Balanced Copyright Rules Can Help Save Lives During the COVID 19 Crisis

Our friends and right to repair leaders at iFixit are can-do people. If they see a need they can fill, they step up to do it – even if that need is massive. And they’ve done precisely that with a new and user-friendly archive of repair information for mission-critical medical equipment, including easy-to-use repair guides that boil down key information. Thanks to this project, biomedical technicians can quickly and easily access the information they need to keep medical equipment up and running, saving time, money, and lives.

You might think manufacturers of medical equipment would already provide such a database, but you’d be wrong. Many manufacturers refuse to put their manuals online, or, if they do, the manuals are clunky PDFs that are hard to navigate and use, especially when you are trying to work quickly and carefully. So technicians turned to iFixit for help, and iFixit responded in old-school Internet fashion, sending out a call for documents and people to help organize them.  They were overwhelmed by the response, and this new collection is the result.

But there’s (at least) one remaining problem. Medical equipment manufacturers claim copyright in these manuals, and they haven’t hesitated to wield it to limit online availability. Which is a shame, because such projects have strong countervailing rights, at least under U.S. law, such as limitations on platform liability and the fair use doctrine.

Section 512 of the Digital Millennium Copyright Act provides a safe harbor for online platforms so that they can host content uploaded by their users without needing to navigate the underlying doctrines of potential secondary liability if users infringe copyright. As long as they comply with the requirements of that safe harbor, including removing content on receiving a notice, they are insulated from copyright liability on the basis of their users’ uploads. And users can counter-notice to restore content where, as here, it is a fair use.

Fair use depends on four factors, weighed together in light of the purposes of copyright.

First, courts look to the purpose of the use. Is it transformative, i.e., is it new and different from that of the original creator? Is it commercial? Here, iFixit has pulled together a collection of manuals in one database, making them more findable, accessible, and useful, at no cost to the user. The database and user guides present non-copyrightable information from the manuals to aid in searching and more quickly comprehending that information, with the original manuals available so that technicians can verify and correct the summary information in a crowdsourced way. Whatever copyrightable elements exist in these manuals, they are irrelevant to the project’s purpose of disseminating and explaining factual repair information in order to save lives. Factor one favors fair use.

Second, courts look to the nature of the work. Is it more factual or more expressive? Is it already published? Here, the works in question are highly factual and likely long since published. Factor two favors fair use.

Third, courts consider whether the second user copied more than necessary for their purpose. Here, the project must copy entire manuals, or risk leaving out a crucial details or context the technician will need to make the repair. This is an essential step in generating crowdsourced summaries and easy-to-use guides, as well. Factor three favors fair use.

Fourth, courts consider whether the use will cause harm to a licensing market. Equipment manufacturers are in the business of selling equipment, not licensing repair manuals, and while they may occasionally sell them as part of trainings, it strains the imagination to conceive of the manuals as an independent licensing market. Allowing manufacturers a copyright monopoly over repair information risks creating a corollary monopoly on the maintenance of those devices. Far from a legitimate licensing market, that would be a misuse of copyright to inhibit  competition in an adjacent market for non-copyrightable goods and services. Factor four favors fair use.

Finally, does a fair use finding further or hinder the purposes of copyright? This one is easy. There’s no public interest in locking down these manuals because Manufacturers don’t need a copyright incentive to draft or publish these manuals; they do so as a natural corollary to their real business of selling medical equipment. The Medical Device Repair Database, however, does promote the public interest by encouraging the creation of user guides that will help technicians, and the strapped hospitals they work for, do their job more effectively.

Contrary to the belief of some rightsholders, copyright law is all about balance, and it protects secondary uses as well as original ones, especially when the usual copyright incentives were neither relevant nor needed to create the original work. That balance is working here – and a good thing too.