House Judiciary Panel Told It Should Pass Right-to-Repair Legislation

Democrats discussed potential updates to Digital Millennium Copyright Act Section 1201. That section makes it illegal to circumvent digital locks that control online access to copyrighted material. Both ranking member Jerry Nadler, D-N.Y., and House Intellectual Property Subcommittee ranking member Hank Johnson, D-Ga., questioned whether Section 1201 is working as intended. University of Michigan Law School professor Aaron Perzanowski told members he supports a bipartisan bill from Reps. Victoria Spartz, R-Ind., and Mondaire Jones, D-N.Y. Introduced in 2022, their Freedom to Repair Act would update copyright law to allow consumers to have their devices and products repaired by shops of their choosing.

The bill would allow permanent exemptions to Section 1201 for repairs. The Copyright Office currently conducts a triennial rulemaking process for granting exemptions to DMCA Section 1201 (see 2006220041). Allowing permanent exemptions could open the “piracy floodgates” and make devices less secure, said Devlin Hartline, Hudson Institute Forum for Intellectual Property legal fellow. A permanent exemption would call into question why Section 1201 requires technological protection measures (TPMs) in the first place. TPMs are needed to guard against piracy, he said. Nadler questioned whether the triennial exemption process is working as intended. He has raised the prospect of major DMCA changes in the past (see 2009300068).

Rep. Cliff Bentz, R-Ore., questioned why there would be any issue if consumers are fully informed when they buy a product that such a product must be repaired by the manufacturer or an authorized shop. The problem is that consumers aren’t properly informed when they’re expected to read 10,000-word license agreements, said Perzanowski.

As long as there’s adequate disclosure and no fraud on the company’s part, there’s no issue requiring consumers to repair their products with authorized providers, said Hartline. He said that in New York and Minnesota, the two states that have passed right-to-repair laws directly related to electronic devices, are going to face litigation issues over federal preemption.

Nadler said he’s concerned about the original equipment manufacturer (OEM) response to a law passed in Massachusetts. The state’s Right to Repair Law, which went into effect in June, governs how companies selling cars in the state can design their telematics systems. The manufacturers must equip vehicles built after 2022 with an open-access telematics platform. They’re required to provide that data to independent repair shops and vehicle owners. Nadler said OEMs have since suspended access to telematics accessories for vehicles sold in the state, affecting consumer choice.

For consumers bending and breaking under repair costs, having state laws is better than having no law at all, said SecuRepairs.org founder Paul Roberts. The best solution would be to have a federal law, though, he said. In Massachusetts, it’s not an urgent issue right now because most cars don’t have the applicable technology, he said: But it will become more of a problem as automakers provide more information to telematic systems, he said.

States are finding solutions on their own, and a state patchwork leads to confusion for consumers and businesses, said House Intellectual Property Subcommittee Chairman Darrell Issa, R-Calif. Congress should look for solutions that empower consumers, promote competition and advance innovation, he said.