or has been like that, and we should reclaim it. It is important for learning and tinkering; it is important for ethical reasons of autonomy and sustainability of our planet and it is within liberal logic of private ownership that should have full control over the products it legitimately acquires.