The right to repair: the phrase conjures images of software engineers maintaining decades old mainframes, consumers fixing their gadgets at home, or small mechanics shops keeping cars on the road. [1]
Mass manufacturing of vehicles, machines, and consumer goods—and the more recent mass production of electronics and software—has created incredible opportunities for consumers and businesses alike. At the same time, the rise of “throw away” electronics and consumers goods has heightened concerns about non-reparability and planned obsolescence. Enhancements in metal alloys and manufacturing techniques mean that car have the potential to last longer than ever before. In fact, the current cars in the US are already 15 years old on average. Automakers have driven up the cost of repairs, forcing owners to go to dealerships and a select group of authorized repair shops.
An average American household disposes of 175 pounds of electronics per year.[2] Discarded electronics in the form of computers, phones, televisions, batteries, game consoles, DVD players, and other appliances contain heavy metals and rare earth elements. Improperly disposed of this material goes to waste in landfills and has the potential to leach into the environment. E-waste is often shipped overseas to Africa, Indonesia, or China for dangerous and polluting resource recovery.
Lack of repairability strips individuals and businesses of the full “bundle of sticks” of property rights and leads to massive inefficiencies and waste. With affordable repairs, many owners could probably keep their vehicles on the road for decades or reduce the steep costs of pollution associated with e-waste. Repairability also creates jobs. In America’s low-cost gateway cities and along rural state highways, one can still find businesses offering electronic repairs, re-upholstering for car seats and home furniture, or refurbishing for engines and machinery. But these businesses and the enterprise they support are increasingly rare.
Massachusetts became the first—and so far, only--US state to pass a right to repair law in 2012, dubbed an Act Protecting Motor Vehicle Owners and Small Businesses in Repairing Motor Vehicles.[3] Although focused exclusively on auto repair, the law required automakers to sell to repair shops or car owners the same diagnostic and repair information made available to dealerships. For now, Massachusetts is an outlier. Right to repair bills covering areas like electronics, farm equipment, and automobiles have been introduced in 19 states but so far none have passed.[4] Large corporations are quick to lobby against right to repair legislation. In Nebraska, Apple, AT&T, and John Deere all worked to stop a right to repair law.[5]
Today, software is in almost every kind of product imaginable. Cars, computers, and phones all depend on software. In 2016, the Copyright Office issued an analysis of potential copyright issues in software-enabled products.[6] Although it acknowledged the potential for problems with contractual and licensing agreements, the Copyright Office concluded that under existing law, there were few problems with tinkering with products and software after-market.
Copyright is not the only intellectual property right to consider in the context of right to repair. Patent law is also a consideration. Producers cannot claim patent infringement for repair of devices because any restriction on use comes from contract law after the first sale.[7]
There is another less obvious body of law the supports right to repair. Under federal and state antitrust laws, courts may block tying behavior where a company uses its power in one market to monopolize a second “tied product market.”[8] Courts weigh tying under a per se illegality approach or with the Rule of Reason.[9] In the automotive industry, tying suits have come up on many occasions.[10] Tying claims also come up in relation to electronics. For instance, in Collins Inkjet, the Sixth Circuit upheld a preliminary injunction for a manufacturer that demonstrated that its competitor had sufficient market power to sustain a tying arrangement.[11]
Right to repair legislation at the federal or state level would be a big improvement for American property rights. Emily Brown, writing as a law student at the University of Illinois, observed that right to repair might not be a silver bullet for waste reduction and planned obsolescence:
Although the resources for extending product lives would be made available, consumers must take initiative to repair their devices rather than falling prey to old habits of tossing out electronics to make room for a newer model. Right to repair does not mandate repair of used devices, nor does it prevent consumers from discarding usable devices when they are replaced with a newer model. Planned obsolescence of consumer technology may be halted by right to repair, but producers can still use irremovable batteries and prevent older devices from updating to new software--as long as they provide the required repair manuals and parts to consumers and third parties.[12]
The right to repair is an essential element of ownership. State and federal right to repair laws are sure to face headway from corporate lobbyists in the years to come, but as concerns about repairability grow, we may see increased legislation to safeguard the rights of owners.
References [1] Nicholas A. Mirr, Defending the Right to Repair: An Argument for Federal Legislation Guaranteeing the Right to Repair, 105 Iowa L. Rev. 2393, (2020) (hereinafter Mirr-Right to Repair). [2] Emily G. Brown, Time to Pull the Plug? Empowering Consumers to Make End of Life Decisions for Electronic Devices Through Eco-Labels and Right to Repair, 2020 U. Ill. J.L. Tech. & Pol'y 227, 228 (2020) (Brown-Right to Repair). [3] Mirr-Right to Repair, at 2399 (citing ch. 241, § (2)(a), 2012 Mass. Acts (2012)). [4] Mirr-Right to Repair, at 2402. [5] Mirr-Right to Repair, at 2403-04. [6] Mirr-Right to Repair, at 2400. [7] Brown-Right to Repair, at 245 (citing Surfco Haw. v. Fin Control Sys. Pty. Ltd., 264 F.3d 1062, 1066 (Fed. Cir. 2001). [8] Christopher R. Leslie, The Commerce Requirement in Tying Law, 100 Iowa L. Rev. 2135, 2136 (2015). [9] Id. [10] Sports Racing Services, Inc. v. Sports Car Club of America, 131 F.3d 874 (10th Cir. 1997) (holding distributorship had standing to bring monopolization claim and that the direct purchaser rule did not bar members’ illegal tying claim); Town Sound and Custom Tops, Inc. v. Chrysler Motor Corp., 959 F.2d 468 (3d Cir. 1992); Grappone Inc. v. Subaru of New England, Inc., 858 F.2d 792 (1st Cir. 1988). [11] Collins Inkjet Corp. v. Eastman Kodak Co., 781 F.3d 264 (8th Cir. 2015). [12] Brown-Right to Repair, at 246.
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