Repairability, Durability, and Copyright

In typically morose terms, Aldous Huxley once proclaimed that, “armaments, universal debt, and planned obsolescence… are the three pillars of Western prosperity.” Mr. Huxley was certainly on to something – at least in the case of planned obsolescence. Obsolescence, planned or otherwise, is ubiquitous. We confront it when we have children to replace us just as much as we confront it when our washing machine needs to be replaced. Obsolescence is, in economic terms, the state of being no longer utile. It is precisely this sense of the word that helps to explain why planned obsolescence is such a fraught concept. It elicits an intentional loss of utility, which is the opposite of what a customer or employee wants. It is the reason Studs Terkel in Working could credibly write that planned obsolescence, “is the specter that most haunts working men and women: [planned obsolescence] of people [and of] the things they make.”

Perhaps out of a sense of duty to the working man and woman, perhaps in an attempt to vanquish the specter, the European Parliament announced their desire to end the planned obsolescence of software and electronic devices this past Tuesday. Simply put, spare parts and independent service should be available to consumers and technical obstacles including pernicious software locks ought be eliminated. In so doing, European lawmakers want to increase the second-hand sale of devices and software as well as create repair jobs outside of those offered by the industry giants, both of which would give the European market a greater share of the lifetime revenue of electronic devices. Moreover, parliamentary lawmakers expressed their hope that European Commission (the actual legislative body of the E.U.) legislation would keep many thousands of devices out of landfills by making them easier to repair.

This isn’t strictly a European phenomenon. According to the Repair Association, an organization dedicated to increasing consumer control over their devices, eight U.S. states including Nebraska, New York, and Illinois, are considering legislation along similar lines. As it stands, in the U.S., most types of software repair are legal under existing copyrights, but user agreements frequently prohibit them as a matter of contract law.

Functionally, existing copyright paradigms in the United States are durable goods, which is to say, goods that provide the holder/customer with utility over time (i.e. not goods which incorporate a large degree of planned obsolescence). This is an obvious difference between copyright and patent, the latter involving a much greater amount of planned obsolescence owing to its significantly shorter lifespan. The nature of a patent is perhaps more conducive to innovation than a copyright and perhaps, given the recent outcry in the E.U. and the U.S. regarding a right to repair, it is time to make copyright more like a patent. Ultimately, I’m curious what the world would look like if allowing for user repair and the like was a condition of holding IP in software or an electronic device at all. In such a world, if the holder of a copyright, for example, preempts a right to repair with an end-user contract, then their IP would be null and void. Yet, suppose that everything works and a right of repair is allowed for. At that point there is a secondary question that I think the right of repair raises about control over a device or piece of software and whether or not copyright allows too much to flow to the holder. In other words, regardless of whether or not the conditional proposition (allowing for a right of repair) is satisfied, there is a question about whether or not we should nevertheless shorten the duration/durability of copyrights.

In recent years, the field of art law has explored such questions. In particular, there has been much debate regarding whether or not copyright specifically should be shorter in duration. To put it rather bluntly, many individual artist