“We should all be able to fix the things we own. We should be able to take them to a repair shop of our choice. And the best way to secure those rights is to pass legislation at the state level requiring manufacturers to make repair tools, spare parts and diagnostic information readily available to consumers and independent repair shops.”
Gay Gordon-Byrne, Repair Association
In a Wall Street Journal piece weighing the pros and cons of right to repair, leading repair advocate Gay Gordon-Byrne, executive director of the Repair Association, makes the case for legislative measures that protect consumers from manufacturers’ increasingly restrictive practices, which can include design patent misuse.
The Repair Association, which represents over 400 member companies in sectors across the economy, has been a key player in driving momentum for right to repair legislation at the state and federal levels. In February, the organization endorsed the bipartisan Save Money on Auto Repair Transportation (SMART) Act, which would rein in the design patent abuse that’s been limiting consumer car repair options in recent years.
Check out Gordon-Byrne’s excerpt in the Wall Street Journal below:
YES: We should be able to fix what we own
By Gay Gordon-Byrne
The right-to-repair movement is fundamentally about protecting our centuries-old rights to repair the things we buy. When we buy things, they are supposed to become ours entirely—ours to use, customize, resell, repair, neglect or destroy.
Over the past generation, almost every product with a computer chip has been subject to manufacturer repair restrictions. Manufacturers have used those chips as an excuse to block potential competition for repair even though doing so broadly violates antitrust provisions against tying together sales and service. Lack of enforcement of these provisions has led to the backward assumption that manufacturers have a right to block repair, or control who can service equipment. The practice is so widespread that even if a manufacturer loses a repair case here or there, it has no deterrent value.
We should all be able to fix the things we own. We should be able to take them to a repair shop of our choice. And the best way to secure those rights is to pass legislation at the state level requiring manufacturers to make repair tools, spare parts and diagnostic information readily available to consumers and independent repair shops. States, with their general business and consumer-protection laws, can demand the sale of repair materials. State attorneys general are the logical enforcement body, able to assess fines and pursue court remedies.
While federal agencies have a role to play in restoring a competitive repair marketplace, they don’t have the same powers as states. The U.S. Copyright Office, for example, has repeatedly cleared the way for people to circumvent products’ software locks for the purpose of repair, but it can’t force manufacturers to provide necessary service materials.
The Federal Trade Commission recently investigated manufacturers’ claims that making repair materials more widely available would create new safety and cybersecurity risks for consumers and lead to more theft of intellectual property. In a report last year, the agency said it found “scant” evidence of those claims and concluded unanimously that consumers don’t benefit from repair limitations. The FTC called on states to enact right-to-repair legislation.
None of the manufacturers’ counterarguments hold water. While claiming it is their responsibility to ensure products aren’t altered or repaired in a way that makes them unsafe, manufacturers also protect themselves with “limitations of liability” clauses in product purchase agreements, warranty documents and end-user license agreements. These clauses put all responsibility for use of a product on the buyer, so manufacturers in essence are arguing against their own liability protections when they say it is their responsibility to ensure products are fixed correctly.
Manufacturers also claim that providing technical information to parties they haven’t vetted threatens innovation and consumers’ data privacy. Those arguments are flawed, too.
Repair doesn’t jeopardize intellectual property as the product is already in the marketplace, with all that creative and valuable content included. Swapping a replacement part produced under the same patents and copyrighted software as the original is just a replacement. And if manufacturers are providing thousands of authorized repair shops with sensitive information—such as a way to bypass a product’s security settings or encryption features—those supposed secrets would rapidly cease to be secret.
The idea that consumers are free to service their devices anywhere is nonsense because techs can’t do their jobs without the materials mentioned in right-to-repair laws. It isn’t practical for tinkerers to build chips in their basements, so parts must be available. Techs can’t find problems or confirm a repair is completed without access to diagnostics. They may need specialty tools to gain physical access to a broken device. They can’t activate spare parts without access to the settings tools. Lack of access to any of these things—none of which are secret because they are already distributed to authorized technicians—creates a repair monopoly.
The passage of state right-to-repair laws could force manufacturers to throw their support behind federal legislation to avoid having to comply with a patchwork of rules. As 41 states have already introduced some form of “right to repair” over the past eight years, we think the odds are with us.
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