In a forthcoming article in Fordham Law Review, Leah Chan Grinvald and Ofer Tur-Sinai make the case for comprehensive right-to-repair (R2R) legislation across the country:
In recent years, there has been a growing push towards state legislation that would provide consumers with a “right to repair” their products. Currently 18 states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right to repair may not be easily reconcilable with the United States’ far-reaching intellectual property rights regime. For example, requiring manufacturers to release repair manuals could implicate a whole host of intellectual property laws, including trade secret. Similarly, employing measures undercutting a manufacturer’s control of the market for replacement parts might conflict with patent exclusivity.
Nonetheless, this Article holds that intellectual property laws should not be used to inhibit the right to repair from being fully implemented. In support of this claim, this Article develops a theoretical framework that justifies the right to repair in a manner that is consistent with intellectual property protection. Based on this theoretical foundation, this Article then explores, for the first time, the various intellectual property rules and doctrines that may be implicated in the context of the current repair movement. As part of this analysis, this Article identifies areas where intellectual property rights could prevent repair laws from being fully realized, even if some of the states pass the legislation, and recommends certain reforms that are necessary to accommodate the need for a right to repair and enable it to take hold.
It’s a well-written article, going through every nook and cranny of patent, copyright, trademark, and trade secret law that would be relevant for crafting legislation that would allow near-universal R2R for both second-hand repair shops and the users themselves. From an innovation policy standpoint, however, I found the following argument to be particularly compelling:
As demonstrated in the work of Professor Eric von Hippel and others, “users of products and services—both firms and individual consumers—are increasingly able to innovate for themselves.” Indeed, in today’s innovation landscape, innovation in many technological fields is often originated from users of technology, who develop new products and services to satisfy their own needs, rather than to sell them. While this is beneficial to the individuals engaging in the practice of innovation, such innovative activity can also yield significant benefits to society. The innovations created often diffuse to peers and to commercial firms that may adopt them as the basis for valuable market products.
From a broader utilitarian perspective, the authors make the obvious (though far from unimportant) argument that gains are made by allowing consumers to use their products for longer. The other creative argument in this vein is that as the economy must adapt to address climate change, broader R2R reduces waste and eliminates the need to expend energy to produce new products when older ones have longer lifespans. An excellent way to achieve “green” ends without shifting to an all-hair-shirt wardrobe.
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