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ISSUE 19.26.F • 2022-06-27 • Text Alerts!Gift Certificates
Look for our special issue on July 4, 2022!

In this issue

LEGAL BRIEF: The right to repair

Additional articles in the PLUS issue • Get Plus!

SILICON: The hard drive is dead; long live solid-state storage

ONENOTE: Getting to one OneNote on Windows

FREEWARE SPOTLIGHT: FocusWriter — Don’t get distracted by squirrels and things

PATCH WATCH: Dealing with DCOM

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The right to repair

Max Oppenheimer

By Max Stul Oppenheimer, Esq.

Purchasing a product gives you broad rights to do with it as you please.

Those rights are not unlimited. For example, you can’t drive your new Ferrari through town at 120 mph; you can’t use your new hammer to smash anyone’s thumb but your own.

Those rights are also limited by two legal constraints: you cannot infringe on someone else’s intellectual property rights, and you cannot use the product in a way you promised not to by entering into a contract to that effect.

Conceptually, there are three main categories of reasons why you cannot repair a product that you own:

  1. You don’t have the legal right to make the repair.
  2. You don’t have the necessary parts or schematics.
  3. You don’t have the necessary skill.

There isn’t much the law can do if you fall into category 3, but legislators are wrestling with categories 1 and 2.

Category 1: The manufacturer’s right to stop you from making repairs

The main intellectual-property constraints involve infringement of the manufacturer’s patents, copyrights, or trademarks. If all you want to do is repair a product you own, trademark rights are unlikely to be implicated.

Patents and copyrights pose more complicated issues. Under the patent statute, transfer of an item embodying a patented technology does not transfer the patent. Therefore, the patent owner (not the owner of the item) has the right to prevent manufacture and use, among other rights. Under what is known as the “first sale doctrine,” a lawful purchaser of a patented product obtains an implied license to use that specific product and to resell it. The “right to repair” issue arises in trying to define “manufacture” — does repairing a product constitute “manufacturing” of the repaired product?

Repair extends the useful life of a product, which means the patent owner doesn’t get a new royalty by selling a replacement product. Therefore, the patent owner would like “repair” to be considered “manufacture” and therefore be prohibited as an infringement of the patent rights. On the other hand, the product owner would prefer to be able to fix the product rather than buy a new one.

So which is it? Judge Learned Hand, a highly respected jurist who sat on the Second Circuit Court of Appeals, put it this way in 1945:

The [patent] monopolist cannot prevent those to whom he sells from … reconditioning articles worn by use, unless they in fact make a new article.

In 1961, the Supreme Court followed the same logic to vindicate the rights of owners of convertible automobiles to replace worn fabric tops rather than having to buy a new car when the top wore out. In the words of the 1961 Supreme Court:

Mere replacement of individual unpatented parts, one at a time, whether of the same part repeatedly or different parts successively, is no more than the lawful right of the owner to repair his property.

The situation is more complicated with copyrights. Software may or may not be patented, but it is almost certainly protected by copyright. As with patents, purchasing an item that embodies a copyrighted work does not transfer ownership of the copyright itself. Under 17 U.S.C. §202:

Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.

That should make perfect sense. When you buy a copy of Windows 11, you don’t get the right to stop others from using their copies. Under §106 of the copyright statute:

Subject to §§107 through 122, the owner of copyright … has the exclusive rights to do and to authorize any of the following: (1) to reproduce the copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work ….

Perhaps the most relevant of the “subject to” sections is §107, codifying the judicially developed doctrine that permits certain uses of what would otherwise be a copyright owner’s exclusive rights because they are “fair use” of the copyrighted work. Section 107 lists several examples of fair use and the factors to be used in evaluating whether a use is “fair” or not:

  1. The purpose and character of the use including its commercial nature,
  2. the nature of the copyrighted work,
  3. the proportion of the work that is taken, and
  4. the economic impact of the use.

In addition, although one of the exclusive rights of a copyright owner is the right of distribution, as with patents, once a copyright owner has placed a copy in commerce, the lawful owner of that copy may transfer it.

Two additional federal statutes complicate the copyright analysis. Section 117 of the Copyright Act authorizes copying if necessary to make a machine work:

It is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner …

Unfortunately, it is titled “Limitations on Exclusive Rights — Computer Programs,” but it was enacted when cutting-edge technology was the IBM PC/XT. The language of the statute would seem to authorize tinkering with software if necessary to make your machine (computer or not) work, and most of the devices you might be thinking about repairing involve a computer, anyway (if you use the term broadly).

However, §1201(a) of the Digital Millennium Copyright Act contains an “anti-circumvention” provision that prohibits defeating devices intended to secure copyrighted intellectual property:

No person shall manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that … is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a work protected under this title.

These two statutes are in conflict. One allows modifying software in order to make a machine work (and therefore must allow access in order to make modifications), and the other prohibits access if the manufacturer has installed copy protection. Which of these statutes controls actions necessary to repair a device?

Good question. Logic would suggest that, because a user has the right to make use of software to control a machine (or has a fair-use right to do so), copy-protection devices don’t secure intellectual property (because the owner has the right to access it under section 117 or fair use or the first-sale doctrine) and therefore the DMCA doesn’t apply. While it would be comforting to have a longer line of supporting cases, there is at least some support for that position. The Federal Circuit Court of Appeals decided that owners of garage doors controlled by a “rolling code” remote control could buy a cloner, even though the manufacturer argued that its use violated its rights to prevent circumvention.

So, even if your product is patented (and maybe if you need access to copyrighted elements), it’s okay to repair it (provided you don’t use patented parts to do it). That’s your right.

Unless, of course, you’ve given it away.

You might have given away by contract your right to repair, especially if the product incorporates software and you’ve clicked to accept a license agreement. So even if the law gave you the right to repair a device, you would also have the freedom to surrender that right.

Category 2: Parts and schematics

This, and the control that manufacturers have over the availability of repair parts and manuals necessary to make repairs, motivated some legislatures to come to the aid of consumers.

New York has enacted what it describes as the first right to repair law in the US. As the New York Senate describes the law’s purpose:

This bill requires original equipment manufacturers (OEM) to make diagnostic and repair information for digital electronic parts and equipment available to independent repair providers and consumers if such parts and repair information are also available to OEM authorized repair providers.

The central provision of the new law is the requirement of Section 2(a):

For digital electronic equipment and parts for such equipment that are sold or used in this state, an original equipment manufacturer shall make available to any independent repair provider and owner of digital electronic equipment manufactured by or on behalf of or sold by such original equipment manufacturer, on fair and reasonable terms, any documentation, parts, and tools required for the diagnosis, maintenance, or repair of such digital electronic equipment and parts for such equipment.

The law does not take effect for a year, but because it will take time for manufacturers to set up the distribution mechanisms, parts and documentation may begin appearing before then.

Of course, this law applies only to equipment that is “sold or used” in New York. What about the rest of us? California had a similar law under consideration, but it failed to pass (remind me, where is Apple HQ?). It may not be necessary to sell your Malibu beach house and move to New York in order to salvage the smartphone that you dropped into the washing machine by mistake.

The problem — or not, depending on your viewpoint — is that it is hard to tell the difference between New York and California if you’re on the Internet. For that reason, it would be ideal if Congress would create one set of rules for the entire country. But in the meantime, if New York (which is by all accounts a pretty big market) succeeds in requiring any company selling products in New York to provide repair parts and manuals to New York residents, those parts and manuals will quickly find their way to California, and there will be a rapid increase in repair facilities located in New York but serving clumsy smartphone owners from across the country.

Talk Bubbles Join the conversation! Your questions, comments, and feedback
about this topic are always welcome in our forums!

Max Stul Oppenheimer is a tenured full professor at the University of Baltimore School of Law, where he teaches business and intellectual property law. He is a registered patent attorney licensed to practice law in Maryland and D.C. Any opinions expressed in this article are his and are not intended as legal advice.


Here are the other stories in this week’s Plus Newsletter


Brian Livingston

The hard drive is dead; long live solid-state storage

By Brian Livingston

The death of hard disk drives may be greatly exaggerated — after all, HDD manufacturers sold more than 250 million units worldwide in 2021 — but solid-state drives, which store data in semiconductors with no moving parts, finally overtook the unit sales of HDDs last year. The writing is on the wall for ye olde spinning platters.

SSDs have many advantages over HDDs, including being much smaller in size and offering faster throughput. But even after years of cost improvements, SSDs are still a much more expensive choice.



Getting to one OneNote on Windows

By Mary Branscombe

It’s finally becoming less confusing to pick the right Windows OneNote app, but you still have some decisions to make.

After 16 years of OneNote, you might have liked the fresh new look of OneNote for Windows 10 and the way it could sync custom tags from one device to another. If that was the case, you might have liked Microsoft’s 2018 claim that it was “making OneNote for Windows 10 the best version of OneNote on Windows.”


Deanna McElveen

FocusWriter — Don’t get distracted by squirrels and things

By Deanna McElveen

We have so many distractions on and near our computer screens that it can be a real chore to stay focused when writing. Whether it be an article, a family Christmas letter (we still do those), or a novel, you have to concentrate if you ever want to be done and see the sun again.

FocusWriter by Graeme Gott has been around since 2008 (same year was born) and is one of the most popular freeware programs for writers. FocusWriter can’t keep the bluebirds away from your window or turn down your TV, but it is very good at keeping things on your screen from distracting you.


Susan Bradley

Dealing with DCOM

By Susan Bradley

In the June updates, Microsoft continues its journey to harden the Distributed Component Object Model (DCOM), with the goal of making it more resilient to attack

DCOM is a proprietary Microsoft software component that allows COM objects to communicate with each other over a network. Network OLE was the precursor to DCOM (remember Windows 3.1.1?). Because DCOM can run programs on other computers, hackers can leverage it for lateral-movement attacks through your network, gaining access to more data. This activity can be difficult to detect because it’s not malware or hacker tools — all it takes to access DCOM is PowerShell.

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