Repairing the right to repair

If a device that you own breaks, you should be able to repair it. That's a common sense principle with which most would agree. Historically, the law agreed too. The right to repair has been recognized in U.S. patent law since at least 1850. In Wilson v. Simpson the Supreme Court explained:

It is the use of the whole of that which a purchaser buys, when the patentee sells to him a machine; and when he repairs the damages which may be done to it, it is no more than the exercise of that right of care which every one may use to give duration to that which he owns, or has a right to use as a whole.

Even though the notion of repair is a less obvious fit in the copyright context, courts analogized to patent law's repair doctrine as early as 1901. In Doan v. American Book, the court held that a reseller did not infringe when it reproduced missing and damaged sections of children's books and rebound them.

Despite these clear limitations on the scope of IP rights, device makers keen on preventing repair have a number of effective strategies at their disposal:

Various legislative proposals—mostly unsuccessful—have been proposed over the years. Most have focused on automative parts, a multibillion dollar industry. As early as 2001, Senator Paul Wellstone and Representatives Joe Barton and Edolphus Towns introduced the Motor Vehicle Owners' Right to Repair Act. Variations on the bill have been reintroduced periodically. Most recently, Representatives Darrell Issa and Zoe Lofgren, along with Senators Orrin Hatch and Sheldon Whitehouse introduced the Promoting Automotive Repair, Trade and Sales (PARTS) Act, which would shorten the duration of design patents for automotive repair parts. So far, federal legislation has failed to gain much traction.

On the state level, Massachusetts enacted a bill in 2014 that requires auto manufacturers to make "diagnostic and repair information" and ""diagnostic repair tools" available to vehicle owners and independent repair shops on fair and reasonable terms. Shortly thereafter, two major trade associations hammered out a deal to effectively implement the Massachusetts law nation-wide.

But what about all of our non-car devices? Our phones, computers, televisions, cameras, and copiers? A New York bill, the Fair Repair Act would have required manufacturers to make diagnostic and repair information, replacement parts, and software updates available to device owners and third-party repair shops. But intense lobbying pressure from companies like Apple and Cisco killed the bill.

With help from groups like The Repair Association, pubic awareness of these attacks on the right to repair is growing. Collectively we have a choice to make—whether we value the ability to repair our devices when they inevitably wear down and malfunction, or instead we are comfortable with discarding them on predictable product upgrade cycles.