This Week in Right to Repair

Right to Repair legislation is clearing new milestones as never before.  We are 4 for 4 in committee hearings so far this year. MA, NE, MN and WA are moving ahead in the legislative process with increasingly strong support.  

More legislation was officially filed this week as well.  Georgia filed a comprehensive Right to Repair bill, Maryland did the same. Colorado filed a wheelchair right to repair measure and Michigan added their efforts for farmers.  This brings the total number of states with active legislation to 21 – far ahead of our expectations in what is normally an “off” year. 

Also new this week are several new federal efforts that have been in the works for several months.  Rep Mondaire Jones (D-NY) and Rep Victoria Spartz (R-IN) teamed up in a  non-partisan effort intended to remove the last lingering copyright office limitations on repair and repair tools.   

Montana Senator Jon Tester filed his “Agricultural Right to Repair Act” at the same time as 

Rep Bobby Rush (D - IL) filed his Right to Equitable and Professional Auto Industry Repair (REPAIR)  

Rep Joe Morelle (D-NY) continues to gather supporters for his general Right to Repair legislation filed in the fall covering all the stuff not otherwise covered by the Jones and Tester bills. 

It’s been a wonderful week – and we hope momentum continues to build so that state law will be enacted to allow us all to fix the things we buy – even if they happen to include a computer chip. 

Gay Gordon-Byrne
Executive Director
The Repair Association

Digital Right to Repair Coalition Letter of Support: SMART

January 19, 2022

The House Committee on the Judiciary 2141 Rayburn House Office Building Washington, D.C. 20515

Dear Members of the House Committee on the Judiciary,

On behalf of the Digital Right to Repair Coalition (“The Repair Association”), an organization representing over 400 member companies across a variety of industries, I’m writing to ask for your support of consumer choice and right to repair by advancing H.R.3664 – Save Money on Auto Repair Transportation (SMART) Act. The Repair Association is centered around a simple principle: consumers should have the right to repair the products they own. We believe that competition is an essential component of any market, including automotive repairs, and is better for consumers. We are dedicated to fighting against anti-competitive practices that stifle innovation, restrict small businesses, and disadvantage consumers, regardless of industry.

Right to repair is a growing, consumers-first movement that is expanding as more people recognize that the law should put consumers first. The growing momentum around repair restrictions for electronics and consumer appliances has spurred companies like Microsoft and Apple to commit to taking action to expand their repair offerings. There’s much more work to be done. According to a new national survey from the CAR Coalition, an overwhelming majority (78%) of vehicle-owning voters support the federal right to repair legislation that protects against design patent abuse in the automotive industry, such as the SMART Act, and makes vehicle data more readily available. The Repair Association believes the SMART Act is an essential step forward in answering consumers’ call for stronger right to repair protections in the automotive repair industry and would serve as an example to other industries.

We have seen similar practices deployed that block the repair of consumer electronics, such as design patents limiting access to common parts such as replacement glass and batteries for cell phones. Lack of competition for these common parts is a leading reason why consumers are buying replacement products – instead of seeking repairs – to the detriment of owners’ rights and sensible environmental policies governing e-waste. We believe the trend toward more limitations on repair will continue without congressional action.

The SMART Act is a bipartisan bill that will remedy many of these issues by restoring consumers’ right to choose how and where to repair their vehicles. This legislation would make necessary amendments to U.S. design patent law to limit the period in which automakers can enforce design patents against alternative parts manufacturers from 15 years to 2.5 years. Even further, the SMART Act will ensure everyday Americans have access to affordable car repairs.

While OEMs will still control the vast majority of their parts’ availability within the warranty period and not lose the design value associated with those parts, legislation is needed to enable the secondary parts market to serve the needs of post-warranty repairs in an open market. We would want the same to apply for design patents not only in the automobile industry but for every industry.

Thank you for your consideration and hard work in serving American citizens. Sincerely,

Gay Gordon-Byrne
Executive Director, Digital Right to Repair Coalition

Biden Administration Launches Right to Repair for Agriculture - What does that mean for OEMs?

Point/Counterpoint Discussion with Gay Gordon-Byrne, Executive Director of Repair.org, and Willie Cade - Midwest Regional Director — Repair.org.

The leading trade association for the AG industry is the Association of Equipment Manufacturers (AEM) and their dealership counterparts the Equipment Dealers Association (EDA) Both have made public statements offering support with significant caveats -- which is a window into the core of their aggressive opposition to proposed legislation. 

Here are the main loopholes in their “support” statements:

We support farmers’ right to repair, but not their right to modify. 

Gay: The most obvious flaw in the statement, which the FTC Report to Congress on “Nixing the Fix”  noted is that repair isn’t modification.  Legislation directed at opening a competitive market for repair does not require modification and the FTC concurs. 

Willie: The FTC also noted that IP rights are not impacted by repair.  I think it's more telling that AEM and EDA both consistently fail to acknowledge the rights of owners of “land-based motor vehicles” to modify their software already granted in Copyright Law with the 2015 exemptions to Section 1201. ([link] 

Farmers can fix 98% of their stuff  

Gay: So much to unpack here.  First -- we don’t see any disclosure to farmers about which parts are off-limits to repair -- which is inherently unfair and deceptive.  Second -- and I think most importantly - farmers paid 100% for the product and logically expect to be able to fix 100%.  Third -- my inner cynic thinks that the 2% figure is a fabrication intended to backstop the idea being presented to legislators that there isn’t a need for legislation because there isn’t a problem any longer.   

Willie:  Plus a partial repair isn’t a complete repair. And if a product is down for a dealership visit -- that machine is 100% useless until the dealership can visit and complete the repair. We’ve been trying to get a handle on the limitations on repair directly from farmers, and our sense is that limitations on repair are far more pervasive than disclosed.  

Imagine if your car check-engine light flashes, and instead of being able to continue to drive the car shuts down entirely.  Maybe you can limp at 2 mph to a mechanic that can plug in a diagnostic tool and learn that your front headlight needs replacement.  But that mechanic can’t replace the light because only the dealership has the software tool that pairs the bulb to the VIN.  This is exactly the problem farmers face every day when a small part, even a relatively trivial part, takes the machine down.

If Right to Repair passes, farmers will hack the emission on their equipment and violate the Clean Air Act

Gay:  I’ve dug into the Clean Air Act and read compliance advice from the EPA.  I don’t see any requirements that OEMs or Dealerships are deputized to enforce the law.  There is a requirement on dealers to bring emissions back into spec if the equipment is brought to them for an emission repair -- but the EPA very clearly states the dealership doesn’t have to fix emissions if the repair request is unrelated. (https://www.epa.gov/enforcement/clean-air-act-vehicle-and-engine-enforcement-case-resolutions)

Lately, the EPA has come down hard on diesel tuners for over-the-road trucks (https://www.epa.gov/newsreleases/epa-penalizes-premier-performance-3-million-selling-defeat-devices) as evidence that they do enforce violations directly with the violators.  The schedule of fines for users is very clear as well.  Farmers that hack their emissions are subject to fines directly. 

Willie: Damn straight, OEMs are not the environmental police!  To say that producers are all “criminals in waiting,” is BS!.  It is insulting.

Trade in Values will be diminished if farmers mod their engines to run at higher Horsepower.

Gay: This is simply wild. The farmer, as the owner making the trade-in or private sale, is the only party that benefits or loses value based on equipment condition.  Dealerships should be taking equipment conditions into account when making an offer -- just like a car dealership evaluates the trade value.  If Dealers aren’t savvy enough to pick up on mods, that's on them.  If the tools to evaluate conditions are inadequate -- then dealers should be asking for better tools. 

Willie: Deere created the one machine series with firmware-controlled settings.  The machine itself is built to run at the max settings, so it's not going to hurt the machine if the farmer goes to the max.  This is a pricing problem for Deere and not a technical one. 

Are producers really upset about this issue?

Gay: Producers are livid about any limitations on repair. Why not just let the farmer buy the pairing tool and the parts?  Is there that much money to be made on repair? 

Willie:  There is a great deal of money to be made on repair.  IBISWorld estimated repair spending in the U.S. in 2018 at $39.1 billion for heavy machinery.  Now that agricultural equipment has been “computerized,”  what has been for generations a repair industry composed of small, independently run operations now is controlled by OEMs via software.  This represents a high margin growth opportunity.  Even the OEM’s dealers are having to fork over more money and they are not happy about that!.  This problem is only going to get worse as the percentage of computerized equipment in a producer’s fleet increases. 

Is this really all about the price of their stock?

Gay and Willie:  OF COURSE!

25 States are now considering Right to Repair legislation

Right to Repair bills now in half the US

Right to Repair legislation has now been filed in 25 states, proving that our campaign has continued to expand support steadily since our first effort in 2014. Bills are in big states, small states, cold states, warm states and have been filed by Republicans and Democrats alike. Many of our bill sponsors have teamed with their counterparts across the aisle because repair is something we all need.

Manufacturers should note, if they haven't already, that these bills aren't going away. They come back stronger each year. The day of reckoning is coming, perhaps this year.

The time for manufacturers to give up on repair monopolies is now, while there is marketing and advertising value. The first manufacturer coming out in support of Right to Repair will get the press - the 9th won't even generate a mention.

Being on the right side of repair also legitimizes manufacturer claims on circular economy and the environmental. Savvy customers will pay more for products that last -- and the total cost of ownership always includes the costs of repairs. We call on manufacturers to drop their opposition to their own customers and fight with us for legal rights to fix the things we buy.

The world is watching.

REPORT Towards a more sustainable single market for business and consumers

The vote calls for the EU Commission to “develop and introduce mandatory labelling, to provide clear, immediately visible and easy-to-understand information to consumers on the estimated lifetime and reparability of a product at the time of purchase.”This won’t change anything immediately—it’s a call for the government to work on setting up these initiatives—but it is a major vote of confidence in us and a huge step forward. It sets the stage nicely for implementation of the French labeling system and US state Right to Repair bills in January.Credit for this goes to our allies across #Europe. French MEP David Cormand is a real hero of the revolution!

Fixing for Change: Repair and Activism

We worked on this for over a month featuring 4 Literary Heroes of Repair.