New York’s new, first-in-the-nation electronic repair law includes last-minute amendments lauded by industry groups as necessary to protect intellectual property and consumer safety, while advocates say they paint a false narrative that weakens its goal of helping consumers repair their devices.
Beginning July 1, New York will require makers of electronic devices like phones and tablets to provide access to tools and parts needed to fix those devices. The law is a partial victory for the growing consumer right-to-repair movement, which has gained traction in dozens of states across the country and has brought its advocacy to Congress and federal courts.
But opponents of right-to-repair laws have found some success in slowing that campaign. They argue that requiring manufacturers to sell diagnostic tools and replacement parts could result in trade secrets theft, conflict with federal copyright and patent laws, or lead to consumers harming themselves.
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The changes removed language that required manufacturers to provide passwords to overcome security locks; exempted products sold directly to businesses or the government; and clarified that manufacturers don’t have to license intellectual property to repair shops or consumers. The law doesn’t apply to home appliances, motor vehicles, and medical devices.
TechNet, a group that represents
Chris Gilrein, TechNet’s director for Massachusetts and the Northeast, said in a statement to Bloomberg Law that while the New York bill “and similar legislation remains a serious threat to intellectual property rights, TechNet’s members greatly appreciate the significant strides made by the Administration to address the most critical consumer protection and operational issues.”
New York lobbying records show that numerous tech companies and groups were involved in lobbying the state house and senate bills, including the Entertainment Software Association, Block Inc., and
A spokesperson for Hochul declined to comment on the reasons for the changes to the bill.
Devlin Hartline, a legal fellow at the Hudson Institute, published a policy assessment arguing that state repair laws that require manufacturers to provide diagnostic software or keys to security locks could conflict with federal copyright law.
“It seems like this fixes the preemption question,” he said of the changes.
‘Raising the Floor’
Repair advocates have denied the IP and safety concerns as an incorrect narrative driven by industry. “These claims have no substance, they’re not based in law, there’s no evidence that these things occur,” said Gay Gordon-Byrne, the executive director of the Repair Association.
Patents are already available to the public and trade secrets aren’t needed to make repairs, she said.
A 2021 report by the Federal Trade Commission on the consumer repair rights found that patent and copyright laws shouldn’t hinder repair. It also found that manufacturers provided almost no evidence that repairs done by consumers or independent shops are tied to injuries.
Gordon-Byrne said that legislators her group meets with are often supportive of right-to-repair, at least at first. “Then they start hearing from the lobbyists,” she said. She’s had to continually swat down their messaging, but succeeded with most legislators in New York.
The repair bill passed the State Senate and Assembly with overwhelming majorities last June.
Repair advocates said that while the final law includes unwanted compromises and has become overly complicated, the legislation will still help consumers and independent repair shops.
“This kind of raises the floor, and then I think there’s still a question on what the ceiling is for this topic,” said Nathan Proctor, senior director of the Public Interest Research Group’s right-to-repair campaign. “But I would say that repair shops and owners should expect to have better access.”
Federal Movement
In the last Congress, lawmakers on both sides of the aisle introduced right-to-repair bills that covered a variety of industries including consumer electronics, vehicles, and farm equipment.
But the IP and security concerns still persisted. At a House subcommittee hearing last September, Republican lawmakers said they support the right of consumers to repair their devices but expressed doubts about a law that mandates businesses to provide equipment or software.
“I harbor serious concerns over the potential of American manufacturers’ intellectual property if forced to divulge such information under right-to-repair laws,” Rep.
Proctor said the lobbying strategy against the right-to-repair movement may backfire on groups like TechNet. While New York’s law doesn’t include all that he wanted, such bills have been introduced in more than 40 states, which could create a patchwork of regulations and a headache for manufacturers.
Some manufacturers are moving toward voluntarily providing repair kits, he noted.
Gordon-Byrne said states alone can’t change a federal copyright law that she argued has hindered the repair movement. The Digital Millennium Copyright Act makes it illegal to bypass digital security locks that protect copyrighted works, which can include anything from a movie to the software on a vehicle.
Some manufacturers like John Deere have tried to invoke the law to try to prevent consumers from repairing their products. In 2021, the US Copyright Office significantly expanded the scope of consumers’ rights to bypass digital locks to repair their products, but the law still prohibits distributing software tools needed for that.
“The locks have become very sophisticated and it’s no longer within the capability of even a pretty talented programmer to break a cryptographically tied lock,” Gordon-Byrne said. “We’ve got to be able to create tools to unlock things.”
