Did The Supreme Court Pave The Way For You To Actually Be Able To (Legally) Repair Your Car?

You can go ahead and blame the DMCA rulemaking process for all of your troubles.

You bought it, you own it. This is a fundamental principle in the analog world, but in the era of the Internet of Things where many tangible products — your toaster oven, cell phone, printer, or car, for example — all have embedded software with digital rights management (DRM) attached, this principle may no longer hold true. Manufacturers of these items can use DRM, or “digital locks,” to control what you can and can’t do with them. The digital locks may be enabled to prevent you from using particular apps on your phone, your printer, or reading an eBook on a different device from the eReader you originally purchased it on.

Due to an ambiguity in the Digital Millennium Copyright Act (DMCA), whether the very act of breaking a digital lock is itself an infringement of copyright, apart from any underlying unlawful act, is an area where courts have split. The producer of any tangible object with embedded software can therefore slap a digital lock on to prevent you from using your purchase they way you want. Even though these types of items have virtually no relationship to traditional copyright protection, copyright law might prohibit what would otherwise be completely lawful uses.

To avoid potential litigation for copyright infringement, before breaking the digital locks, groups or individuals must request an exemption from anti-circumvention laws from the Copyright Office. Under current law, these exemptions only last three years before the lengthy rulemaking process begins again. Past exemptions have covered everything from allowing people who are visually impaired to enable the text-to-speech function on e-readers to render the text accessible, to unlocking an implemented medical device for a patient to access the data generated, to allowing the unlocking of cell phones (an ill-conceived refusal to renew this exemption in 2012 sparked a huge backlash).

During the last rulemaking cycle in 2015, the issue of whether you can actually repair your own vehicle was the latest absurd example in the ways DRM is misused. Farmers had to ask the Copyright Office for permission for the right to repair their own tractors where digital locks had been placed on the embedded software on their vehicles. Of course, John Deere (and other automakers) opposed the request for an exemption, claiming that the farmers didn’t actually own the tractors in their entirety, but just received an “implied license” to operate them because of the software embedded. John Deere even claimed that allowing a farmer to repair his tractor could lead to piracy in music because the vehicles have entertainment systems. Luckily, the Copyright Office rejected these arguments and granted an exemption to permit owners of vehicles to repair them. This exemption will only last until 2018 and if farmers want to continue to use this exception, they’ll have to ask for it and demonstrate their need for it once again.

The rulemaking process has been criticized and bills have been introduced in Congress proposing that infringement for circumventing digital locks applies only where there is an underlying violation of traditional copyright. Until the law changes or the Supreme Court clarifies that there must be a nexus between circumvention and an underlying copyright infringement, we are stuck with a growing number of everyday technologies that are encumbered by digital locks and prevent otherwise normal uses.

A recent Supreme Court case, Impression Products v. Lexmark International, may have sent a signal that you really do own that car you purchased. The case involved a printer company, Lexmark, which tried to restrict the refill of its cartridges by third parties by restricting the ability of a consumer to reuse or resell the used cartridges. While Impression Products v. Lexmark was really about whether a patent holder “exhausts” his rights after the first sale of the item in the same way that the first sale doctrine applies to copyright law (it does), Justice Roberts’s majority opinion also lays out an interesting illustration, pointing out the impracticalities of using intellectual property law to prevent downstream uses such as repair of tangible products:

Take a shop that restores and sells used cars. The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, restrict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits . . . And advances in technology, along with increasingly complex supply chains, magnify the problem.

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That the Supreme Court used this same example to illustrate its point shows that it’s a highly practical and relatable consideration. Cars make a perfect example because we’re all familiar with bringing our car to the shop to get fixed. It would be inconceivable to think that just because our car has a GPS system or software allowing diagnostics that we don’t really own it and can’t repair or tinker with it without permission, but that may well be the reality. Just ask the farmers who went up against John Deere in the last DMCA rulemaking process.

While several circuits have considered the broader issue of whether there must be a link between breaking a digital lock and the copyright it is supposed to protect, the Supreme Court has yet to hear a case on this issue. If the majority opinion in Impression Products v. Lexmark Internationl is any indication, Justice Roberts and the six justices may lean toward avoiding the absurd suggestion that we don’t actually own our vehicles, we’re just operating under an “implied license” to use the embedded software during the life of the car.

On the issue of vehicle repair, at least, the Copyright Office seems to agree that Congress should consider a permanent exemption for the right to repair. In a recently concluded, nearly 200-page report, the Copyright Office considers proposals and makes various recommendations to reform this section of the DMCA, and supports a Congressionally created exemption for the right to repair. Still, until the Supreme Court rules on the issue or Congress intervenes, we are still dependent on a favorable disposition every three years from the Copyright Office to fix that car (or fill in the blank with your choice of product with embedded software) you bought.


Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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