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Who Owns Your Stuff? It Might Not Be You

Inside the fight against the Digital Millennium Copyright Act–and what designers can do about it.

Who Owns Your Stuff? It Might Not Be You
[Photo: Vasily Pindyurin/Getty Images]

What does it mean to own something? Take your smartphone. Does owning it mean you can do anything you want to it, including fixing it when it breaks or modifying how it works?

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Not exactly. Because of section 1201 of the Digital Millennium Copyright Act, no one can legally alter any software on any product they own. And given how software is slowly making its way into more and more items in the home, from lights and ovens to printers and garage door openers, that means that people don’t ultimately have control over the products they use. For instance, have you ever tried to use a third-party print cartridge in your printer and been unable to do so? That’s because of DMCA. Now, grassroots organizers are taking a stand against the law and advocating for everyone’s right to repair.

[Photo: MirageC/Getty Images]
The law, which has been in effect since 1998, was originally intended to prevent online piracy; it makes it unlawful to crack the technologies that restrict access to copyrighted work. Take DVDs, a primary mode of media consumption at the time. Each DVD is typically encrypted so that it can only be played by a licensed DVD player–and not, say, a device that would let you copy it without permission. DMCA makes breaking that layer of encryption illegal, which makes sense in the specific instance of copyrighted online media.

But since the late ’90s, the Copyright Office has widely interpreted DMCA as applicable to another copyrighted medium: software. That encryption layer, known as Digital Rights Management, may have sounded like a good idea when applied to DVDs, but it has significantly different implications in the context of software. “Where the real long-term harm is that manufacturers are going to put DRM in every single product, and they’re going to lock you out of it,” says Kyle Wiens, the founder of the technology repair guide website iFixit. “We’re going to add software to every product, which means we’re locking DMCA into every product, which means we’re handing off control over who can do what with every product to the original designers and engineers.”

That means that if your gadget breaks, oftentimes your only option is to go to the manufacturer to fix it, which can be pricey and inconvenient. It’s the epitome of user-unfriendly design. This has larger implications for a culture of disposability, where fixing something when it breaks isn’t always top of mind and where designing repairability into products isn’t part of most design processes. The law codifies this way of thinking, putting repair squarely in the hands of manufacturers and companies that have no incentive to design their products in a more sustainable and consumer-friendly way.

[Photo: Hinterhaus Productions]
How does this play out? DMCA means that a security researcher who has a pacemaker can’t modify it to plug security holes. That means farmers can’t fix their tractors themselves. And it means that blind individuals aren’t able to modify their e-book readers so that the devices will read books they’ve purchased aloud. While the Copyright Office granted visually impaired individuals an exemption to the law, DMCA still prevents anyone from creating a tool that would enable those individuals to access written content.

The exemptions are the law’s fail-safe. Every three years, the Copyright Office hears cases, often represented by organizations like the Electronic Frontier Foundation, as to why a certain group of individuals should be able to modify or repair the things they own. But according to Wiens and Kit Walsh, a lawyer at EFF, these exemptions cost hundreds of thousands of dollars each, and require hundreds of hours of labor. The problem is that no one wants to pay for it, and the exemptions that have passed were possible because of student legal clinics, where law students donate their time to work on the exemption cases. Organizations will also shoulder the cost, such as in the case of the American Foundation for the Blind filing an exemption for visually impaired people to listen to e-books aloud. Because the process repeats every three years, regularly applying for an exemption can be prohibitively expensive.

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The government has granted an exemption for security research, and for good reason. Internet of things and connected devices like Wi-Fi routers, internet cameras, and smart TVs have notoriously poor security and have contributed to cyberattacks across the world. But because of DMCA, researchers aren’t permitted to look for bugs. Back in 2015, two security researchers successful hacked a Jeep over the internet, providing more evidence as to why security research is so important as more and more devices and vehicles become connected. After this happened, EFF filed for the current exemption to allow for legal security research. But even the exemption limits legality to researchers who get permission from a product’s manufacturer–and the manufacturer often has no incentive to allow independent researchers to look inside its code.

It’s easy to speculate why companies like John Deere and General Motors support DMCA. It concentrates the power over a product’s life span into their hands, creating more revenue streams if customers are forced to come back to them for repairs. John Deere did not respond to multiple requests for comment. “A copyright is a limited monopoly to control commercialization of a copyrighted work,” Walsh says. “It’s designed to create monopolies, and they’re trying to extend it into a new market.”

[Photo: Catherine MacBride/Getty Images]
Publicly, these companies tend to argue that people repairing their own devices is a safety hazard and that exemptions will compromise overall security. Walsh doesn’t believe it’s a real concern, especially because companies like Volkswagen have actually used encrypted code to cover up emissions malpractice. General Motors declined to comment specifically on this story, but provided a former statement and comments made to the Copyright Office about unlocking communications networks from 2015. In their statement, GM argued that an exemption to DMCA to allow users to unlock their phones endangered their own car communications system OnStar. The statement says, “Allowing circumvention of in-vehicle [technological protection measures] to unlock telematics systems such as OnStar would deliberately weaken the protections GM has put in place to ensure the operation of important regulatory requirements, vehicle safety, consumer privacy, and vehicle security.”

DMCA also has implications for electronics companies like Apple. For example, getting your phone or laptop fixed at Apple’s Genius Bar can be exorbitantly expensive–and that’s because Apple has taken advantage of DMCA’s protections. The company sends legal takedown notices to anyone who gets too close to their software–including people who scrape their site to track iPhone stock or who write instructions for software to sync media to phones, circumventing Apple’s software. That also applies to anyone who posts the company’s repair manuals online, which would make it easier for anyone to find a cheap way to repair their devices.

However, it is easy to find manuals for fixing Apple products online now. “Apple has open-source repair manuals available for everything they sell, but that’s because I did it for them,” Wiens says. Wiens started iFixit when he was trying to fix his laptop back in 2003 and couldn’t find a repair manual anywhere. iFixit gets around DMCA because none of the manuals comes from the company at all: Wiens writes all of the repair manuals on Apple products himself. Apple did not immediately respond to a request for comment.

Advocates against the law believe DMCA does more harm than good, even if some companies have reasonable concerns about copyright violation. “It’s plausible that some of these companies in fields where use of copyright is more traditional may have legitimate concerns about piracy and the effect of someone jailbreaking their software,” says Ferras Vinh, a lawyer at the Center for Democracy and Technology. “The issue is when you look at the overall calculus, and how broad the scope of the DMCA is, I’m not necessarily sure that the result is one that benefits the general ecosystem of individuals who use technology on an everyday basis.”

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[Photo: Nicolas Tucat/AFP/Getty Images]
While DMCA remains a federal law, a grassroots movement has been brewing at the state level, primarily through what are called “right to repair” laws. They attack the problem from a slightly different angle. Instead of directly contradicting DMCA, these laws require that manufacturers make diagnostics and repair tools available to customers, or allow customers to make their own repair tools. Right now, right to repair laws are being considered in 12 states, including New York, Minnesota, and Tennessee. These laws focus on electronic equipment like smartphones, computers, and tractors.

The most successful example of a right to repair law occurred in the automobile industry. In 2012, an automobile right to repair law passed in Massachusetts, and automakers agreed to apply that law nationwide. The law mandates a design change–automakers have to use a standard diagnostic port so anyone can see what’s wrong with their car–which will be incorporated into 2018 models.

What does this mean for designers? Because DMCA concentrates power in the hands of manufacturers and companies, designers are some of the people who stand to benefit from the law because it puts their work under stringent copyright. But that also means a cap on creativity from people outside the initial design process. DMCA is truly the opposite of open source, where ideas build on each other; instead, it creates a barrier between software and its users. Greater awareness about the implications of DMCA for security, repair, and overall user-friendliness should be part of the design process.

In June, the Copyright Office issued a report recommending permanent exemptions to DMCA for existing exemptions like security research and allowing circumvention of DMCA for other use cases like assistive reading and repairing devices. Will Congress act?

“We’re losing control over all the things in our lives. We need people to be able to create tools to take back that control,” Wiens says. “I think the most important battle we’re going to fight over the next 50 years is over who owns our stuff.”

About the author

Katharine Schwab is a contributing writer at Co.Design based in New York who covers technology, design, and culture.

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