Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU

Author:Anthony D. Rosborough
Position:Research Associate and Lecturer, The Schulich School of Law at Dalhousie University Halifax, Nova Scotia (Canada).
Pages:26-48
SUMMARY

This analysis examines the impact of software technological protection measures (“TPMs”) in the European Union which inhibit the repair and maintenance of products. Using John Deere tractors as a case study, this analysis addresses the growing number of products which incorporate computerisation and TPMprotected software into their design and function. In utilising software integration and TPMs, many product designs now allow manufacturers to retain considerable control over the manner of repair and choice of technician. In response, consumers and lawmakers are calling for legal reforms to make self-repair and servicing easier. Both the competition law and moral implications of this... (see full summary)

 
FREE EXCERPT
2020
Anthony D. Rosborough
26
1
Unscrewing the Future: The Right
to Repair and the Circumvention
of Software TPMs in the EU
by Anthony D. Rosborough*
© 2020 Anthony D. Rosborough
Everybody may disseminate this ar ticle by electronic m eans and make it available for downloa d under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obta ined at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Anth ony D. Rosborough, Unscrewing the Future: The Right t o Repair and the Circumvention of
Software T PMs in the EU, 11 (2020) JIPITEC 26 para 1
Keywords: Intellectual property rights; technological protection measures; software; European Union; copyright;
right to repair; circumvention; EU competition law; compulsory licensing; secondary market
of TPM circumvention, jointly leave little room for pro-
active policymaking. Through these legal protections,
manufacturers can escape the perceived threat posed
by TPM circumvention tools and, by extension, under-
mine independent technicians’ ability to carry out their
businesses.
In assessing the John Deere case study, the analy-
sis proposes that the refusal to allow circulation of the
means of software TPM circumvention may constitute
an abuse of a dominant position in the secondary mar-
ket. In looking to jurisprudence in this area, the analysis
explores the degree to which the refusal to provide the
means of circumvention could amount to the denial of
an essential facility which is indispensable for the sec-
ondary repair market. While some distinctions can be
drawn between TPM circumvention and the types of
intellectual property rights at issue in the EU compe-
tition law jurisprudence, the analysis proposes that the
market effects are in many ways analogous.
The analysis seeks to establish that consumers’ inabil-
ity to conduct repairs to the products that they own is
undesirable for a number of legal, moral and concep-
tual reasons. By prohibiting self-repair, software TPMs
predetermine the relationship between technology,
the law and society. This undermines the fostering of
a morally responsible and technologically inclined cit-
izenry which engages with and contributes to tech-
nological development. The analysis concludes with a
call for a review of software TPM protections in the EU
along with changes which could alleviate the foregoing
market and moral implications while enabling consum-
ers to assert their right to repair.
Abstract: This analysis examines the impact of soft-
ware technological protection measures (“TPMs”) in the
European Union which inhibit the repair and mainte-
nance of products. Using John Deere tractors as a case
study, this analysis addresses the growing number of
products which incorporate computerisation and TPM-
protected software into their design and function. In
utilising software integration and TPMs, many prod-
uct designs now allow manufacturers to retain consid-
erable control over the manner of repair and choice of
technician. In response, consumers and lawmakers are
calling for legal reforms to make self-repair and servic-
ing easier. Both the competition law and moral impli-
cations of this residual control held by manufacturers
are examined in this analysis. The foregoing raises the
question: what are the impediments to establishing a
secondary market for repair of products which utilise
software TPMs, and what are the implications of those
impediments?
The structure of the EU’s software TPM framework acts
a major impediment to establishing a secondary repair
market for these products. The implications of this im-
pediment are both legal and moral. This analysis sur-
veys the development of anti-circumvention law in the
international and European contexts before assessing
the impact of the US approach to anti-circumvention
on global manufacturing and design techniques. In as-
sessing the EU legal framework, the analysis focuses
on the inconsequential and distinct legal status given
to TPMs which protect software from other types of
works. The inability to circulate the means of circum-
vention acts as a key impediment to establishing a sec-
ondary market for repair. Further, the inapplicability of
copyright exceptions and limitations to software TPMs,
and the legal prohibition on circulation of the means
Unscrewing the Future: The Right to Repair and the Circumvention of Software TPMs in the EU
2020
27
1
and bolts, each connected by a network of sensors
to a central computer which runs on proprietary
software. This increase in computerisation and the
overall tamper-proof approach to automotive design

disappearance of the oil dipstick on recent BMW car
models.2 The message is clear: what is beneath the
bonnet is a system and consumers should have no
role in understanding how it works.
4
      

is not merely an innocent by-product of how modern
products are being designed. It is a conscious
decision on the part of manufacturers to ensure that
the products they are selling can only be effectively
serviced and maintained by them. Given this rather
frightening trajectory, the question remains: how do
we ensure that the future is not quite so screwed? This
study proposes that the answer lays in empowering
consumers to take charge of their own repairs and
maintenance.
5
      
for consumers, manufacturers are taking refuge
in protections offered by copyright. Beyond the
commonplace rights of reproduction, performance
and other rights falling under the larger copyright
umbrella, modern copyright legislation has also
come to protect technological protection measures
      
3, impede access to the underlying
work protected by copyright. The manner of TPM

   

prohibit compatibility with non-compliant devices.
Spanning the globe, most copyright statutes prohibit
the circumvention of such TPMs and the circulation
or offering of the means of circumvention.
6
The copyright refuge afforded to product
manufacturers is made possible largely due
to the more widespread use of software and
computerisation to control the workings of various
      
also smartphones, cameras, televisions, hot tub
controls, and farm tractors.4 In increasing reliance
2 Jonathan Welsh, ‘BMW Removes the Dipstick’, THE WALL
STREET JOURNAL (9 May 2006) online: <https://www.wsj.
com/articles/SB114712089483346960>.
3 Michael Geist, ‘Anti-circumvention Legislation and
    
Geist, ed, In the Public Interest: The Future of Canadian Copyright
Law (Irwin Law, 2005) at 214.
4 Eberhard Becker et al., Digital Rights Management:
Technological, Economic,
A. Introduction & Background
“They are weaker, not stronger: for though we have put
wonderful machines in their hands we have preordained how
they are to use them.”
C.S. Lewis – Abolition of Man
1
In the not so distant past, a common feature on most
roadways was an institution known as the ‘service
station’. In addition to providing gasoline and other
necessities, service stations offered motorists with
an opportunity to stop and speak with a mechanic to
diagnose troubles and repair their cars. Though the
mechanic would have many of the same tools that
motorists have access to in their homes, his or her
 
The nature of automotive design also allowed for
deductive reasoning in diagnosing problems. For
   
of a dead battery might suggest that it is not being
charged properly by the alternator. Rough idling and

an electrical fault in the car’s ignition coil or spark
plug wiring. Regardless of the emblem on the bonnet
or the manufacturer of the car, the mechanic would

motorists were able to get back on the road.
2
By contrast, today’s roadways are populated by a

Removed from sight are the once-ubiquitous bottles
of engine oil for topping up, spare fan belts, head
    
mechanic. Gone are the garage doors and hydraulic
lifts which allowed mechanics to access cars’
underbodies. What resides on the shelves in the
 
tasteless coffee, lottery tickets and smartphone
accessories. In some respects, this devolution of
  
automotive design over the past few decades.1
3
If the mechanic of yesteryear opened the bonnet
on one of today’s cars, that hard-earned intuition
and deductive reasoning would be of limited use.
Instead of the once-familiar sights – the valve
cover, engine oil cap, radiator, coolant hoses, brake
lines, battery, distributor cap, and so on – what
remains visible in today’s cars is a series of plastic
enclosures held together by non-standard screws
* Research Associate and Lecturer, The Schulich School

(Canada).
1 Bryan Grover, ‘What will the gas station of the future
look like?’, THE BOSTON GLOBE (17 January 2017) online:
<https://sponsored.bostonglobe.com/rocklandtrust/what-
will-the-gas-station-of-the-future-look-like/>.

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