Is There a Right to Repair? (U.S. House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet)

Hearing	Is There a Right to Repair?
Committee	U.S. House Committee on the Judiciary, Subcommittee on Courts, Intellectual Property, and the Internet
Date	July 18, 2023

 

Hearing Takeaways:

• Right to Repair: The hearing centered around the extent to which consumers and businesses can freely repair their own products and devices and considered whether new federal legislation is required to expand consumer repair rights. Several Subcommittee Members, Mr. Roberts, Mr. Wiens, and Prof. Perzanowski argued that federal right to repair legislation is required to better empower consumers and businesses to fix broken products. They stated that such legislation would save consumers and businesses money, enable faster access to repairs, bolster marketplace competition, improve the cybersecurity of products, and reduce electronic waste (e-waste). Mr. Hartline contended however that there does not exist a right to repair and that manufacturers do not have a duty to help customers make repairs. He warned that right to repair legislation could infringe upon the intellectual property (IP) rights, which would reduce incentives for individuals and companies to pursue innovation.
  • Section 1201 of the Digital Millenium Copyright Act (DMCA): The hearing considered Section 1201 of the DMCA’s impact on the right to repair. This Section makes it illegal to circumvent technologic protection measures (TPMs) used to control access to copyrighted works. This Section also establishes an exemption process in which parties can petition the U.S. Copyright Office for a three-year exemption to the prohibition for certain activities (such as repair, maintenance, and research). Rep. Zoe Lofgren (D-CA), Mr. Roberts, Mr. Wiens, and Prof. Perzanowski raised concerns that Section 1201 of the DMCA overly restricts the ability of third parties to bypass TPMs for legitimate purposes. They noted how this Section does not permit the tools developed under the triennial exemption process to be distributed. They stated that most consumers can therefore not take advantage of this exemption process because they generally lack the technical capability to develop such tools on their own. Mr. Hartline raised concerns however that making these exemptions permanent would undermine the purpose of TPMs. He stated that these TPMs are meant to guard against piracy and that reducing TPMs could make devices less secure. He warned that this could ultimately reduce the willingness of content owners to put their content on devices.
  • Access to Aftermarket and Recovered Parts: Subcommittee Chairman Darrell Issa (R-CA), Mr. Wiens, and Prof. Perzanwski expressed interest in ensuring that consumers and repair shops can access aftermarket parts to perform repairs. Mr. Benavidez noted how the availability of some original equipment manufacturer (OEM) parts had decreased during the COVID-19 pandemic and commented that this situation has subsequently gotten “significantly better.” Subcommittee Chairman Issa and Mr. Wiens also raised concerns that consumers and repair shops often cannot use recovered parts (which are authentic by nature) to make repairs. They noted how software restrictions can prevent the use of recovered parts in making repairs. Mr. Hartline stated however that that companies are often exercising their legitimate IP rights when restricting repairs involving recovered parts. He also stated that companies may seek to restrict repairs involving recovered parts for security purposes. He remarked that each situation in which a manufacturer limits third-party repairs involves unique circumstances. He commented that policymakers must evaluate these unique circumstances when considering the validity of the justifications for third-party repair restrictions.
  • Availability of and Access to Repair Manuals, Diagnostic Tools, Schematics, and Telematics Information: Rep. Joe Neguse (D-CO), Mr. Benavidez, Mr. Roberts, Mr. Wiens, and Prof. Perzanowski expressed frustration that repair manuals, diagnostic tools, schematics, and telematics information are not more widely available and accessible. They argued that greater availability of and access to this information would promote repairs of existing products, which would enable the products to be used for longer periods of time. Prof. Perzanowski also expressed skepticism toward the copyright claims surrounding repair manuals. Mr. Hartline argued however that efforts to increase the availability of and access to repair information can violate the IP rights of patent holders.
  • Decline of Independent Repair Shops: Subcommittee Ranking Member Hank Johnson (D-GA), Mr. Benavidez, and Mr. Wiens expressed concerns regarding the decline of independent repair shops. They stated that these independent repair shops provide competition for repairs and help prolong the lifespan of products. Mr. Benavidez raised particular concerns that the growing complexity of automobiles and uncertainties around future access to telematics information pose unique challenges to the continued viability of independent automobile repair shops.
  • Impact on Internet of Things (IoT) Devices: Subcommittee Chairman Issa, Mr. Roberts and Mr. Wiens warned that right to repair restrictions could cause many IoT devices to be rendered obsolete. They noted how IoT device manufacturers generally stop supporting their IoT devices with software updates after a certain period of time. They stated that the inability of IoT device owners to access these software updates or provide their own software updates forces the owners to either discard the devices or to use unsecured devices.
  • Disclosure of Repair Restrictions: Rep. Cliff Bentz (R-OR) and Mr. Hartline argued that right to repair restrictions on products are valid so long as the restrictions are disclosed at the time of the product’s purchase. Rep. Lofgren and Prof. Perzanowski stated however that right to repair restrictions are often disclosed to consumers in difficult-to-read terms and conditions, which undermines the ability of consumers to make informed decisions. 
  • Safety Concerns: Subcommittee Chairman Issa and Mr. Benavidez asserted that right to repair legislation must ensure that the parts used for repairs have minimum safety standards. Mr. Benavidez raised particular concerns that some insurers are insisting on cheaper and quicker vehicle repairs without regard to quality and safety. He warned that insurance company decisions to only cover the cheapest repair options without understanding quality implications put repair shops and their customers at risk.
  • Software Copyright Concerns: The hearing considered the interaction between a right to repair and copyright protections. Subcommittee Members and the hearing’s witnesses noted how copyright law provides software with copyright protections. Mr. Hartline asserted that third parties therefore cannot make updates to software without permission from copyright holders. Subcommittee Chairman Issa suggested however that a party that makes copyrighted software freely available to many people could effectively put the copyrighted software in the public domain (which would enable third parties to make updates to the software). Prof. Perzanowski also stated that Congress had acknowledged repair as a right that owners enjoy (regardless of copyright restrictions) through its enactment of Section 117(c) of the Copyright Act. He explained that this provision explicitly permits owners of machines to make copies of computer programs in the course of maintenance or repair. He further stated that the U.S. Copyright Office has repeatedly concluded that diagnosis, repair, and maintenance activities are non-infringing with regard to vehicles, consumer devices, and medical equipment.
• Right to Repair Policy Proposals, Legislation, and Memorandums of Understand (MoUs): The hearing also considered right to repair policy proposals, legislation (at both the federal and state levels), and MoUs between stakeholder groups. Subcommittee Members and the hearing’s witnesses debated the merits of these proposed and enacted policies and whether Congress should pursue additional actions regarding this topic.
  • Reforms to Section 1201of the DMCA: Rep. Zoe Lofgren (D-CA), Mr. Roberts, Mr. Wiens, and Prof. Perzenowski expressed interest in pursuing reforms to Section 1201 of the DMCA to improve the supply of software updates, security patches, product services, and product repairs. Rep. Lofgren remarked that Congress had not envisioned the red hat movement when it had enacted the DMCA. She stated that the red hat movement supports more secure software and called on Congress to reform the DMCA in response to these developments.
  • Targeted Right to Repair Rules: Rep. Deborah Ross (D-NC) remarked that right to repair policies should differ based on industries and patent types. She elaborated that regulations governing the repair of larger items (such as airplanes or X-ray machines) should differ from the regulations governing the repair of smaller items (such as household appliances and computers). Mr. Hartline asserted that there should exist more stringent restrictions on the ability to repair medical equipment. He also stated that repair restrictions will ensure that qualified technicians are fixing broken devices. Prof. Perzanowski noted however that the U.S. Food and Drug Administration (FDA) had issued a 2018 report that concluded that independent repair of medical devices is safe and effective.
  • The Save Money on Auto Repair Transportation (SMART) Act: Subcommittee Chairman Darrell Issa and Prof. Perzanowski expressed support for the SMART Act. This legislation would reduce from the time car manufacturers can enforce design patents on collision repair parts against alternative parts suppliers from 14 years to 2.5 years. The legislation’s supporters argued that this bill would expand consumer choice for automotive collision repair parts, decrease costs for drivers and insurers, and enhance competition within the automotive repair parts market. Mr. Benavidez raised concerns however that the legislation’s absence of quality standards could harm the quality of replacement crash parts. He warned that repair parts that look similar may differ in terms of quality and safety. Mr. Hartline criticized the legislation and asserted that it would arbitrarily limit IP rights under the guise of promoting innovation.
  • The Freedom to Repair Act: Prof. Perzanowski expressed support for the Freedom to Repair Act of 2022. He explained that this legislation would have created a permanent exception to Section 1201 of the DMCA for repair. He indicated that this exception would apply to the act of circumvention and the creation and distribution of tools that are useful for repair purposes. Mr. Hartline criticized this legislation and asserted that it would arbitrarily limit IP rights.
  • The Right to Equitable and Professional Auto Industry Repair (REPAIR) Act and the Fair Repair Act: Mr. Roberts expressed support for the REPAIR Act and the Fair Repair Act. The REPAIR Act would require vehicle manufacturers to provide vehicle owners with access to repair and diagnostic data needed for auto repairs. The Fair Repair Act would require manufacturers to make diagnostic repair information, parts, and tools readily available. Mr. Hartline criticized the bills for defining the normal exercise of IP rights as an unfair or deceptive practice to be enforced by the U.S. Federal Trade Commission (FTC). He noted that the FTC already possesses the authority to address unfair or deceptive trade practices.
  • State Right to Repair Laws: Subcommittee Members and the hearing’s witnesses discussed how several states have passed or are currently considering sector specific right to repair laws. These include a Massachusetts automotive right to repair law, a Colorado electric wheelchair and tractor right to repair law, a New York consumer electronics right to repair law, and a Minnesota consumer electronics, enterprise electronics and appliances right to repair law. Mr. Wiens added that California is currently considering its own right to repair legislation and commented that this legislation should be passed into law “very soon.” Full Committee Ranking Member Jerrold Nadler (D-NY) also expressed concerns over how OEMs have reacted to Massachusetts’s right to repair ballot measure through suspending access to telematic accessories for vehicles sold within Massachusetts. Prof. Perzanowski remarked that it remains too early to assess the impact of state right to repair laws and commented that these laws are very nascent. Subcommittee Chairman Issa warned however that a “patchwork” of differing state right to repair policies would result in confusion, undermine copyright and patent protections for manufacturers, and reduce the availability of safe replacement parts. 
  • 2014 MoU Between Independent Automotive Repair Shops and OEMs: Full Committee Ranking Member Nadler, Mr. Benavidez, and Prof. Perzanowski noted how several organizations representing independent automotive repair shops and OEMs had developed a 2014 MoU. This MoU provides independent repair shops with access to the same automotive data that is made available to authorized dealer networks. Mr. Benavidez expressed hope that the 2014 MoU would be allowed to continue. He testified that his organization, the Automotive Service Association, does not oppose federal right to repair legislation so long as the legislation adheres to the MoU. He also stated that no independent repair shops are currently wanting for automotive data.
  • 2023 MoU Between John Deere and the American Farm Bureau Association: Rep. Scott Fitzgerald (R-WI) and Rep. Ben Cline (R-VA) expressed interest in the 2023 MoU signed between John Deere and the American Farm Bureau Association. This MoU guarantees farmers and ranchers the right to repair their own farm equipment. Both Members stated that it remains too early to assess the effectiveness of the MoU. Prof. Perzanowski noted however that John Deere is only one of several companies that dominate the agriculture space. He commented that John Deere’s participation in an MoU therefore does not address industry-wide problems. He also criticized the MoU for only providing one software tool to farmers. He noted how U.S. Public Interest Research Group (PIRG) has found that this software tool is insufficient and does not support farmers in initializing replacement parts.
  • 2023 MoU Between the Independent Automotive Repair Shops and OEMs: Full Committee Ranking Member Nadler and Mr. Benavidez expressed support for the 2023 MoU between independent automotive repair shop stakeholders and OEMs. This MoU ensures that automotive repair shops can obtain key information (including telematics information) and contains a commitment from automotive repair shops and OEMs to support legislation if future problems arise. Mr. Benavidez remarked that this agreement will increase the number of available automotive repair shops that consumers can use. Mr. Roberts and Prof. Perzanowski raised concerns however that this MoU does not represent a significant portion of the independent repair community.
• Additional Patent and Copyright Policy Issues: Subcommittee Chairman Darrell Issa (R-CA) and some of the hearing’s witnesses used the hearing to discuss additional patent and copyright policy issues that could impose restrictions on the right to repair.
  • Standard Essential Patents and Copyrights: Standard essential patents refer to patents that provide protections for technologies that are necessary for implementing particular technical standards. Subcommittee Chairman Issa stated that while there exists a principle of a standard essential patent, he asserted that there does not exist a similar principle of a standard essential copyright. He noted that standard essential patents do not provide the patentholders the right to exclude and do provide that patentholders receive reasonable royalties for the use of said patents. He commented that these concepts should guide the Subcommittee’s discussion of right to repair issues. Prof. Perzanowski stated that the standard essential patent context is unique in that it relies upon standard-setting bodies to identify technologies and require companies to license their patents under fair, reasonable, and non-discriminatory terms. He remarked however that this same infrastructure does not exist in the copyright context. He highlighted how there exist compulsory licenses within the Copyright Act. He noted that these compulsory licenses entitle the copyright holder to compensation and do not permit the copyright holder to prohibit others from using or accessing the underlying copyrighted work. He suggested that this framework could be pursued to ensure that device owners have access to necessary firmware.
  • Design Patents: Subcommittee Chairman Issa and Mr. Roberts raised concerns that design patents are often preventing the creation of cheaper replacement parts for existing technologies in situations where the design patent holder is no longer making the replacement parts. Mr. Roberts stated that the use of design patents had increased “exponentially” over the previous 15 years and that automobile manufacturers are employing design patents to capture more of the replacement parts market. Subcommittee Chairman Issa also emphasized that the U.S. is one of the few countries that recognizes ornamental designs for the purposes of 15-year exclusivity. Mr. Hartline noted however that U.S. has provided patents for ornamental designs for over a century.

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Hearing Witnesses:

1. Prof. Aaron Perzanowski, Thomas W. Lacchia Professor of Law, University of Michigan Law School
2. Mr. Devlin Hartline, Legal Fellow, Hudson Institute’s Forum for Intellectual Property 
3. Mr. Kyle Wiens, Co-founder and CEO, iFixit 
4. Mr. Paul Roberts, Founder, SecuRepairs.org; Founder and Editor-in-Chief, the Security Ledger
5. Mr. Scott Benavidez, Chairman, Automotive Service Association; Owner, Mr. B’s Paint & Body Shop

Member Opening Statements:

Subcommittee Chairman Darrell Issa (R-CA):

• He indicated that the hearing would consider the right to repair and called the right to repair a “critical issue” for consumers, businesses, the overall economy, and the environment.
  • He also commented that the issue has antitrust implications and acknowledged that the Subcommittee lacks jurisdiction over antitrust matters.
• He stated that the right to repair issue creates “passionate debate” across various stakeholders, including manufacturers, independent repair shops, environmentalists, and consumers.
  • He called it “critical” for the Subcommittee to consider all perspectives on the issue and to develop a “balanced and effective” solution to the issue.
• He asserted that federal right to repair legislation is important given how states are pursuing their own solutions to the right to repair issue.
  • He warned that a “patchwork” of differing state right to repair policies would result in confusion, undermine copyright and patent protections for manufacturers, and reduce the availability of safe replacement parts.
• He remarked that the right of individuals and businesses to repair purchased products is a “fundamental principle” and stated that individuals and businesses should have clear understandings of their rights.
  • He noted how there currently exist vulnerabilities surrounding these rights across states and products.
• He discussed how many companies have a long tradition of aftermarket products and identified the Jeep CJ model as a product that relies upon aftermarket products.
  • He commented that the mystique, success, and longevity of the Jeep CJ model relies upon the fact that consumers can readily purchase older models and parts for these models.
  • He noted however that Jeep markets other products that do not provide purchasers with the same ability to freely obtain aftermarket parts.
• He remarked that the right to repair is about empowering consumers, promoting competition, and extending innovation.
  • He contended that the right to repair can be a “key driver” of growth and prosperity.
• He stated that the right to repair fosters consumer choice and empowers consumers to protect their investments through expanding the lifespan of their products.
• He remarked however that the right to repair must be balanced with a “deep and legitimate” concern for safety.
  • He noted how factory-equipped airbags are becoming more advanced and enable automotive manufacturers to reduce the likelihood of passengers experiencing injuries or deaths.
• He stated that while policymakers must recognize instances where manufacturers have legitimate safety concerns regarding the use of certain aftermarket parts, he asserted that access to other aftermarket parts should remain available.
• He mentioned how he had sponsored the SMART Act and stated that this legislation would expand consumer choice for automotive collision repair parts, decrease costs for drivers and insurers, and enhance competition within the automotive repair parts market.
  • He commented however that this legislation is not a “be-all” solution and only partially addresses the right to repair issue.
• He remarked that enacting comprehensive right to repair legislation would foster fair competition, create sustainable repair ecosystems, and benefit all stakeholders.
• He then stated that while there exists a principle of a standard essential patent, he asserted that there does not exist a similar principle of a standard essential copyright.
  • He commented that these concepts should guide the Subcommittee’s discussion of right to repair issues.
• He remarked that there should exist a balance between the rights of IP holders to pursue investment returns and the ability of consumers to use repair parts and services.

Subcommittee Ranking Member Hank Johnson (D-GA):

• He described right to repair as a “thorny” policy issue that includes environmental, economic, and antitrust elements.
  • He also noted that the concept of repairability incorporates IP concerns (including design patent and copyright issues).
• He discussed how the number of local repair shops in the U.S. had declined and noted how many appliances cost more to fix than to replace.
• He stated that the decline in repair services has been attributed to changes in production, poorly made devices, and an absence of economic incentives.
  • He commented that while the Subcommittee would not address these allegations, he asserted that the growing incorporation of software into items has complicated the issue of right to repair.
• He noted how repair businesses argue that some laws protecting patent and copyright holders preempt them from offering repair services and that these IP provisions are being deployed beyond their original intent.
• He noted however that many stakeholders contend that repair businesses are simply seeking to bypass innovation protections.
  • He indicated that these stakeholders emphasize that IP protections are critical for encouraging investments in new ideas.
• He expressed interest in receiving feedback from stakeholders regarding how new right to repair laws could continue to protect inventors and creators while increasing consumer choices.
• He discussed how much of the conversation surrounding copyright interference with the repair market involves Section 1201 of the DMCA.
  • He explained that this law prevents digital piracy of online copyrighted works.
• He stated that technology has advanced significantly since the DMCA’s enactment and highlighted how more items now fall under Section 1201 of the DMCA.
  • He mentioned how the U.S. Copyright Office had acknowledged in a 2017 report that Section 1201(a) of the DMCA’s protections for access controls could implicate activities far outside the traditional scope of copyright law.
• He also noted that Section 1201 of the DMCA contains a provision allowing for triennial exemptions that is designed to prevent non-copyright infringers from violating the statute.
  • He expressed interest in exploring whether the DMCA (and particularly Section 1201 of the DMCA) is working as intended.
• He then remarked that the debate surrounding the right to repair is not limited to copyright issues and mentioned how car repair experts have been critical of design patents for vehicle component parts.
  • He called it “crucial” however that the Subcommittee be cognizant of the importance of patent protections for innovation.
• He stated that the current repair market has problems and criticized the fact that it is often more expensive to replace existing products than to fix said products.

Full Committee Ranking Member Jerrold Nadler (D-NY):

• He remarked that the debate surrounding whether consumers have a right to repair has intensified over the previous decade as technological innovations have made products more complex.
• He discussed how many of the laws preventing individuals from bypassing access controls or making replacement parts are the same statutes that protect inventors and creators.
  • He commented that the intersection between the right to repair and IP rights is naturally a delicate issue.
• He expressed interest in developing a bipartisan legislative solution to the right to repair issue that respects both consumers and creators.
• He then remarked that right to repair conflicts are particularly acrimonious between automotive OEMs and automotive repair shops.
  • He noted that while these conflicts had originally focused on design patent protections for vehicle component parts, he commented that these conflicts have expanded to encompass issues that extend beyond the Subcommittee’s purview.
• He highlighted how automobiles have become very computerized and noted how states are considering who can repair automobiles and by which means these vehicles can be repaired.
  • He mentioned how the commonwealth of Massachusetts had passed a policy via ballot initiative requiring any vehicle with a telematics system to incorporate an open access data system that would allow for any repair shop to access the vehicle’s data.
  • He indicated that some automotive companies had responded to Massachusetts’s policy through eliminating access to remote start and other software-powered accessories.
• He remarked that determining who can access and repair vehicle software is “anything but straightforward.”
  • He commented that the Subcommittee must consider the serious personal privacy, cybersecurity, and IP concerns inherent in the right to repair issue.
• He stated that most consumers simply want access to automotive repair services and noted how Americans have historically relied upon local automotive repair shops for these services.
  • He commented that this right had been reaffirmed by a 2014 MoU between independent automotive repair shops and OEMs.
• He called it “highly concerning” that OEMs have sought to steer automobile owners to dealerships for repair services rather than address safety and cybersecurity concerns inherent in technological innovation.
• He also commended the recent agreement between OEMs and independent repair facilities on the right to repair issue.
  • He expressed interest in having the Subcommittee address this issue to the extent to which it overlaps with IP concerns.
• He then stated that the onset of the IoT space has prompted new debates over IP protections and whether access to software should be granted for repair purposes.
• He noted how right to repair advocates argue that consumers should be able to take their products to any shop for repair (rather than just the manufacturer).
  • He also mentioned that these advocates argue that this ability to take product to any shop for repair would “drastically” lower repair costs.
• He further noted how right to repair advocates argue that copyright protections are being used to prevent customers from accessing easy repairs.
  • He elaborated that these copyright protections are preventing easy repairs for phones, printer cartridges, kitchen appliances, and other non-internet connected devices.
• He remarked that the Subcommittee must proceed with “great caution” when considering any changes to federal copyright laws to ensure that the fundamental rights of creators are protected.
• He discussed how U.S. laws protect software developers through granting them copyright ownership over their code and software and noted how Section 1201 of the DMCA prohibits the circumvention of any measures designed to prevent unauthorized access to this copyrighted material.
  • He indicated however that Section 1201 of the DMCA also sets forth a process every three years to grant certain exemptions to these access controls.
  • He expressed interest in determining whether Section 1201 of the DMCA provides sufficient consumer protections or if further reforms are needed.
• He stated that the U.S. should not protect consumers in the market for repairs through disregarding copyright and patent protections.
  • He asserted however that consumer protection and consumer choice are also important principles.
• He expressed optimism that Congress can develop bipartisan right to repair legislation.

Witness Opening Statements:

Mr. Scott Benavidez (Automotive Service Association; Mr. B’s Paint & Body Shop):

• He discussed how independent automotive repair shops are responsible for most post-warranty repair services in the U.S.
• He indicated that his organization, the Automotive Service Association, has advocated for right to repair principles and the right of automotive owners and independent repair shops to access vehicle service information needed to diagnose and repair vehicles.
  • He commented that his organization’s members are on the “front lines” of the vehicle data access issue and want to have access to the data necessary to repair customer vehicles.
• He noted how the Clean Air Act Amendments of 1990 had assured independent automotive repair shops that they could access the same emissions service information that automotive manufacturers provide to franchise car dealerships.
  • He also mentioned how the Automotive Service Association had signed an agreement with automotive manufacturers in 2002 stipulating that independent automotive repair shops would have access to the same emissions and non-emissions service information provided to franchise car dealerships.
• He stated that vehicles in the U.S. have become increasingly sophisticated since 2002 and asserted that this rate of innovation will continue to accelerate.
  • He commented that the way that vehicle issues are diagnosed and repaired evolves with technological advancement.
• He described the modern vehicle as a “computer on wheels” and noted how a significant amount of information is now passed wirelessly to and from vehicles.
  • He asserted that automotive repair shops cannot diagnose and fix customer vehicle problems in many instances without access to telematics.
• He remarked that car owners deserve a competitive market from which they can select a repairer who will fix their vehicle at the best price.
• He noted that while automotive repair shops currently have access to vehicle data necessary for repairs, he expressed the automotive repair industry’s concerns over its future ability to obtain data for newer vehicles entering the market.
  • He indicated that newer vehicle technologies with more sensors will present challenges to vehicle repair shops without access to repair data.
• He highlighted how the Automotive Service Association had recently reached a “landmark” agreement with automotive manufacturers that ensures independent repair shops can diagnose and repair customer vehicles without hindrance from telematics or other types of innovation.
• He indicated that while the Automotive Service Association supports a competitive crash parts marketplace, he cautioned that the absence of additional quality standards could harm independent repair shops and consumers.
  • He noted that while automotive collision shops work closely with insurers as part of direct repair programs, he stated that vehicles must be safe and satisfactory to customers when they leave automotive repair shops.
• He raised concerns that some insurers are insisting on cheaper and quicker vehicle repairs without regard to quality and safety.
  • He commented that repair shops have an unmatched understanding regarding the threats that lesser quality crash parts pose.
• He remarked that the U.S. should have a competitive repair marketplace that does not compromise quality or safety.
  • He warned that insurance company decisions to only cover the cheapest repair options without understanding quality implications put repair shops and their customers at risk.
• He emphasized that very few consumers possess knowledge regarding the crash parts used on their vehicles and highlighted how the crash parts marketplace is vast.
  • He elaborated that this marketplace includes OEM parts, certified aftermarket parts, aftermarket parts, reconditioned crash parts, and recycled crash parts.
• He noted that while repair shops can make recommendations regarding replacement vehicle parts, he commented that customers are unlikely to accept these recommendations if their car insurance companies will not cover the cost of these replacement parts.
• He testified that one of the top concerns raised by Automotive Service Association members is the need for collision repair facilities to adhere to OEM repair procedures.
  • He commented that while OEM parts do not need to be used in all cases, he asserted that OEM repair procedures should always be followed.
• He stated that adhering to OEM guidelines enables independent automotive repair shops to ensure vehicle owners that their vehicles have been repaired to the highest possible standard and protects these repair shops from unjust liability.
• He asserted that having more imported and other crash parts in the marketplace with limited quality standards provides insurance companies with even more power to mandate that cheaper repair parts of dubious quality be installed in vehicles.
  • He commented that vehicle owners and repair shops suffer the consequences when these cheaper repair parts are installed.
• He raised concerns that the SMART Act’s absence of quality standards could harm the quality of replacement crash parts.
  • He warned that repair parts that look similar may differ in terms of quality and safety.

Mr. Paul Roberts (SecuRepairs.org; The Security Ledger):

• He explained that his organization, SecuRepairs, is composed of over 350 cybersecurity and information technology (IT) professionals who support the right to repair.
• He contended that the fair access to repair materials sought by right to repair laws would not increase cyber risk.
  • He asserted that this access can instead contribute to a healthier and more secure ecosystem of smart and connected devices.
• He remarked that right to repair legislative proposals would simply ask manufacturers that already provide repair information and tools to their authorized repair service providers to also provide such information and tools to device owners and third-party repair service professionals.
  • He indicated that these legislative proposals include the REPAIR Act or the Fair Repair Act.
• He stated that the information that right to repair laws cover is neither sensitive nor protected by definition and emphasized that manufacturers already widely distribute this information to authorized repair service providers.
  • He indicated that these authorized repair service providers can include mechanics and IT repair professionals.
• He also remarked that there is no evidence thus far indicating that the types of information and items covered by right to repair laws act as a portal to cyberattacks.
  • He indicated that these information and items include schematic diagrams, service manuals, diagnostic software, and replacement parts.
• He stated that most attacks on internet-connected devices exploit weaknesses in embedded software or weak device configurations and described these current security weaknesses as an “epidemic.”
  • He mentioned how a recent Phosphorus Labs study had found that 68 percent of IoT devices contained “high risk or critical” software vulnerabilities.
  • He also mentioned how a group of independent researchers had published a January 2023 report titled Web Hackers vs. The Auto Industry that disclosed “wide ranging” and exploitable flaws in vehicle telematics systems from 16 different automotive manufacturers.
  • He added that these independent researchers had claimed to obtain full access to a company-wide administration panel at a leading global position system (GPS) supplier that enabled them to send arbitrary commands to an estimated 15.5 million vehicles (including first responder vehicles).
• He remarked that the aforementioned hacks had occurred without any access to repair materials and that there exists no evidence that providing access to repair software will support new attacks.
  • He commented that a diagnostic routine that identifies a failed component or reveals the operating temperature of a device does not provide access to the types of sensitive data that hackers are interested in obtaining.
• He asserted that the U.S. is currently experiencing an “epidemic” of insecure and hackable internet-connected devices and called for the U.S. to reform its policies.
• He stated that Section 1201 of the DMCA has given manufacturers an incentive to deploy software locks widely and to limit access to cybersecurity researchers.
  • He described this approach as “security through obscurity.”
• He argued that Section 1201 of the DMCA’s approach is ineffective because cybercriminals are resourceful and will disregard legal requirements when pursuing their objectives.
• He also stated that Section 1201 of the DMCA has enabled “dark patterns” in the design and research of hardware.
  • He explained that these practices include locking out customers from access to administrative interfaces and features of their products and pairing practices from manufacturers.
  • He explained that part pairing involves the coupling of replaceable components (such as screens, sensors, and cameras) with specific device hardware.
  • He commented that part pairing schemes make manufacturers and their authorized repair service providers “gatekeepers” for repairs.
• He remarked that reforms to Section 1201 of the DMCA and right to repair laws could enable a diverse ecosystem of small aftermarket service providers that can supply software updates, security patches, product services, and product repairs.
  • He also asserted that such policy changes would foster a range of business and employment opportunities for all economic classes.
• He concluded that federal right to repair legislation (including the REPAIR Act and the Fair Repair Act) will “greatly” improve the quality of life for consumers, families, and communities while also promoting small business and reducing e-waste.
  • He called on Congress to pass federal right to repair legislation and to make reforms to Section 1201 of the DMCA.

Mr. Kyle Wiens (iFixit):

• He recounted his experience working to fix an Apple laptop without access to the laptop’s service manual and indicated that Apple had employed takedown notices under the DMCA to prevent online access to this manual.
  • He commented that this experience is illustrative of how manufacturers are using legal avenues to prevent repair information from being made available.
• He mentioned how the experience had led him to start his own website, iFixit, which provides repair instructions for a variety of products.
• He remarked that the U.S. requires a resilient alternative ecosystem for repairs and noted how repair shops have historically played key roles in local economies.
• He lamented however that local repair shops have closed over time because manufacturers have denied these repair shops access to schematics information and replacement parts.
  • He also highlighted how enterprise software companies (such as Oracle and IBM) have denied customers access to security updates for critical cyber infrastructure without the purchase of a service contracts.
• He discussed his efforts to advocate for right to repair laws in many states, including Massachusetts, Colorado, New York, and Minnesota.
  • He elaborated that Massachusetts had passed an automotive right to repair law, Colorado had passed an electric wheelchair and tractor right to repair law, New York had passed a consumer electronics right to repair law, and Minnesota had passed a consumer electronics, enterprise electronics and appliances right to repair law.
  • He added that California is currently considering its own right to repair legislation and commented that this legislation should be passed into law “very soon.”
• He noted how various manufacturers (including Apple, John Deere, automotive manufacturers, and medical device manufacturers) have opposed these right to repair laws.
  • He indicated that Apple claims that consumer repairs pose battery-related safety concerns.
  • He indicated that John Deere claims that farmer repairs could enable farmers to strip tractor emissions systems.
  • He indicated that automotive manufacturers claim that mechanic access to vehicle telematics data could pose privacy concerns.
  • He indicated that medical device manufacturers claim that hospital repairs could pose harms to patients.
• He also mentioned his work to advocate for exemptions to Section 1201 of the DMCA so that customers can repair more products and services on their own.
• He lamented that the exemptions that have been granted under Section 1201 of the DMCA are narrowly focused on individual consumers.
  • He commented that most individuals lack the necessary technical expertise to take advantage of Section 1201 of the DMCA.
• He remarked that Congress must make reforms to Section 1201 of the DMCA and emphasized that only Congress can make reforms to this provision.

Mr. Devlin Hartline (Hudson Institute’s Forum for Intellectual Property):

• He remarked that there does not exist a right to repair and noted how a right is defined as a legally enforceable claim.
• He discussed how courts have not recognized that manufacturers have the duty to help consumers make repairs.
  • He stated that courts have instead found that while consumers possess the ability to repair items, consumers have the duty to not infringe IP rights in the process of making repairs.
• He noted that right to repair supporters want lawmakers to force manufacturers to make the tools, parts, and know-how needed to facilitate repairs available to consumers and independent repair shops.
  • He commented that the assumption underlying this demand is that impediments to repair opportunities must necessarily harm the public good.
• He indicated however that IP rights (such as copyrights and design patents) often protect these repair tools, parts, and know-how.
  • He commented that the U.S. protects these IP rights because such protections promote the public good.
• He contended that the right to repair movement is not based on a pre-existing right and instead requests that lawmakers establish a new right at the expense of the existing rights of IP owners.
• He discussed how several federal right to repair bills have been introduced and that these bills generally take one of two approaches.
• He indicated that the first approach is to rewrite the Copyright Act or the Patent Act in a manner that directly limits IP rights.
  • He commented that the SMART Act and the Freedom to Repair Act employ this approach.
• He indicated that the second approach is to define the normal exercise of IP rights as an unfair or deceptive practice to be enforced by the FTC.
  • He commented that the REPAIR Act and the Fair Repair Act employ this approach.
• He noted however that the FTC already possesses the authority to address unfair or deceptive trade practices.
  • He acknowledged that the FTC has not brought enforcement actions against manufacturers for restrictive repair practices (despite previous promises to do so).
  • He mentioned however that the FTC has brought a few enforcement actions related to warranty issues.
• He attributed the FTC’s decision to not bring such enforcement actions to the fact that IP owners are merely exercising their federally protected IP rights.
• He asserted that these exercises of IP rights do not constitute anti-competitive conduct and instead are emblematic of how the IP system should work.
  • He elaborated that the U.S. grants IP owners exclusive rights so that they can exclude others, which in turn encourages innovations that promote the public good.
• He remarked that the U.S. should not eliminate or limit IP rights so that others can copy the work of IP owners.
  • He asserted that the fact that proposed right to repair laws would change the definition of unfair or deceptive practices demonstrate that these proposed laws are not seeking to address competition problems.

Prof. Aaron Perzanowski (University of Michigan Law School):

• He remarked that the right to repair has emerged as a “central challenge” to the notion that consumers control their purchased devices.
  • He commented that manufacturers exert post-sale control over such devices and that this control can frustrate the ability of product owners to repair the products.
• He noted that while repair capabilities have traditionally kept pace with technological innovations, he stated that modern manufacturers are employing various strategies to restrict repairs.
  • He indicated that these strategies include hardware and software design choices and restrictions on secondary markets.
  • He also expressed concerns that manufacturers are leveraging their IP rights as a way to restrict repairs.
• He remarked that these repair restrictions from manufacturers constitute a “major departure” from the historical treatment of repair under the law.
• He asserted that the right to repair is consistent with two centuries of U.S. IP law and reflects half a millennium of common law property doctrine that rejects post-sale restrictions on personal property.
  • He highlighted how English property law in the 15th century had recognized that post-sale restrictions on items are inconsistent with the essential nature of private property and obnoxious to public policy.
  • He also mentioned how the U.S. Supreme Court had recognized in 1850 that the repair of a patented machine reflected no more than the exercise of the right of care that property owners may use to give duration to their property.
  • He further mentioned how the U.S. Supreme Court had later held that the repair of a convertible car roof was justified as an exercise of the property owner’s rights.
  • He lastly mentioned how the U.S. Supreme Court had recently reaffirmed the rejection of post-sale under patent law in Impression Products, Inc. v. Lexmark International, Inc.
• He then noted that while copyright law has had fewer occasions to consider repair restrictions, he highlighted how the U.S. Court of Appeals for the Seventh Circuit had recognized in 1901 a “right of repair or renewal” under U.S. copyright law. 
• He also stated that Congress had subsequently acknowledged repair as a right that owners enjoy (regardless of copyright restrictions) through its enactment of Section 117(c) of the Copyright Act.
  • He commented that this provision was designed to undo a U.S. Court of Appeals for the Ninth Circuit decision that had allowed copyright holders to prevent third-party repairs of computers.
  • He explained that this provision explicitly permits owners of machines to make copies of computer programs in the course of maintenance or repair.
• He further stated that the U.S. Copyright Office has repeatedly concluded that diagnosis, repair, and maintenance activities are non-infringing with regard to vehicles, consumer devices, and medical equipment.
• He then remarked that while the right to repair is “firmly rooted” in basic principles of IP law, he asserted that IP law can and does continue to interfere with repair.
  • He commented that there have been overly broad copyright claims over service manuals that limit access to crucial information.
  • He also commented that Section 1201 of the DMCA makes it “practically impossible” for consumers to exercise their right to repair various devices, even though the U.S. Copyright Office has concluded that these repair activities are non-infringing.
  • He further commented that the weakening of standards for design patents enables firms to restrict the supply of replacement parts needed to repair devices.

Congressional Question Period:

Rep. Scott Fitzgerald (R-WI):

• Rep. Fitzgerald noted how the May 2023 Consumer Price Index (CPI) had indicated that the cost of car repairs was up almost 20 percent. He also mentioned how the National Automobile Dealers Association indicates that new car dealership service and parts sales had totaled more than $137 billion in 2022. He noted that the National Auto Dealers Association indicates that this figure had been $125 billion in 2021. He stated that these cost increases can be attributed to various factors, including inflation, used and new vehicle shortages, the complexity of repairs, and maintenance technician labor shortages across all industries. He noted how SMART Act supporters argue that consumers could save as much as $500 through repairing their vehicles with an aftermarket part (as compared to a dealer part). He commented that this estimate appears low. He asked Mr. Benavidez to discuss how automotive repair shops are dealing with shortages of OEM parts and aftermarket parts.
  • Mr. Benavidez noted that while the availability of some OEM parts had decreased during the COVID-19 pandemic, he commented that this situation has subsequently gotten “significantly better.” He expressed the Automotive Service Association’s support for a competitive automotive parts marketplace. He asserted however that these automotive parts must meet sufficient quality and safety standards. He noted how the SMART Act only requires alternative automotive parts to have similar appearance. He stated that these alternative automotive parts might not be sufficient substitutes for OEM parts. He remarked that the use of inferior automotive parts harms automotive repair shops. He concluded that a competitive automotive parts marketplace must involve quality and safety considerations.
• Rep. Fitzgerald then mentioned how his Congressional District contains the John Deere Horicon Works factory and explained that this factory produces most of John Deere’s lawn care equipment. He commended John Deere and the American Farm Bureau Association for signing a February 2023 MoU that had guaranteed farmers and ranchers the right to repair their own farm equipment. He stated however that it remains too early to determine how this MoU will function. He asked Prof. Perzanowski to discuss how an MoU can address right to repair issues and concerns. He also asked Prof. Perzanowski to identify any limitations of MoUs.
  • Prof. Perzanowski explained that MoUs are private agreements between stakeholders and various industries to abide by a certain set of contractual provisions. He stated that MoUs can be helpful under certain circumstances. He commented that a 2014 MoU that had stemmed from Massachusetts’s automotive repair law that has been “very effective.” He remarked that MoUs must contain certain elements to be helpful. He stated that MoUs must contain “real buy-in” across a given industry in order to be effective. He asserted that the recently signed MoU involving the automotive industry does not represent a significant portion of the independent repair community. He also noted how John Deere is only one of several companies that dominate the agriculture space. He commented that John Deere’s participation in an MoU therefore does not address industry-wide problems. He called it important for MoUs to have a set of legally enforceable rules associated with them to ensure that the MoUs are effective. He noted that the aforementioned Massachusetts’s automotive repair law had included such rules. He then criticized the John Deere-American Farm Bureau Association MoU for only providing one software tool to farmers. He noted how U.S. PIRG has found that this software tool is insufficient and does not support farmers in initializing replacement parts. He concluded that while MoUs can be useful, he asserted that MoUs are often designed for public relations purposes and meant to undermine the advancement of broader legislative reforms.

Subcommittee Ranking Member Hank Johnson (D-GA):

• Ranking Member Johnson noted how Mr. Hartline had asserted that property owners do not have a legally enforceable right to repair their property. He asked Prof. Perzanowski to indicate whether he agrees with Mr. Hartline’s assertion.
  • Prof. Perzanowski expressed disagreement with Mr. Hartline’s assertion and stated that the notion of a right can be defined in various ways. He noted that one notion of a right is that a right is an affirmative power to force someone else to engage in a particular behavior. He commented that many right to repair policies would impose requirements on manufacturers. He stated however that the elimination of barriers to a right is sometimes required to effectuate a right. He noted how states have sought to address these barriers through requiring manufacturers to provide their own tools to repair shops. He indicated that this provision of tools is sometimes compensated under “fair and reasonable terms.” He also stated that these barriers could be addressed through reforming Section 1201 of the DMCA to enable independent repair shops to make their own tools. He commented that both approaches have value. He then remarked that IP rights always have multiple sets of interests at stake. He stated that IP law has always sought to balance the limited statutory exclusive rights created under the Patent Act and the Copyright Act with the personal property rights of consumers that own and use devices. He asserted that efforts to achieve such a balance are necessary and appropriate.
• Ranking Member Johnson asked Prof. Perzanowski to recommend how Congress should amend Section 1201 of the DMCA.
  • Prof. Perzanowski expressed support for the reforms to Section 1201 of the DMCA proposed under the Freedom to Repair Act of 2022. He explained that this legislation would have created a permanent exception to Section 1201 of the DMCA for repair. He indicated that this exception would apply to the act of circumvention and the creation and distribution of tools that are useful for repair purposes. He stated that this policy would not allow for a broad and unrestrained creation of circumvention tools. He commented that this policy would instead apply to tools that are targeted to the repair market.
• Ranking Member Johnson asked Mr. Hartline to respond to Prof. Perzanowski’s comments.
  • Mr. Hartline remarked that the court cases that Prof. Perzanowski had cited had all made the distinction between repair and reconstruction (where the patented device is recreated). He noted that these cases deem repair to be permissible and reconstruction to be impermissible. He remarked that IP owners have a right to prevent other people from practicing their invention or copying their works.
• Ranking Member Johnson interjected to ask Mr. Hartline to clarify whether IP owners have a right to prevent the repair of one’s personal property.
  • Mr. Hartline answered no. He noted how Prof. Perzanowski had cited a court decision that had found that a person has the right to repair the cover on a book. He stated that repairing the cover of a book is very different from recreating the book in its entirety. He remarked that there exists a difference between repairing an item and violating the exclusive patent or copyright of IP owners. He stated that right to repair supporters are asking for IP rights to be disregarded in order to promote competition. He asserted however that this view of competition is incongruent with IP and antitrust law. He contended that the U.S. should instead promote competition through enabling people to develop with new products and services.

Rep. Cliff Bentz (R-OR):

• Rep. Bentz asked Prof. Perzanowski to indicate whether a consumer that had been made aware of product repair restrictions at the time of the product’s purchase would be considered adequately informed of said restrictions. He acknowledged that most consumers do not read all of the terms and conditions associated with the products that they purchase. He asked Prof. Perzanowski to indicate why the right to repair should interfere with product disclosures related to repair restrictions.
  • Prof. Perzanowski first remarked that consumers are often not informed about the terms and conditions associated with their transactions. He stated that these terms and conditions are often purposefully designed to be difficult to read and understand. He commented that most consumers do not engage with these terms and conditions. He concluded that consumers often lack clear disclosures that are necessary for making informed decisions.
• Rep. Bentz posited a scenario in which a consumer did read all of the terms and conditions of a purchased product. He indicated that the product in this scenario included repair restrictions as a condition of purchase. He asked Prof. Perzanowski to indicate why the right to repair should interfere with the agreement that the consumer in this scenario had accepted as part of their product purchase.
  • Prof. Perzanowski stated that consumers often purchase products with repair restrictions because of consumer lock-in. He explained that a consumer often purchases multiple devices from the same manufacturers (such as Apple) because these devices can communicate with each other and offer integrated features. He commented that these features are often not available when purchasing devices from multiple manufacturers. He also asserted that many manufacturers are making misleading promises and statements regarding the ability of consumers to repair their products. He accused John Deere of making such misleading promises and statements.
• Rep. Bentz interjected to comment that Prof. Perzanowski is not directly answering his question. He remarked that a consumer would appear to waive their right to repair a product if the manufacturer had adequately disclosed at the time of purchase that the product has repair restrictions. He then noted how opponents of right to repair policies argue that these policies weaken IP protections. He mentioned how several states have passed right to repair laws. He asked Mr. Hartline to address whether these state laws have caused a decline in intellectual activity. He acknowledged that such a decline would be difficult to measure.
  • Mr. Hartline noted that only two states (New York and Minnesota) have pass right to repair laws related to electronic devices. He indicated that neither of these laws have yet to go into effect. He stated that while the impacts of these state right to repair laws remain unknown, he predicted that these state laws would face litigation on the grounds that federal copyright and patent laws preempt the laws. He noted how Minnesota’s right to repair law dictates that IP owners must make their IP available while federal law allows for IP owners to maintain exclusive control over their IP. He then remarked that while most people do not read the terms and conditions associated with their devices at the time of purchase, he asserted that repair restrictions are appropriate so long as the restrictions are fully disclosed to customers.
• Rep. Bentz then expressed interest in understanding the rationale for the SMART Act’s decision to impose a 30-month limit on the amount of time that car manufacturers can enforce design patents on collision repair parts against alternative parts suppliers.
  • Mr. Hartline commented that the SMART Act’s 30-month limit for collision parts patents appears arbitrary. He noted how the current term for a design patent is 15 years. He stated that while he does not know what the optimal term for a design patent should be, he criticized proposals that would limit the terms of design patents under the guise of promoting innovation.

Full Committee Ranking Member Jerrold Nadler (D-NY):

• Ranking Member Nadler expressed concerns over how OEMs have reacted to Massachusetts’s right to repair ballot measure. He elaborated that OEMs have suspended access to telematic accessories for vehicles sold within Massachusetts. He asked Mr. Benavidez to address how the recent agreement between automotive repair shops and OEMs would impact consumer choice moving forward. He further asked Mr. Benavidez to indicate whether he is concerned that the U.S. will ultimately have a “patchwork” of state laws governing the right to repair issue.
  • Mr. Benavidez expressed support for the recent agreement between automotive repair shops and OEMs. He stated that this agreement would ensure that automotive repair shops can obtain key information (including telematics information). He noted how the agreement contains a commitment from automotive repair shops and OEMs to support legislation if future problems arise. He stated however that automotive repair shops hope that no future legislation would be required. He commented that this agreement has long been needed and that this agreement satisfies the current data needs of automotive repair shops.
• Ranking Member Nadler asked Mr. Benavidez to address how the recent agreement between automotive repair shops and OEMs would impact consumer choice.
  • Mr. Benavidez remarked that this agreement will increase the number of available automotive repair shops that consumers can use. He noted how consumers are generally less informed regarding their automotive repair needs. He elaborated that consumers rarely experience automotive accidents and therefore rely upon automotive repair shops for guidance and proper automotive repairs.
• Ranking Member Nadler also asked Mr. Roberts to address how the recent agreement between automotive repair shops and OEMs would impact consumer choice moving forward. He further asked Mr. Roberts to indicate whether he is concerned that the U.S. will ultimately have a “patchwork” of state laws governing the right to repair issue.
  • Mr. Roberts first noted that the recent agreement between automotive repair shops and OEMs does not represent most after-market automotive service providers. He asserted that this agreement is more focused on public relations than on the automotive repair market’s functioning. He then stated that many consumers are currently experiencing challenges affording vehicle repairs. He remarked that these consumers would prefer having state right to repair laws over having no right to repair laws. He commented however that a federal right to repair law would be preferable to having individual states address right to repair issues.
• Ranking Member Nadler then noted how right to repair advocates argue that Section 1201 of the DMCA prevents non-infringing circumvention of access controls for repair purposes. He highlighted how Congress had sought to address this issue through allowing for a triennial exemption process as part of the DMCA. He asked Mr. Hartline to indicate whether the DMCA’s triennial exemption process is working as intended. He also asked Mr. Hartline to indicate whether there exist actions that Congress could take to expand these exemptions or make these exemptions easier to acquire under Section 1201 of the DMCA.
  • Mr. Hartline noted how the DMCA requires a party seeking a temporary three-year exemption to affirmatively demonstrate that a problem exists relating to a certain class of works. He noted how the U.S. Librarian of Congress has indicated in rulemakings that these exemptions for the use of copyrighted works for repair and maintenance purposes constitute a form of fair use. He indicated that the U.S. Librarian of Congress has thus granted certain exemptions under the Section 1201 of the DMCA. He stated however that these exemptions are narrow and do not permit the trafficking of these repair and maintenance tools. He raised concerns that making these exemptions permanent would undermine the purpose of TPMs under Section 1201 of the DMCA. He stated that these TPMs are meant to guard against piracy and that reducing TPMs could make devices less secure. He warned that this could ultimately reduce the willingness of content owners to put their content on devices.

Rep. Ben Cline (R-VA):

• Rep. Cline mentioned how the American Farm Bureau Association and John Deere had recently signed a MoU that purports to guarantee farmers and ranchers a right to repair their own farm equipment. He commented that policymakers are currently waiting to assess the effectiveness of this MoU. He then asked Prof. Perzanowski to discuss how Section 1201 of the DMCA impacts the ability of consumers and independent repair shops to modify or repair consumer electronics devices that contain proprietary data and software.
  • Prof. Perzanowski noted how the U.S. Copyright Office has repeatedly determined that engaging in the circumvention of “digital locks” for purposes of software repair is “perfectly lawful” behavior. He stated however that there exists a “mismatch” between the legal rights that consumers currently enjoy under federal law and their practical ability to exercise those rights. He attributed this “mismatch” to the fact that Section 1201 rulemaking does not extend to the creation or distribution of tools. He explained that while a consumer has a right to remove the “technological locks” on a device (such as a video game console) to repair a broken disc drive, he indicated that most consumers lack the capability to do so on their own. He noted that consumers generally rely upon experts that can write code to enable self-repairs.
• Rep. Cline interjected to ask Prof. Perzanowski to indicate whether code should be viewed as proprietary information.
  • Prof. Perzanowski indicated that he is discussing the ability of third-parties to develop code that would enable consumers to engage in activity that the U.S. Copyright Office deems to be non-infringing.
• Rep. Cline interjected to ask Prof. Perzanowski to indicate whether the issue of trade secrets should be considered in debates surrounding right to repair policy issues.
  • Prof. Perzanowski stated that there exist occasions where trade secrets should be considered in debates surrounding right to repair policy issues. He remarked however that matters related to Section 1201 of the DMCA generally do not involve trade secret issues. He noted that state right to repair bills typically address trade secrets and often include “carve outs” for trade secrets. He commented that Congress should consider whether to address trade secrets as part of any federal right to repair legislation. He contended however that Congress remains overly focused on the potential for a bad actor to misappropriate a repair tool developed using an exemption under Section 1201 of the DMCA.
• Rep. Cline interjected to comment that the misappropriation of repair tools is not hypothetical. He stated that bad actors from China have frequently misappropriated such repair tools.
  • Prof. Perzanowski remarked that the Chinese are not particularly concerned about whether a U.S. consumer can fix a consumer electronic device (such as a video game console). He also stated that bad actors already have access to repair tools. He expressed interest in working to ensure that law-abiding citizens can access repair tools to fix their own devices.
• Rep. Cline then asked Prof. Perzanowski to discuss the role that the Library of Congress and the U.S. Register of Copyrights plays in granting exemptions under Section 1201 of the DMCA. He also asked Prof. Perzanowski to discuss how this process relates to the right to repair.
  • Prof. Perzanowski explained that the exemptions process under Section 1201 of the DMCA had established the legality of circumvention for repair purposes. He stated that this exemption rulemaking authority only extends to the act of circumvention. He noted that Congress had not provided the U.S. Copyright Office or the Library of Congress the authority to grant exemptions for the trafficking of repair tools. He called for legislative intervention to enable such trafficking of repair tools.
• Rep. Cline asked Prof. Perzanowski to address how state right to repair laws impact IP protections for OEMs while also enabling consumers to repair their own products.
  • Prof. Perzanowski remarked that it remains too early to assess the impact of state right to repair laws and commented that these laws are very nascent. He mentioned how Colorado has enacted a motorized wheelchair right to repair law. He stated that this law has had “major practical advantages” for individuals that rely upon these devices through enabling these individuals to receive more timely repairs. He remarked however that it remains too early to project the long-term impacts of state right to repair laws.

Rep. Deborah Ross (D-NC):

• Rep. Ross discussed how right to repair issues involve numerous industries with different types of patents. She commented that perspectives on these issues may differ based on industries and patent types. She remarked that there might not exist a “one size fits all” solution to right to repair issues given that the impacts of misrepairs might vary across contexts. She stated that regulations governing the repair of larger items (such as airplanes or X-ray machines) should differ from the regulations governing the repair of smaller items (such as household appliances and computers). She then discussed how her Congressional District contains many medical device manufacturers and commented that these manufacturers are “on the frontlines of innovation.” She stated that the U.S. should encourage research and development (R&D) while safely repairing machines when the machines break. She asked Prof. Perzanowski and Mr. Hartline to indicate whether there should exist different repair standards for lifesaving equipment as compared to household items.
  • Prof. Perzanowski remarked that safety and security must always be considered in repair discussions, regardless of whether an independent shop or an authorized provider is making the repair. He stated that these risks are more salient within the medical device repair context. He remarked however that IP law is ill-suited for ensuring high quality repairs. He recounted how Volkswagen had held all IP rights in its Dieselgate vehicles that cheated emissions tests and how Abbott had held all IP rights for pacemakers that had later needed to be recalled. He stated that the identity of the IP rights holder would necessarily ensure safe and secure repairs. He commented that he does not know how to fully ensure safe and secure repairs. He noted however that the FDA had issued a 2018 report that concluded that independent repair of medical devices is safe and effective. He testified that he has not observed evidence that disproves this conclusion and expressed his willingness to consider evidence that might disprove this conclusion. He concluded that policymakers must consider ways to ensure the safety of repairs outside of the IP law context.
• Rep. Ross added that policymakers should identify the parties responsible when unsafe repairs are made.
  • Mr. Hartline remarked that there should exist more stringent restrictions on the ability to repair medical equipment. He noted that the Library of Congress had provided a temporary exemption for medical equipment repairs under Section 1201 of the DMCA. He indicated that this temporary exemption is currently being challenged in court on the grounds that it allegedly violates the Administrative Procedure Act. He remarked that manufacturers should be permitted to leverage their IP rights into repair opportunities. He commented that repair opportunities provide new revenue streams for manufacturers that manufacturers can then use to pursue innovation. He also stated that repair restrictions will ensure that qualified technicians are fixing broken devices.
• Rep. Ross then asked Mr. Wiens to address whether there exist any cybersecurity implications associated with the right to repair.
  • Mr. Wiens remarked that a central question inherent within the right to repair debate involves whether third-parties should be empowered to inspect devices. He stated that making repair information available to cybersecurity researchers can enable improved cybersecurity for devices. He expressed concerns that Section 1201 of the DMCA bans both the distribution of repair tools and cybersecurity tools. He noted how Apple had sued a company that had produced a security research tool under Section 1201 of the DMCA. He commented that this particular cybersecurity tool has improved cybersecurity and is popular among government cybersecurity researchers. He concluded that allowing for third-party inspections of devices would result in improved devices.

Rep. Russell Fry (R-SC):

• Rep. Fry discussed how restrictions on the right to repair have wide-ranging implications (including for McDonald’s ice cream machine repairs). He asked Mr. Wiens to elaborate on how current restrictions on the right to repair impact the average consumer. He specifically asked Mr. Wiens to address how these restrictions impact cost and convenience for consumers.
  • Mr. Wiens discussed how Taylor makes McDonald’s ice cream machines and noted how these machines contain complex software that make repairs very difficult. He stated that third-party repair tools for McDonald’s ice cream machines and other devices cannot be developed under current law. He commented that this situation has led many machine owners to use illegal tools to repair their machines.
• Rep. Fry remarked that restrictions on the right to repair are not confined to ice cream machines and noted how these restrictions impact various devices (including farm equipment, smartphones, and video game consoles). He asked Mr. Wiens to discuss the challenges that customers face when trying to repair their own devices.
  • Mr. Wiens called the challenges that consumers face when trying to repair their own devices “absolutely infuriating.” He recounted how his farmer friend had needed to rent an expensive tractor for one week because the farmer’s tractor required an authorized repair that could not be performed immediately. He stated that repair restrictions have daily impacts on the lives of Americans.
• Rep. Fry asked Mr. Wiens to discuss how federal legislation could support the ability of Americans to repair their own devices. He also asked Mr. Wiens to identify specific measures that such legislation could include.
  • Mr. Wiens noted how several states have pursued legislation to require manufacturers to sell their repair tools to consumers and independent repair shops in order to bolster the repair market’s competitiveness. He stated that federal legislation could permit third-parties to make competing repair tools. He noted how consumers can currently purchase scan tools to diagnose automotive problems. He indicated that these tools exist within the automotive market because there exists a standard diagnostic interface in vehicles. He commented however that similar repair tools do not exist for other types of repair products. He highlighted how farmers cannot perform their own tractor transmission repairs. He expressed his interest in developing software tools to enable farmers to fix the transmissions on their tractors.

Rep. Zoe Lofgren (D-CA):

• Rep. Lofgren first remarked that relief for design patents in automobiles is an entirely separate issue from relief for utility patents in vehicles. She also stated that the lengthy and complex nature of consumer disclosures generally result in consumers not reading the disclosures, which undermines the effectiveness of the disclosures. She then discussed how Congress had sought to address the theft of copyrighted material during its consideration of the DMCA in 1998. She stated that the DMCA had sought to advance protections to preclude the hacking of copyrighted materials using TPMs. She indicated that she had supported the DMCA during its consideration. She noted however that she had also expressed interest in addressing the use of TPMs to protect non-copyrighted content during the DMCA’s consideration. She indicated that Congress had reached a compromise in which the U.S. Copyright Office would periodically revisit whether relief ought to be granted to access TPMs. She asserted that the U.S. Copyright Office’s triennial exemption process has not worked “perfectly well.” She elaborated that the U.S. Copyright Office will only address an issue if there exists significant pressure to do so. She stated that Congress had not passed its TPM policies so that monopolies could control products. She attributed the shortcomings of the DMCA’s triennial exemption process to its lack of scope and failure to address tools. She asked Prof. Perzanowski to indicate whether Congress could develop a measure that allows for tools to disable TPMs when the TPMs are used for promoting monopolies through products. She also asked Prof. Perzanowski to indicate whether there exists a way to narrowly define an exemption under the DMCA for cybersecurity purposes. She commented that such a narrow exemption would benefit society and address abuses of the Computer Fraud and Abuse Act (CFAA). She expressed interest in working to update the DMCA in a manner that would still protect copyright holders.
  • Prof. Perzanowski commented that while he is reluctant to propose statutory language extemporaneously, he expressed agreement with Rep. Loefgren’s concerns. He stated that the previous proposals to create statutory exemptions for repair purposes would limit the scope of Section 1201 of the DMCA beyond the entertainment content that Congress had originally sought to protect. He discussed how Section 1201 already contains some statutory exemptions that could serve as useful models for future changes. He commented that these existing statutory exemptions are “very narrow” and expressed his desire for expanding these exemptions. He indicated that these existing statutory exemptions pertain to encryption research, security testing, and law enforcement. He suggested that reviewing the existing statutory language can help inform the development of a repair exemption and addressing cybersecurity concerns.
• Rep. Lofgren remarked that Congress had not envisioned the red hat movement when it had enacted the DMCA and commented that the red hat movement supports more secure software. She stated that the technology landscape has changed significantly since the DMCA’s enactment in 1998. She expressed hope that Congress can protect copyrighted content while enabling consumers to have more rights surrounding how they use their property.

Rep. Laurel Lee (R-FL):

• Rep. Lee raised concerns over the rising costs of vehicle repairs and vehicles and the impact of these rising costs on consumers. She asked Prof. Perzanowski to discuss how the SMART Act’s passage could impact consumer insurance rates. She specifically expressed interest in determining whether this legislation would decrease insurance rates.
  • Prof. Perzanowski predicted that the passage of the SMART Act would result in “significant” reductions in automotive collision repair-related expenses. He noted how design patents on collision parts are reportedly responsible for approximately $1.5 billion in additional expenditures. He also mentioned that price premiums on OEM parts over third-party parts often reach the 40 percent range. He commented that reducing design patent-related costs would result in significant cost savings for consumers. He then discussed how the automotive repair market has a unique structure and noted how most consumers do not pay out-of-pocket for collision repairs. He explained that automotive insurance companies typically cover these collision repair costs. He commented that this dynamic typically insulates consumers from the high cost of collision repair parts. He stated that most consumers do not realize the repair costs associated with a vehicle at the point of purchase. He described the SMART Act as a “targeted” solution for addressing collision repair costs. He also stated that the design patent issue for replacement parts is not limited to the automotive industry. He commented that while the design patent issue is most pressing within the automotive repair industry, he asserted that this issue also impacts home appliances and consumer electronics. He stated that policymakers must therefore consider design patent issues across a variety of industries.
• Rep. Lee also asked Prof. Perzanowski to indicate whether passage of the SMART Act would promote entry into the U.S. repair market from independent repair shops. She further asked Prof. Perzanowski to address how this entry would benefit end-consumers.
  • Prof. Perzanowski remarked that reducing repair costs for consumers and the number of totaled vehicles would result in more competition within the U.S. repair market. He elaborated that high replacement part costs lead more vehicles to be deemed totaled. He stated that greater competition would result in lower prices and higher quality in the automotive market (which he called beneficial).
• Rep. Lee offered Mr. Roberts with an opportunity to respond to her previous question.
  • Mr. Roberts expressed agreement with Prof. Perzanowski’s response. He remarked that one of the key goals of right to repair legislation is the promotion of a vibrant ecosystem for service and repair. He warned that the IoT ecosystem poses a near-future “crisis” because manufacturers will no longer support many existing IoT devices. He stated that it remains unknown who can support the continued security and operation of these IoT devices. He remarked that the U.S. will require a “market-based response” to this situation and that small businesses can support the continued operation of these IoT devices. He lamented that current right to repair restrictions do not permit small businesses to support the continued operation of IoT devices after manufacturers stop supporting the devices. He stated that right to repair legislation is key for enabling devices to remain in operation for their full lifespans. He added that there exist cybersecurity implications associated with right to repair restrictions.

Rep. Madeleine Dean (D-PA):

• Rep. Dean first mentioned how her grandfather had owned an independent automotive repair shop. She asked Mr. Benavidez to discuss how modern automotive repair shops approach vehicle breakdowns and collisions.
  • Mr. Benavidez remarked that automotive repair shops are currently dealing with more crash parts, electronics, and lane departures than ever before. He called the automotive repair business “very scary” given the complexity of the automotive systems that must be repaired. He emphasized that automotive repair shops must be very precise in how they repair vehicles.
• Rep. Dean interjected to ask Mr. Benavidez to confirm that access to repair data is essential for enabling his repair shop to perform automotive repairs.
  • Mr. Benavidez confirmed that access to repair data is essential for enabling his repair shop to perform automotive repairs. He stated that his repair shop uses repair data throughout the automotive repair process.
• Rep. Dean then noted how Mr. Wiens had asserted that a robust repair market expands U.S. job opportunities, keeps products outside of the waste and recycling streams, and gives consumers more options for dealing with a malfunctioning product. She asked Mr. Wiens to respond to the suggestion that the right to repair harms U.S. businesses and content creators.
  • Mr. Wiens first commented that the right to repair does not significantly impact content creators. He then remarked that addressing the right to repair issue involves balancing the interests of big businesses and small businesses. He stated that the crux of the issue involves who decides which parties can repair products. He discussed how Apple currently maintains a repair program where the company decides whether repairs can be performed on products based on the product’s serial number. He noted that Apple can withdraw this permission later. He remarked that small businesses require the ability to innovate with regard to repairs. He mentioned how he would soon be traveling to a Minnesota repair shop that uses iFixit training to repair discarded electronics and then sell the repaired electronics to disadvantaged communities.

Rep. Kevin Kiley (R-CA):

• Rep. Kiley yielded his time to Subcommittee Chairman Darrell Issa (R-CA).

Subcommittee Chairman Darrell Issa (R-CA):

• Chairman Issa noted how the hearing is primarily considering Article 1, Section 8, Clause 8 of the U.S. Constitution. He explained that this provision delegates Congress the power to promote the progress of science and the arts through providing authors and inventors with the exclusive right to their respective writings and discoveries for a limited period of time. He asked Mr. Hartline to identify the discovery associated with a design patent.
  • Mr. Hartline explained that a design patent provides protections for a new, original, and ornamental design.
• Chairman Issa asked Mr. Hartline to confirm that the U.S. is one of the few countries that recognizes ornamental designs for the purposes of 15-year exclusivity.
  • Mr. Hartline commented that he is not familiar with international patent laws. He stated however that the U.S. has provided patents for ornamental designs for over a century.
• Chairman Issa asked Mr. Hartline to indicate whether each part of a design patent must be uniquely ornamental.
  • Mr. Hartline remarked that he is not a design patent law expert. He testified that his patent law courses as a professor had focused on utility patents.
• Chairman Issa noted how design patents have historically prevented the competitors of patent holders from making deceptively similar products. He indicated that much of the hearing’s discussion surrounds design patent protections. He stated that the Subcommittee is considering ways to modify, enhance, or define design patents in a way that does not exclude the creation of older technologies to support existing technologies. He elaborated that design patents often prevent the creation of cheaper replacement parts for existing technologies in situations where the design patent holder is no longer making the replacement parts. He asked Mr. Roberts to opine on his statements.
  • Mr. Roberts remarked that Congress should focus on the downstream impact of current patent policies. He stated that the use of design patents had increased “exponentially” over the previous 15 years and that automobile manufacturers are employing design patents to capture more of the replacement parts market. He commented that this greater control of the replacement parts market has a downstream impact on vehicle owners, insurers, and society. He expressed agreement with Chairman Issa’s statements.
• Chairman Issa then discussed how there exist companies that recover automobile parts from automobiles that have been totaled in accidents. He stated that many of these recovered parts (both in the automotive and non-automotive contexts) cannot be installed onto other vehicles and devices because the software needed for installation is being withheld. He asked Mr. Wiens to confirm this dynamic.
  • Mr. Wiens confirmed that an inability to access software can prevent repairers from making use of recovered parts. He stated that it is becoming increasingly difficult to recover parts from discarded devices. He further noted that repairers cannot make their own software tools to enable the recovery of discarded parts.
• Chairman Issa discussed how IBM purchases used parts back from their suppliers so that IBM can maintain its machines. He noted however that IBM concurrently opposes providing their suppliers with the ability to sell said parts to other companies that are not using IBM’s maintenance services. He asked Mr. Hartline to reconcile IBM’s actions and positions.
  • Mr. Hartline testified that he is not familiar with IBM’s current practices. He stated however that IBM possesses IP protections based on their development of new and useful technologies. He commented that IBM’s IP protections permit the company to exclude other parties from using their developed technologies. He remarked that IBM can use its right to exclude to create business relationships and increase their profits. He commented that IBM will use the money it derives from these exclusions to support their R&D efforts. He stated that this R&D ultimately supports more innovation.
• Chairman Issa indicated that his question period time had expired. He stated however that the first sale doctrine would suggest that IBM cannot prevent their customers from using parts from discarded IBM products to fix other IBM products.

Rep. Glenn Ivey (D-MD):

• Rep. Ivey noted how Mr. Roberts had raised concerns over the potential for companies potentially evading their repair obligations. He asked Mr. Roberts to discuss how Congress could address the problem of companies evading their repair obligations. He also asked Mr. Roberts to provide recommendations for how Congress could ensure that companies do not buy up repair-related items to limit independent repair opportunities.
  • Mr. Roberts indicated that his expertise relates to cybersecurity and commented that he would defer to the other witnesses on legal and market issues. He remarked however that changes to Section 1201 of the DMCA and the passage of robust right to repair laws would enable a market-based response to support the functioning and security of IoT devices. He suggested that Congress enact reforms to clarify that parties can circumvent software locks for purposes of maintenance and repair under Section 1201 of the DMCA. He commented that such reforms would ensure that small business owners and cybersecurity researchers do not face criminal liability when engaging in maintenance and repair of software. He also stated that making repair tools (such as diagnostic software, schematic diagrams, and service manuals) more available would enable repair shops to ensure that devices can function for their full lifespans. He called this access to repair services important from a cybersecurity perspective. He elaborated that the U.S. does not want there to exist a large number of out-of-date, unsupported, and insecure internet-connected devices because bad actors could compromise these devices for their own uses. He warned that bad actors are already compromising out-of-date broadband routers and other devices. He contended that reforms to Section 1201 of the DMCA and robust right to repair laws could address these concerns.
• Rep. Ivey provided the other witnesses with an opportunity to respond to his question.
  • Mr. Wiens remarked that the U.S. must ensure the cybersecurity of its IoT devices. He stated that IoT devices tend to run on old software and that IoT device manufacturers often do not provide continued security updates after a certain period of time. He mentioned how a recent news report had indicated that a school had needed to discard Google Chromebooks purchased during the COVID-19 pandemic because the school could not obtain security updates for these devices. He remarked that the U.S. must prolong the lifespan of devices through requiring device manufacturers to make security updates available and empowering third-parties to develop their own security tools for devices. He noted that third-parties currently lack permission to develop such security tools.

Rep. Joe Neguse (D-CO):

• Rep. Neguse remarked that his state of Colorado has been a leader in enacting right to repair legislation. He mentioned how Colorado had enacted right to repair legislation for power wheelchairs and agricultural equipment. He called these laws “critical steps” for protecting consumers, improving innovation, and spurring economic growth. He expressed hope that other states would enact similar right to repair laws and that Congress would pursue federal right to repair legislation. He asked Prof. Perzanowski to expound on how right to repair legislation benefits farmers.
  • Prof. Perzanowski remarked that cost savings are an important consideration for right to repair legislation. He noted how farmers are often required to pay technicians from equipment manufacturers to repair their farm equipment. He highlgihted how farmers often engage in time sensitive work. He stated that farm equipment that is out of commission during peak seasons can harm a farm’s economic outlook, as well as the broader food supply. He called it important for farmers to have flexibility in terms of where and how they execute repairs so that farmers can quickly return their equipment to service. He stated that the consequences of broken farm equipment are generally much more significant than the consequences of broken consumer electronics.
• Rep. Neguse expressed agreement with Prof. Perzanowski’s response. He then asked Prof. Perzanowski to indicate whether repair manuals are copyrightable materials.
  • Prof. Perzanowski asserted that the copyright in a repair manual is “incredibly thin.” He noted that copyright law does not protect facts, ideas, systems, or processes. He stated that most repair manuals describe step-by-step processes for interpreting error codes or replacing component parts. He expressed skepticism toward the copyright claims surrounding repair manuals. He noted that there has not occurred a significant amount of litigation surrounding repair manuals. He mentioned how one court had ruled that the copy and distribution of Gulfstream’s repair manuals was a fair use. He expressed agreement with this ruling.
• Rep. Neguse indicated that his question period time had expired. He remarked that right to repair policies would support the free market. He also asserted that access to repair manuals should not be limited.

Subcommittee Chairman Darrell Issa (R-CA):

• Chairman Issa noted how authentic parts of a device often cannot be put together without using third-party tools. He asked the witnesses to indicate whether manufacturers should have a right to prohibit repairs of devices in which the repairs involve authentic parts. He noted how Apple iPhones have embedded systems that prevent third-parties from combining authentic parts from multiple Apple devices to repair a broken device. He asserted that Apple is deliberately preventing repairs of its devices.
  • Mr. Hartline remarked that Apple has many business reasons (such as security) for restricting repairs on their devices. He also noted that Apple no longer requires that its own technicians repair Apple products. He mentioned how Apple has a repair program where the company will sell customers repair parts and tools to perform their own repairs of Apple devices.
• Chairman Issa interjected to note that his concerns regarding the ability of third-parties to repair devices using authentic parts extends beyond Apple. He asked Mr. Hartline to provide a justification for permitting manufacturers to prohibit third-party repairs that involve the use of authentic parts.
  • Mr. Hartline remarked that each situation in which a manufacturer limits third-party repairs involves unique circumstances. He stated that policymakers must evaluate these unique circumstances when considering the validity of the justifications for third-party repair restrictions. He noted that repairs that involve bypassing TPMs would violate Section 1201 of the DMCA.
• Chairman Issa interjected to ask Mr. Roberts to confirm that Congress (through its enactment of laws like the DMCA) has created impediments to the right to repair.
  • Mr. Roberts expressed agreement with Chairman Issa’s statement that Congress has created impediments to the right to repair. He mentioned how companies had previously shipped more products with service and repair manuals containing detailed schematic diagrams. He indicated that these companies had acknowledged that their customers would want to repair and service their products. He also remarked that the authors of the DMCA had likely not intended for the law to limit the right to repair.
• Chairman Issa mentioned how he had served as the chairman of the Consumer Electronics Association in 1998 when Congress enacted the DMCA. He stated that the trade association had predicted that the DMCA’s provisions would go beyond their original intent. He then asked the witnesses to indicate whether consumers should be barred from obtaining obsolete or unavailable data stemming from a copyright holder’s abandonment of their copyright. (Note: None of the witnesses answered affirmatively). He then asked the witnesses to indicate whether the purchaser of an authentic product should be permitted to use and reuse said product. He also asked the witnesses to indicate whether attempts to render a purchased authentic product useless based on the product’s transfer of ownership is inherently wrong based on the U.S.’s traditions and laws. (Note: None of the witnesses answered affirmatively). He then discussed how he had introduced the SMART Act and stated that this legislation would address repair part access challenges. He also mentioned how Rep. Neal Dunn (R-FL) had introduced the REPAIR Act, which would address challenges associated with access to basic repair services, maintenance services, and data in vehicles. He asked the witnesses to commit to working with Congress to improve and advance these bills. (Note: The witnesses nodded in the affirmative).

Subcommittee Ranking Member Hank Johnson (D-GA):

• Ranking Member Johnson noted how the 2014 MoU between OEMs and independent repair shops had guaranteed that the OEMs would provide the same service information and tools to independent repair shops as the OEMs provide to their franchise dealers. He asked Mr. Benavidez and Mr. Roberts to comment on the effectiveness of the 2014 MoU’s implementation. He also asked Mr. Benavidez and Mr. Roberts to indicate whether Congress should pursue federal right to repair legislation.
  • Mr. Benavidez expressed hope that the 2014 MoU between OEMs and independent repair shops would be allowed to continue. He testified that the Automotive Service Association does not oppose federal right to repair legislation so long as the legislation adheres to the MoU. He also remarked that no independent repair shops are currently wanting for automotive data. He stated that independent repair shops currently have access to automotive data through the 2014 MoU and use this data to repair vehicles.
  • Mr. Roberts remarked that the U.S. “urgently” requires federal right to repair legislation that is similar to Massachusetts’s right to repair law. He acknowledged that access to automotive repairs is not currently an urgent issue because most vehicles in use are older vehicles. He stated however that the evolution and growing importance of vehicle telematics systems would make vehicle repair access a greater problem. He also discussed how Massachusetts’s right to repair law is contingent on data transfers of diagnostic and repair information via the On-Board Diagnostics (OBD) II port. He noted that federal clean air laws require cars to contain OBD II ports. He indicated however that electric vehicles (EVs) do not contain OBD II ports because EVs do not have emissions. He stated that the growing popularity of EVs will result in fewer OBD II ports and greater use of telematics data. He commented that the utility of Massachusetts’s right to repair law would therefore decline over time. He remarked that Massachusetts’s right to repair law has enabled all Americans to obtain vehicle repairs through independent repair shops. He expressed concerns that the right to repair in the U.S. is contingent on a single state law. He asserted that the federal government should enact federal legislation to guarantee the right to repair.
• Ranking Member Johnson then asked Mr. Hartline and Prof. Perzanowski to indicate whether software updates should be considered new creations that can receive copyright protections.
  • Mr. Hartline answered affirmatively. He noted how Congress had passed legislation in 1980 that deemed computer programs to be literary works. He stated that software updates are therefore are entitled to the same copyright protections as other works.
  • Prof. Perzanowski also stated that software updates are protectable subject matter under the Copyright Act. He noted however that Congress establishes federal copyright policies (including protections, limitations, and exclusions). He remarked that Congress has the power to make changes to federal copyright laws in order to best serve public interest goals.

Subcommittee Chairman Darrell Issa (R-CA):

• Chairman Issa discussed how copyright holders can charge fees for the use of their copyrights or license the use of their copyrights. He noted how a music copyright holder does not inherently have the right to stop people from performing their copyrighted music. He stated that the lack of exclusionary rights associated with copyrights make copyrights different from patents. He posited a scenario in which a copyright holder freely gives away software to the public and makes it difficult for device holders to use their devices without accepting software updates. He asked Mr. Hartline to indicate whether the copyright holder under this scenario has made their copyright a public domain for authentic users of the material.
  • Mr. Hartline expressed disagreement with Chairman Issa’s assertion that copyrights do not provide the holder with a right to exclude. He stated that a copyright holder can exclude other people from making copies of their work, from distributing copies, from performing copyrighted works, and from displaying copyrighted works. He remarked that a copyright holder is not forfeiting their rights under copyright law when the holder issues a software update that is downloaded by users. He asserted that the law distinguishes between the copy of the software (which the user in this scenario receives) and the copyright itself (which the holder maintains in this scenario).
• Chairman Issa interjected to acknowledge that the copyright owner in his software scenario does not forfeit their copyright of the original text or software. He stated that his question is focused on whether making the copyrighted software freely available to many people effectively puts the copyrighted software in the public domain. He posited a scenario in which a company routinely pushes through copyrighted software updates to its devices over a period of time and then stops providing such updates. He indicated that the company in this scenario asserts that the device owner can no longer access the software powering the device. He asked Mr. Roberts to indicate whether the company in this scenario is acting in a manner consistent with existing law.
  • Mr. Roberts stated that it is unclear whether the company in Chairman Issa’s scenario is acting in a manner consistent with existing law. He also indicated that he is not a lawyer. He remarked however that the cost to society of manufacturers being able to exert control on the resale and use of their products post-sale is “very high” for consumers. He also warned that this manufacturer behavior presents many cybersecurity problems related to maintaining a secure ecosystem of internet-connected devices.
• Chairman Issa then discussed how standard essential patents do not provide holders the right to exclude and do provide that patentholders receive reasonable royalties for the use of said patents. He asked the witnesses to indicate whether there exists an argument that a standard essential copyright should not and does not effectively exist when the copyright becomes essential to the continued operation of a product or when the copyright becomes part of a standard.
  • Prof. Perzanowski remarked that access to firmware and other code is essential to enable the functioning and repair of many devices. He stated that the standard essential patent context is unique in that it relies upon standard-setting bodies to identify technologies and require companies to license their patents under fair, reasonable, and non-discriminatory terms. He remarked however that this same infrastructure does not exist in the copyright context. He noted that there exist compulsory licenses within the Copyright Act. He indicated that these compulsory licenses include mechanical licenses for musical works and retransmission licenses for satellite and broadcast content. He noted that these compulsory licenses entitle the copyright holder to compensation and do not permit the copyright holder to prohibit others from using or accessing the underlying copyrighted work. He suggested that this framework could be pursued to ensure that device owners have access to necessary firmware.