Right to Repair: Can you fix your own things? Part 1November 10, 2020

This post is part 1 of a set of posts relating to a person’s right to repair your things. When you buy a thing, you expect the thing to at least work as intended. The thing is usually even warranted for at least a little while to be useable as intended by the manufacturer. However, when the thing breaks or needs a replacement part, like a battery, the warranty often covers only work done by the manufacturer or a manufacturer approved or certified repair shop. Some manufacturers even develop unique barriers, such as computer codes, coding specific hardware to only work with original hardware, or physical screws, that are designed to keep the customer from tampering or repairing the thing.

To prevent the repair, the key to unlocking the barrier is not provided to non-approved repair shops or customer retailers. For example, it has just been found out that simply swapping the motherboard or camera from the new iPhone 12 into another new iPhone 12 at home, instead of merely voiding a warranty, prevents the camera from functioning and the phone will not turn one unless it is plugged in. This in turn prevents certain features like facial recognition from working. When the original parts are reassembled in the proper combination, all these issues stop. As the hardware is all new and straight from the manufacturer, it appears that Apple has coded specific parts of the original hardware to only work when it is paired with other original hardware. Practices such as this has limited the number of repairs shops available to the person who bought the things and raised the price of repair to monopolistic prices.

There are many issues surrounding the right to repair and include policy, legal, and economic concerns. The policy concerns are generally consumer rights and consumer safety. The legal issues involve several areas of the law, including intellectual property rights, but also contract and even tort. The intellectual property issues span across both patent and copyright. Particularly relevant areas include infringement, both patent and copyright, and patent exhaustion. The economic concerns are how expensive repairing a thing would actually be if manufacturers were forced to cede their hold on repairing their things and how much the price of things would increase if manufacturers lost the revenue from repairing their things. Some estimate that the increase in the price by the manufacturers to recoup their loss on repair coupled with paying a third party repair may actually increase the overall cost to the consumers.

There are policy concerns on both side of the issues. On both sides, it is a matter of ownership. On the side of the consumer, the ownership issue is about having clear title, that what you purchase is yours, unencumbered in any way. Under a clear title the owner should be able to tamper, modify, repair, or do whatever they please with their thing and it is theirs and their choice to void a warranty. Voiding the warranty should not render a product inoperable. Anything beyond, it is argued, is a predatory business practice. Therefore, when someone buys a thing, they should also be given whatever information is needed to repair the thing.

On the other side of the ownership issue, the manufacturers argue that they own the schematics to the devices, which are needed to repair most modern-day device that include complex internals, such as a motherboard or other circuitry. The manufacturers argue that schematics are separate from the physical thing actually purchased, like a phone, computer, TV, or vehicle and it is their decision to sell the schematics. Therefore, the manufacturers are under no obligation to include the schematics belonging to their other things.

The manufacturers further argue that the right to repair goes against consumer protection, in both safety and security. By regulating who can repair their devices using specific hardware the safety of the consumer is increased because the person doing the repairs has had proper training and is using replacement parts that have been properly made and tested. By using specific repair people, the consumer is provided greater confidence the repair has been done correctly, for example by replacing a battery with another battery and having the confidence it won’t catch fire. Further, the consumer is protected due to the vetting of person doing the repair. In an era where more and more personal data is being stored on electronic devices, the risk of data theft increases. And so, to reduce the risk to the consumer, the manufacturers limit those who may have access to their data. Therefore, by controlling the repair, the manufacturers are protecting the consumer.

Legislation has been passed in Massachusetts concern the right to repair farm equipment, and Massachusetts has just voted in the November general election to expand this legislation to allow repair on any vehicle equipped with telematics by 2020. New legislation was also introduced in the U.S. Senate concerning medical equipment specifically in response to needed repairs for ventilators during the pandemic. However, before passing further legislation, states and the Federal government may want to wait to see what happens in Massachusetts.

The next post will touch on the legal issues around the right to repair to better help frame the debate, so stay tuned!

Oliver Couture, Ph.D. is an Associate Attorney in the MVS Biotechnology & Chemical Practice Group. To learn more, visit our MVS website, or contact Oliver directly via email .

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