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September 17, 2021

iFixit thanks the Government of Canada for this opportunity to comment on the impact of the Copyright Act’s prohibition on circumvention of Technological Protection Measures on the ability of consumers and businesses to repair what they own.

iFixit is an open-source, online repair manual for everything. Our mission is to provide people with the knowledge they need to make their things work for as long as possible. iFixit represents a global community of makers, fixers, refurbishers, tinkerers, and repair professionals. In 2020, the iFixit community taught repair to over 100 million people from almost every country in the world, including over 5 million people in Canada. Our strongly collaborative group has published over 70,000 repair guides on everything from home appliances to automobiles to smartphones.

iFixit was founded on these beliefs:

  • Consumers and product owners should have the right to decide who repairs their products. They should be able to fix it themselves if they choose.
  • Creating an economy around extending the lifespan of manufactured goods will create local jobs.
  • As manufacturers integrate electronics into more and more products, from tractors to refrigerators, that have been traditionally serviceable, they are shutting out independent repair organizations.
  • The knowledge and tools to repair and refurbish products should be distributed as widely and freely as the products themselves are. In contrast to centralized manufacturing, reuse must be broadly distributed to achieve economies of scale.
  • Extending the lifespan of manufactured goods will benefit the environment, easing the demand on natural resources and keeping electronics out of landfills.

Copyright protection for Technological Protection Measures is arguably the most significant barrier to repair – preventing consumers and repair professionals alike from fixing and maintaining a wide array of devices lest they risk significant legal penalties. Over the last last two decades, we’ve gone from a world where software is rarely seen outside of a multi-purpose computer, to one where software is embedded in, and central to the functioning of virtually every type of device. In many cases, consumers and repair technicians alike must access this software in order to complete the repair, but with manufacturers using Technological Protection Measures to control access to that software, consumers and independent repair technicians are finding themselves locked out.

In the United States, iFixit has participated in the U.S. Copyright Office’s triennial rulemaking for exemptions to 17 U.S.C. 1201, U.S. Copyright law’s legal prohibition on circumvention of technological protection measures, since 2012. In these proceedings we’ve advocated for exemptions to enable diagnosis, maintenance, and repair of everything from video game consoles to tractors and medical equipment. Our comments to the U.S. Copyright Office provide detailed descriptions of several types of technological protection measures that impede repair for a wide range of devices, as well as the impact of that prohibition on repair activities. We have included those comments along with our submission for your review.

Consumers should be free both to repair products themselves and to contract with a third-party service technician of their choice without incurring liability under copyright law. Consumers who want to fix their software-enabled devices have no intent to pirate content—they simply want to return their cars, tractors, appliances, and smart devices to working order.

The most effective solution, and one that would provide the most clarity for consumers, repair professionals, tinkerers, and many others, is to repeal the Copyright Act’s protection for Technological Protection Measures entirely. The next best option would be to cabin the statute’s applicability to those activities intended to facilitate copyright infringement, and explicitly state that the use or distribution of third-party tools and services for circumvention is not unlawful under the Act unless that use or distribution is intended to facilitate copyright infringement. Short of this solution, iFixit recommends amending the statute to create a permanent, technology-agnostic exemption for diagnosis, maintenance, and repair of all devices, that permits both third-party assistance as well as the creation, use, and distribution of third-party circumvention tools for these purposes.

The speed at which software is incorporated into new categories of products, and at which manufacturers are implementing new varieties of Technological Protection Measures, far outpaces both regulatory and legislative processes. Therefore, to avoid imposing additional and unnecessary barriers to repair, an exemption for repair should be crafted as broadly as possible to cover repair of both existing and future software enabled devices. From a repair perspective, there is scant functional difference between the software in your tablet and that in your tractor, and any exemption should be crafted to reflect this.

In addition, consumers who want to repair their devices often rely on the help of repair professionals, and those repair professionals require access to third-party diagnostic and repair tools. Thus, any statute that bars third-party tools or services in effect bars people from fixing their devices at all. A permanent exemption that does not explicitly permit third-party assistance or the creation, use, and distribution of third-party circumvention tools for use in diagnosis, maintenance, and repair, would be ineffective at best.

A permanent legislative exemption for diagnosis, maintenance, and repair of software enabled devices that is technology-agnostic and explicitly permits third-party assistance as well as the creation, use, and distribution of third-party circumvention tools for use in diagnosis, maintenance, and repair would create much needed certainty for consumers and repair professionals alike.

iFixit’s experience with the U.S. Copyright Office’s triennial rulemaking proceeding counsels against adopting similar proceedings in Canada. With the rapid proliferation of software enabled devices, the U.S. Copyright Office’s insistence on narrowly crafted device categories, and the impermanent and limited nature of the exemptions, each triennial sees a growing group of petitioners seeking both renewal of previously granted exemptions and the addition of new categories of devices. Many present and would-be exemption proponents are small businesses, non-profit organizations, and individuals without sufficient resources to obtain counsel and navigate the administrative complexities of the triennial review process. iFixit, like many others, largely relies on the generosity of law school legal clinics.

The nature of this process and its limitations means that 17 U.S.C. 1201 continues to impose a heavy burden on consumers and repair technicians. In comments submitted as part of the U.S. Copyright Office’s study on 17 U.S.C. 1201, the Cyberlaw Clinic at Harvard Law School (‘the Cyberlaw Clinic’) stated that, during the 2015 triennial:

‘[T]he Cyberlaw Clinic logged approximately 575 hours of work to obtain the exemption, through several different stages of comments, hearings, and follow-up letters. This exceeds the estimated average hours spent litigating many forms of civil trials, from initial research through post-trial activity. And given that the exemption the Cyberlaw Clinic put forward received relatively little opposition compared to others, it is likely that others advocating for more contentious exemptions spent even more time.’Footnote 1

A permanent exemption that is technology-agnostic and that explicitly permits third-party assistance and the creation, use, and distribution of circumvention tools for use in diagnosis, maintenance, and repair of devices would avoid imposing administrative barriers on consumers and repairers, and avoid unnecessary expenditure of the Government’s resources.

Respectfully Submitted,
Kerry Maeve Sheehan
Policy Director, iFixit