The right to repair is a contentious topic that has spent a lot of time in the news over the last couple of years. Consumers believe they should have the right to repair devices they own, while many manufacturers contest this. When discussing repairing an automobile or a smartphone, the law should side with the consumer – but where does the right to repair fall when dealing with medical devices?
A new lawsuit brought against the Library of Congress by a trade association of medical device manufacturers could change how DMCA gets applied moving forward.
DMCA Section 1201 and the Triennial Review
Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. It has evolved into a seemingly comprehensive tool for copyright protection in the intervening decades. Unfortunately, people have found ways to exploit it. Many of its sections and processes operate contrarily to one another, making it difficult for even those versed in DMCA law to keep track of all the potential loopholes and exploits.
On paper, Section 1201 of the DMCA seems like a straightforward process to prevent the law from being circumvented. Section 1201 explains that attempting to “circumvent a technical measure” would also be considered copyright infringement in very broad terms. It also creates a tool for people to obtain exemptions to this section of the DMCA. Every three years, people are allowed to apply for exemptions.
2021 provided the latest opportunity for exemption applications. Some of the approved exemptions included an expansion on an exemption from six years ago which allowed for the circumvention of technological protection measures (TPMs) on medical devices. The initial exemption limited this sort of circumvention to partially or wholly implanted devices, but petitioners in 2021 sought to expand the exemption to include any medical devices.
For medical professionals, this exemption makes a lot of sense. It allows medical professionals to access data on their patients’ devices, regardless of any TPMs in place. The medical device industry doesn’t see it that way.