Senators Introduce Right to Repair Legislation

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Three U.S. Senators – Ron Wyden, Cynthia Lummis, and Ben Ray Luján –   introduced legislation last week to ensure the right to repair.

The Fair Repair Act of 2022 would require manufacturers of digital electronic equipment to make tools, parts, and documentation available to owners and independent repair providers. This is the first right to repair measure introduced into the Senate that would apply broadly to several industries, including  consumer electronics, farm equipment, medical equipment, and motor vehicles.

Previously, narrower initiatives have been considered, limited to single industries. In 2020, Wyden introduced a measure that would have established a right to repair for medical equipment only. Similarly, earlier this year, Senator Jon Tester introduced legislation to cover farm equipment.

Biden issued a right to repair executive order last year and reaffirmed his support in January. The Federal Trade Commission (FTC) has also undertaken separate initiatives to advance the concept (see Biden Taps Lina Khan to Chair the FTC,  FTC Votes 5-0 to Crack Down on Companies For Thwarting Right to Repair, and FTC, Where Art Thou?: Appliance Manufacturers Routinely Invalidate Warranties if Customers Use Third-Party Repair Services).

Despite this activity, it’s not altogether clear to me whether the Biden team  will make passing legislation a priority at this time – especially as a powerful array of corporations opposes the right to repair, including Apple and John Deere (see, e.g., my recent post, Failing the Fix: Grading Apple, Dell, Google, Microsoft on the Ease of Repair of Their Products). Their business models rely on thwarting the ability of consumers or third-party repair shops to fix things when they break.

A broad coalition of disparate interests groups supports the Fair Repair Act of 2022, including the National Farmers Union, the Rocky Mountain Farmers Union, the New Mexico Chile Association, the Electronic Frontier Foundation, Public Knowledge, the Repair Association, Consumer Reports, The Public Interest Research Group, and iFixit, according to the Sierra Sun Times.

The U.S. Public Interest Research Group’s (US PIRG) senior right to repair campaign director Nathan Proctor sounded an upbeat note and noted, “our rag-tag band of repair shops, tinkerers, farmers, makers, DIYers, environmentalists and consumer advocates are taking on some of the most powerful companies in the world — and we continue to make progress. The time has come to just let people fix their stuff.”

One factor that might factor in heavily in calculations as to whether to support right to repair measures now is the impact of the computer chips shortage – exacerbated by the crisis in Ukraine. and likely to be a problem for industries dependent on such chips.  As the Sierra Sun Times observed, “This bipartisan effort to increase access to repair for consumer goods would greatly reduce waste, reliance on foreign-manufactured chips, and empower small-businesses and farmers to repair their own equipment [Jerri-Lynn here: emphasis added]..

Litigation Will Proceed Regardless of Progress on Pending State and Federal Legislation

Litigation hasn’t waited on the enactment of any state or federal right to repair legislationmay result in prod enactment of a right to repair, as attorneys from the law firm Troutman Pepper recognized Friday in Right-to-Repair Movement Without Right-to-Repair Laws:

The “right-to-repair” movement continues to gain momentum, and as predicted, litigation has started even in the absence of enacted right-to-repair laws. In a recently filed class-action complaint in the U.S. District Court for the Northern District of Illinois, the plaintiff alleges that the equipment manufacturer deliberately prevents farmers from repairing their own equipment or using independent repair shops, which the plaintiff argues are antitrust violations under Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1, 2. See Eagle Lake Farms Partnership v. Deere & Co., No. 3:22-cv-50078 (N.D. Ill.).

Noting that as of end 2021, more than half of all U.S. states had pending right to repair legislation and that the Biden administration supports right to repair rules, they observed:

Even in the absence of such laws though, we anticipated that litigants and regulators would use existing antitrust laws and consumer protection laws to increase scrutiny of practices that restrict consumers’ right to repair. [Jerri-Lynn here: emphasis added].

The recently filed Eagle Lake Farms lawsuit is one such example. In that case, the complaint alleges that farmers traditionally had the ability to repair and maintain their own tractors, or at least had the option to bring their tractors to an independent mechanic for repairs. However, the complaint alleges that John Deere deliberately monopolizes the repair and maintenance market by making crucial software and repair tools inaccessible to farmers and independent repair shops. The complaint further alleges that John Deere also prevents its network of highly consolidated dealerships (Dealerships) from providing farmers and repair shops with access to the same software and tools used by the Dealerships, which provides John Deere and the Dealerships with “supracompetitive profits from the sale of repair and maintenance services.” The complaint brings eight counts under the Sherman Act for antitrust violations, as well as counts for promissory estoppel and unjust enrichment. The complaint’s proposed nationwide class includes “[a]ll persons and entities residing in the United States who, during the Class Period of January 10, 2018 to the present, purchased Deere Repair Services for Deere Tractors from Defendant or Deere’s authorized Dealers and/or technicians.”

The Troutman Pepper attorneys are optimistic that some state and/ or federal right to repair measures will be enacted this year.I’m not so sure this battle will be won quite so soon. Nonetheless, they:

…anticipate an increase in investigations, enforcement proceedings, and lawsuits from private litigants and regulators using existing antitrust laws in the absence of right-to-repair legislation. The Eagle Lake Farms lawsuit provides but one example of such a strategy. As courts interpret the scope of antitrust enforcement in the context of the right-to-repair movement, we anticipate that regulators will proceed with their own enforcement actions to shape the right-to-repair jurisprudence.

In other words, there’s more than one mechanism by which to achieve right to repair goals. Legislation isn’t necessarily the be-all and end-all. Whether or not the Biden administration gets behind the Wyden et al bill, other regulators, both federal (e.g, the FTC) and state, will proceed independently with their own enforcement initiatives.

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  1. Jeff

    Farmers, people with cell phones and TV’s and major appliances, people with cars, soldiers, small business owners who repair anything with a motor, power supply or circuit board, hospitals, manufacturing plants, McDonald’s with broken soft serve ice cream machines, etc, etc would all win if this passes.

    Many of the companies fighting this effort are also trying to make it easier to import products made with slave labor, while draping themselves in green recycling marketing efforts.

  2. Brooklin Bridge

    It’s great to get a positive event with everything else going on. You have been relentless -in a good way- on this Jerri-Lynn, and I wouldn’t be at all surprised to find it has had a real effect. Bravo, it is such a worthwhile and often critical (as in no other way) need; and maybe, just maybe, it sounds the bell for a shift in attitude for other sorely needed people oriented improvements.

    No matter, it’s significant (and it looks to be accumulating) movement in the right direction.

    1. Jerri-Lynn Scofield Post author

      After compiling links, I was looking for a topic I could be a bit optimistic about for today, the first day of spring (which also happens to be my parents’ wedding anniversary. I even remembered to call my mother first thing this morning. She was pleased I remembered. My father died in 2000.)

      1. Pat

        I also thank you for posting something that I can cheer about.

        Happy Spring! And a happy anniversary to your mother. I hope now it brings the good memories.

      2. Carla

        How lovely about remembering your mother’s wedding anniversary, and her pleasure at hearing from you. A great message on this first day of spring. Thank you, Jerri-Lynn.

  3. Ranger Rick

    If it doesn’t come with a permanent exemption to DMCA’s anticircumvention clause for repair activities then they’re missing the entire point of why people have been agitating for this.

  4. jackiebass63

    I suspect companies will change their warranty. Probably they will add a clause where the warranty is voided if the repair isn’t done at a certified shop with genuine parts. Instead of this being limited to some products it will become universal.Companies will also designed there products making them harder to service .

    1. TheMog

      A lot of electronics are already hard to service, and I doubt that this is going to change unless or until we see a shift in consumer attitude towards more repair friendly designs. But most consumers (at least of electronics) are generally not that aware of the repair problems until laptop/tablet/phone gives up the ghost and they find out how much the manufacturer charges and why it”s so expensive. And that they can’t have the device that they allegedly own repaired at a company of their choosing because the parts aren’t available.

      The farmer lobby in contrast is already very aware of this because they’ve been used to fixing their own machinery since before the time of written records and they also suffer from a bigger impact if their tractor is down and it’s weeks until the dealer might get around to sending a mechanic out.

      As to the warranty clause you mentioned, it’ll very likely contravene the Moss-Magnusson Warranty Act:

      Of course, so far the protection around DRM removal and circumvention via the DMCA kind of nixed the Moss-Magnusson protections. and I believe that will have to be addressed sooner or later.

      At the end of the day, the overarching question is about ownership and how much of a consumer good we actually own. Right to repair is a large part of it, but ownership extends much further, for example also around the ownership of the data that we generate when we use said devices.

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