A US Federal Court Just Dealt the Internet a Huge Blow

A US Federal Court Just Dealt the Internet a Huge Blow

Every week there are too many developments in the world of repair for any mere mortal to keep track of. Fortunately, Paul Roberts, the author of the Fight to Repair newsletter, is no mere mortal, at least when it comes to recapping the most important repair news. Each week, he highlights the biggest and most important repair story you need to know about.

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The Big News:

US Appeals Court Not Convinced DMCA Stifles Free Speech

The DMCA is why every console repair shop has a stack of “unrepairable” PS4s with broken optical drives.

Look around for an answer to “why” product and device repair has become so difficult in the last 30 years and you’re likely to come across references to the “DMCA”—that is, the 1990s-era Digital Millennium Copyright Act. Without delving into the legal nitty-gritty, the DMCA made it a crime to circumvent digital locks—like digital rights management software—for any reason, all in the name of preventing digital piracy. These locks make it impossible to replace the disc drive on an XBox or PlayStation, or fix a bunch of problems in tractors. But getting around them is illegal even for so-called “non-infringing” ends, such as academic research or making personal copies of the protected media, something that has long been allowed under the law.

Of course, a law that prevents an engineer from sharing open-source code or an academic from describing a particular method by which a digital lock can be circumvented sounds a lot like a law that is suppressing free expression. And that was the basis of a legal challenge to the DMCA filed more than six years ago in federal court, USCA Case #21-5195, Matthew D. Green et. al vs. U.S Department of Justice. (EFF has a nice write-up of it here.)

Last week, the Court of Appeals for the DC Circuit finally issued a ruling in that case that looked past the obvious harms caused by the DMCA and left intact a law that requires academic researchers, tradespeople, farmers, advocates, teachers, and tinkerers to come on bended knee to the Librarian of Congress every three years to beg for government permission to do their work.

U.S. Appeals Court on DMCA: “This is fine!”

In ruling against Mr. Green, a renowned expert on cryptography, and his co-litigant, Andrew “bunnie” Huang, the inventor and device hacker (Bunny wrote the tome Hacking the X-Box, famous in hardware circles), the Appeals Court took a couple of different avenues. For Green—who intends to publish a book on anti-circumvention technologies—the D.C. Appeals Court found that he had no standing to sue because the U.S. Justice Department indicated to the Court they don’t consider his book to be a violation of the DMCA and would not bring suit against him. (File under: “cold comfort.”)

For Huang, who wished to sell software dubbed NeTVCR that allows individuals to capture and manipulate digital video streams for creative purposes in line with legal “fair use,” the Court agreed that NeTVCR software was indeed a form of “expression,” but that the function of Huang’s software was to infringe copyright and, therefore, it was OK for the government to suppress that particular speech. More broadly, the Court’s justices saw no issues with provisions in the law that require those seeking DMCA exemptions to undertake a costly and time-consuming legal process to win exemptions from the Librarian of Congress for activities that in every other way are already allowed under existing U.S. copyright law.

For proof that the law was working well, the Appeals Court cited the Register of Copyrights—which runs the US Copyright Office and “monitors ‘changes to the copyright system spurred by digital technologies’ and their impact on the DMCA… in order to assess the continued value of the statute.” The Register had conducted a “comprehensive public study on the operation of section 1201” and “declined to recommend ‘broad changes’ to the DMCA, the Court noted. “‘[T]he statute’s overall structure and scope, it concluded, ‘remain sound.’” (See also: Fox v. Henhouse).

Of course, everything is not “fine” with the DMCA. In the context of repair, the DMCA empowers corporations like Deere to use digital locks and the legal sanctions attached to circumventing them to prohibit its customers and independent repair providers from servicing and repairing Deere equipment. Cory Doctorow has called this a “Felony Contempt of Business Model”—a proliferation of “anti features” that shift power and money from owners to manufacturers.

So, while the Librarian of Congress allowed a DMCA exemption for software running farm equipment, the law still prohibits the distribution or sharing of software (again: software is a form of protected speech) for the purposes of circumvention. Practically, that means that it falls to each individual farmer to figure out his or her own way around the digital locks to perform maintenance—a highly technical and resource-intensive endeavor that few (if any) farmers are capable of. The result? The Librarian of Congress’s much-heralded “exemption” for farm equipment has little practical application for most farmers. The same is true of the exemption for video game equipment.

It’s not all bad news. As the EFF pointed out in a blog post following the ruling, the Appeals Court did not weigh in on critical issues in the case, including the argument that the DMCA is invalid on its face, not just as applied to the plaintiffs.

Resistance to the ban on circumventing these digital locks continues: Bills to change this law are under consideration in both the US and Canada.

Other News

  • Canadians speak up as lawmakers consider right to repair bill: “For far too long, manufacturing giants have exploited Canadian consumers by making their products increasingly expensive and challenging to repair through restrictive warranties, software locks, design features and restrictions on who can access spare parts and repair manuals. This forces consumers out of a competitive market and into a monopoly market in which manufacturers set the costs of repair parts and services,” the group OpenMedia testified to the Canadian House of Commons. Canadian wheat growers were also in Ottawa to advocate for the bill, C-244, as were farmers from the province of Saskatchewan.
  • Samsung’s new repair app: Samsung is reportedly creating a phone application to help users complete repairs without the help of companies and authorized repairers. The release date is unknown.
    Also: The company may be extending self repair to watches and ear buds.
  • Subaru sued over biometric data: A woman in Illinois is suing the car company over the fact that it scanned her face and eyes before she was able to agree to terms of service.
  • “Convenient” electronics replacements promote waste: Umar Shakir at the Verge tells about his experience with repairing a Nintendo Switch controller—and how a replacement was a worse option than repair.
  • Advocates push NY Governor on new bills: While the Digital Fair Repair Act sits at the feet of New York’s Kathy Hochul, advocates are pushing for other expansions of the responsibility of businesses to consumers:
    • Through extended producer responsibility (EPR) legislation focused on carpet production, the state is trying to share the burden of fighting carbon pollution with the manufacturers of polluting products. The state generates 515 million pounds of carpet waste annually. Virtually no carpets are recycled in NYS and many contain unhealthy chemicals.
    • A bill to reduce landfill waste across the state through EPR on packaging. Like with the carpet EPR, the government is shifting the burden to manufacturers, in this case makers of paper and packaging.
    • New York City will debate a “Skip the Stuff” bill that would require restaurants, food couriers, and delivery apps to refrain from providing eating utensils, napkins, etc. unless a consumer asks for them. NYC has found 36 million pounds of single-use plastic food-ware in the city’s residential waste system.
  • EU repair advocates unimpressed with environmental proposals: Right to repair has been left off the latest round of circular economy proposals by the European Commission. Additionally, proposals to create laws holding businesses accountable on greenwashing (lying about being environmentally friendly) have been scrapped.
    • You can learn here about how about the European Union is influenced by corporate interests.