Defending the Right to Repair: An Argument for Federal Legislation Guaranteeing the Right to Repair

Author:Nicholas A. Mirr
Position:J.D. Candidate, The University of Iowa College of Law, 2020; B.A. Spanish, The University of Iowa, 2016
Pages:2393-2424
2393
Defending the Right to Repair: An
Argument for Federal Legislation
Guaranteeing the Right to Repair
Nicholas A. Mirr *
ABSTRACT: Over the past several years there has been a growing movement
aimed at guaranteeing consumers the right to repair their products themselves
after purchasing them, as opposed to paying original equipment
manufacturers to repair the devices. Advocacy groups have successfully
convinced state legislators to introduce these “Right to Repair” bills around
the country, however none have successfully been enacted as law. These bills
have been met with a mix of apathy from legislators and staunch resistance
from corporations who have a vested interest in limiting the availability of
repair options. Although there have been recent exemptions added to the
Digital Millennium Copyright Act, the existing framework of copyright law
and enforcement in the United States is insufficient to protect consumers’ right
to do what they will with their products. Through End User License
Agreements and other contracts, companies are effectively able to limit the
right to repair via contract even if there were to be a drastic overhaul of our
current copyright system. This Note argues that Congress should adopt
legislation requiring companies to facilitate the repair process and should
incorporate a “degree of reparability” requirement in the legislation to ensure
the ability to repair remains an option for most consumers.
I. INTRODUCTION ........................................................................... 2394
II. BACKGROUND: ORIGINS AND TRAJECTORY OF THE RIGHT
TO REPAIR IN THE UNITED STATES ............................................. 2396
A.CURRENT STATE OF REPAIRS: THE LIMITS PLACED ON
CONSUMERS IN THEIR ABILITIES TO REPAIR OR MODIFY
THEIR PROPERTY AND WHY IT MATTERS ................................ 2397
B.ORIGINS OF THE RIGHT TO REPAIR MOVEMENT ...................... 2399
C.AT THE INTERSECTION OF RIGHT TO REPAIR AND
COPYRIGHT LAW ................................................................... 2400
* J.D. Candidate, The University of Iowa College of Law, 2020; B.A. Spanish, The
University of Iowa, 2016.
2394 IOWA LAW REVIEW [Vol. 105:2393
D.THE CURRENT PUSH FOR RIGHT TO REPAIR LEGISLATION
IN STATE LEGISLATURES ........................................................ 2401
E.OEMS ARE ACTIVELY LOBBYING AGAINST THE CONSUMER
RIGHT TO REPAIR ................................................................. 2403
III.THE SHORTCOMINGS OF COPYRIGHT LAW AND CONTRACT
LAW IN PROTECTING THE RIGHT TO REPAIR ............................... 2407
A.THE ORIGINS OF THE DMCA AND ITS IMPACT ON TPM
CIRCUMVENTION ................................................................... 2407
B.EULAS AND CONTRACT LAW AS A METHOD OF POLICING
TPM CIRCUMVENTION .......................................................... 2409
C.CASELAW DEVELOPMENT REGARDING THE USE OF EULAS
TO ENFORCE COPYRIGHT PROTECTIONS BEYOND THE
SCOPE OF THE COPYRIGHT ACT AND THE DMCA .................... 2411
D.WORLD OF WARCRAFT TPM CIRCUMVENTION AND ITS
IMPLICATION FOR THE RIGHT TO REPAIR ............................... 2413
E.THE CURRENT STATE OF THE RIGHT TO REPAIR UNDER
EXISTING LAW....................................................................... 2415
IV.THE NEED FOR FEDERAL INTERVENTION IN THE RIGHT TO
REPAIR MOVEMENT ..................................................................... 2416
A.INDIVIDUAL STATES ARE BEING OVERPOWERED BY THE
CORPORATIONS ..................................................................... 2416
B.SUGGESTIONS FOR CONGRESS WHEN ADOPTING RIGHT
TO REPAIR LEGISLATION ........................................................ 2418
V.CONCLUSION .............................................................................. 2421
APPENDIX .................................................................................... 2422
I. INTRODUCTION
Fifteen years ago, it would have been hard to imagine the ubiquity of
smartphones.1 Now it is hard to imagine a day without one. However, if you
have ever broken the screen of your phone, dropped it in a puddle, or
otherwise damaged your phone, you understand how central to everyday life
it has become. Your frustration might have been amplified when you learned
how much it costs to fix your phone. While most companies offer warranty
programs—Apple, for example, sells AppleCare+, which can be used to
1. According to the Pew Research Center, 81 percent of Americans own a smartphone.
Mobile Fact Sheet, PEW RES. CTR. (June 12, 2019), http://www.pewinternet.org/fact-sheet/mobile
[https://perma.cc/394X-NCSA]. This number has skyrocketed from only 35 percent when Pew
conducted its first survey on ownership of smartphones in 2011. Id.
2020] DEFENDING THE RIGHT TO REPAIR 2395
extend the warranty of your phone and cover accidental damage2—they do
not cover all damage and certainly are not free. In the case that you purchased
AppleCare, or your phone was not “accidentally” damaged, Apple will fix your
screen for $29 at an Apple Store or another authorized service provider.3
However, if you are outside of the scope of the warranty and did not purchase
AppleCare, you may be looking at a $129–$329 bill to have Apple perform
the repair.4 Not to mention, you may be facing a seven to nine day wait if your
area does not provide “same-day screen repairs.”5
Luckily, there are other options. Websites like iFixit provide in-depth
guides and step-by-step instructions on how to repair many different
electronic devices.6 They will also sell you replacement parts from their store.7
Additionally, phone and tablet repair stores have been springing up across
the country, where consumers can go to fix their devices. However, these
repair outlets may actually be operating in a legally ambiguous area.8 In order
to facilitate many repairs, repairers must circumvent software called
Technological Protective Measures (“TPMs”). Until recently, however, the
circumvention of this software was actually copyright infringement,9 even if
2. AppleCare Products, APPLE, https://www.apple.com/support/products/iphone.html
[https://perma.cc/UA5K-QW2F].
3. iPhone Screen Repair, APPLE, https://support.apple.com/iphone/repair/service/
screen-replacement [https://perma.cc/G43J-YFBU].
4. Id.
5. Id. It is worth mentioning that Apple is not alone in this practice. Google offers
“Preferred Care” for purchase to extend the warranty of its Pixel line of phones. Preferred
Care, GOOGLE, https://store.google.com/us/magazine/preferred_care [https://perma.cc/
62FV-8SDC]. For Google’s latest phones—the Pixel 4 and Pixel 4 XL—the service costs $149 per
phone. Id. Although the plan does cover up to two incidents of accidental damage, Google will
charge you an additional fee of between $79 and $149 to service your phone. Get Preferred Care
from the Google Store, GOOGLE STORE HELP, https://support.google.com/store/answer/
7528518?hl=en [https://perma.cc/8ZWQ-ADYT].
6. Repair Guides, IFIXIT, https://www.ifixit.com/Guide [https://perma.cc/L7J3-4DZA].
7. Parts & Tools Store, IFIXIT, https://www.ifixit.com/Store [https://perma.cc/K6FM-PHFQ].
8. Anjanette H. Raymond, Pliers and Screwdrivers as Contr ibutory Infringement Devices: Why
Your Local Digital Repair Shop Might Be a Copyright Infringer, and Why We Must Stop the Craziness, 12
NW. J. TECH. & INTELL. PROP. 67, 69 (2014) (discussing the dearth of manuals available to repair
stores and how this has prompted “a niche market of illegal manual distribution”). Raymond
elaborates on the problem facing repair shops but turns her focus to the environmental impact
of disposing of old electronic products instead of repairing them. Id. at 75–76, 79–80. Her
solution to the problems facing both the environment and repair shops involves the creation of
legislation encouraging the reuse of older electronic devices and claims that in order t o do so,
“the law must do three things: (1) limit the copyright protections afforded manufacturers in
manuals . . . (2) remove restrictions on unlocking cell phones and similar technology work-
arounds (such as jailbreaking apps) and (3) insist upon protections for the information
contained within the trade-in device.” Id. at 83.
9. Chaim Gartenberg, New Copyright Exemptions Let You Legally Repair Your Phone or
Jailbreak Voice Assistants, VERGE (Oct. 25, 2018, 3:58 PM), https://www.theverge.com/
circuitbreaker/2018/10/25/18024332/us-copyright-office-right-to-repair-dcma-exempt ions
[https://perma.cc/HQ74-G58H].

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