Two powerful federal agencies are pressuring the U.S. Copyright Office to expand regulations that would favor the right-to-repair lobby, which could include security-related devices.
The Federal Trade Commission and the Department of Justice’s Antitrust Division submitted a joint comment to the Copyright Office as it considers whether to recommend the Librarian of Congress renew and expand temporary exemptions to the Digital Millennium Copyright Act.
The DMCA prohibits the circumvention of technology protection measures that control access to copyrighted content except with certain exemptions.
In their comment, the FTC and DOJ said renewing and expanding repair-related exemptions would promote competition in markets for replacement parts, repair and maintenance services, as well as facilitate competition in markets for repairable products.
“Promoting competition in repair markets benefits consumers and businesses by making it easier and cheaper to fix things they own,” the agencies said. “Expanding repair exemptions can also remove barriers that limit the ability of independent service providers — including small businesses and entrepreneurs — to provide repair services.”
The Monitoring Association and Security Industry Association declined to comment this week on the FTC and DOJ’s joint statement, although the organizations have been fighting to get exemptions for security technology into in Right-to-Repair legislation being considered in numerous states.
The FTC has aggressively been pushing for Right to Repair legislation in recent years, asserting that technology protection measures manufacturers use to protect copyrighted works from theft and infringing uses also prevent non-infringing third-party repair.
The protections can restrict access to computer maintenance hardware and software programs, for example, leaving only original equipment manufacturers able to do maintenance and repair work, the agency said.
The FTC and DOJ also believe technology protection can be used to squash competition for replacement parts, repair and maintenance in a way that limits consumers’ and businesses’ choices and raises costs.
The agency held a Nixing the Fix workshop in 2019 that focused on repair restrictions. The FYV then issued a report in 2021 based on input provided at the workshop, and released a policy statement in mid-2021 pledging to vigorously enforce the law to combat repair restrictions that violate antitrust and consumer protection laws.
As for the Copyright Office, the FTC and DOJ expressed support for renewing, expanding, and adding some specific DMCA exemptions.
The agencies support renewing the current exemption related to computer programs that control devices designed primarily for use by consumers for diagnosis, maintenance, or repair of the device and expanding it to include commercial and industrial equipment.
Gay Gordon-Byrne, executive director of the Right to Repair organization, said the federal agencies have “real authority” over enforcement of antitrust law, the FTC Act and the DMCA, which is important because state laws cannot effect change to federal regulations.
She said the FTC has responded to all requests made by state legislators to answer questions or provide testimony, adding that Right to Repair’s members have been engaged in triennial reviews from the Copyright Office since 2012.
“We've done about as much as we can do through the exemption process -- now adding industrial controls -- and we hope this support can push the Congress to remove the abuse of Section 1201 to restore access to non-infringing tools and service materials,” Gordon-Byrne said.
