Congress takes on ‘right to repair’ consumer reforms

WASHINGTON (CN) — When it comes to the digital tools and other information needed to keep products in good working order once they enter the stream of commerce, manufacturers have something of a monopoly enshrined in federal law.

A panel of experts made their case for those restrictions to be dismantled as members of Congress focused Tuesday on what is known in copyright circles as the right to repair. The emerging legal concept holds that consumers should be allowed to fix or modify goods without being forced to rely on services provided by the product’s original manufacturer.

California Republican Darrell Issa and other proponents of the right to repair have argued that manufacturers should not be allowed to block consumers from accessing cheaper replacement parts or labor.

“Let there be no doubt that the right to repair the product that you have purchased is a fundamental principle,” Issa said Tuesday, during a hearing of the the House Judiciary Committee’s intellectual property panel, which he chairs, “and individuals and businesses should not under any circumstances have any doubt as to where the bright lines are in their rights.”

Although the California congressman argued that such freedoms expand consumer choice and give property owners a greater return on their investment, it can be difficult to access certain data necessary for repairs thanks in part to Section 1201 of the Digital Millennium Copyright Act.

Aimed at preventing software piracy, Section 1201 makes it illegal for consumers to circumvent technological safeguards on copyrighted material. Supporters of consumers’ rights argue, however, that the provision is used to keep product-repair manuals and other information out of the hands of end users, something they argue exceeds the scope of copyright law.

“Section 1201 of the DMCA makes it practically impossible for consumers to exercise their lawful right to repair a wide range of devices, from tractors to home electronics, even though the copyright office says those activities are non-infringing,” University of Michigan Law School Professor Aaron Perzanowski told lawmakers at Tuesday's hearing. Despite the wording of the law, the U.S. Copyright Office has repeatedly found that consumers do not violate manufacturer copyright protections when they repair goods such as vehicles, medical equipment and other products, he contended.

Amending Section 1201 protections would help consumers as technology advances and manufacturers stop servicing older products, explained Paul Roberts, founder of right to repair advocacy organization SecuRepairs.

“The passage of right to repair laws can nurture a market based response,” Roberts said, “a diverse ecosystem of small aftermarket service providers that will step into the shoes of [manufacturers].”

Roberts also pushed back on manufacturers that have cited cybersecurity concerns as a reason for hiding product information behind copyright law.

“For the last 25 years, section 1201 of the Digital Millennium Copyright Act has given manufacturers an incentive to deploy software locks widely, and to limit access to security researchers,” Roberts told lawmakers. “In other words, by keeping the workings of something secret, you're making it secure.”

Such a practice, though, isn’t much of a deterrent for piracy, Roberts said. “Cyber criminals are very resourceful, and they're very determined, and they don't really care what the law says.”

At least one witness, meanwhile, rejected the idea that consumers have a legal right to access repair information. 

“The right to repair movement isn't based on a preexisting right,” argued Devlin Hartline, a legal fellow at the conservative think tank the Hudson Institute. “It's instead asking lawmakers to create a new right at the expense of the existing rights of intellectual property owners.” 

Hartline contended that, while proponents of right to repair say that copyright protections for manufacturers stifle competition, the existing intellectual property framework actually incentivizes innovation. “We grant [intellectual property] owners exclusive rights so they can exclude others,” he said, “and this in turn, promotes the investments to create and to commercialize these creative innovations in the marketplace.”

Hartline cautioned lawmakers against limiting copyright law in the name of consumer freedoms. “I would recommend against micromanaging the free market system to pick winners and losers,” he warned.

Congressman Jerry Nadler, the Democratic ranking member of the full judiciary committee, agreed with his colleagues that reforms were necessary, but echoed concerns about protecting copyright holders.

“We must proceed with great caution when considering any changes to the copyright laws to ensure that the fundamental rights of creators are protected,” Nadler said.

Several members of Congress have introduced legislation aimed at lowering barriers for consumers seeking to repair their property. Issa in March unveiled a bill that, if made law, would amend U.S. patent law to shorten the enforcement period for design patents on certain auto body parts — allowing cheaper third-party parts to hit the market more quickly. 

A separate measure proposed in February by Florida Congressman Neal Dunn would bar auto manufacturers from withholding critical repair data from consumers and prevent them from restricting the types of replacement parts that can be used on their vehicles.

Both bills have yet to get a vote in committee.

Follow @BenjaminSWeiss

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.

Email *

Submit