Manufacturers of products with embedded software rely on copyright law to protect their code from being copied. Some manufacturers also secure design or utility patents for products they offer or for their component parts. Manufacturers may also invoke copyright or trade secret law to prevent the public disclosure of their repair protocols and manuals.[1]
Manufacturers argue that vigorous assertion of their intellectual property rights sustains the health of the vibrant and innovative technology industry[2] and fosters innovation.[3] They argue providing individuals and independent repair shops with access to proprietary information, parts, tools, and equipment without the contractual safeguards currently in place between manufacturers and affiliated service providers would place sensitive protected intellectual property and trade secrets at significant risk[4] and force them “to reveal sensitive technical information about their products, including source code, tools, and trade secrets.”[5]
Specifically, as to copyright law, manufacturers of video games and gaming consoles assert that repair restrictions in the form of technological protection measures (“TPMs”) are needed to protect video games from being pirated. According to the Electronic Software Association (ESA), which “represents the major game console manufacturers and almost all of the major video game publishers in the United States,” “some game console repairs may require replacing hardware components or parts of components, and some of these hardware fixes may require” circumvention of a console’s anti-piracy TPMs.[6] Other game console repairs may require components of the console to be “re-authenticated” to restore the console to a functional state. This “re-authentication” enables console makers to ensure that the repairs did not compromise the TPMs.[7] According to Microsoft, “unfettered access to diagnostic and proprietary hardware tools increases the potential for malicious actors to circumvent anti-piracy controls.”[8]
As to patents, the National Association of Manufacturers explains that, although “the purchaser of a patented product is entitled to repair and replace worn or broken parts, patent owners generally have the right to dispose of their patented property as they wish, including by deciding to sell” (or not sell) their products to whomever they choose.[9] They assert that any requirement that a company must make available patented replacement parts for repair would be contrary to the statutorily protected right of a patent holder to exclude others from making, using, or selling their patented invention.[10]
- ↑ See, e.g., Kyle Wiens (@kwiens), Twitter (June 11, 2020, 1:39 PM), https://twitter.com/kwiens/status/1271134890872856577, (Letter from STERIS Corp. to Kyle Wiens demanding removal of ventilator repair manuals from iFixit.com’s web site).
- ↑ Joint Comment of Association of Home Appliance Manufacturers et al. (“Joint Comment”), at 4.
- ↑ National Association of Manufacturers comment (“NAM comment”), at 2.
- ↑ Joint Comment, at 4.
- ↑ CompTIA comment, at 10. We note that manufacturers generally discussed trade secrets, but did not provide any explanation of the types of trade secrets that might be implicated in the repair context.
- ↑ Entertainment Software Association empirical research (“ESA empirical research”), at 3.
- ↑ Id. at 3–4.
- ↑ Microsoft Corporation comment (“Microsoft comment”), at 10.
- ↑ NAM comment, at 1.
- ↑ Id.
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