By Cecily Capo
On October 28, 2021, the U.S. Copyright Office adopted exemptions to provisions in the Digital Millennium Copyright Act (DMCA) which will allow for technological protection measures (TMPs) to be bypassed if certain conditions are met.[1] The DMCA was enacted in 1998 to implement two World Intellectual Property Organization (WIPO) treaties and address various copyright-related issues.[2] The provision at issue, title 1, prohibited the “circumvention of technological measures employed by or on behalf of copyright owners”.[3] These measures were put in place to ensure that only the copyright owner could make alterations to the copyright-eligible features of their product, such as software.[4] However, under this new ruling, the restriction will not apply to those who use a copyrighted work for non-infringing purposes for three years.[5]
Prior to this ruling, if a copyright owner licensed its product to a third party and the third party circumvented a technological measure in some way without the owner’s permission, the third party would be found to have infringed the owner’s copyright.[6] Since software is often protected by copyright, any alteration to it could be seen as an infringement.[7] As a result, the right to repair movement spread across the country.[8] Many have argued that if they are prohibited from altering a product’s software, they are unable to make repairs to it, and thus they are at the mercy of the manufacturer.[9] For example, a farmer who purchases a new tractor equipped with an electronic feature would often be without the legal right to make repairs, since certain repairs would be seen as circumventing a technological measure without the owner’s permission.[10] The U.S. Copyright Office’s ruling remedies this concern by giving purchasers three years to circumvent the product’s technological measures for non-infringing uses without fear of recourse by the copyright owner.[11]
There has been some concern regarding how this ruling will affect the security of medical devices. Peter Pitts, President of the Center for Medicine in the Public Interest, opined that this ruling will open the door to anyone hacking into secure medical devices and claiming it is for purposes of repair, calling it an “open season” for medical device hacking.[12] Pitts said that the unintended consequence of this ruling is that a once hard to track illegal activity becomes a hard to track legal activity and puts patient safety and security at risk.[13] However, this exemption will only be granted if one can show that their ability to make non-infringing uses of their copyrighted work will be adversely affected by the safeguards put in place by the DMCA.[14]
[1] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).
[8] Ron Lyseng, U.S. Farmers Fight for Right to Repair, The Western Producer (Mar. 8, 2013), https://www.producer.com/crops/u-s-farmers-fight-right-repair/.
[9] Id.
[10] Id.
[11] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).
[12] Peter J. Pitts, Right-to-Repair: Building Back Worse, IP Watchdog (Jan. 6, 2022), https://www.ipwatchdog.com/2022/01/06/right-repair-building-back-worse/id=142476/.
[13] Id.
[14] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 37 C.F.R. § 201 (2021).