Copyright Corner Q&A Series: Nathan Proctor, U.S. PIRG Senior Right to Repair Campaign Director

For our latest Copyright Corner Q&A series installment, Re:Create spoke with Nathan Proctor, U.S. PIRG’s Right to Repair Campaign Director. Proctor explains the intersection between the right to repair and copyright law, and how manufacturers have weaponized and abused copyright protections to limit consumers’ abilities to fix products. Proctor also discusses the growing momentum in support of consumers fixing or tinkering with products and recent legislation that further aims to protect and expand consumers’ access to repair.

Re:Create’s Copyright Corner Q&A series features conversations with leading policymakers, academics and thought leaders to break down complex copyright issues and examine how copyright interacts with American jobs, creativity and innovation. Read below for the full discussion.

Q1: The right to repair movement has been gaining momentum. Can you tell us more about its origin and what got it all started?

A: Right to Repair issues have been cropping up for more than 100 years, not long after the mass production of products. This history is explained brilliantly in Aaron Perzanowski’s book “Right to Repair: Reclaiming the Things We Own.” While it’s terrific reading, a version of the short history is that as soon as it became possible to design products that relied exclusively on the manufacturer for repairs or spare parts, manufacturers started using these tactics. The Right to Repair was built into how we set up patent and other laws to protect manufacturers’ innovations. But these issues have ramped up significantly as we have greatly expanded intellectual property protections covering the use of firmware and software, creating new ways to frustrate repair and monopolize service revenue connected to a product.

The car repair industry first started using the term “Right to Repair” around 10 years ago, and that industry was the first to pass laws protecting access to critical service information.

Q2: Can you explain what role copyright law plays in the right to repair debate and how manufacturers have been abusing copyright law to restrict consumer repair rights?

A: There are a few legal underpinnings to repair monopolies. One of those underpinnings is copyright law. The software or firmware running on our modern devices is protected by copyright, and bypassing digital locks in order to service the product is a distinct federal crime. 17 U.S.C. § 1201 (known as “Section 1201”) is designed to protect copyrighted works from piracy and makes it a crime to bypass a digital lock set up to protect copyrighted content like music, video games or movies. But some manufacturers have exploited that provision to lock consumers into their own expensive, inaccessible repair services, by locking repair functions, too. These digital locks turn fixing your phone, computer, or tractor into copyright infringement subject to civil and criminal penalties.

You can get an exemption from the copyright office to bypass a lock, but they do not grant exemptions for sharing or selling tools that can bypass said lock. In other words, the copyright office can say it’s not a crime to bypass a certain feature to fix a product, but you can’t sell the tool which makes that possible. So if you want to fix it, you have to figure out how to bypass the lock by yourself, which is basically a right without a remedy. We are supporting legislation to make repair exemptions to Section 1201 permanent, expansive and inclusive of tools (Freedom to Repair Act, HR 6566).

Q3: In July 2021, the Biden Administration directed the FTC to draft new right to repair rules and the FTC followed by voting to expand repair options. What impact has this had on your work?

A: The tide has clearly turned against manufacturers restricting repair, and it’s hard to give a clearer signal to companies than having the sitting president call for reform. The FTC’s quick, unanimous support for enforcing repair restrictions came shortly after. Over the next 6 months, Microsoft, Google, Samsung and Apple all announced expanded repair programs. There are many factors that led to these breakthroughs, including shareholder resolutions for three of those four companies. But the president’s support and the FTC’s investigations clearly made an impact on manufacturers.

Q4: New York State’s approval of a right to repair bill in June came on the heels of similar legislation recently signed into law in Colorado. What do you think accounts for these significant victories?

A: We know that companies are resigned to some degree for Right to Repair concessions to be made. But until we passed laws, companies kept trying to do the bare minimum in terms of repair access. These wins are huge milestones in our efforts, proof of concept, and make sure that we can lock in gains for repair for the long haul.

Q5: Manufacturers are finding new ways to circumvent repair rights. Can you explain how the FTC’s recent action against Harley-Davidson and Westinghouse will help protect consumers?

A: Not sure I would describe violating a law on the books since the 70s a new tactic! The fact of the matter is that a Right to Repair was baked into many laws, including warranty law. Antitrust experts have long understood that using one sale to force other sales for goods or services, known as tying, is something to protect consumers against. When the Magnuson-Moss Warranty Act was enacted in 1975, it made sure that manufacturing companies couldn’t use the threat of a voided warranty to force consumers to purchase brand-label parts or services. What the FTC found was that Harley-Davidson, Westinghouse and Weber were doing was attempting to deny warranty coverage because product owners had purchased aftermarket parts or repairs for their products. This is forbidden by warranty law.

The real damage is when consumers think that manufacturers have some kind of secret rights over your device and your tinkering or fixing is a violation of that agreement. You have a right to tinker and fix, to use aftermarket parts — and I hope we begin to unravel this myth that manufacturers are allowed to dictate what you do with your stuff.

Q6: Where are your efforts focused now, which other states are moving closer to passing right to repair laws?

A: I’ll let my opponents guess on that. We are focused on winning this campaign so people can fix their stuff everywhere they happen to be, in such a way that these reforms are long-lasting and robust.