firmware updates, many of the used servers that her company acquires cannot be resold.[1] Businesses that want to purchase such an aftermarket server would need to purchase a service contract from the manufacturer in order to obtain the firmware update.[2] Timothy Pearson, a manager in a secure computer design and manufacturing firm, has similarly found that certain vendors require all firmware components to be signed with their vendor key in order for the firmware to execute.[3]
Both manufacturers and right to repair advocates acknowledge that many products now consist of physical goods and embedded software that the manufacturer licenses to the consumer under the terms of an End User License Agreement (“EULA”). As Walter Alcorn of the Consumer Technology Association explained: “It used to be, before software was embedded in these devices, ownership was very cut and dry …. You owned it or you didn’t. But now with software, that has become a little bit more complicated.[4]
According to Gordon-Byrne, a study conducted by the Repair Association showed that, “Basically, 100% of manufacturers have restrictions on repair in every one of their [EULAs].”[5] For this study, the Repair Association reviewed the EULAs of 52 products, including mobile phones, enterprise and personal computers, smart TVs, and agricultural equipment. The study found that the EULAs restrict repairs by prohibiting modifications of software for any purpose, prohibiting de-compiling or reverse engineering of software.[6]
Manufacturers have offered numerous explanations for repair restrictions. In this section, we list and evaluate their explanations. We note that this section examines the broad effects of repair restrictions concerning all types of products and across multiple industries.[7]
Manufacturers often rely on intellectual property law to protect their substantial investment in the development of the products they create. Repair advocates argue that the assertion of copyright, trademark, and patent rights impedes independent repair. As explained below, at present, the assertion of IP rights does not appear to be a significant impediment to independent repair.
- ↑ Transcript, at 16.
- ↑ Id.
- ↑ Timothy Pearson comment, at 1.
- ↑ Transcript, at 40.
- ↑ Transcript, at 76.
- ↑ Repair Association empirical research, at 4–6. According to the Repair Association, some EULAs specifically prohibit the circumvention of technological protection measures even though the Copyright Office has provided exemptions to the Digital Millennium Copyright Act that allow for the circumvention of TPMs to diagnose, maintain or repair motorized land vehicles, smart phones, home appliances and home systems. Id. See infra Section V.A.
- ↑ Any law enforcement action concerning a manufacturer’s repair restrictions would need to focus on the particular manufacturer’s repair restrictions and explanations for the restrictions.
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