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].