On July 18, the House Judiciary Committee held a hearing debating the so-called “right to repair” for devices like smartphones and tablets as well as larger machinery like cars and tractors. The hearing displayed a limited set of views on whether federal law should create an exception to copyright protections for repair purposes. For small businesses, like the member companies of ACT | The App Association (the App Association), federal mandates to allow open access to otherwise protected software involves legalizing a “market for exceptions” that can lead to increased cyberattacks. This type of security risk is especially prominent when the software in question is protected by encryption or other vital security tools, referred to in the copyright context as technological protection measures (TPMs). The Digital Millenium Copyright Act (DMCA) is a foundation of those protections. The DMCA is not without its flaws, but the Section 1201 circumvention prohibition and its exemptions have proven to be effective and flexible tools that enable continued innovation in the tech sector and promote consumer choice.

While the DMCA has only two prohibitions to prevent unauthorized access to digital content, Congress included 10 key exemptions that allow the circumvention or breaking of digital locks on copyrighted works and the creation of tools to allow these activities. These safety valves—intended to balance copyright rights with the public interest in accessing and using copyright protected content—actually work. Developers rely on these exemptions to innovate, which in turn provides consumers with access to a wide range of products and services in a variety of business models.  Our members like to say, “Just tell us the rules so we can build our business.” The exemptions in the DMCA provide clear guidelines for app developers as they create and bring their products to market. The “chilling effect” on innovation that is often raised in the debate about the DMCA simply has not materialized in the app economy. The obvious success of American software-driven industries—which create millions of jobs and leave analogous sectors in other countries perpetually playing catch-up—is strong evidence that the DMCA protections under current law are working.

TPMs protect layers of software in devices. Licensed software is a part of most products with digital content embedded in them. The system of licensed software is a crucial component to the investment and distribution in existing products and future innovations. The benefits to consumers across a wide variety of products and services at every price point cannot be understated. Exemptions that allow circumvention of the TPMs protecting embedded device software compromise the protections afforded to other licensed software, putting consumers and their personal information at risk when products malfunction. It also allows software competitors access to product codes, which is a disincentive to innovation. Fortunately, there are alternative options to address many of the concerns expressed regarding access to software. Notices to consumers about restrictions and allowable uses along with offering certified third-party repair services can protect consumers and software developers. Our members and those of other content and tech industries rely on licensed software to continue to offer low-cost, consumer friendly products across a growing range of business models.

Consumers’ access to third-party repair services is important from app makers’ perspective. But enabling wider availability of these services via a suspension of copyright protections carries with it serious risks to security, privacy, and App Association members’ reliance on IP protections.