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December 12, 2023 THE LEGAL ANGLE

The Right to Repair and Its Impact on Consumers and Manufacturers

Julie T. Houth
Both consumers and manufacturers will be impacted by right-to-repair laws soon to take effect in several states.

Both consumers and manufacturers will be impacted by right-to-repair laws soon to take effect in several states.

Getty Images/fStop

Most people associate the holiday season with family time, traditional festivities, and travel. When I think about travel, I think about different modes of transportation, including driving around in my personal car. Driving is one of my favorite things to do. It gives me peace, joy, and excitement all at the same time. I remember getting my driver’s permit as soon as I legally could at the age of 15. I got my driver’s license the year after because I just could not wait to hit the road and experience this newfound freedom as a teenager. My first vehicle was a 1986 Toyota MR2 in tropical blue (a rare color). My dad surprised me and bought me this car. I could not believe it, and I could not contain my excitement. I still get excited thinking about it now. My dad is a huge car enthusiast, and he entrusted me with this sports car at 16 years old. For those of you who are unaware, the Toyota MR2 was a rear-wheel-drive car with the engine in the back; it was also a two-door, two-seater that had both a trunk and a “frunk” (a covered space at the front of the car) that stored the spare tire and my toolbox, among other things. My dad told me that he bought this particular car for me because there was no space for me to transport boys, something that still makes me giggle when I think about it.

This car was everything to me. I learned how to do basic car maintenance, including how to do an oil change, how to change a tire, how to change my brakes, how to change my radiator, how to change spark plugs, how to replace my headlights, and how to replace my axle and differential after I broke it in a failed attempt at “drifting” my car. I also learned how to enhance my car’s performance by upgrading its cam gears and exhaust, installing strut and sway bars, and even swapping out the automatic transmission with a manual one for racing and so I would have more fun just driving it daily. I mentioned all of this because when I think about my personal car, I think about the right to repair. While I don’t often do repairs on my car now, I cannot imagine not being able to repair my own car if needed. Oil changes and basic maintenance on your own personal car should be legally allowed, right?

The Right to Repair: What Is It?

The theme of the November/December 2023 issue of GPSolo magazine is “Transportation Law.” I’d like to think that a brief discussion on the right to repair in this particular issue is fitting, given the theme. The idea behind the right to repair is just that—if you own something, you should have the option to repair it yourself or take it to a mechanic or specialist of your choice. Products in modern times are often equipped with complex technology, such as a computer chip, something that is not so easy to repair at home. Generally, American consumers are allowed to repair whatever they buy, but at times, people are denied the information or parts to do so. Recently, a few advocacy groups, such as The Repair Association (TRA), have proposed several policy objectives that address some concerns of those who support the right to repair.

These policies include:

  1. Make information available. TRA believes that everyone should have reasonable access to standardized service manuals, schematics, and software updates.
  2. Make parts and tools available. TRA also believes that service parts and tools should be accessible at fair pricing to equipment owners and third parties and further suggests that patent licenses for repair parts and tools should be available under equitable licensing terms.
  3. Allow unlocking of products. TRA contends that the government should legalize unlocking, adapting, or modifying a device so an owner can install custom software.
  4. Accommodate repair in the design. Lastly, TRA believes that products should be designed in a way that makes repair possible.

The first two policies are included in most right-to-repair legislative proposals. Regarding the third policy, there is an exemption in the Digital Millennium Copyright Act that makes it legal to “jailbreak” devices such as phones, speakers, and appliances. In theory, this exemption allows a device to run custom software, which can extend its life or functionality if the manufacturer abandons that device. However, as mentioned above, products available to consumers these days are often equipped with complex technology, which poses a problem not only in terms of the right to repair but also the skill level required to repair such a product. The last policy focuses on shifting the status quo for manufacturers, something that will take monumental efforts to do. While these policies aren’t the only concepts out there, they do provide a good basis for approaching and discussing the different aspects of the right to repair.

Status of the Right-to-Repair Movement Across the Nation

In recent years, the right to repair has caught the attention of several legislative bodies. On December 28, 2022, New York Governor Kathy Hochul signed the Digital Fair Repair Act. The law goes into effect on December 28, 2023. The bill establishes that consumers and independent repair providers have a right to obtain manuals, diagrams, diagnostics, and parts from original equipment manufacturers (OEMs) to repair their own devices. However, the bill was changed in the final stages by amendments that give OEMs some convenient exceptions and loopholes to get out of obligations. For advocates of the right to repair, the last-minute changes weakened the law because they removed requirements to sell individual parts and let repair technicians bypass software locks, and the law did not clearly apply to devices sold before it was passed.

In 2017, in the state of Hawaii, many lobbyists signed a letter indicating their opposition to Hawaii’s bill SB425. Hawaii’s SB425 stated, “The purpose of this Act is to establish fair right to repair laws in the State for digital electronic equipment.” In their letter, the industry groups opposed to this act outlined their main arguments against right-to-repair legislation: security risks created by giving criminals access to technical information, safety risks from unauthorized repair, and risks to intellectual property.

In the state of Minnesota, Governor Tim Walz signed a groundbreaking right-to-repair law on May 24, 2023. The Digital Fair Repair Act, the formal name of the law, requires manufacturers of certain electronic products to make documentation, parts, and tools for diagnosis, maintenance, or repair available to independent repair providers and product owners on fair and reasonable terms. This new law takes effect on July 1, 2024, and covers products sold on or after July 1, 2021.

The most recent state to pass a law on the right to repair is California. On October 10, 2023, Governor Gavin Newsom signed into law California’s Right to Repair Act, SB244. The law is set to go into effect on July 1, 2024. California’s version mandates that manufacturers provide the tools, parts, and diagnostic software support necessary to ensure that consumers have the freedom to repair their devices without unnecessary hindrances. Furthermore, devices priced above $100 will be supported for up to seven years, while those between $50 and $99.99 will receive three years of support. This part of the law was designed to minimize electronic waste, curbing the need to constantly produce new devices and therefore reducing the demand for environmentally unfriendly and unsustainable manufacturing processes.

On the federal level, President Joe Biden addressed the right to repair in an executive order dated July 9, 2021. The executive order asked the Federal Trade Commission (FTC) to draft right-to-repair rules to increase consumers’ ability to repair equipment on their own or at aftermarket repair shops. The order also requested that the U.S. Department of Agriculture consider new rules intended to increase industry competition by examining intellectual property rights and potentially giving farmers the right to repair farming equipment. The FTC announced that it will ramp up enforcement against illegal repair restrictions and, in doing so, will target repair restrictions that violate antitrust laws enforced by the FTC that prohibit unfair and deceptive acts or practices. On January 24, 2022, President Biden explained in his remarks on this executive order, “Denying the right to repair raises prices for consumers, means independent repair shops can’t compete for your business.”

The executive order only directs the FTC to make rules, and that’s unlikely to address everything right-to-repair advocates would like to see. Therefore, while there is an executive order that addresses the right to repair, advocates prefer going through the channels of state legislation.

The Future of the Right to Repair

For now, only three states have right-to-repair laws: New York, Minnesota, and California. New York’s law takes effect on December 28, 2023, and both Minnesota’s and California’s laws take effect on July 1, 2024. Combined, these three states represent a large percentage of the U.S. population (about 20 percent). From a consumer’s perspective, it is understandable that the right to repair one’s product is important and maybe even essential because not everyone can financially afford to cycle through new product purchases. And even if everyone could cycle through products, should we? It does appear to be wasteful and environmentally detrimental. However, right-to-repair laws do infringe on manufacturers’ right to contract and how they go about making important business decisions on improving and growing their business, which help the nation’s economy.

It is unclear how the laws will play out once they take effect, but they clearly will lead to big changes for both consumers and manufacturers. The right to repair is a topic that should be on all our radars as American consumers.

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Julie T. Houth

Thomas Quinn, LLP

Julie T. Houth, Esq., LLM (Taxation), is an associate attorney at Thomas Quinn, LLP, practicing maritime law. She is the Editor-in-Chief of GPSolo magazine and managing editor of the ABA Young Lawyers Division’s TYL and After the Bar. She is chair of the New York State Bar Association Young Lawyers Section, a member of the ABA Standing Committee of the Law Library of Congress, and a director for the Pan Asian Lawyers of San Diego.