Business & Government

Do you have the right to repair your stuff?

You drop your smartphone, pick it up, and find your screen shattered. Rather than risk cuts from shards of glass, you take it in for repair. A replacement screen from the manufacturer could cost $300 or more – enough to make you wonder if buying a new phone makes more sense.

Advocates for the “right to repair” say that’s the point. When manufacturers control how the owners can repair, maintain or modify certain devices and equipment, advocates say, they can force consumers to either pay for costly repairs or fork over the cash for a replacement.

Manufacturer control over repair affects a wide variety of industries. Farm equipment giant John Deere recently settled a class-action lawsuit alleging the corporation created a monopoly in the repair market, forcing Deere owners to use its diagnostic tools and repair services when their equipment stopped working.

During the height of the pandemic, the do-it-yourself repair website iFixIt published repair manuals for ventilators so hospitals could repair their own devices. A ventilator manufacturer threatened to sue the website, claiming publishing the manuals constituted a copyright violation.

States like Texas, Colorado and Massachusetts have already passed right-to-repair laws for certain industries. Legislation is under consideration in 22 states, and there’s a bipartisan effort in the U.S. Senate to ensure the military’s right to repair its own equipment.

“It comes from the principle that once you have purchased an item, the intellectual property owner’s rights are exhausted,” Elizabeth Rowe, a professor at the University of Virginia School of Law, said. “It’s called the exhaustion doctrine. It’s this idea that if, for example, you buy a car, you can change the tires yourself. You can paint it whatever color you want.”

School of Law professor Elizabeth Rowe directs UVA’s Center for Intellectual Property Law. (Contributed photo)

But Rowe said that’s changed. Transactions are “packaged differently,” with terms of service giving manufacturers more rights. Consumers may encounter a prompt to “click here to purchase,” signing over their right to modify the products they buy, not to mention their data. Many consumers never read these contracts, Rowe said, and in some industries, they are virtually unavoidable.

Take cars as an example. The operation of many new cars turns more on software than hardware, Rowe said. Embedded in the software are what manufacturers might call trade secrets – a type of confidential intellectual property that gives a company a competitive advantage and is protected by law.

“You often need those proprietary codes and locks in the software to diagnose what’s wrong with your car,” said Rowe, the Henry L. and Grace Doherty Charitable Foundation Professor of Law. “So you can’t just take your car to Bob at the gas station to get it fixed anymore. You have to take it to the dealership, or an entity licensed by the manufacturer, to even unlock the problem.”

Whether a company’s confidential information is treated as a trade secret in the first instance depends on whether the company believes it is, Rowe said. A company can claim a piece of information is a trade secret, but that gets decided only once it gets brought up in court (Call it “Schrodinger’s trade secret.”)

Consumers may think they are buying a physical item when they make a purchase. In many cases, however, they purchase a license to use the product in a certain way or for a specific period, further restricting their rights to modify or repair it.

“It’s the difference between owning a house and renting from a landlord,” Rowe explained.

It allows companies to raise prices over time and to keep consumers on the hook for more purchases. A home printer, for instance, is relatively cheap. The ink the manufacturer requires you to use, and which needs to be replaced periodically, can cost almost as much as the machine.

The Federal Trade Commission, in a separate case, sued John Deere for running what it called a repair monopoly. The case is still pending. Rowe considers the monopoly argument an interesting and novel approach, at least from a consumer’s perspective, but it’s not the only tool the national government has at its disposal. The government has enormous power as a consumer in its own right.

“Government agencies spend billions of dollars, there are lots of contracts, they get to sit at the table and say what they want through the procurement process,” Rowe said. “They can say we should have the right to repair.”

She predicts the right-to-repair laws under consideration, if passed, will focus narrowly on certain industries. But even if they only pass in a few states, it could still make a difference for consumers nationwide.

“If the law in three states is that I cannot control the repair market, I’m probably just going to make it compliant nationally as a manufacturer,” she said.

There are cases where a corporation does have a legitimate claim to a trade secret, Rowe said, even if the right is applied too broadly.

“But there’s a middle ground,” she said.