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December 12, 2023 Best of ABA Sections

The Evolution of the Right to Repair

Robert Cunningham and Darby Hobbs

This article describes the types of restrictions that are placed on the right to repair. It then presents the arguments made by advocates (for a broader right) and manufacturers (for a narrower one). Next, we describe those industries most impacted by the debate, then examine enforcement tools, and finally provide an overview of current legislation.

Physical and Non-Physical Restrictions on Repair

Physical restrictions on the right to repair 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 such as nuts and bolts that require unique screw heads to manipulate them. Tech manufacturers may use soldering on motherboards and other technical components that eliminates 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. 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 cite intellectual property rights protection, safety, cybersecurity, and reputational harm in their arguments against expanding the right to repair. Regarding intellectual property rights, manufacturers use trademarks, trade secrets, and copyrights to protect their repair information, and they obtain design patents that allow for the protection of spare parts. Further, manufacturers use trademarks to block the importation of replacement parts, for example, 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. Manufacturers of devices containing software argue that repair restrictions protect consumers from cybersecurity risks related to personal information.

Arguments for a Broader Right to Repair

Advocates of expanded repair rights 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 original equipment manufacturer (OEM) manuals, tools, and replacement parts for independent repairers decreases competition and increases prices. Advocates maintain that where non-manufacturer replacement parts do not exist or their use is not feasible, manufacturers have effective monopolies on repair, making repair costs higher than they could or should be. Additionally, advocates argue that manufacturers’ 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 United States or abroad. Extending the life of consumer products by giving consumers more ability to maintain devices could decrease the production of electronic 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 industries in which the right to repair is most contentious affect a huge number of consumers: agricultural equipment, home appliances, automobiles, consumer electronics, and medical equipment. 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. 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 on 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. Timely repair of medical equipment is essential to providing effective health care.

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. 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, the leading manufacturer and repair industry trade groups brokered a 2014 Memorandum of Understanding (MOU). Under the MOU, manufacturers agreed nationally to sell to car owners and independent repair shops the diagnostic and repair information previously made available only to their dealers. In exchange, the repair groups agreed not to support any additional or more extensive state legislation. The MOU was updated in July 2023.

Current Enforcement Against Unfair Repair Restrictions

In 2021, President Joe Biden issued an Executive Order on Promoting Competition in the American Economy that charged the chair of the Federal Trade Commission (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 to approve a policy statement stating that, while unlawful repair restrictions have generally not been an enforcement priority for the FTC, the Commission will devote more enforcement resources to combat such practices. First, the FTC 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 FTC 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 Antitrust 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 policymakers to update existing laws and regulations to advance open repair markets.

State and Federal Legislation

Colorado, Massachusetts, and New York have enacted industry-specific laws protecting the right to repair. Additionally, legislative proposals in at least 23 states would provide consumers with a broader right to repair products such as 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.

ABA Antitrust Section

This article is an abridged and edited version of one that originally appeared on page 43 of Antitrust, Summer 2023 (37:3).

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Robert Cunningham

Kelley Drye & Warren

Robert Cunningham is special counsel at Kelley Drye & Warren in Chicago. While the authors counsel clients on right-to-repair legal compliance and strategy, all views expressed in this article are their own.

Darby Hobbs

Kelley Drye & Warren

Darby Hobbs is an associate at Kelley Drye & Warren in Washington, D.C. While the authors counsel clients on right-to-repair legal compliance and strategy, all views expressed in this article are their own.