By Irene Calboli, Regents Professor of Law, Texas A&M University School of Law, USA
Imagine you recently purchased a sophisticated electronic product, which you unfortunately, dropped on the floor and damaged. After unsuccessfully trying to repair it yourself, you decide to take it to the electronic repair shop near your house. There, however, you are told that the shop is not authorized to repair it. Instead, you discover you have to go back to the shop where you originally purchased it or to another manufacturer-approved repair service. You are puzzled and wonder how long the repair will take and how much it will cost you.
Welcome to one of the most fascinating and hot discussions in the intellectual property (IP) arena today: the discussion about the right to repair. In this short article, I report on recent developments on the right to repair in the United States. A second article offering a European perspective on this issue will follow.
The right to repair – what do IP rights have to do with it?
To start, what is the right to repair? The right to repair is the notion that consumers should have the right to repair their lawfully purchased products directly, or by selecting a repair service of their choice, as opposed to returning to the manufacturer or manufacturer-approved providers for the repair. In general, most consumers think they automatically have the right to repair a product they own. Yet, as illustrated in the example above, this is not always the case. On the contrary, in many instances, only manufacturers or manufacturer-approved services can repair the product they sell.
IP rights play an important role in this debate. Today’s products are generally protected with IP rights, and these rights can be used to control who can repair those products. In many instances, today’s products carry embedded software or other technology devices, which are also IP protected. In the US, the Digital Millennium Copyright Act (DMCA) (codified in scattered sections of 5, 17, 28, and 35 USC) makes it illegal to circumvent technological measures embedded into copyrighted works, including smartphones, home appliances, medical equipment, agricultural machinery, and more. Accordingly, manufacturers generally claim that only authorized personnel or the manufacturers themselves are qualified to repair such products to avoid consumers or third-party repairers being liable for infringing their IP rights. This principle is relevant beyond the USA because many countries today have implemented DMCA-style provisions in their jurisdictions.
Manufacturers generally claim that only authorized personnel or the manufacturers themselves are qualified to repair such products to avoid consumers or third-party repairers being liable for infringing their IP rights.
However, a movement strongly supporting the right to repair has been growing in recent years. In the US, this movement has been largely inspired by a 2012 Massachusetts law that allows for the right to repair automobiles. Under this law, car manufacturers must provide manuals and replacement parts to the public for purposes of repair.
A movement strongly supporting the right to repair has been growing in recent years.
What supporters of the right to repair argue
Notably, supporters of the right to repair believe that denying such a right inevitably leads to monopolies in the repair industry and higher costs for consumers. They assert that, when consumers are forced to take a product back to the manufacturer for repair services, they pay a premium for the tools required to repair the product and also pay additional labor costs. In many cases, the cost is greater than simply purchasing a new product.
Supporters of the right also argue that denying a right to repair is contrary to sustainability practices and can contribute to higher volumes of waste parts and products. In particular, due to the high costs associated with manufacturer repair, consumers are more likely to throw away their current products to purchase new ones. For example, studies have shown that 350,000 phones are thrown out every day.
What the manufacturers say
On their side, manufacturers tend to oppose the right to repair because of security, safety, and liability concerns. They argue that unauthorized repairs could use subpar components and ultimately compromise the security of the device, including a higher likelihood of data breaches and cybersecurity threats.
Manufacturers tend to oppose the right to repair because of security, safety, and liability concerns.
They also argue that third-party repairs could lead to safety hazards, which could result in manufacturers being held liable in the event of injury resulting from improperly repaired products. Instead, they advocate that only certified and authorized technicians should be allowed to perform the repair in the interests of consumer safety. Of course, the fact that post-sale services amount to a considerable size of manufacturers’ profits is an important element in the debate. In the United States alone, the repair business amounts to 3 percent of the entire economy.
Manufacturers are also concerned that unauthorized repairs can increase IP violations. As most products are generally IP protected, allowing unauthorized parties to repair them may lead to IP infringement and counterfeiting.
Manufacturers are also concerned that unauthorized repairs can increase IP violations.
Advocates for the right to repair have rebutted these arguments, however, and hold the view that the right to repair is a non-infringing use of the IP-protected components of the products. They support that “the right to repair is firmly rooted in half a millennium of common law property doctrine and has been explicitly recognized under US intellectual property law since the mid-nineteen century” . It has also been argued, and this author agrees, that the right to repair in an “outgrowth of the exhaustion principle” and is recognized as such under US copyright law.
Interestingly, the United States Copyright Office (USCO) also recognized that repair activities are generally non-infringing. The USCO also confirmed that the modification of device software in order to enable new uses is the essence of “transformative” under the fair use doctrine.
The far-reaching impact of the right-to-repair debate
There is no question that the impact of this debate goes beyond individual consumers and repair shops. Several industries rely on products that would benefit from the existence of a right to repair.
For instance, the agricultural industry has significant ties to IP-protected machinery and equipment. Farming equipment relies on embedded computers and software, meaning that farmers cannot repair the equipment directly, but have to rely on the manufacturers. In turn, this can halt agricultural production. To cite a well-known case in the U.S., the agricultural machinery company, John Deere, is currently embroiled in class-action lawsuit regarding the right to repair. The company is accused of monopolizing the farm-equipment repair market by prohibiting farmers and small shops from accessing software and repair tools, which is restricting the ability of these individuals to repair their own products on their own timeline. John Deere had signed a Memorandum of Understanding (MOU) with the American Farm Bureau Federation (AFBF), in which it agreed to allow farmers and repair shops to access the software and repair tools as long as AFBF “refrain[s] from introducing, promoting, or supporting federal or state ‘Right to Repair’ legislation that imposes obligations beyond the commitments in this MOU”. The lawsuit is ongoing in federal courts.
Recent legislative developments
Because of the relevance of a right to repair for consumers in several sectors of the economy, over 40 states across the United States have begun working on creating specific legislative proposals. These include provisions to reform the application of the relevant IP laws to create a legal exception that allows for a right to repair. As mentioned, the fact that the DMCA prohibits unauthorized parties from circumventing digital locks and similar technological barriers represents the main obstacle to this pending legislation. Even though the USCO can grant exemption requests for individuals to make their own repairs, the objective of this legislation is to change the current prohibition so that these exemption requests are no longer be necessary for instances related to the right to repair.
Moreover, on July 9, 2021, President Biden signed an executive order encouraging federal agencies to promote competition in the US economy. Specifically, one of the directives was to encourage the Federal Trade Commission (FTC) to create regulations that prohibit manufacturers from preventing individuals and independent repair shops from repairing their own devices. However, the executive order was still not specific enough regarding the right to repair, and additional laws and regulations will be necessary to effectively enable the creation of this right at the US federal level.
Still, support for a right to repair continued to gain momentum over the past year leading to important breakthrough legislation at the end of 2022. Notably, on December 29, 2022, New York became the first state in the United States to sign into law a right to repair for electronics. The new law is set to come into effect on July 1, 2023, and is known as the “Digital Fair Repair Act.”
The Act will require manufacturers to make available diagnostic and repair information, as well as parts, for most digital electronic equipment to both consumers and independent repair shops on fair and reasonable terms. In order to avoid many of the concerns previously discussed, the new law will not require manufacturers to divulge trade secrets and will ensure they cannot be held liable for damage made to the device by the owner or independent repair shop.
In general, the passing of the Digital Fair Repair Act represents a major victory for proponents of the right to repair. However, it also offers safeguards that address the concerns of manufacturers, making it pioneering legislation in this important area.
Despite pushback by manufacturers, the importance of the existence of a right to repair cannot be understated.
Ultimately, despite pushback by manufacturers, the importance of the existence of a right to repair cannot be understated. Consumers, retailers, and many industries rely on it in the US and in many other countries. Of course, such a right needs to be crafted with due safeguards, in particular by ensuring that manufacturers are not held liable for defective repairs by non-authorized parties, and that consumers are protected against defective repairs. However, provided these safeguards are met, changes in current laws, such as those in New York, should be welcomed across the whole of the United States and ideally, in every country, as they can benefit consumers and competition as well as sustainability and a circular economy by promoting the repair, and extended usage, of existing products.