Right to repair

In the United States, the right to repair found application in federal and state law:

• The Magnuson–Moss Warranty Act; a United States federal law governing warranties on consumer products
• United States federal and state legislation concerning Motor Vehicle Owners' Rights to Repair
• Exception 13 of 37 CFR § 201.40 allowing farmers to modify tractor software for maintenance[3][4]

In the United Kingdom, a consumer's right to repair or replacement of defective goods falls under the Consumer Rights Act 2015.

In India, The Ministry of Consumer Affairs (MCA) has set up a committee to come up with a Right to Repair framework. The framework is significant as it will give consumers a chance to repair their products at an optimal cost instead of buying new products altogether. The important sectors for the initial focus of the framework are farming equipment, mobile phones & tablets, consumer durables, automobiles & automobile equipment.[5]

John Deere announced in January 2023 that it was signing a memorandum of understanding with the American Farm Bureau Federation agreeing that American farmers had the right to repair their own equipment or have it serviced at independent repair shops in the United States. Consumers and independent repair centers would still be bound against divulging certain trade secrets, and cannot tamper or override emission control settings, but are otherwise free to repair as they see fit.[6] In 2022, Apple started enabling customers to repair batteries and screens.[7] Additionally Apple has prevented companies from repairing or refurbishing Apple’s products without their permission. These action have irritated many consumers, believing Apple is against the right to repair.[8]

In contrast to manufacturers locking down their devices, new manufacturers appeared on the market, adopting the right to repair as a core philosophy. Companies such as Framework Computer and Fairphone produced devices that are modular and easy to repair. In addition, some companies are even releasing 3D printable models of replacement parts,[9] allowing consumers to print the parts locally, reducing the need for storage and shipping.

The electric lightbulb, one of the first notable examples of planned obsolescence being used to increase revenue.

The notion that continuous changes to products creates continuous demand for substitution of a product's older generation was implemented at a large scale by General Motors executive Alfred P. Sloan, who suggested that annual changes to models fuel demand to replace their old cars.[10][11] The main competitor Ford preferred simple and easy-to-replace parts, often interchangeable across models,[12] GM felt not limited by considerations regarding the customer's ability to repair vehicles and even favored designs of lower quality to adjust rapidly to annual changes in consumer demands.[13] This strategy allowed GM to overtake Ford as biggest American automaker.[14] As a result of GM's success, the concept of purposely changing designs and as a consequence also parts within the annual variants of a product became widely adopted across industries in the American economy, and was also adopted by Ford.[15]

The car industry was at the forefront of establishing the concept of certified repair: starting from the 1910s and 1920s, Ford made significant efforts to establish certified dealerships and service networks to drive customers towards Ford produced parts instead of selecting independent repair shops and often after-sales parts to repair cars. Ford also pushed for standardized pricing among certified repair shops, making flat fees mandatory even for different repairs.[16] The combination of annual updates to cars and components made it more difficult for independent repair shops to maintain a stock of parts.

Given frequent model upgrades, consumers were psychologically pushed towards the purchase of new cars, while the maintenance of old cars were made less attractive by more costly authorized repair networks. Effectively, the legal precedent establishing the right to repair was undermined in the period following the Great Depression, a period during which consumers were accustomed to self repair.[17]

Manufacturers also attacked companies that tried to refurbish components: in 1938, Champion Spark Plug, a company that itself built its success on copying foreign spark plug designs to be manufactured and subsequently sold to Buick, sued the company Reich. Reich was refurbishing spark plugs and sold them as reconditioned. While it was already established by the legal precedent that the owner of a good has the right to repair even patented goods, the subsequent court ruling made clear that, refurbished goods could not be sold as identical to the new original item, establishing clear boundaries between used (or repaired) goods, and new goods.[18]

By 1956, many manufacturers across various industries had adopted a strategy similar to GM for their products, but it was IBM's dominant position in the computer mainframe market that caused the first implicit right to repair: IBM, back then the leading supplier for information technology to the US government and large corporations, was sued by the Department of Justice for uncompetitive behavior undermining the secondhand market by not allowing clients to own, but only to lease their products. Given that all equipment had to be returned to IBM after expiration of leasing agreements IBM was technically the sole owner of the machines. Access to IBM software and hardware was always bundled, effectively keeping other "software" companies away from their hardware and not allowing customers to run IBM logic on non-IBM machines.[19] Given the near-monopolistic market position of IBM, the U.S. Department of Justice successfully pursued a consent decree forcing IBM not only to sell all products under conditions that would not disadvantage purchasing over leasing them, but also to spin off the service division and provide parts, maintenance instructions, and tools under the same commercial conditions to independent repair companies as to their own service division assuring that a secondhand market and after-sales market could be created.[20] While this constituted the first real right to repair, the grounds for the decision were based on anti-trust motives and not applicable on future electronics manufacturers as the entrance of domestic competitors such as HP and Asian manufacturers by introducing the so-called IBM-compatible devices established a wide quantity of different players in the market. As a consequence, the consent decree was abolished in the courts in 1997.[21]

In the meantime, lower and higher courts continued to reinforce the perspective that the ownership of a product came together with clear rights of the repair and modification of such product: in 1961 the U.S. Supreme Court clearly ruled in the case of Aro Manufacturing Co. v. Convertible Top Replacement Co. that even patented products can be repaired without infringing the rights of the patent owner. While previous instances used rather complex processes to determine if a product was reconstructed or repaired, the Supreme Court clearly stated that, as long as a product can be recognized as a repaired item and not as a new product, repair was admissible.[22]

With IBM under significant pressure by the consent decree and the legal situation tilting in favor of repair, other manufacturers across industries shifted towards more repairable designs. Apple, which rose quickly to become one of the largest computer manufacturers, sold the first computers with circuit board descriptions, easy-to-swap components, and clear repair instructions.[23]

Driven by technological advancements, all kinds of products such as cars, lawn mowers, and even coffee machines had more and more electronic components by design, which are much more difficult to replace than mechanical components. While in the 1950s, electronics in a car were limited to simple circuits to start engines and to power simple components such as air conditioning or central locking, the following decade saw an increasing amount of complex semiconductors to be used in cars starting with engine controls such as fuel ignition.

As part of this process of mixing electronic components with mechanics, the share of electronic components in the total bill of materials for a car rose from 5% in the 1970s to over 22% in 2000.[24] While car repair was previously a process of analyzing and replacing mechanical components, the increasing hybridization of cars brought the need of special tools that could often only be accessed by manufacturer authorized repair services.[25]

1975 saw the introduction of the Magnuson–Moss Warranty Act governing standards for warranties given on products. While the law did not stipulate an obligation for a manufacturer to grant warranty with every product sold to consumers, it did define minimum standards for such warranty if the supplier decided to grant it. The legislative history indicates that the purpose of the act is to make warranties on consumer products more readily understood and enforceable and to provide the Federal Trade Commission with means to better protect consumers.[7] While the Magnusson–Moss Warranty Act defined terms such as repair within warranty, it did not obligate manufacturers to open up their products to easy repair.

In addition, copyright became a front on the limitation of repairability: as written software code gave the creator of the code the only authority to decide if derivatives are to be created of the same code. One of the more notable examples was the lawsuit MAI Systems Corp. v. Peak Computer, Inc. in which Peak Computer, Inc. by was sued for making unauthorized copies of the MAI operating system to repair MAI-produced computer systems. While MAI won the lawsuit, the legislative chambers implemented exceptions to the Digital Millennium Copyright Act in 1998 explicitly allowing such copies for the purpose of repairing a machine.[26][27] While this legislation therefore fixed the aspect of installing protected software for the purpose of maintenance and repair, it did not foresee the significant amount of software locks for the years to come.[28]

The field of printer ink cartridges became of particular interest to the public: with the introduction of computers into almost every household also printers became available for practically everyone. Printer manufacturers saw the sales of ink cartridges as a lucrative business model, often charging more for the ink than for the printer itself. To prevent refilling of empty cartridges, most manufacturers started to place microchips counting fill levels and usage on the cartridge, rendering refills difficult, if not impossible. Many of these systems worked to the disadvantage of end users by incorrectly declaring cartridges as empty or blocking the printer from functioning properly. Such practices were found illegal in numerous lawsuits. In addition to software locks, the printer industry tried unsuccessfully to sue against the reproduction and refilling of cartridges, a practice confirmed to be legal by the Supreme Court in 2017. [29][30]

Right to repair activists speaking at a conference.

With the beginning of the 2000s, the automotive industry came under scrutiny again: the first proposal of a right to repair bill for the automotive sector[31] was introduced by Joe Barton and Edolphus Towns to end the "unfair monopoly" of car manufacturers maintaining control over repair information that could result in independent shops turning away car owners due to lack of information. The proposal was struck down by significant lobbying efforts by the automotive industry but nevertheless introduced progress in form of a voluntary agreement obligating manufacturers to provide spare parts and diagnostics to independent repair companies.[32] While the voluntary agreement surely was an improvement, studies later found that access to spare parts and car diagnostics continued to remain problematic for independent repair services. In fact, a study conducted by the Terrance Group found that around 59% of independent repair services continued to struggle to get access to diagnostic tools and parts from manufacturers.[33]

Besides the setbacks, a continuous trend towards right to repair in automotive as well as other industries started to get traction in the legislative branch, with an increasing amount of legal proposals and court decisions.[31] While initially driven majorly by automotive consumers protection agencies and the automotive after-sales service industry, the discussion of establishing a right to repair for any kind of industrially produced device gained traction as consumer electronics such as smartphones and computers became universally available and used, alongside advanced computerized integration in farming equipment. The movement was also backed by climate change activists, since this approach would reduce e-waste.[34]

Manufacturers found new ways to lock devices practically circumventing owners' rights to repair: practices like part pairing (components of a device are serialized and can not be swapped against others), became increasingly popular among manufacturers. Even common repairs such as the replacement of a smartphone display caused malfunctions because of locks implemented in the software. For example, Apple, with its iPhones, started to gradually restrict the replacement of displays, from displaying warning messages when a replacement display was installed to removing security features such as Face ID if the entire display assembly was swapped by other than a manufacturer-authorized repair facility. This trend started in the agricultural sector with tractor manufacturer John Deere, and became widespread in consumer electronics in the 2010s.[35]

The first successful implementation of a right to repair came when Massachusetts passed the United States' first right to repair law for the automotive sector in 2012, which required automobile manufacturers to sell the same service materials and diagnostics directly to consumers or to independent mechanics as they used to provide exclusively to their dealerships. The Massachusetts statute was the first to pass among several states, such as New Jersey,[42] which had also passed a similar bill through their Assembly. Facing the potential of a variety of slightly different requirements, major automobile trade organizations signed a Memorandum of Understanding in January 2014[43] using the Massachusetts law as the basis of their agreement for all 50 states starting in the 2018 automotive year.[44] A similar agreement was reached by the Commercial Vehicle Solutions Network to apply to over-the-road trucks.[45]

In 2013, major grassroots movements started to form: the Digital Right to Repair Coalition, also known as the Repair Association using the website repair.org, was founded and has led nearly all state legislative efforts in the United States influencing the formation of similarly focused advocacy groups around the world. The coalition is a 501(c)(6) trade association incorporated in New Jersey and funded entirely by membership dues. The goal of the coalition is to support the aftermarket for technology products through advocating for repair-friendly laws, standards, regulations and policies. As such, its members are engaged in repairs, resale, refurbishment, reconfiguration and recycling regardless of industry. Members of the coalition include industry experts in repair, cybersecurity, copyright law, medicine, agriculture, international trade, consumer rights, contracts, e-waste, eco-design standards, software engineering, and legislative advocacy.[46]

The coalition filed their first legislative action in South Dakota in January 2014 as SB.136 (Latterell). Four states followed in 2015—New York (S.3998 Boyle[47]/A.6068 Morelle[48]), Minnesota (SF 873 Osmek/HF 1048 Hertaus), Massachusetts (H.3383 Cronin/S. Kennedy), and Nebraska (LB 1072 Haar). Tennessee (SB888/H1382 Jernigan) and Wyoming (HB 0091 Hunt) were added in 2016. The following year, new bills were filed in North Carolina (HB663 Richardson), Kansas (HB2122 Barker), Illinois (HB3030 Harris), Iowa (HF556 and SF2028), Missouri (HB1178 McCreery), New Hampshire (HB1733 Luneau), and New Jersey (A4934 Moriarty). 2018 added Oklahoma, Hawaii, Georgia, Virginia, Vermont, and Washington. 2019 added Oregon, Nevada, Indiana, and Montana. 2020, while shortened by the COVID-19 pandemic, added Maine, Idaho, Alabama, Maryland, Pennsylvania, and Colorado.

Legislation intended to use the power of general business law in states for general repair of devices including a digital electronic part is based on the Automotive MOU from 2014. Template legislation avoided any requirements to change the format of documentation, the method of delivery of existing parts, tools, diagnostics or information. It does not require disclosing any trade secrets. Manufacturers are permitted to charge fair and reasonable prices for physical parts and tools, and are limited in their charges for information that is already posted online.[49]

In addition to the work of the coalition, various individuals have started ballot initiatives. A ballot initiative was filed in Missouri and certified for inclusion on the 2022 ballot.[50] In March 2021, Louis Rossmann started a crowdfunding campaign to raise $6 million using the GoFundMe platform in order to start a direct ballot initiative to protect consumer right to repair in the Commonwealth of Massachusetts, citing previous similar successes in the automotive industry.[51]

The Federal Trade Commission (FTC) issued a report titled "Nixing the Fix" in May 2021 to Congress, outlining issues around corporations' policies that limit repairs on consumer goods that it considered in violation of trade laws, and outlined steps that could be done to better enforce this. This included self-regulation by the industries involved, as well as expansion of existing laws such as the Magnuson–Moss Warranty Act or new laws to give the FTC better enforcement to protect consumers from overzealous repair restrictions.[52][53] On July 9, 2021, President Joe Biden signed Executive Order 14036, "Promoting Competition in the American Economy," a sweeping array of initiatives across the executive branch. Among them included instructions to the FTC to craft rules to prevent manufacturers from preventing repairs performed by owners or independent repair shops.[54][55] About two weeks after the EO was issued, the FTC made a unanimous vote to enforce the right to repair as policy and will look to take action against companies that limit the type of repair work that can be done at independent repair shops.[56]

On December 28, 2022, New York Governor Kathy Hochul signed into law the Digital Fair Repair Act, nearly seven months after it had passed the state senate. The law established the right of consumers and independent repairers to get manuals, diagrams, and original parts from manufacturers, although The Verge, Engadget, and Ars Technica noted that the bill was made less vigorous by way of last-minute changes that provided exceptions to original equipment manufacturers. It will apply to electronic devices sold in the state 2023.[57][58][59]

The Massachusetts law is the subject of a federal lawsuit against the state by vehicle manufacturers. The state voluntarily refrained from enforcing the law until Attorney General Andrea Campbell announced it would be enforced starting June 1, 2023. In June 2023, the federal National Highway Traffic Safety Administration instructed manufacturers to ignore the Massachusetts law, asserting it was preempted by federal law because opening telematics to other organizations could make cars more vulnerable to computer hackers. (Both claims are disputed by Massachusetts in the lawsuit.)[60]

On May 24, 2023, Minnesota Governor Tim Walz signed the broadest right-to-repair law yet, which was included as part of a state appropriations bill. Minnesota's law will apply to devices sold in the state on or after July 1, 2021, and manufacturers of such devices must provide service manuals for them at no cost to residents of the state. The law will take effect on July 1, 2024. [61]