A deadline passed on Friday. For once this session, the Legislature actually stuck to it. Sort of. Maybe.
Assuming the Legislature doesn’t play another round of Calvinball like it did with the bill draft deadline in March, hundreds of bills just died. This isn’t uncommon — bills are frequently brought forward to satisfy a constituency looking for a symbolic victory, or at least a chance to be heard (see: every Republican election bill this session).
Sometimes, however, the point is to start a conversation on a topic which requires a political solution to a politically created problem. Take, for example, AB221, the “right to repair” bill introduced by Assemblywomen Selena Torres (D-Las Vegas) and Sarah Peters (D-Reno), which now rests in the legislative graveyard with the rest of the bills which died last week. Textually, it is very similar to the model legislation available from the Repair Association, an organization which believes that, if you buy something, “you should have the right to use it, modify it, and repair it whenever, wherever, and however you want.” As far as goals go, this is a noble one — and that it needs to be said aloud and advocated for raises important questions.
If we buy something, why don’t we have the right to fix or modify it?
In a frictionless vacuum in which all people are perfectly spherical, a purchase is an unconditional transfer of private property from a seller to a buyer. The seller releases its interest in whatever widget it’s selling in exchange for whatever it accepts from the buyer in exchange — usually money, but perhaps a basket of other widgets, or a story anthology, or some other set of goods or services which the seller values. After the exchange is complete, both buyer and seller go their separate ways, each richer than they were before since they both now possess, with no rights restricted, something they valued more than what they previously had in their possession.
In this ideal world of buyers and sellers doing first week of freshman-level microeconomics things, a right to repair would be straightforward and obvious. The seller, having sold its widget, would be under no obligation to provide support for the widget, not even to make spare parts and repair manuals available to the buyer. On the other hand, the buyer, having purchased the widget, would be under no obligation to use, repair, or modify the widget according to the seller’s wishes — it’s the buyer’s widget now, after all, so it’s none of the seller’s business what is done with it. If the buyer wishes to reverse-engineer replacement parts for the widget, reverse-engineer repair procedures, or install new, better parts, the seller can’t stop that, nor does the seller have any right to do so.
Much of what we buy, and our right to repair or modify it, is not too far off from that insufferably academic and simplified ideal world. As I write, there is a plastic cup half-full of water sitting next to me which I’ve owned for a few years now, and I can pretty much do whatever I wish with it. If it cracks, I can try to seal the crack with an adhesive of my choice or just choose to ignore it. I can melt the cup and turn it into something else. I can attach or remove whatever strikes my fancy from the cup. It’s my cup — there’s no end-user license agreement full of legalese half-written in ALL CAPS to which I must adhere between sips of whatever beverage I choose to quaff from it.
On the other hand, this plastic cup cost less than five dollars to purchase and is about as complicated as, well, a plastic cup. Yes, a particularly tendentious writer could go all I, Pencil about this cup and the complicated supply chains which made its existence possible, but sometimes a plastic cup is just a plastic cup. The “right to repair” movement isn’t trying to preserve and restore our right to repair our plastic cups — after all, those rights aren’t being meaningfully infringed.
The trouble starts when we start buying and selling more complicated goods filled with “intellectual property” — government-protected monopolies upon the design, manufacture, distribution and alteration of specific components. In the United States, “intellectual property” can not only enjoy patent protection for up to 20 years, but, depending upon the sort of intellectual property it is, it can also enjoy copyright protection for up to 120 years. This column, for example, is copyrightable because it’s an “original work of authorship.” As it’s not an invention, however — this column is neither a new and useful process, machine, article of manufacture, or composition of matter, nor is it an improvement on any of those, nor is it a new, original, and ornamental design for an article of manufacture — it is not patentable.
Software, on the other hand, can both be patented and copyrighted — and frequently is.
Software protections, however, do not start and end with patent and copyright law. Thanks to the Digital Millennium Copyright Act (DMCA), it is also illegal in most circumstances to circumvent technological protection measures used by software copyright owners to control access to their software. Additionally, restrictive end-user license agreements further intrude upon the legal rights of a software purchaser to use software as they see fit instead of how the software creator sees fit.
The practical consequence of these protections is that software creators possess the legal right, as well as the technical power, to control who interacts with their software and under which conditions.
In some respects, the DMCA’s protections admittedly protect the user. For example, reverse-engineering my email password or my editor’s login to the content management system for The Nevada Independent would violate, among other laws, the DMCA because it would circumvent a technical protection measure used to control access to my email or the contents of The Nevada Independent. In other respects, however, utility companies don’t get to unilaterally sell per-connection licenses for each electronic device we plug into our wall, even though they own the power lines and power generating facilities our homes are connected to — and that’s exactly the level of power and control federal law allows software companies to exert against their users.
To understand the consequences of this power, consider buying a replacement printer cartridge.
When your printer cartridge runs out of ink, there’s no reason why you shouldn’t be able to install a compatible replacement cartridge of your choice. Choose the cheapest cartridge or the highest quality cartridge, or perhaps some compromise between those two extremes — either way, there’s no good reason why you shouldn’t be able to select from a wide variety of print cartridge manufacturers to refill your printer just as you select from a wide variety of gas stations to refill your gas tank. However, thanks to software patents, the DMCA, and the legal force of end-user license agreements, as Cory Doctorow explained on behalf of the Electronic Frontier Foundation (EFF), printer manufacturers can not only technologically but legally prevent users from buying printer cartridges from anyone other than the manufacturer. Consequently, printer ink frequently costs more than top-label champagne or high-end perfume — not because it costs that much to manufacture, but because the government grants printer manufacturers a monopoly on the software used by replacement parts (like printer cartridges) to talk to their printers.
Because this power is guaranteed by federal law, there’s little state law can do about it.
AB221, as written, would not decrease the cost of your replacement printer cartridges, nor allow third parties to make compatible printer cartridges at a lower cost. Instead, it addresses a separate issue created by our current “intellectual property” regime — the same technologies and laws which allow manufacturers to lock users into consuming only their printer cartridges also allows other manufacturers to prevent users from servicing their own tractors, electric wheelchairs, and other software-driven equipment. John Deere’s recent decision to impose an end-user license agreement which prevents users from servicing new farm equipment set off a political firestorm which partially led to the presentation of “right to repair” laws, like AB221, in half of the state legislatures in the country.
Unfortunately, though statewide “right to repair” laws like AB221 mean well and attempt to redress the differential in power between manufacturers and customers, state legislatures are limited in their power and scope to meaningfully address the abuses created by existing federal legislation. Consequently, when state legislatures attempt to do anything, they either attempt to do the wrong thing because it’s something they might have the power to do — forcing manufacturers to provide parts and repair manuals at cost, for example — or simply fail to address the underlying issue at all.
This is not Carson City’s fault, nor the fault of our legislators. They cannot overturn federal laws which regulate interstate and international commerce. If we want a real solution, we need to look to the source of these legal protections and dismantle them one by one.
Thankfully, our federal courts and regulators are wising up.
On April 5, the Supreme Court ruled in Google v. Oracle that application programming interfaces, or APIs — the documented interfaces software use to interact with us and each other — cannot be copyrighted. Consequently, developers can not only write software that interacts with another company’s API, they can even write their own implementations of APIs written by other developers without asking for permission or paying licensing fees to the company which developed the API. One consequence of this decision, as reported by The Truth About Cars, is that aftermarket parts companies can now develop replacement parts that interact with the software used in modern automobiles without paying a license to the original manufacturer. This will, in time, lead to lower repair costs for consumers.
Meanwhile, every three years, the Librarian of Congress is empowered to exempt various uses of software and technology so they no longer run afoul of the monopolies and legal protections granted to software companies under the provisions of the DMCA. The last time the list was updated was in 2018 — believe it or not, that was three years ago. The list produced in 2018 proved to be relatively generous, plus the Librarian of Congress further introduced a simplified renewal process so the same exemptions don’t have to be relitigated in depth every three years. To further protect the rights of purchasers, the EFF is presenting a broader list of exemptions to further facilitate beneficial repairs and modifications — including the ability to upload custom software into programmable cat litter boxes (yes, you read that right) so users are no longer restricted to inefficient cleaning cycles or manufacturer-provided cleaning solutions.
Now all we need to do is get Congress to catch up. Fortunately, that’s something we can all help with — and we don’t even need to be elected to the Assembly, nor drive to Carson City, to do it.
David Colborne has been active in the Libertarian Party for two decades. During that time, he has blogged intermittently on his personal blog, as well as the Libertarian Party of Nevada blog, and ran for office twice as a Libertarian candidate. He serves on the Executive Committee for both his state and county Libertarian Party chapters. He is the father of two sons and is an IT professional. You can follow him on Twitter @DavidColborne or email him at [email protected].