We have said it once, and we’ll say it again: the Federal Trade Commission (FTC) must be careful not to adopt broad rulemaking that would invite serious security, privacy, and intellectual property (IP) risks for U.S. businesses. This broad rulemaking includes the heavily debated consumers’ right to repair as recently petitioned to the FTC. ACT | The App Association responded in the interest of our software developer community, which would be directly harmed by rules allowing extensive access to their technologies.

For small businesses, like our members, using encryption and security tools (also called technical protection measures or TPMs) alongside traditional IP protections helps guard their unique creations and keeps their businesses strong. Federal mandates, laws, and policies that work against these protections allow for easy and legally defendable infringement to cripple U.S. innovators and creators. In other words, this regime would create a “market for exceptions” to privacy, security, and IP mechanisms that support U.S. business stakeholders.

In our experience, we have seen three places where proposals suggested changing or avoiding existing copyright rules to make it easier for users or independent parties to repair software or devices:

1. State Legislature – proposals at the state level often attempt to create bargaining leverage for local independent repair shops in copyright license negotiations with major device manufacturers or, alternatively, sidestep federal copyright protections. These proposals have included requiring manufacturers to provide tools to independent third-party repair shops, allowing them to bypass TPMs and service the manufacturer’s products. While many states have it wrong, New York has enacted a similar law that appears to balance the interests of wider access to smart device repair capabilities while also protecting security.

2. Federal Legislature – The Fair Repair Act was introduced to the Senate in 2021 and lacked consideration for serious threats to U.S. businesses by widening the scope of exemptions to the Digital Millennium Copyright Act (DMCA) Section 1201 prohibition against the circumvention of TPMs. The App Association expressed our concerns following an informational right to repair hearing in 2023 and expressed our interest in working with interested stakeholders and Congress to develop legislation that reflects the shared goals of maintaining strong IP protections while optimizing the utility of software and devices, particularly for end users.

3. The DMCA Built-in Triennial Review – this process requires the U.S. Copyright Office to consider every three years whether to adopt exceptions to its general prohibition against bypassing TPMs. The App Association continues to be vocal against using this process to erode copyright-related protections with overbroad exemptions to repair, diagnose, or modify consumer electronic devices.

TPMs are crucial to protecting our members’ licensed software and the digital content embedded in them. Copyright-related protections under the DMCA not only drive an incentive for innovation but also secure investment and distribution opportunities for digital products. These measures equally protect consumers from privacy and security threats that are easily enabled by exemptions with undefined limits.

The private sector does offer reasonable means that alleviate many concerns regarding the need to access software within consumer devices while protecting consumers and software developers. These measures include notices to consumers about restrictions and allowable uses and certified third-party repair services.

App Association members are amongst many U.S. stakeholders that rely on licensed software that provides consumers with the best products. Consumers’ access to third-party repair services is important to the App Association. However, the FTC should not heed calls to disable important measures that incentivize and protect digital products to do so. Instead, the agency should consider if a rulemaking around the right to repair consumer devices aligns with the unique needs of small businesses and balanced competition.