By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
The New York State Senate on Thursday became the first U.S. legislative body to pass selectronics right-to-repair legislation when it voted 51-12 to approve the Digital Fair Repair Act. The bill requires original equipment manufacturers (OEMs)
to make available, for purposes of diagnosis, mainte-nance, or repair, to any independent repair provider, or to the owner of digital electronic equipment manufactured by or on behalf of, or sold by, the OEM, on fair and reasonable terms, documentation, parts, and
tools, inclusive of any updates to information or embedded software.
Alas, New York’s current state legislative session ended on Thursday, without action by the New York State Assembly on its version of the bill, sponsored by Asm. Pat Fahy, So the measure is currently stalled. In addition to passage by the State Assembly, New York governor Andrew Cuomo would have to sign the enrolled bill; he has not yet taken a position on the right to repair issue.
I became aware of the NY State Senate’s action when an email arrived in my inbox yesterday: a press release issued by U.S.Public Interest Research Group (U.S. PIRG), which has spearheaded right to repair initiatives in state legislatures throughout the country.
When I reached out to Nathan Proctor, U.S. PIRG’s right to repair campaign director, to ask why the bill was stalled in the Assembly, he replied (via email), “I have heard a number of various rumors but nothing I definitely believe. Suffice it to say that the Assembly leadership does not want to advance on this legislation, and if we want to change their minds, New Yorkers will have to lean on their assembly members.”
Proctor had earlier issued a statement putting the best possible spin on the situation:
“This is a big step: I’m proud of all the people who helped us reach this important milestone today. People just want to fix their stuff. In the face of frenzied opposition from some of the world’s biggest companies, the collective work of a rag tag collection of tinkerers, farmers, fixers, STEM educators, environmental groups and consumer advocates is finally breaking through.
“Despite a huge lobbying effort from manufacturers, New York senators listened to their constituents. They chose to pass a bill that will make repair cheaper and improve consumer choice. It will also help address the digital divide and empower a local repair economy. Similar to the FTC’s report last month, the state senators were unconvinced by the manufacturer’s disingenuous arguments — which are really just excuses to prop up repair monopolies.
“Right to Repair just makes sense: It saves money and it keeps electronics in use and off the scrap heap. When consumers have easily accessible repair options, it cuts back dramatically on downtime, which is especially critical for farmers. Beyond that, repair can teach students technology skills, inspire careers and help build a local repair economy on Main Street. We keep getting closer, and eventually we will win. While the passage of this bill is a big step in the right direction, we aren’t going to stop until people have the laws they need to fix their stuff.”
What Comes Next?
Motherboard reported in New York Senate Passes Electronics Right-to-Repair Legislation on the next steps the bill proponents intend to take when the lawmakers return to Albany:
To become a law the bill still needs to pass in New York’s Assembly and get signed by the Governor. The Assembly version is currently stalled, but lobbyists working to get it passed are hopeful.
“We’re very enthusiastic about the Senate moving this forward and appreciate the work our Senate sponsor has done this year and we plan to work with the Assembly over the summer to make it a priority and get it passed early next session in both houses,” Cassie Orlan, a lobbyist working on the right-to-repair, told Motherboard in an email.
“We have great sponsors in both houses who have a proven track record of getting big things done,” she said. “NY has proven to be a leader in protecting consumer rights, breaking up big tech, and environmental issues and Right to Repair encompasses all of these issues.”
Further State Actions
A the beginning of the year, it appeared that 2021 might be the year for the right to repair, as I wrote in Will 2021 Be the Year for the Right to Repair? About half of the states have considered such measures this year, although measures under consideration differ widely as to scope and coverage. But to date, the New York State Senate is the only U,S, legislative body to pass a right to repair measure, a fact Proctor confirmed via email, while noting that some state measures remain pending:
We are down to just a few states left this year. Massachusetts, Delaware, Pennsylvania and New Jersey are the others. Right now, we have a lot of work to do to move any of these bills, but we have great teams in many of these states.
Federal Trade Commission (FTC) Action
While state legislatures continue to dither, right to repair is attracting increased attention at the federal level, as I wrote in May in Big Tech Goes All In to Thwart Right to Repair Initiatives:
Earlier this month, the Federal Trade Commission (FTC) released a comprehensive report, Nixing the Fix: an FTC Report to Congress on Repair Initiatives. The report endorsed the right to repair and debunked opposing arguments, concluding “there is scant evidence to support manufacturers’ justifications for repair restrictions.”
In that May piece, I discussed measures that might be undertaken at the federal level to create a right to repair. I’ll not repeat them here and instead refer interested readers to that earlier piece.
The EU has more advanced waste management measures in place than does the U.S, so it’s unsurprising that In March, the EU implemented a limited right to repair for certain categories of consumer electronics, including hairdryers, refrigerators, television displays, and washing machines, as I discussed in Waste Watch: Europeans Get Right to Repair for Some Consumer Electrical Goods, While John Deere Reneges on Promise to U.S. Farmers to Make Diagnostic Software Freely Available.
The Bottom Line
Proponents have yet to attain victory victory on the right to repair front. But the New York Senate’s passage of legislation, especially with such overwhelming support, does represent significant progress.
As Proctor wrote to me, “The thing I think is most important about this is how we are inching close, day after day, with more support, more states, more high-level endorsers (like the FTC), and we won’t stop until we win.”
Once one state passes legislation – once that first domino falls – more will soon follow. Or as is the case with the auto industry, manufacturers themselves will get on board to broaden the area in which the right applies. Massachusetts voters approved an automotive right to repair ballot initiative in 2012, which bolstered similar legislation advancing in other states, and eventually carmakers agreed to a Memorandum of Understanding with provisions to be applied nation-wide. The same scenario may play out again with respect to a digital right to repair.