In the final days of 2022, New York Governor Kathy Hochul signed into law the Digital Fair Repair Act , securing consumers in her state the right to choose where to get their electronics-enabled consumer products repaired, and giving independent repair shops a fair opportunity to compete to provide this choice to consumers.
The new law requires manufacturers of “digital electronic equipment” to make available to independent repair shops the parts, tools, and technical information necessary to diagnose, maintain, and repair their products on fair and reasonable terms, comparable to what the manufacturer gives its own authorized repair shops. And consumers will also have this same right for products they own, so they have the choice to do the repairs themselves if they can.
The rights of ownership have been recognized in law for many centuries, as far back as the ancient civilizations of Rome, Athens, Israel, Egypt, and Mesopotamia. These rights have given individuals dominion and control over what they own – including the right to protect and prolong its usefulness, by having it fixed where and how they want, or fixing it themselves.
For example, a dress purchased from a clothier could be re-hemmed or mended by a neighborhood seamstress, or even at home. A wagon with a broken wheel could be repaired by a local blacksmith or carpenter.
The right to repair continued to be available in the Industrial Age. For example, independent auto repair shops became widespread in every community, and many car owners worked on their own cars at home in their garages.
Congress affirmed and reinforced this right in the Magnuson-Moss Warranty Act, 15 U.S.C. §2302(c), generally prohibiting manufacturers from conditioning a warranty on the consumer having to use parts and repair services sold by the manufacturer. And when manufacturers have failed to comply, the Federal Trade Commission has issued warnings to remind manufacturers of their obligations , and has brought legal action to enforce compliance .
With technological advances, an increasing number of products now depend on electronics embedded in or attached to the product. This has given manufacturers additional means to block competition and monopolize the maintenance and repair aftermarket for their products.
They can design the electronics to make repairs more difficult, such as with uniquely configured tools that are unavailable to owners and independent repair technicians. They can refuse to make diagnostic manuals and other information available. They can engineer special parts and refuse to make them available. They can booby-trap the electronics with locks that cannot be easily opened without breaking the product, or that when opened render the product dysfunctional unless a secret software code is applied to restore functionality .
Without the choice that competition affords consumers, manufacturers can prioritize their own interests and downplay or disregard the interests of their consumers. They can charge more. They can limit the number of repair providers to maximize profits, resulting in longer waiting periods and other inconveniences for consumers. They can decide which repairs they will make, and when it’s in their interest to make consumers toss out the product and replace it.
The new law facilitates independent repairs by prohibiting anticompetitive practices that obstruct them.
It requires an original equipment manufacturer to provide information, parts, and tools required for diagnosis, maintenance, and repair of digital electronic equipment made or sold by that manufacturer, to owners of the equipment, or to independent repair providers, on “fair and reasonable terms.” For information and tools that are provided electronically, the law further specifies that they be provided at no charge since the marginal cost to the manufacturer is essentially zero.
There is no technological impediment to providing this access. Manufacturers are already providing it – to their hand-picked service providers. The impediment is the desire, on the part of those manufacturers and hand-picked service providers, to preserve the inflated profit stream that comes from keeping the repair aftermarket as closed off to competition as they can.
The new law does not go as far as it might. As enacted, it excludes, for example, larger equipment such as home appliances and outdoor power equipment, and farm, forestry, industrial, construction, and utility equipment. It excludes specialized business products that are not generally sold at retail to consumers. It also excludes medical devices, and communications equipment used for public safety emergency response. It also excludes motor vehicles, which are already covered by existing right-to-repair law, and off-road vehicles, which are not. Thus, the new law is focused more narrowly on mostly smaller consumer products, including mobile phones, laptops, and tablets. Those other products, and the additional considerations they potentially raise, are left for another day.
The new law also is limited to what is needed for diagnosis, maintenance, and repair – restoring the product to its full functionality. Manufacturers are not required to go further and provide information, parts, and tools for the purpose of helping alter a product for additional purposes or functionalities.
Yet another limitation is that the new law applies only to products manufactured, and sold or used in the State of New York, on or after July 1, 2023.
The new law nonetheless establishes an important beachhead for advancing the right to repair nationally. Similar legislation is under consideration in a number of states. And federal legislation was pending at the time of adjournment on January 3, and is expected to be reintroduced in the new Congress. The House bill is H.R. 4006, introduced by Congressman Joe Morelle, who originally sponsored the New York legislation when he was in the State Assembly. The Senate counterpart is S. 3830, introduced by Senators Luján, Lummis, and Wyden. The FTC is also stepping up investigation and enforcement under the FTC Act, and is considering rulemaking to further clarify its approach.
These developments bode well for reviving for the Electronic Age the fundamental rights of ownership consumers have enjoyed throughout the Ages. Unleashing the healthy forces of competition brings consumers the leverage of choice, and the ability to look elsewhere for a better deal – which tends to bring lower prices, more convenience, and greater satisfaction.
- See Nixing the Fix: An FTC Report to Congress on Repair Restrictions, 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.