Recent repair victories push US ahead of EU

For a long while it seemed as if right to repair laws were destined to be an “also ran” in the United States, even as the European Union charged ahead toward a more “circular” future.

As proposed law after proposed law died in statehouse committees or fell to filibusters in states across the U.S. over the last five years, the EU and member nations made steady progress in implementing a legal right to repair. EU rules passed in 2019 and implemented in 2021 required makers of a range of appliances including home washing machines, dryers and (eventually) smart phones to make appliances repairable using commonly available tools and make spare parts available to independent, professional repairers. In the meantime, lawmakers in France pushed through the world’s first legally mandated repairability index in 2021 to provide consumers considering a purchase with easy to understand information on how repairable given products were.

No longer. After victories in legislatures in U.S. states including New York, Colorado, and Minnesota, the U.S. has suddenly emerged as Ground Zero for enacting far reaching right to repair laws for everything from agricultural equipment to consumer electronics.

“This is huge. This should move the U.S. ahead of Europe, which historically has had stronger right-to-repair laws”, Kyle Wiens, CEO of iFixit, said in an article over at BusinessPlus.

The string of victories began in May, 2022, with the passage of a right to repair law for power wheelchairs in Colorado. That was followed in December of that year with the passage of an electronics right to repair bill in New York State that, though greatly narrowed by industry lobbying, still created broad new legal protections for repair. Months later, Colorado passed the world’s first right to repair bill covering agricultural equipment with Minnesota’s governor signing a more robust electronics right to repair bill into law in that state.

The decentralized nature of those victories highlight the advantage that the U.S. has over Europe when it comes to legislation becoming law. As the old adage goes, states in the U.S. act as “laboratories of democracy,” often introducing new laws and regulations that are then adopted by other states and even the federal government. That was true of the right to repair, which was first enshrined in law by Massachusetts voters via a ballot measure creating a right to repair automobiles in 2012. (Massachusetts voters subsequently expanded that law to include access to vehicle telematics data in November, 2020.)

Compared to the U.S., the process of lawmaking in the EU is more centralized, cumbersome and bureaucratic. For example, the EU has proposed a number of new sustainability- focused rules on everything from batteries to repair, but those proposals are tied up and might wait for years before being adopted by the European Council and Parliament. Draft text of the EU’s right to repair proposal, first published in March after numerous delays, was severely limited after lobbying by industry, attracting the opprobrium of EU repair advocates for failing to tackle anti-repair practices by manufacturers that limit- and increase the costs of repairs. “Once again, the opportunity to make the Right to Repair universal is missed,” the group said.

The European Commission’s Regulatory Scrutiny Board’s (RSB) has also come under fire for actions taken to freeze a proposed EU right to repair law, with the European Ombudsman poised to investigate.

A study commissioned by the Vienna Chamber of Labour and Lobby Control found that the unelected RSB holds a de facto veto power over legislation because of the daunting legislative hurdles that must be surmounted to move legislation forward in the face of an RSB negative opinion.

“For a non-elected board where experts sit there, this is a too strong role because that actually means that it [the board] can very much delay legislative proposals”, Dr Brigitte Pircher, in charge of the study, told EURACTIV.

Proposed Patent rules could complicate repair

New rules proposed by The U.S. Patent Office could further entrench corporate power, leaving small businesses and individuals with less protections, the Electronic Frontier Foundation (EFF) warned this week. The new rules, first proposed in April, would limit who can challenge patents and create burdensome requirements, potentially blocking many challenges altogether, undermining the effectiveness of the Inter Partes Review (IPR), a process that has been crucial in invalidating “bad” patents.

EFF has been leading the charge against what they call “patent trolls,” or companies who use the imbalances in the patent system to sue small companies with less money, both extracting money and limiting competition. EFF says.

The U.S.’s expansive intellectual property- and copyright laws – which have been repeatedly bolstered in the last four decades – have been cited as an impediment to innovation and a contributor to the growing wealth and income inequality in the U.S. They also make frequent appearances in arguments over establishing a legal right to repair, with manufacturers and trade industry groups frequently citing copyright law and the need to protect intellectual property as reasons that they cannot share information such as schematic diagrams and service manuals with customers and independent repair providers. (Note: both those arguments are readily dismissed when looking at legal precedents and consulting patent and copyright law experts, but…ah well!)

Repairing patent law

The Inter Partes Review (IPR) is the process for challenging the validity of patents. The proposed rule changes from USPTO would make it more difficult for small companies to challenge larger corporations that exploit patent law for their own benefit. EFF notes that the IPR process isn’t cheap for plaintiffs, but is expedient, compared to the other route for challenging patents: taking the case to district court.

Thousands of patents have been thrown out as a result of the IPR process, EFF said. They include challenges that have dismantled wrongly-granted monopolies including a suit by a patent troll known as “WordLogic” that tried to sue Wikipedia for $30,000 and other tech firms for infringement of dubious patents such as one on predictive text writing. After the PTAB ruled that WordLogic’s patent was likely invalid, the suits were dropped.

What’s the connection to the right to repair? Well, we know that intellectual property law has consistently been cited to justify manufacturers preventing individuals and repair businesses from completing necessary repairs. A more permissive regime for patent holders and higher barriers to challenging bogus patents is likely to exacerbate that problem, possibly imposing limits on what constitutes a “permissible” repair, or making certain repairs illegal.

EFF’s concern with changes to the patent challenge process argues that if these rule changes are kept, companies like Shipping and Transit LLC will be able to use patents to squash small companies and extract money from them. That would be likely to encourage further corporate consolidation, reduce choices for consumers and impose higher costs on the economy.

Other News

Massachusetts has begun enforcing expanded auto right to repair law On June 1, 2023, Attorney General Andrea Joy Campbell commenced enforcing Massachusetts’ expanded “right to repair” law following the denial of a temporary restraining order from the bench by U.S. District Judge Douglas P. Woodlock. Judge Woodlock has yet to issue a final decision in the lawsuit filed by the Alliance for Automotive Innovation, an auto industry advocacy group, seeking to block the Massachusetts attorney general from implementing and enforcing the law.

Connected cars raise security concerns. Repair isn’t one of them. Manufacturers say their refusal to allow access to repair and maintenance data comes from their commitment to user privacy and security. But that seems at odds with recent scandals, Nathan Proctor writes in a commentary at Autonews.com

The Canadian government is launching consultations on a federal right to repair law, with advocates urging policymakers to avoid catering to special interest lobbyists and instead prioritize consumer interests, affordability, and environmental sustainability.

Quebec also has an automotive right to repair bill that would protect against obsolescence and allow access to vehicle data.

Several waste and recycling bills are in play in California, including a right-to-repair bill and extended producer responsibility (EPR) bills for electric vehicle (EV) batteries and photovoltaics; the bills aim to expand recycling efforts, update payment formulas for recycling centers, and ensure access to replacement parts and repair information for consumer electronics and appliances.

Secondhand clothes dealers from Ghana are urging the fashion industry to contribute funds towards managing the 100 tonnes of clothing discarded every day in the country. The traders are lobbying for Europe-wide legislation, known as extended producer responsibility (EPR), to ensure that producers pay a fair fee for their waste. They are calling for the fee to be increased and for a portion of the funds to go towards cleaning up the environmental damage caused by textile waste.

Consumers are frustrated with the early obsolescence of products and want them to be built to last longer, information on product lifespans, longer legal guarantees, and affordable spare parts according to data collected from the PROMPT project.

New York State Senate Passes Antirust Reforms to Protect Workers and Small Businesses – The 21st Century Antitrust Act is a groundbreaking piece of legislation that would put workers and local businesses back at the heart of New York antitrust law, where they belong,” said Pat Garofalo, Director of State and Local Policy at the American Economic Liberties Project. “This desperately-needed bill would rein in many of the abusive tactics employed by dominant corporations that are left untouched by current federal and state antitrust law, allowing those corporations to monopolize both product and labor markets.

Restricted software updates by Apple and emphasize the negative environmental impact of constantly manufacturing new hardware and always having a new phone model says writer Sam W.

Only a small percentage of e-waste is being recycled globally, despite the valuable materials contained within these devices. Manufacturers and retailers still often choose to destroy returned or unsold items to prevent resale or competition with new products.

Louis Rossmann says installing HP printer firmware restricts the use of aftermarket ink cartridges, requires an internet connection, and prevents users from downgrading to the previous firmware that allowed cartridge choice.