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California Businesses Address Ownership of Intellectual Property and the Right-to-Repair Movement

As a legal concept, “ownership” has long been fraught with complexity. The increasing use of digital technologies has raised questions about what it means for consumers to “own” a device like a car or smartphone. The owner of such a device unquestionably has the exclusive right to possession of the device. Their use of the device, or the software and other digital technology contained within the device, is subject to multiple legal restrictions. This includes limitations on the ability to repair devices and equipment. Some consumers are pushing back, asserting their right to repair property that they arguably own. The right-to-repair movement might have started with Northern California’s tech industry, but it has expanded to include a wide range of products and populations. Farmers, for example, are now pushing back against companies like John Deere, which they claim have prevented them from repairing their own farm equipment.

Using the iPhone as an example, a consumer “owns” the device itself. They could use it as a coaster or a doorstop if they wanted, but if they decide to use it as a smartphone, they do not own the technology that allows the device to function as advertised. They only hold a license to use that technology. The Digital Millennium Copyright Act (DMCA) prohibits “circumvention of copyright protection systems,” which refers to various systems used in electronic devices to protect copyrighted materials, including software and firmware. 17 U.S.C. § 1201. End-User License Agreements (EULAs) also restrict consumers’ use of various devices. Consumers may risk legal consequences for modifying a device, or even merely by trying to repair it. Many iPhone repairs require a trip to the Apple Store to have a technician do the work, which can be inconvenient and expensive.

Companies like Apple must balance their intellectual property rights with customer satisfaction. Some companies have noted that restricting certain repairs protects both their customers and the integrity of their products, such as by limiting the ability of hackers to get too familiar with their systems. Manufacturers of wearable devices like fitness trackers may sell user data to third parties—with consent through an EULA. Restricting consumers’ ability to tinker with their devices protects those additional revenue streams.

Deere & Company manufactures farming equipment under the brand name John Deere. That name has been associated with farming since John Deere himself founded the company in 1837. Today’s farm equipment is considerably more advanced and includes various digital technologies that the company claims it only licenses to farmers. It has claimed ownership of various digital systems used in its products, even after those products have been sold to consumers. This has reportedly resulted in farmers having to wait for approved technicians to arrive to perform repairs. Many car manufacturers have made similar arguments about onboard computer systems.

The U.S. Copyright Office decided in 2015 that vehicle repairs should be exempt from the DMCA, at least for a few years. 80 Fed. Reg. 65944 (Oct. 28, 2015). Additional DMCA restrictions have been challenged in court. See, e.g. Green et al. v. U.S. Dept. of Justice, et al., No. 1:16-cv-01492, complaint (D.D.C., Jul. 21, 2016). Meanwhile, California and other states are considering their own right-to-repair laws.

Intellectual property attorney James G. Schwartz represents businesses and business owners in the Bay Area, advocating for their rights and interests in both litigation and transactional matters. Contact us at (925) 463-1073 or online today to schedule a free and confidential consultation with a member of our experienced and knowledgeable team.

More Blog Posts:

U.S. Copyright Office Issues New Regulations Regarding “Safe Harbor” Protections for Websites Under the DMCA, Pleasanton Business & Commercial Law Blog, April 27, 2017

Digital Music Service Shuts Down as Part of Copyright Lawsuit Settlement, Pleasanton Business & Commercial Law Blog, July 15, 2015

Use of a DMCA Takedown Notice to Enforce a Trademark Could Expose California Business to Sanctions, Pleasanton Business & Commercial Law Blog, July 15, 2014