Right to Repair Round-Up: One Step Back, One Leap Forward

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

In one small respect, 2021 hasn’t been such a bad year. We’ve seen some progress on the right to repair front.

If these reforms hold – and expand – it’ll be both good for consumers, who will be able to  repair stuff they already own when items break, rather than having to pony up for higher-cost replacements.  A widened right to repair would benefit the planet as well, as it’ll not be necessary touse resources to make replacement items, nor to dispose of  the waste that discarded items generates.

Up ’til now, the the most significant right to repair initiatives have occurred at the Federal Trade Commission (FTC). The agency was blazing a right to repair trail earlier in the year.  That trail was widened and extended after President Joe Biden issued an executive order in July directing the FTC to act and since new chair Lina Khan assumed the helm as chair of the agency (see FTC Votes 5-0 to Crack Down on Companies For Thwarting Right to Repair).

There’s been lots of state activity as well – although no state has thus far enacted a comprehensive right to repair statute.

Massachusetts voters approved a significant state right to repair ballot referendum in November 2020 (see  Right to Repair Redux: Massachusetts Ballot Questions). The 2020 initiative built on a landmark statute the state enacted after a 2012 ballot referendum that required dealers to share repair information with third-party services. The 2020 measure requires dealers to make diagnostics telematics information they collect available to both the vehicle’s owner and third-party repair services, rather than allowing dealers to hoard that data and instead force consumers to avail themselves of high-priced dealer repair options.

In Subaru Is Disabling StarLink In Massachusetts For Right-To-Repair Compliance, Jalopnik reported last week that Subaru has decided to disable its telematics system entirely – including for its own use – rather than comply with the Massachusetts requirement to share telematics information with consumers and third-party repair services:

Right to Repair has been a major debate for years, spanning industries like electronics, cars, and even tractors. Last year, Massachusetts voters weighed in on the discussion by passing one of the nation’s strongest right to repair laws — mandating that automakers make their telematics data easily accessible by third-party repair shops. Manufacturers claimed the mandate was impossible to meet, but Subaru seems to have found a way around it — by turning off StarLink completely for Massachusetts-delivered vehicles.

There’s a lot going on here, so let’s break it down. We’ll start with the vehicle telematics data, which is information recorded by the car that’s wirelessly sent back to the manufacturer or dealers. This is increasingly used in diagnostics, with cars reporting information about faults and malfunctions directly to a local dealership, where that data can be used to fix the problem. Sounds great, right?

Unfortunately, there’s a downside to that sort of readily available diagnostic data — namely, who it’s accessible to. If only dealerships can read that information, only they can fix the cars. It cuts out third-party repair shops or owners looking to get their knuckles greasy, and it forces people back to dealers for repairs. That’s often a costly endeavor for the owner.

Massachusetts tried to level out the playing field, so that not only dealerships had access to this information. The issue was not collecting the information per se – but who has access to it in order to fix the vehicle. Per Jalopnik:

The Massachusetts law tried to change that, not by banning telematics but by mandating they be opened up to owners and independent shops. Manufacturers and dealers still get to collect data on cars, but they don’t get to be the only ones who can read it. The bill was a godsend for the right to repair movement, but dealers and automakers fought tooth and nail against it.

Now Subaru has found a way not to share the information. To repeat an old cliche, it seems the company is cutting off its nose to spite its face – but Subaru apparently decided that was a worthy trade-off. And as Jalopnik reports, perhaps other automakers will now follow Subaru’s lead:

The Alliance for Automotive Innovation, a group that represents nearly every automaker in the United States, argued that manufacturers can’t open their telematics systems to the public. When the state’s Attorney General suggested turning off the systems entirely, the AAI said it would be a “practical impossibility” to do so only on cars in Massachusetts.

And yet, that’s exactly what Subaru has done. Any Subaru vehicle sold in the state, starting with model year 2022, will have its StarLink telematics system disabled. The company has essentially taken their ball and gone home — if they can’t have exclusive access to repair data, then no one gets access.

Of course, telling the state government it’s impossible to do something that you then proceed to immediately do is a bit of a legal faux pas. The Massachusetts Attorney General is looking to use Subaru’s move as evidence in the AAI’s suit against the state, to undermine their position that compliance with the 2020 law is impossible

We’ll now have to wait and see as the next chapter in this saga unfolds. Will other automakers follow Subaru’s lead and shut down these diagnostic systems entirely. Will these systems now be rendered useless? Who will blink first?

Software Right to Repair

Subaru’s move to disable its telematic software ball in Massachusetts and go home is a right to repair setback.

Yet on the plus side of the ledger, far more significant is a move ny the Librarian of Congress to enact provisions under copyright law that establish a right to repair, as reported last week by Gizmodo in We Just Got the Right to Repair—in Theory:

The people can now repair and tinker with their own devices under copyright law. The US Copyright Office (USCO) submitted recommendations, approvedtoday by the Librarian of Congress, to add exemptions to the Digital Millennium Copyright Act (DMCA)’s rules governing access to devices and software. (This section.) The big one is the new right to get into any consumer software-enabled device (cellphone, laptop, etc) for the purposes of diagnostics, repair, and maintenance.
….
The update is meaningful for anyone who wants to cheaply replace a phone screen, as well as students and tinkerers who’d like to learn how things work. But copyright law still can’t do much to fix the fact that Google, Amazon, Apple, and Microsoft have deadbolted their devices, shot down right to repair bills, and hoarded parts, all forcing us to simply throw out an otherwise fixable device and purchase a new one.

So the change doesn’t mean that manufacturers have to make it any easier onusers to crack open the back panel or provide the parts, but it gives you the right to try.

The latest copyright measures are only a start, and a rather modest  one at that. Indeed, proponents of an expanded right to repair – especially for digitally-controlled devices – say they don’t go far enough. Instead Congress will need to act eventually for consumers to enjoy a robust right to repair. Per Gizmodo:

You’re now also allowed under the DMCA to unlock your cell phone, meaning you can switch carriers without buying a new device. And justifiable jailbreaking has been expanded to routers and smart TVs—meaning you can work around the manufacturer’s software limitations in order to, for example, download previously inaccessible streaming apps. (Previously approved exemptions allowed users to jailbreak Alexa and Google Assistant.)

But the Electronic Frontier Foundation (EFF), which proposed some of the exemptions, told Engadget that it was disappointed that the jailbreaking allowances didn’t go further. While happy with the fact that the right to repair more broadly covers consumer devices, it stated that non-infringing modifications are critical to “communities who are not served by a technology’s default functions.”

Expanding on what the EFF would have liked, senior staff attorney Kit Walsch told Gizmodo that the organization had submitted various examples of non-infringing modifications that should be allowed, including “improving digital camera software to enable new artistic options for photographers, making your smart litter box accept third-party cleaning cartridges, customizing a drone to operate on a wire instead of flying, improving the interface on a device to make it less distracting or more accessible (e.g. for colorblind users), and more.” Those mods, she said, were “left out without much discussion.”

Moreover, the rules contain other provisions that drastically circumscribe their reach. According to Gizmodo:

iFixit, a marketplace for repair parts which also offered exemption recommendations, also pointed to the “absurd limitations” of new rules. The exemptions have to be renewed every three years. And iFixit CEO Kyle Wiens told Gizmodo via email that the USCO still allows the obstructive service contracts manufacturers can use to deny exemptions for commercial and industrial products, anyway. “If repair is non-infringing then manufacturers’ monopoly-preserving service contracts shouldn’t prevent the Office from granting an exemption.”

“Until Congress finally fixes Section 1201 and grants a permanent right to repair, we’re going to be stuck on this ferris wheel with the Copyright Office every three years,” Wiens added.

Other right to repair advocates suggest that the current system wastes everyone’s time and doesn’t truly fix the problem. According to Gizmodo:

…Gay Gordon-Byrne, executive director of the Repair Association, told Gizmodo via email, adding that federal or state right to repair legislation is really what matters.

“The exemption process is a huge waste of time for the United States Copyright Office, for service providers and for attorneys on all sides,” Gordon-Byrne added. “We would be much better served by a law that separates actual evidence of infringement from theoretical speculation.”

Not to mention that the Copyright Office’s action only addresses software restrictions. Companies that are devoted to thwarting the right to repair, such as Apple, continue to have ample means to do so that render it difficult or even impossible for consumers to tinker with devices that they already own.

Over to Gizmodo:

But elsewhere, manufacturers can imagine innumerable ways to stop people from accessing their own devices. Apple can still obstruct third-party repairers by upping its technology so that certain features don’t work unless you use their equipment, like tying face ID to its own screens. Which they do and they will.

Let’s not pretend that Biden’s executive order even begins to cover the right to repair universe.

Comprehensive legislation is necessary. Congress, where are you?

And states must also continue to chip away at the problem within their borders.