Right to Repair vs. IP Law

By: Karsyn Koon 

A current debate occurring in the House of Representatives’ Subcommittee on Courts, Intellectual Property and the Internet is over the controversial right-to-repair. In other words, this controversial legal idea describes the right for consumers to have access to the information necessary to repair the products patented by other corporations. Congress heard from several witnesses in mid-July on the issue. One of the major arguments raised were concerns over “harm and cost to consumers as a result of technological protection measures (TPMs) and increased use of IP tools such as design patents to thwart competition for after-market parts.” (McDermott, 2023). Congressman Darrell Issa (R-CA) even suggested a “standard essential copyright” that would require organizations to publicize the information needed for repairs to consumers. He is also the individual who introduced The SMART Act back in March, which suggested limiting U.S. design patent law from 14 years to 2.5 in relation to car manufacturers. His bill garnered bipartisan support.  

There are two main topics being discussed: 

• Potential harm to consumers 
• Whether or not the right to repair exists (aka the IP claims of companies)  

Proponents of the so-called right-to-repair argue that consumers are being limited from fixing their own property by the intellectual property claims of larger organizations. Some claim that the information for repairs is being hoarded by the companies that make the products in order to drive up costs. The subcommittee heard from the CEO of iFixit, Kyle Wiens. He discussed the potential damage being dealt to consumers by the aforementioned practices of restricting information and stated that the impact will spread to entire economic sectors. Mr. Wiens gave the example of his friend who needed to repair his John Deere tractor but was unable to do so himself. The part he needed to fix the machine is not publicly available, thus requiring the need of expensive and burdensome third parties to complete repairs. He went on to explain similar issues with Apple computers, and how the corporation took down all online user manuals to prevent consumers from being able to repair their own products. Proponents of the right to repair also addressed security concerns by pointing out preexisting issues in authorized manufactures and deciding that consumer rights were more important.  

However, some people do not agree that the right-to-repair exists at all. Legal Fellow at the Hudson Institute, Devlin Hartline, argued that IP rights “ultimately protect the public good.” (McDermott, 2023). According to Hartline, “[t]he right-to-repair movement isn’t based on a preexisting right; it’s instead asking lawmakers to create a new right at the expense of the existing rights of IP owners.” It would basically entail creating new legislation and new definitions of intellectual property. 

• Creating new legislation is within the power of the legislature, but he is arguing that court precedent argues against the existence of this right, and therefore it should not be codified by Congress.  

He also denies that the exercise of control over repair information is an anti-competitive practice, but rather a sound economic policy. “IP owners are merely exercising their IP rights.” (McDermott, 2023). Additionally, the subcommittee acknowledged that some organizations are signing memorandums of understanding in regard to this supposed right. Others say that is still not good enough.  

The hearing concluded with Representative Issa challenging those who oppose the right-to-repair on what the concept of copyright even is. He argued that copyright is not the right to exclude, and therefore information on repairing products should be produced in the public domain. It will be interesting to see where this debate leads, and if the right-to-repair will be codified in the future.  

Source:  

Lowery, L. (2023, July 20). Congressional Committee holds R2r hearing, ASA testifies federal law unnecessary. Repairer Driven News. https://www.repairerdrivennews.com/2023/07/20/145072/  

McDermott, E. (2023, July 18). House IP Subcommittee Mulls Copyright and design patent revisions amid right-to-repair debate. IPWatchdog.com | Patents & Intellectual Property Law. https://ipwatchdog.com/2023/07/18/house-ip-subcommittee-mulls-copyright-design-patent-revisions-amid-right-repair-debate/id=163727/