Exploring legal barriers to medical device repair: Meet PhD candidate Yuri Banens

For this month’s researcher profile, we caught up with Yuri Banens, a PhD candidate at the Griffith Law School (GLS). Working under the supervision of Professors Leanne Wiseman and Charles Lawson, Yuri is exploring how law and technology intersect in the repair of software-enabled medical devices. 

We asked Yuri about his PhD project and some of the insights he’s gained along the way. 

Can you tell us a bit about your PhD project? 

My research project looks at the legal and technical barriers to repair of software-enabled medical devices. It involves several areas of law: intellectual property, competition and consumer law, and device safety regulation. The main problem I am addressing is whether manufacturers’ controls over the repair of their products (which might be exerted through things like servicing contracts, authorised service networks, or password locks and software licence keys) could amount to anticompetitive conduct. And if it does, should it be regulated and how?  

The Federal Government has just released a discussion paper estimating that introducing a right to repair in the agricultural sector would raise GDP by $97 million, so there are real costs to the economy involved in repair barriers. But the safety risks involved in medical devices, and the huge variety in medical device types, make things much more complex when considering regulation in this sector. Some devices are user-managed, like powered wheelchairs, and repair may present lower risks. Whereas some devices are owned and managed by hospitals, where professional biomedical engineers are responsible for their maintenance and repair. The risk profile, and the types of repair barriers that appear, are very different.  

What initially drew you to this research topic, and how has your thinking about it evolved since starting your PhD? 

I more or less stumbled into this topic. My supervisor was conducting a broader investigation into repair barriers in Australia, and needed a PhD candidate to conduct research into a specific sector, so I came in a little cold, so to speak. I don’t have a background in intellectual property law, nor in competition law, so I had to scrub up on the basics of those. What I did have though, and what motivated me to take on this research, is a background and interest in digital rights, going back to the passing of the Digital Millennium Copyright Act (DMCA) in 1998. The DMCA was central to developing a legal model of intellectual property that reflects the interests of large US interests like Disney and Microsoft. It is a crucial piece of legislation for my research because it introduced and entrenched the idea that technical protection measures (TPMs) in software should be a matter of copyright law. From then on, hacking or bypassing a software lock became, ipso facto, a breach of copyright law. The US pressured its trading partners, including Australia, to adopt this approach to copyright. Now, a generation later, TPMs are in practically every software-enabled device, from cars to tractors to patient monitoring systems. And so, tinkering with them, even if you are just trying to repair or debug something, can carry significant legal risk. 

‘The real problem isn’t a lack of rights for consumers, but too many rights granted to copyright holders’

 My thinking about the nature of the problem has changed significantly since I started. I guess this is common among PhD candidates. I now see the phenomenon as an effort to dominate the secondary market (namely, what happens after first sale) for valuable, long-lived products. It plays out the very same way no matter whether we are talking about cars, tractors, iPhones or blood sugar monitors—and has been happening for many decades. What is new is how software, especially cloud-connected software, can be used to reinforce this domination, supported by anti-circumvention laws like the DMCA (and Australia’s Copyright Act). At first, I used the phrase ‘right to repair’ to describe the area in which I was working. This is still the phrase used by a lot of consumer advocates. But now I prefer not to use it because I feel it obfuscates the nature of the problem somewhat. The real problem isn’t a lack of rights for consumers, but too many rights granted to copyright holders, combined with one-sided software licenses and service contracts that give even more rights to device vendors. 

Congratulations on your recent peer‑reviewed literature review. How did the peer‑review process shape your thinking about your research or your writing? 

‘My PhD has in many ways been a process of learning to write all over again.’

I was relatively lucky with my peer review. The comments weren’t too devastating. The best thing about them was that they helped me to see where my academic writing was still developing. In that sense, it was a little humbling. I had thought I was an okay writer, but I hadn’t seen the ways I could still be emotive, tendentious or partisan. My PhD has in many ways been a process of learning to write all over again. I also learned some very practical lessons through peer review: that provided I make a good faith effort to respond to comments it doesn’t have to be perfect, and that reviewer comments can in fact contradict one another wildly! This latter realisation helped me to become a little more confident in my own ideas: if the reviewers can’t agree, it suggests that I don’t have to make my whole self-image dependent on what one reviewer or other happens to think that day. Shortly after having my paper accepted, I was asked to review a paper myself. Doing that also helped me to gain insight into the difficulty of the reviewing process, and so perhaps to bring some compassion and understanding to those crabby ‘Reviewer #2’ comments (that is, the infamous archetype of the overly critical, nitpicky or hostile evaluator)! 

What kind of support (people, practices or spaces) has made the biggest difference to your PhD experience so far? 

GLS runs a ‘shut up and write’ group every week. Faculty members and research students get together, usually on Teams but sometimes in person, and write solidly for a couple of hours, with five-minute breaks between. Quite often the five minutes turns into something a bit longer, and the group members catch up on various things. I have come to really rely on these sessions. Not only do they give me an impetus to actually write, but the regular contact with the same people, it keeps me feeling connected with the School. I can keep up to date with other peoples’ research and chit-chat about their families and pets. Since my office is a little bit removed from faculty, and until recently wasn’t shared by other PhDs (a situation lately rectified!), the GLS writing group was an important way for me to feel like I was part of a larger community, and not just struggling along on my own. 

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