Earlier this month the Federal Trade Commission (FTC) opened a public comment period for proposed rulemaking, which includes initiatives on the right to repair. The proposed rule would create an obligation on manufacturers to make information on how to repair their products public. The result of this broad approach to enforcing the right to repair would be the creation of unfair obligations on producers. The FTC can pursue right to repair enforcement, but it should take a narrower approach.
Right to repair can potentially offer an outlet for the FTC to tighten antitrust enforcement in a way that maintains the focus on protecting consumers through the consumer welfare standard. According to the article Intellectual Property Law and the Right to Repair in the Fordham Law Review, the right to repair can spur innovation that ultimately benefits consumers. One famous example is the inspiration the Wright brothers took from repairing bicycles which ultimately led to their design of an airplane.
However, while consumer benefits are possible, there’s a difference between offering suggestions for repairs that are feasible with generic or different parts of the same product and requiring that manufacturers assist consumers in bypassing their own services. Furthermore, the permeation of software into everyday items risks opening consumers to security risks upon the enforcement of blanket repair rules. The Entertainment Software Association has vocalized concerns that opening software up to individuals for repair purposes could pave the way for nefarious actors to gain access and risk the privacy and security of the system.
The right to repair operates on multiple levels. The most basic level is the right to repair products that an individual has purchased, and the most extensive would be the requirement on manufacturers to supply information and parts. The proposed rule by the FTC wouldn’t require the supplying of parts, but it would require information to be made available and would therefore be an exhaustive requirement. Fortunately, the agency already has enough established legislation and precedent to strengthen the enforcement of the right to repair without having to wade into the security risks of requiring open access to computer software.
According to Nixing the Fix: An FTC Report to Congress on Repair Restrictions, the Magnuson Moss Warranty Act limits manufacturers from warranty tying, which is when a company voids warranty coverage if repairs are completed by third-party servicers unless the company offers those services and parts free of charge. Simply by enforcing this existing act, the FTC would help to eliminate the practice of companies mandating the use of their services and parts to preserve a warranty and thus remove many of the barriers to repairs that currently exist for consumers.
If the FTC and lawmakers aren’t content with current laws, they could take a more moderate approach to making changes. In 2017, the late senator Orrin G. Hatch introduced the Promoting Automotive Repair, Trade, and Sales Act. The legislation would permit the use of parts for legitimate repair purposes while also protecting the patent on the design if competitors tried to incorporate the design into their own products. In effect, intellectual property would be protected in final products, but not in individual parts. An alternative solution would be to limit trademarks to final products instead of granting them to individual components. This strategy, however, could be tricky if the value proposition in a product is tied to specific parts, and should therefore be implemented on a case-by-case basis.
Alternatively, new rules could emphasize the right to repair, not by creating obligations on the manufacturer, but by reemphasizing the ruling of a 2017 Supreme Court case. The Supreme Court ruling in Impression Products, Inc. v. Lexmark International, Inc. found that the sale of an item exhausts all patent rights on the item by the patentee. In this case, Impression Products Inc. was buying used and empty Lexmark International toner cartridges, refilling them and then reselling them. A comparable example would be if a repair shop used or sold parts from refurbished iPhones.
The FTC should take a more midline approach to the right to repair. Instead of drafting rules that force extreme obligations on manufacturers to facilitate third-party repairs, the agency should focus on removing barriers by enforcing current legislation and precedent. By enforcing the ban on warranty tying, allowing the use of third-party parts and establishing that patent rights aren’t transmitted beyond the point of sale, the agency will go a long way in empowering consumers to repair their own products.