Right to Repair Laws: The IP Implications
“Right to Repair” laws are designed to ensure that consumers have the legal right to repair technology that they have bought and paid for. For years, manufacturers have designed their products to make it practically impossible for consumers or anyone other than an “authorized service provider” to repair them. Right to Repair laws are aimed to challenge this practice.
The movement for Right to Repair emerged in response to the increasing complexity of modern technology, such as smartphones, laptops, and other electronic devices. Complex machinery such as automobiles and farming equipment also carry product repair issues. Manufacturers often employ proprietary designs, specialized tools, and software locks, restricting repairs to anyone but their authorized repair networks, which limits consumers’ options and forces them to rely on expensive manufacturer repairs or replacement of the entire product.
Right to Repair laws seek to address this issue by requiring manufacturers to make available the necessary information, tools, and parts for independent repair technicians and individual consumers.
Manufacturers, however, often argue that these laws infringe upon their IP rights, particularly regarding trade secrets, copyrighted software, and patented technologies. Here are some key IP considerations related to Right to Repair:
1. Trade Secrets: Manufacturers’ trade secrets often provide them a competitive advantage in the market, and they claim that disclosing repair information, service manuals, or diagnostic tools could enable competitors to replicate their products or bypass security measures. Striking a balance between the need for repair information accessibility by consumers and protecting trade secrets for manufacturers is a crucial aspect of Right to Repair legislation.
2. Copyrighted Software: Manufacturers of electronic devices often incorporate copyrighted software in their products and argue that providing access to software codes or unlocking firmware for repair purposes could violate their exclusive rights as copyright owners. They often have concerns that potential unauthorized modifications or alterations to the software could impact its performance or security.
3. Patented Technologies: Manufacturers often hold patents for specific repair procedures, tools, or components within their products. Depending on the particular provisions and scope of the legislation, it is possible that Right to Repair laws could require them to share or license these patented technologies to independent repair technicians or consumers.
4. Anti-Circumvention Provisions: Some Right to Repair laws address technological protection measures or digital locks that prevent unauthorized repairs or modifications. In the United States, these features are often protected under anti-circumvention provisions of copyright law, such as the Digital Millennium Copyright Act (DMCA). Right to Repair legislation may include exemptions to these provisions to allow circumvention for legitimate repair purposes.
In the last two years, there has been greater momentum toward states passing Right to Repair laws to protect consumers – though it’s an uphill battle with tech companies who wield some $10 trillion in assets and well-organized lobbying efforts. This means that courts and policymakers will play a crucial role in determining the boundaries between IP protection and consumer Right to Repair, and any interpretation and impact of these laws on IP rights could vary wildly in different jurisdictions.
In 2022 two states enacted forms of Right to Repair laws. New York passed a pared-down version of its original attempt that excludes any “product sold under a specific business-to-government or business-to-business contract … not otherwise offered for sale directly by a retail seller” and only applies to products made after July 1, 2023, and Colorado passed a Right to Repair law giving people who use wheelchairs access to parts, tools, and diagnostics needed to fix wheelchairs when they break.
Momentum seems to be increasing in other states as well. Most recently, California’s State Senate passed a Right to Repair bill with a vote of 38-0 despite heavy lobbying, and activists feel good about their chances of moving it through the State Assembly. Seventeen other states have filed Right to Repair legislation and are in various stages of the process. (Note: North Carolina has not passed Right to Repair legislation as of this writing. It was stricken from the 2022 Farm Act.) Congress has held multiple Right to Repair hearings before its Small Business and Rules committees and has seen growing support for Right to Repair on both sides of the aisle. On the manufacturing front, Microsoft, Apple, Samsung, and Google are all moving ahead with repair programs. While some of these new repair programs have issues, such as Apple’s iPhone self-repair, it’s clear that many manufacturers are scrambling to get ahead of Right to Repair reforms moving forward around the globe.