The right to repair

By: Antonio Juan Benítez Rojas.

Traducción al español disponible.

The right to repair could be defined as the set of regulations that allow consumers to repair their products at their sole convenience, even contravening the provisions on the matter by such products’ manufacturers. This right derives from others which are well-known in the free world: the right to property and free enterprise.

The first of these rights, involves the possibility of using, enjoying and disposing of one’s own property. The second establishes the faculty that any person has to engage in any economic activity of their choice, without further restrictions than those established by the Law itself.

Impression products v. lexmark case brief

Now, some companies intend to oppose certain legal provisions that safeguard intellectual property, by virtue of which the interests of those who create products of various kinds are protected. Moreover, there is consumer protection, which is made up of laws and organizations that have the purpose of ensuring compliance with consumer rights, as well as seeking a fair commercial exchange, and the existence of healthy competition and exact information of every product available in the market.

impression products v. lexmark case brief
Lexmark Headquarters in Lexington, KY

However, the Supreme Court on May 30, 2017 issued an unanimous decision in which the right to repair was validated by establishing that Lexmark, the giant American producer of imaging devices, could not use patent rules to impose contractual conditions, because once the owner of a patent sells an item they can not control it based on the mentioned rules.

In the case that was the subject of the aforementioned decision, the plaintiff was Lexmark International, and the defendant was a modest company from West Virginia called Impression Products. The controversial point was that the latter re-inked cartridges produced by the former, and that, in principle, these cartridges had to be used only once, for which Lexmark provided them with a chip that prevented such cartridges from being recharged.

For its part, Impression products managed to deactivate the aforementioned chips, and made it possible to recharge and sell them at prices that were significantly lower than those of the cartridges produced by the Lexmark, which allegedly infringed the latter’s patents.

This decision by the Supreme Court of the United States also gave a victory to consumers, who now not only have suppliers that have a legal basis to reload their cartridges despite the provisions of any patent, thus prolonging the useful life thereof; but also, because of this precedent should see cease practices of companies such as HP, a company that even modifies the internal software of their printers so that they block the use of cartridges produced by third parties.

This example is one of many scenarios in which the right to repair devices is discussed. In some cases, such as in the automobile field, after a long legal battle of more than ten years, there was a legal recognition of the right to repair. In effect, in 2012 a law was passed that allowed vehicle owners to repair their own cars. By virtue of this law a consensus was created between the different automobile companies to adopt this practice nationally, establishing therefore a legal alternative form of maintenance for automobiles.

John Deere and Copyright infringement

John Deere Copyright infringement
John Deere tractor

Additionally, other case precedent in automotives occurred through other cases such as John Deere, whose customers were not so fortunate, because although they have traditionally repaired these machines on their own, in order to do so nowadays they need the not-cheap-at-all technical service of the indicated company.

For that reason, the Repair Association promoted in the State of Nebraska a Fair Repair Bill (Nebraska’s «Fair Repair» bill), according to which companies must provide consumers and independent service establishments with technical manuals, diagnostic tools and OEM spare parts so that they are not limited to a particular provider. At present, this initiative is being promoted in seventeen of the fifty American states.

This, of course, is perceived by John Deere as an affront to their patrimonial interests, and they oppose such an initiative based on their copyright, arguing that if third parties are allowed to manipulate the software of their tractors, said third parties would take advantage of the creativity and genuine character of that development and that, in addition, it would open the doors to the farmers who own tractors to store pirate music in them… (!)

Apple and the right to repair

How Apple stands on repair rights
Apple and the right to repair

Everyone will judge whether these arguments have merit or not; however, large companies have joined John Deere to the point that they managed to stop the discussion of the aforementioned Bill in Nebraska. Apple is among such companies because it has its own technical service called AppleCare, which is carried out by the so-called Apple Premium Resellers, a program to which anyone can apply to, but in order for the company to grant such condition it is necessary to fulfill requirements that are onerous for many people, among which can be mentioned the acquisition of furniture, prioritization of Apple products and services over those of other brands and having to render accounts to such company’s head office in Coppertino.

And given that the Apple Premium Resellers are the ones that have both the original spare parts and the know-how to carry out the technical service of Apple devices, a black market was created for people who provide this service independently, using parts that in many cases are of poor quality, thus consumers are the most affected.

Naturally, Apple (and the other companies that are against the rights to repair) wants to continue keeping the monopoly of its expensive technical service, even going so far as to maintain that they do so in order to preserve their quality standards and to protect consumers who suffer damage from possible explosions of mobile batteries and, even, that they cut their fingers when trying to replace an Iphone screen, as claimed by certain lobbyists in Minnesota.

Nonetheless, taking into consideration the precedent established by the Supreme Court in the case of the Lexmark, there is a high probability that similar judgments are issued in cases related to the products of each of these companies, so it is possible that we will soon see openings in this regard.