Justice Department and Federal Trade Commission File Comment with U.S. Copyright Office Supporting Renewal and Expansion of Exemptions Facilitating Consumers’ and Businesses’ Right to Repair Their Own Products

The Antitrust Division of the Department of Justice and the Federal Trade Commission (FTC) submitted a comment to the US Copyright Office to advocate for regulations that facilitate the right of consumers and businesses to repair their own products .

The Justice Department and the FTC filed the comment as the Copyright Office considers whether to recommend that the Librarian of Congress renew and expand temporary exemptions to the Digital Millennium Copyright Act's (DMCA) ban on circumvention. of technology protection measures that control access to copyrighted content.

in its comment, the Department of Justice and the FTC said that renewing and expanding exemptions related to repairs would promote competition in the markets for replacement parts, repair and maintenance services, as well as facilitate competition in the markets for repairable products. Promoting competition in repair markets benefits consumers and businesses by making it easier and cheaper to repair things. Expanding repair exemptions can also remove barriers that limit the ability of independent service providers (including small businesses and entrepreneurs) to provide repair services.

Manufacturers use technological safeguards to protect copyrighted works from theft and infringing use, but these software locks can also be used to prevent repairs by non-infringing third parties, according to the Department of Justice and the commentary from the FTC. For example, such measures may restrict access to computer maintenance software and hardware programs, leaving only original equipment manufacturers able to perform maintenance and repair work. In their commentary, the Justice Department and the FTC say that by limiting access to data and software necessary for independent repair and maintenance, these technology protection measures can be used to crush competition for replacement parts. , repair and maintenance, which ultimately limits consumer rights and business options and increases costs.

The Department of Justice has actively opposed repair restrictions that limit the ability of consumers and businesses to repair their own products. In a declaration of interest recently filed in In connection with the Deere & Co. repair services litigation.3:22-cv-50188 (ND Ill., 2023), the Antitrust Division clearly stated that “federal antitrust laws have long protected competition in aftermarket markets,” such as the replacement parts and service markets. repair by independent distributors.[1] The division has also brought cases to protect competition in the component or repair services markets, participated in antitrust advocacy, and provided technical assistance to Congress on proposed legislation that would advance the right to repair.

In their joint comment, the Department of Justice and the FTC expressed support for renewing, expanding, and adding some specific exemptions to the DMCA. The agencies support renewing the current exemption related to computer programs that control devices designed primarily for use by consumers for diagnosis, maintenance, or repair of the device and expanding it to include commercial and industrial equipment. In addition, they also support the renewal of an exemption related to the repair of motor vehicles and the granting of a new exemption to allow vehicle owners or independent repair shops to access, store and share vehicle operational data.

[1] United States Declaration of Interest in 8, In re: Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-5018 (NDIll. 2023). The district court recently denied in part defendant's motion for judgment on the pleadings, citing the Division's statement. The court's reasoning recognized that it is plausible that the defendant has market power in the equipment market, and that life cycle pricing difficulty may support a repair parts market for purposes of determining competitive harm. Memorandum of Opinion and Order at 39-49, In re: Deere & Company Repair Services Antitrust LitigationNo. 3:22-cv-5018 (NDIll. 2023).

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