Top system and the right to repair
Some questions take thirty years to answer, even if just partially. In the early ’90s of the previous century, the EU legislative process was a battleground of American tech behemoths and some national champions from the EU. The legislative dossier was what was to become the 1991 Software Directive. And it was seen as an opportunity for European tech companies and others to break the hegemony of IBM through interoperability.
Some questions take thirty years to answer, even if just partially. In the early ’90s of the previous century, the EU legislative process was a battleground of American tech behemoths and some national champions from the EU. The legislative dossier was what was to become the 1991 Software Directive. And it was seen as an opportunity for European tech companies and others to break the hegemony of IBM through interoperability.
The big question was to what extent software copyright should allow for reverse engineering of the various forms in which software code can manifest itself. The result was a messy, self-contradicting, compromise using the term “decompilation” (a technically sounding process which in reality only exists in the minds of software copyright lawyers). This compromise never resulted in much in the way of jurisprudence until the Court of Justice of the European Union(CJEU) case C-13/20, in which the CJEU came to a judgment on October 6th.
The facts of the case are mundane: a supplier of software to a Belgian governmental body had fallen short of its customer’s expectations, and the customer had taken matters into its own hand and altered the software provided so that certain bugs would no longer hinder its use. Here things became even more familiar to anyone that ever looked into the history of both the free software and the right to repair movements: the supplier, instead of being thankful of the errors being fixed, felt that their copyright was being infringed and took the customer to court. Their position was that the changes made to the
the software involved decompilation and that such decompilation is only allowed in very specific circumstances and for interoperability purposes. Neither the circumstances, nor the interoperability purpose
was in play and therefore this, in the supplier’s view, amounted to (willful) copyright infringement.
The CJEU’s take on this is rather refreshing: it considers none of the constraints put on reverse engineering of software for interoperability purposes as relevant in the context of reverse engineering for error correction purposes. It de facto recognises a right to repair for software, which is a massive boost for the right to repair in general, since so much equipment nowadays has software embedded in it. And the CJEU even provides an incentive for manufacturers of such equipment: the right to reverse engineer software for repair, purposes is only limited by the availability of source code for the software.
Getting similar freedom for the hardware side of things is what is needed but hopefully, we won’t have to wait thirty years before the jurisprudence becomes available.
Image credit: Michael Dziedzic / Unsplash
(Contribution by: Walter Van Holst, EDRi member, Vrijschrift)