If there’s anything more remarkable than the fact that five states are debating “Right to Repair” bills that make it legal for you to fix your own property, it’s that these bills are needed in the first place. Can it really be true that you aren’t allowed choose how to configure, repair, and service the things you own?
Weirdly enough, the answer is yes. Section 1201 of the 1998 Digital Millennium Copyright Act makes it unlawful to tamper with software locks that control access to copyrighted works — more commonly known as “Digital Rights Management” or DRM. As the number of products with software in them has exploded, the manufacturers of these products have figured out that they can force their customers to use their own property in ways that benefit the company’s shareholders, not customers. All they have to do is design those products so that using them in other ways requires breaking some DRM, then invoke the DMCA to stop anyone from using products in unapproved ways.
The conversion of companies’ commercial preferences into legally enforceable rights has been especially devastating to the repair sector, a huge slice of the US economy, as much as 4% of GDP, composed mostly of small mom-n-pop storefront operations that create jobs right in local communities, because repair is a local business. No one wants to send their car, or even their phone, to China or India for servicing.
Ironically, China is one of the places were a lot of busted phones get sent, but not so that they can be fixed for their owners. Rather, the manufacturer-imposed limits on repair makes it so uneconomical to fix these devices that they’re sold as ewaste, shipped in bulk to China, and refurbished there, creating jobs and value for that economy, taking it away from the US economy, and requiring US residents to waste money replacing devices that could be fixed and put back in their pockets.
But even though Congress has failed to act to check this disastrous unintended consequence of DMCA 1201, the states aren’t taking it lying down. Following on the 2012 passage of right to repair law for cars in Massachusetts, that state, plus Nebraska, Minnesota, New York, and Kansas, are all debating broader legislation covering digital products that tries to counter anti-repair laws like DMCA 1201 by requiring companies to take steps to make it easier to independently service your property: steps like publishing service manuals and making spare parts available. We at EFF also fought for and won a two-year exemption to DMCA 1201 that lets people repair and tinker with their own vehicles, including motorcycles (though unfortunately the government refused to allow mechanics to do so on a customer’s behalf).
The manufacturers that would like to control these aftermarkets are none too pleased with legal recognition of customers’ rights to repair. In Nebraska, industry associations representing the manufacturers of motorcycles, off-road vehicles, and speciality vehicles have written to The Honorable Lydia Brasch, State Senator for District 16, asking her to amend The Fair Repair Act so that the act of fixing, tinkering with, or modifying your own motorcycle or ATV remains as hard as possible.
The manufacturers argue that “non-factory trained technicians, untrained mechanics and owners” can’t safely maintain motorcycles, and that allowing anyone except manufacturer-approved technicians to tinker with bikes, trikes, and ATVs is a risk to the “safety of the customer.”
There’s no disputing that bad repairs are dangerous, and that’s true whether we’re talking about toasters, light-switches, plumbing, or motorcycles. If a repair shop botches your toaster repair and your house burns down, you might be able to sue them for negligence. But the law doesn’t ban third party technicians from fixing your toaster, it doesn’t ban you from fixing your own pipes, and it most certainly shouldn’t ban motorcycle owners and mechanics from fixing and modifying bikes.
Indeed, motorcycle owners have a proud tradition of improving on and fixing their own bikes that’s as old as motorcycles themselves. As the gearheads at Revzilla note:
In this day and age, finding a trusted mechanic to work on our bikes is becoming more of a challenge. They are being replaced by underpaid “parts swappers” as dealers try to save money by cutting costs. Some of the best mechanics I know are the ones operating in the back alley garages in America, keeping the American Dream alive and well while covered in grease and drenched in gasoline fumes. Will this push more of them out of business? How badly will this hurt companies that make aftermarket tuning products?
And what about those of us who simply like to work on our own bikes? Tinkering with fuel maps and blocking off secondary air injection ports to try to gain better performance. Always seeking some way to improve our machines, we understand and accept the inherent dangers we face if we make a modification that affects the safety of our machine. Of course there are potential dangers with working on our own machines, but those are risks we are willing to take. Motorcycles are inherently dangerous and we accept that.
Congress never banned fixing your own bike, but the sloppy drafting of DMCA 1201 left a loophole you could drive a motorcycle through, one we could only partially fix via the DMCA 1201 rulemaking process. This defect in the law gives manufacturers a tool to corner the market on service and repairs, and it’s easy to see why they’d be upset at the prospect of having to give up some of their powers to boss their customers around.
We hope Senator Brasch will see this “Won’t someone please think of the bikers?” rhetoric for what it is: a naked bid to get the taxpayers to enforce the manufacturers’ business models, at the expense of their customers.
Categories: Electronic Frontier Foundation