Considering a Right to Repair Software
37 Berkeley Tech. L.J. 941 (2023)
47 Pages Posted: 2 Jun 2022 Last revised: 27 Feb 2023
Date Written: June 1, 2022
The right to repair movement aims to extend the usability of products by allowing a consumer (or a repair professional acting on the consumer’s behalf) to fix broken products. Implicitly, the movement’s focus has been on hardware—on the right to repair cars, tractors, and phones. But as more and more of the functionality of goods comes from software, it is important to consider whether we need a right to repair software. There are practical challenges to software repair. For example, fixing software is more difficult and treacherous than fixing hardware. Complicating matters further, more and more software is embedded in hardware or runs remotely from the cloud, making it difficult, if not impossible, to repair. A right to repair software would also push deep into conflicts with intellectual property rights because repairing software might infringe a copyright holder’s exclusive right to create and distribute derivative works, a patent holder’s right to exclude making and using an invention, or a trade secret holder’s right to protect valuable information.
This Article attempts to reframe the repair issue as it applies to software in two ways. First, it discusses how a robust conversation about software repair is already well underway as part of the software industry’s vigorous debate about the pros and cons of open source software. In other words, right to repair proponents do not need to start a new conversation about the right to repair software; they can and should join the ongoing discussions about open source software. Second, the Article discusses how the most salient issues related to software repair do not involve consumers’ ability to fix software bugs but, instead, their ability to get or refuse updates from software developers and to revert to a prior version of the software if the consumer does not like the updated version. Policymakers should focus on these issues as they consider a right to repair software.
Keywords: right to repair, software, source code, object code, executable, machine-readable, software development, open source, legislation
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