FTC Report Shows Growing Influence of Right to Repair Lobby

Wilson Sonsini Goodrich & Rosati

Wilson Sonsini Goodrich & Rosati

In May 2021, the Federal Trade Commission (FTC) released a report that examines consumer protection and antitrust issues relating to repair restrictions and finds that repair restrictions on electronic devices hurt consumers and small businesses.1 The FTC's report shows that the right to repair movement in the United States has gained significant ground since 2012, when Massachusetts passed the first Motor Vehicle Owners' Right to Repair Act, requiring automobile manufacturers to provide necessary documents and information to allow anyone to repair their vehicles.2

The FTC's report came out strongly in favor of a broad right to repair. Proponents of the right to repair have argued that individuals should be able to repair their own products and that third-party repair services are just as effective yet cheaper. Manufacturers have raised concerns related to protection of intellectual property, consumer and repair worker safety, cybersecurity, liability and reputational harm, consumer demand, and quality of service, among others. The FTC dismissed manufacturers' concerns: "There is scant evidence to support manufacturers' justifications for repair restrictions."3

The FTC report outlined legislative approaches, including existing and recently introduced state right to repair laws and model legislation provided by The Repair Association. Among other things, the Repair Association's model legislation would require original equipment manufacturers (OEMs) to provide "documentation, parts, and tools, inclusive of any updates to information or embedded software" for "digital electronic equipment" to independent repair providers or the owner of the equipment "on fair and reasonable terms."4 Three states already have a limited right to repair.5 In March, the Repair Association announced that 25 states had proposed right to repair legislation.6 The FTC also concluded that it would use "existing authority": "To address unlawful repair restrictions, the FTC will pursue appropriate law enforcement and regulatory options, as well as consumer education, consistent with our statutory authority."7 It remains to be seen whether states will pass right to repair laws and what actions the FTC may take.

Other Right to Repair Developments

As Wilson Sonsini's Electronic Gaming Group newsletter explained, videogame console manufacturers frequently use the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA) to prevent modification of their products.8 As part of a triennial rulemaking process, right to repair activists have petitioned the Copyright Office to exempt consoles from Section 1201 of the DMCA to make third-party repair of such videogame consoles legal.9 Console manufacturers have also argued that repairing a console's optical drive unlawfully circumvents the manufacturers' firmware.10

The right to repair has had even more success in Europe. In January 2021, the French government began requiring manufacturers of certain electronic devices, such as smartphones, laptops, and televisions, to score their products' repairability on a scale of zero to ten, from hardest to easiest to repair. For example, Apple Inc. gave its iPhone 12 Pro Max a "six."11 The French government believes that consumers will pick devices that are more repairable if they can see that information at the time of purchase.12 In 2020, the European Commission announced plans for new right to repair rules, covering certain electronic devices, but was silent as to whether electronic gaming consoles are covered.13

Wilson Sonsini will continue to monitor developments in the right to repair space.

Angela Chan and Brian Levy contributed to the preparation of this alert.

[1] U.S. Federal Trade Commission, Nixing the Fix: An FTC Report to Congress on Repair Restrictions (2021), available at https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf.

[2] Mass. Gen. Laws. ch. 241 (2012).

[3] Nixing the Fix at 6.

[4] Model State Right-to-Repair Law § 3(a) (updated Dec. 2, 2020), available at https://www.repair.org/s/2021-Model-R2R-Bill3.docx.

[5] Nixing the Fix at 47.

[6] 25 States Are Now Considering Right to Repair Legislation, Repair Ass’n (Mar. 10, 2021), https://www.repair.org/blog/2021/3/10/25-states-are-now-considering-right-to-repair-legislation.

[7] Nixing the Fix at 54.

[8] DMCA Anti-Circumvention Suits Are a Potent Tool for Hardware and Software Makers Alike, Wilson Sonsini Electronic Gaming Legal Newsletter (Dec. 16, 2020), https://www.wsgr.com/email/EGG/Q4-2020/EGG-12-2020-web.html.

[9] Section 1201 Exemptions to Prohibition Against Circumvention of Technological Measures Protecting Copyrighted Works: Reply Comments, U.S. Copyright Office, https://www.copyright.gov/1201/2021/comments/reply/ (Class 11 and Class 12); Kyle Wiens, Copyright Law Is Bricking Your Game Console. Time to Fix That, Wired (Dec. 11, 2020), https://www.wired.com/story/copyright-law-is-bricking-your-game-console-time-to-fix-that/.

[10] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 83 Fed. Reg. 54,010 (2018).

[11] Katie Deighton, Spare Parts, Fix-It-Yourself Guides Hit the Market as Brands Ponder Repairability, Wall St. J. (Jun. 1, 2021), https://www.wsj.com/articles/spare-parts-fix-it-yourself-guides-hit-the-market-as-brands-ponder-repairability-11622539801.

[12] Maddie Stone, Why France’s New ‘Repairability Index’ Is a Big Deal, Grist (Feb. 8, 2021), https://grist.org/climate/why-frances-new-repairability-index-is-a-big-deal/.

[13] Klaus Sieg, Europe Reduces Waste by Guaranteeing the Right to Repair, YES! (Feb. 26, 2021), https://www.yesmagazine.org/environment/2021/02/26/europe-reduce-waste-right-to-repair; Will Next-Gen Consoles Meet EU’s Proposed Right to Repair, Wilson Sonsini Electronic Gaming Newsletter (Dec. 16, 2020), https://www.wsgr.com/email/EGG/Q4-2020/EGG-12-2020-web.html.

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