Dear Doc:

For years, it’s been nearly impossible to do repairs on some kinds of equipment. For instance, unless you had a handheld computer that cost over $4,000, it was impossible to diagnose and fix a GM-Saab automobile. The same is true of John Deere farm equipment. Manufacturers use copyright and trade secrecy laws to prevent unauthorized repair shops’ and individuals’ repair of their own systems. How can we fix this?

Mr. Fixit

Dear Fix:

What you want is the “right to repair”, and, so, it seems, does President Biden. On July 9, 2021, the President issued an Executive Order about competitiveness in the United States economy. In that Order, the President directed the Federal Trade Commission to fix this fixing problem by limiting powerful equipment manufacturers from restricting people’s ability to use independent repair shops or do do-it-yourself (DIY) repairs.

For some time, individual states have been passing laws that open up the right to repair. Right to repair advocates argue that anyone should have access to the original equipment manufacturer’s parts, manuals, and software needed to perform repairs on their equipment. In some cases, this conflicts with federal law – in particular, the Digital Millennium Copyright Act “DMCA” which makes it illegal to even attempt to circumvent protective measures that manufacturers use to lock out modifications. (Sony Corporation famously used the DMCA to threaten a hacker who just wanted to teach his robotic AIBO dog to breakdance (Clearly, a hacker with way too much time on his hands!)) 

The Executive Order is, at this point, just a strong suggestion to the Chair of the Federal Trade Commission to work with the agency to begin making rules. Often, this process stretches out over many, many years, with the affected industry pushing back and court cases seeking to block the rules. As one example, the FTC recently finalized of a rule regarding “made in the USA” labels that are falsely applied to products not manufactured in the U.S. Congress first passed the law about false made in the USA claims in 1994! The FTC is, however, really on board with this issue, having sent a report to Congress earlier in the year that found little justification for restrictions imposed by manufacturers.

The Doc hopes that this time, the fix is not in, and that he will finally be able to get his robot dog krumping.

Do you have stuff that you need to modify or repair? Running afoul of the DMCA? Give the attorneys at LW&H a shout. They’d be happy to help you “fix” your legal issues.

Until next month,
The “Doc”

— Lawrence A. Husick, Esq.