Copyright Exemption for Medical Device Repair Update

On October 25, 2024, the U.S. Copyright Office released the report “Section 1201 Rulemaking: Ninth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention “to coincide with the Federal Register’s public inspection copy of the final rule in the Section 1201 proceeding, which took effect on October 28, 2024.

Nathan Proctor, the senior director of the U.S. PIRG Campaign for the Right to Repair, shared his thoughts on the report. Proctor writes:

“Despite significant opposition from the medical device manufacturers, it is still legal to bypass technological protection measures in order to fix medical equipment.

Companies that make products from tablets to tractors sometimes use a quirk in copyright law to deny us the right to repair our own devices, or take them to the servicing vendor of our choice 17 U.S.C. § 1201 (known as ‘Section 1201’) is designed to protect copyrighted works from piracy and makes it a crime to bypass a digital lock set up to protect copyrighted content like music, video games or movies. But some manufacturers have exploited that provision to lock consumers into their own expensive, inaccessible repair services, by locking repair functions, too. These digital locks turn fixing your phone, computer, tractor or medical equipment into copyright infringement subject to civil and criminal penalties.

There is a limited escape valve to this rule, however. Every three years, the Copyright Office reviews exemption requests to make certain types of circumvention permissible under the law. Over the years, the Copyright Office has granted exemptions to all manner of repair activities, concluding that repair is not a violation of copyright. This is important because medical device manufacturers have claimed 1201 violations when non-OEM servicers have bypassed locks in order to service equipment.

Three years ago, the Copyright Office added repair of medical devices to the list of exempted activities under Section 1201. Medical device trade groups opposed this exemption, and even sued to remove the authority of the Copyright Office to issue exemptions (the case was dismissed, but an appeal is pending). The Register of Copyrights noted in the rulemaking that the manufacturers and trade groups have failed to address a reasonable theory as to why the exemption should be rescinded, or that repair of a product is not ‘fair use.’