Physical and Non-Physical Restrictions on Repair
There are a number of physical and non-physical means that can be used to restrict repairs. Physical restrictions are physical obstacles that limit consumers’ ability to repair the products or devices they own. For example, manufacturers may build products or devices to include hardware like nuts and bolts that require unique screw heads to manipulate them. Tech manufacturers may use soldering on motherboards and other technical components, eliminating consumers’ ability to replace or upgrade individual components of a device.
There are also less concrete means of limiting consumers’ ability to repair. Manufacturers can limit access to repair parts, manuals, and diagnostic software and tools to their own authorized repair networks, making the repairs more difficult to perform. Without access to the parts, manuals or software, independent repair shops struggle even to diagnose problems, resulting in consumers’ replacing products rather than fixing them. Some manufacturers might also disparage the quality of non-original equipment parts or even the independent repair shops themselves in order to promote their own affiliate repair networks.
Further, manufacturers can use non-physical means to restrain repair. They can enforce patents and trademarks to create barriers to the import, sale, distribution, or manufacture of tools and spare parts. Manufacturers also deploy software locks or technical protection measures to protect proprietary hardware and copyrighted technologies. Finally, manufacturers may employ End User License Agreements that contain contractual restrictions on repairing products or software.
Arguments Against a Broad Right to Repair
Advocates of repair restrictions make a number of arguments in support of the restrictions, from intellectual property right protection (especially copyright), to safety, cybersecurity, and reputational harm. Regarding intellectual property rights, manufacturers use trademarks, trade secrets, and copyrights to protect their repair information, and they obtain design patents that allow for protection of spare parts. Further, manufacturers use trademarks to block the importation of replacement parts, e.g., by placing trademarks on small internal parts. Manufacturers also rely on trade secrets, arguing that allowing individuals and shops to service their products would increase the likelihood of trade secrets becoming public knowledge. Finally, they argue that consumers may violate copyright law if they make their own repairs. On that point, the US Copyright Office concluded in December of 2016 that poor interpretation of copyright law has indeed led to confusion with respect to the right to repair, but that copyright law does not necessarily restrict repair, tinkering, customization, security research or resale.
Manufacturers also argue that unauthorized repairs present risks to repairers and users alike. Repairers, it is argued, are unlikely to be aware of the dangers posed by the repair and may be injured as a result. For users, manufacturers argue that repair restrictions protect consumers from injuries that could result from using an improperly repaired product. They maintain that safety risks are mitigated when repairs are performed by authorized repair providers because they have been properly trained and have the necessary skills to safely repair the products to proper specifications and standards. In a similar vein, tech manufacturers argue that repair restrictions protect consumers from cybersecurity and data breach risks, because authorized repair professionals conduct repairs without compromising the privacy of the device or the embedded hardware security technology. Manufacturers have also expressed concern that they will face liability or reputational harm due to faulty repairs made by independent repair shops. Some manufacturers suggest repair restrictions are justified on the theory that authorized repair shops provide a better quality of service.
Arguments for a Broader Right to Repair
The most straightforward argument in favor of an unfettered right to repair is that the consideration for purchase and ownership of a product includes the right to fix it, without restriction. But the arguments extend beyond this simple—manufacturers might say simplistic—concept of fairness. Advocates argue that allowing or providing repairs only through authorized repair networks or manufacturers can lead to repairs taking too long, reducing the value of the goods to owners. Further, a lack of access to OEM manuals, tools, and replacements parts for independent repairers arguably decreases competition and increases prices. Advocates maintain that where non-manufacturer replacement parts do not exist or their use is not feasible (e.g., because the product will no longer function if a non-OEM part is used), manufacturers have effective monopolies on repair, making repair costs higher than they could or should be. Additionally, advocates argue that manufactures’ repair restrictions contribute to environmental harm and electronic waste, because electronics that cannot be repaired are instead unnecessarily and prematurely discarded, ending up in a landfill or an unprotected dump site in the U.S. or abroad. Extending the life of consumer products delays these products’ entry into the waste stream and reduces the amount of energy used to generate replacement products. Extending the life of consumer products by giving consumers more ability to maintain devices could decrease the production of e-waste. Finally, consumer repair advocates claim that the repair restrictions negatively impact independent repair shops and their employees by limiting the ability of those businesses to compete with OEMs and authorized repair providers.
Industries Most Impacted by the Right to Repair Debate
The right to repair debate is particularly salient in a small number of industries, but ones that affect a huge number of consumers: agricultural equipment, home appliances, automobiles, consumer electronics, and medical equipment industries.
Farmers argue that a broad repair right is essential to their livelihoods. They claim they suffer planting and harvesting delays because manufacturers do not allow certain fixes to their equipment—delays with existential effects. Colorado was the first state to pass a law that requires manufacturers to provide the tools, software, parts and manuals sought by farmers in order to do their own repairs, and other states have introduced similar legislation. Manufacturers counter that allowing anyone other than an authorized dealer to repair tractors will result in unsafe operation, disruption of machine capabilities and performance, illegal changes to emissions controls, voiding of warranties, lack of transparency to changes upon resale, and poor customer experience.
For the home appliance and consumer electronics industries, a broader right to repair for consumers would allow them to take their appliances, phones, and laptops to lower-cost independent repair shops or even fix them themselves, rather than having to return to the original makers to get an authorized repair. As discussed below, New York has passed a law requiring electronics makers who sell products in the state to provide repair information, parts, tools, software and components to consumers and independent repair providers. California is currently considering similar legislation.
Further, timely repair of medical equipment, such as ventilators, is essential to providing effective health care, a vulnerability that was especially highlighted during the COVID pandemic. In 2020, two democratic senators introduced legislation titled the Critical Medical Infrastructure Right-to-Repair Act of 2020, which, had it been passed, would allow trained repair technicians to more easily access information and tools required to complete maintenance and repair of critical medical infrastructure.
The automobile industry occupies a unique place in the right to repair debate, as a self-regulatory regime established decades ago largely enforced a truce between the repair industry and manufacturers, a situation that the FTC itself has cited favorably. As early as 2001, repair advocates pushed for federal legislation, but no progress was made against manufacturer opposition until 2012, when Massachusetts passed an automobile right to repair law. To avoid a potential multiplicity of state laws, and the possibility that some might be less palatable than the Massachusetts version, the leading manufacturer and repair industry trade groups brokered a 2014 Memorandum of Understanding (MOU). Under the MOU, manufacturers agreed nationally to sell the diagnostic and repair information previously made available only to their dealers to car owners and independent repair shops. In exchange, the repair groups agreed not to support any additional or more extensive state legislation, thereby weakening the more zealous repair advocates. The MOU was explicit that telematics services and their associated data were not subject to the disclosure requirements, but as time passed, the exclusion of telematics has become a flash point, not least because of the undeniable practical and commercial value of such voluminous, precise, and accessible data. In response to this trend, the MOU parties in July 2023 again deployed the self-regulatory strategy, reaffirming the existing MOU while supplementing it but with a yet-to-be-tested pledge that “Telematics systems shall not be used to circumvent the commitments made in this commitment [sic] to provide independent repair facilities with access to vehicle diagnostic data.”
Current Enforcement Against Unfair Repair Restrictions
On July 9, 2021, President Biden issued an Executive Order on Promoting Competition in the American Economy that affirmed his Administration’s goal of enforcing “the antitrust laws to combat the excessive concentration of industry, the abuses of market power, and the harmful effects of monopoly and monopsony—especially as these issues arise in . . . repair markets.” Specifically, the order charged the Chair of the FTC with addressing persistent and recurrent practices that inhibit competition, such as unfair anticompetitive restrictions on third-party repair or self-repair of items. Later that month, the FTC voted 5-0 to approve a two-page policy statement stating that, while unlawful repair restrictions have generally not been an enforcement priority for the FTC, the Commission determined that it will devote more enforcement resources to combat such practices. First, the Commission committed to seeking injunctive relief under the Magnuson-Moss Warranty Act, monitoring private litigation for opportunities to file amicus briefs supporting plaintiffs, and exploring potential rulemaking. Second, the Commission will scrutinize repair restrictions for violations of antitrust laws, such as instances of refusing to deal, exclusive dealing, or exclusionary design, all of which could violate the Sherman Act. Third, the Commission will assess whether repair restrictions violate Section 5 of the FTC Act. Finally, the FTC pledged to coordinate with state agencies and policy makers to update existing law and regulation to advance open repair markets.
Magnuson-Moss Warranty Act . As noted above, an existing tool at the FTC’s disposal to promote open repair markets is the 1975 Magnuson Moss Warranty Act (MMWA). Section 102(c) of the Act forbids a warrantor of a consumer product from conditioning the written or implied warranty of such product on the consumer’s using, in connection with such product, any article or service which is identified by brand, trade, or corporate name, unless the company has received a waiver or the warranty states that the company will provide the identified parts or service for free. This is often referred to as the “anti-tying” provision. Additionally, the FTC has issued three rules under the MMWA, all of which further regulate warranties. The FTC’s interpretations provide guidance on Section 102(c) by explaining that it applies not only to express statements, but also implied language that a warranty is conditioned on the use of particular products or services. For example, a warranty stating that the consumer must “use only an authorized ‘ABC’ dealer” or “use only ‘ABC’ replacement parts is prohibited, unless the service or parts are provided free of charge pursuant to the warranty.
Antitrust. The FTC can enforce antitrust laws that, under certain circumstances, could make repair restrictions illegal. Antitrust principles primarily come into play in the context of aftermarkets – markets for parts or services that are used after the initial purchase of a product. Manufacturers can make business decisions that make it difficult or impossible for independent service organizations to compete in aftermarkets. As discussed in connection with the MMWA, a business can engage in tying, i.e., when the sale of one product is conditioned on the purchase of a second product from the same company, for example when a manufacturer unlawfully ties the availability of parts to the purchase of its repair service. Another example is when a manufacturer with market power maintains its monopoly by refusing to provide consumers or aftermarket service providers with key parts, manuals, or diagnostic software and tools.
Manufacturers may engage in other exclusionary practices beyond tying, for example by making products difficult or impossible to disassemble, asserting patent rights and enforcement of trademarks, or using embedded software that forces consumers to have the maintenance and repair of their products performed by manufacturers’ authorized service networks (such as software locks or specific firmware). Manufacturers may also offer internal rebates and refunds to authorized buyers. As discussed above, manufacturers defend these practices in the interests of privacy, data security, product design and manufacture, efficient distribution, and safety.
These practices may be subject to claims under Section 1 or Section 2 of the Sherman Act or Section 5 of the FTC Act. Section 1 of the Sherman Act prohibits specific means of anticompetitive conduct by declaring every contract, combination in the form of trust or otherwise, or conspiracy in restraint of trade or commerce illegal. Section 2 further deems that every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce to be guilty of a felony. Violation of the Sherman Act also violates the prohibition on unfair methods of competition codified in Section 5 of the FTC Act. The FTC can also enforce Section 3 of the Clayton Act, which prohibits certain contractual arrangements (such as tying or exclusivity arrangements) involving goods (but not services) that may substantially lessen competition or tend to create a monopoly.
Further antitrust guidance comes from the Supreme Court’s holding in Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992), which stands for the proposition that illegal tying requires a showing of cognizable harm in the typing product market or the tied product market. Kodak restricted independent service organizations’ ability to service, purchase, or provide replacement parts for Kodak copiers and equipment. Many of these repairers went out of business, and equipment owners who had preferred them had no choice but to use Kodak for services. The Supreme Court found that an OEM could in some instances be a monopolist in aftermarkets relating to its own products. Since the holding, courts have generally limited Kodak to a situation where a manufacturer has changed a policy regarding the availability of aftermarket parts after initial purchase by the consumer, injuring customers who (without notice) are locked-in and thus cannot switch to a product sold by a different OEM.
FTC Actions. Prior to the issuance of the July 2021 Executive Order, the FTC had only brought one case in the past decade alleging a violation of the MMWA: In the Matter of BMW of North America, LLC., No. 132-3150 (October 2015). There, the FTC approved a complaint and settlement against BMW for allegedly violating the anti-tying provision of the MMWA by conditioning the warranties on its MINI cars on the use of MINI dealers and genuine MINI parts without providing such parts and services for free or seeking a waiver from the FTC, as required by the MMWA.
Since the issuance of the Executive Order, there has been an increase in FTC scrutiny: in 2022, the Commission filed three administrative actions against grill manufacturer Weber-Stephen Products LLC, motorcycle manufacturer Harley-Davidson, and outdoor power equipment manufacturer Westinghouse Electric. The complaint against Weber-Stephen charged that its warranty included terms that conveyed that the warranty is void if customers use or install third-party parts on their grill products. The FTC sued Harley-Davidson and Westinghouse for illegally restricting customers’ right to repair their purchased products by including terms in the companies’ warranties that voided them if customers use independent dealers for parts or repairs. All three of these enforcement actions were brought under the FTC Act and the MMWA, and all three actions and settlements received unanimous support from FTC Commissioners.
State & Federal Legislation
As noted above, three states have enacted industry-specific laws protecting the right to repair: Colorado, Massachusetts, and New York. Additionally, legislative proposals in at least 23 states would provide consumers with a broader right to repair products like cell phones, wheelchairs, cars, and farm equipment. As for Federal Legislation, U.S. lawmakers have introduced a number of bills in Congress to support the right to repair, but none has been enacted into law. Earlier this year, a bipartisan team of representatives introduced legislation titled the Freedom to Repair Act that would reform copyright law to make it easier for consumers to get repairs. Another bipartisan group re-introduced the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act earlier this year as well. Proponents argue the REPAIR Act would give vehicle owners and their repairers of choice more access to necessary repair and maintenance tools and vehicle-generated data. Further, echoing the developments in Massachusetts, the Act mandates that all tools and equipment, wireless transmission of repair and diagnostic data, and access to on-board diagnostic and telematics systems and data needed to repair a vehicle must be made available to the independent repair industry. Earlier this year, another bipartisan group introduced the Save Money on Auto Repair Transportation (SMART) Act. This act narrowly amends U.S. design patent law to reduce from 14 years to 2.5 years the time car manufacturers can enforce design patents on collision repair parts (fenders, quarter panels, doors, etc.) against alternative parts suppliers.
What Happens Next
Where the scope of the right to repair is headed depends, as so much does, on politics. Consumers and their advocates have every interest in securing a right that is as broad as possible, at least until prices move upward. Manufacturers have no reason to give up on their arguments to constrain the right, recognizing that some arguments are likely more effective than others, e.g., cybersecurity and data leakage risks may carry more water than claims that non-authorized repair shops will disappoint consumer with poor services. It is possible that some manufacturers in competitive markets will see and seize an opportunity to compete on what might be called “repair liberality,” and in so doing preempt legislation. Or, reaching the same result by different ends, the intuitive appeal of advocates’ argument that “ownership includes repair” may overwhelm opposition. Looking only at the recent increase in proposed legislation, it would seem that manufacturers are on the back foot, but maybe all they need is to hone their arguments. One publicized case of a right to repair “going wrong,” perhaps a data breach, could move the parties into—or keep them at—equilibrium. What’s certain is that things will keep breaking, and need fixing.