Repairing the Right to Repair

Emma Stein

Last month, if you took your iPhone to get repaired at a third-party shop or tried to do it yourself, you could have been breaking the law. However, the right to repair movement is trying to fix this conundrum, despite the attempts of companies like Apple or John Deere to thwart the movement’s efforts.

On the Federal level, there is growing support for the right-to-repair movement, bolstered by the Supreme Court’s recent decision in Impression Products, Inc. v Lexmark International, Inc. where the Court held that a sale terminates all patent rights to that item. Then on October 28^th, the Library of Congress and the U.S. Copyright Office released new exemptions to the Digital Millennium Copyright Act (DMCA) that are seemingly significant for the right to repair movement. This change is part of a process where new exemptions are announced every three years by the U.S. Copyright Office and are formalized by the Librarian of Congress. Where, prior to this decision, consumers could not legally repair a host of electronic goods (including smartphones and laptops) or bring them to an unauthorized third-party repair shop—even if the consumer owned the item, these new guidelines now allow consumers to by-pass the digital rights management (DRM) built into many devices. However, despite the change in the law, there are still hurdles for consumers to overcome to actually repair their items.

However, outside of legality, practical considerations also prevent consumers from repairing their items. While consumers can now legally circumvent the DRM, they may not be able to do so practically due to a lack of information that companies have been unwilling to divulge. State law may provide a potential remedy with legislation proposed in 20 states that would require manufacturers to make service manuals and spare parts available to the public. California, for example, proposed a Right to Repair Act in May of 2018. Much of this Act follows the example of Massachusetts’ 2012 Automotive Right to Repair Law, which ultimately led to the auto-industry entering into a voluntary right to repair agreement in which they agreed to make available “the same diagnostic and repair information, including repair technical updates, that such manufacturer makes available to its dealers” for cars released after 2002.

However, another potential issue is that companies may attempt to contract around the DMCA guidelines. One of the most prolific examples of issues surrounding the right to repair movement concerned the farm equipment manufacturer John Deere. Farmers who purchased equipment were unable to complete unauthorized repairs because the proprietary software the vehicles ran on required the use of a certified John Deere repairmen—who might be hundreds of miles away during critical moments in harvesting. Many farmers relied on knockoff software purchased illegally from Ukraine.

John Deere presents a troubling case. In 2015, as part of the same exemption process to DMCA, the Librarian approved one exemption for land vehicles (which include the tractors John Deere manufacturers). In response, John Deere required farmers to sign a license agreement forbidding repair to software except by authorized repair shops or dealerships. Further, this September, the California Farm Bureau signed away the rights of the 2.5 million farmers it represents to buy repair parts outside of a dealer or access or modify the source code of the software.

Likely, with 20 states with pending right to repair legislation, 2019 will be a big year for right to repair advocates—as long as they don’t contract away their rights. However, with laws like these potentially going on the books, it is also possible that Courts around the country may find such agreements contrary to public policy.