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 Justice Department’s Antitrust Division and Federal Trade Commission (FTC) have submitted a comment to the U.S. Copyright Office to advocate for regulations that would facilitate consumers’ and businesses’ right to repair their own products.

The Justice Department and FTC submitted 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) prohibition against the circumvention of technology protection measures that control access to copyrighted content.

In their comment, the Justice Department and FTC said that renewing and expanding repair-related exemptions would promote competition in markets for replacement parts, repair and maintenance services, as well as facilitate competition in markets for repairable products. Promoting competition in repair markets benefits consumers and businesses by making it easier and cheaper to fix things they own. 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 technology protection measures to protect copyrighted works from theft and infringing uses, but these software locks can also be used to prevent non-infringing third-party repair, according to the Justice Department and FTC comment. For example, such measures can restrict access to computer maintenance hardware and software programs, leaving only original equipment manufacturers able to do maintenance and repair work. In their comment, the Justice Department and FTC say that by limiting access to the data and software needed for independent repair and maintenance, these technology protection measures can be used to squash competition for replacement parts, repair and maintenance, which ultimately limits consumers’ and businesses’ choices and raises costs. 

The Justice Department has actively opposed repair restrictions that limit the ability of consumers and businesses to repair their own products. In a recently filed statement of interest in In re Deere & Co. Repair Services Litigation, 3:22-cv-50188 (N.D. Ill., 2023), the Antitrust Division stated clearly that “federal antitrust laws have long protected competition in aftermarkets,” such as markets for replacement parts and repair services by independent dealers.[1] The division has also brought cases to protect competition in markets for repair services or component parts, engaged in competition advocacy and provided technical assistance to Congress on proposed legislation that would promote the right to repair.

In their joint comment, the Justice Department and FTC expressed support for renewing, expanding and adding some specific DMCA exemptions. 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 renewing an exemption related to the repair of motor vehicles and granting a new exemption to allow vehicle owners or independent repair shops to access, store and share vehicle operational data.

[1] Statement of Interest of the United States at 8, In re: Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-5018 (N.D.Ill. 2023).  The district court recently denied the defendant’s motion for judgment on the pleadings, in part, citing the Division’s statement.  The court’s reasoning acknowledged that the defendant plausibly has market power in the equipment market, and the difficulty of lifecycle pricing can support a repair aftermarket for purposes of determining harm to competition. Memorandum Opinion and Order at 39-49, In re: Deere & Company Repair Services Antitrust Litigation, No. 3:22-cv-5018 (N.D.Ill. 2023).