[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]





                      IS THERE A RIGHT TO REPAIR?

=======================================================================

                                HEARING

                               BEFORE THE

    SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND THE INTERNET

                                 OF THE

                       COMMITTEE ON THE JUDICIARY

                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED EIGHTEENTH CONGRESS

                             FIRST SESSION

                               __________

                         TUESDAY, JULY 18, 2023

                               __________

                           Serial No. 118-37

                               __________

         Printed for the use of the Committee on the Judiciary






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               Available via: http://judiciary.house.gov  
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                       COMMITTEE ON THE JUDICIARY

                        JIM JORDAN, Ohio, Chair

DARRELL ISSA, California             JERROLD NADLER, New York, Ranking 
KEN BUCK, Colorado                       Member
MATT GAETZ, Florida                  ZOE LOFGREN, California
MIKE JOHNSON, Louisiana              SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona                  STEVE COHEN, Tennessee
TOM McCLINTOCK, California           HENRY C. ``HANK'' JOHNSON, Jr., 
TOM TIFFANY, Wisconsin                   Georgia
THOMAS MASSIE, Kentucky              ADAM SCHIFF, California
CHIP ROY, Texas                      ERIC SWALWELL, California
DAN BISHOP, North Carolina           TED LIEU, California
VICTORIA SPARTZ, Indiana             PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin          J. LUIS CORREA, California
CLIFF BENTZ, Oregon                  MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia                  JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey            MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas                    VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama                 DEBORAH ROSS, North Carolina
KEVIN KILEY, California              CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming             GLENN IVEY, Maryland
NATHANIEL MORAN, Texas               BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina

                                 ------                                

           SUBCOMMITTEE ON COURTS, INTELLECTUAL PROPERTY, AND
                              THE INTERNET

                    DARRELL ISSA, California, Chair

THOMAS MASSIE, Kentucky              HENRY C. ``HANK'' JOHNSON, Jr., 
SCOTT FITZGERALD, Wisconsin              Georgia, Ranking Member
CLIFF BENTZ, Oregon                  TED LIEU, California
BEN CLINE, Virginia                  JOE NEGUSE, Colorado
LANCE GOODEN, Texas                  DEBORAH ROSS, North Carolina
KEVIN KILEY, California              ADAM SCHIFF, California
NATHANIEL MORAN, Texas               ZOE LOFGREN, California
LAUREL LEE, Florida                  MADELEINE DEAN, Pennsylvania
RUSSELL FRY, South Carolina          GLENN IVEY, Maryland

               CHRISTOPHER HIXON, Majority Staff Director
          AMY RUTKIN, Minority Staff Director & Chief of Staff   
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
          
                            C O N T E N T S

                              ----------                              

                         Tuesday, July 18, 2023

                                                                   Page

                           OPENING STATEMENTS

The Honorable Darrell Issa, Chair of the Subcommittee on Courts, 
  Intellectual Property, and the Internet from the State of 
  California.....................................................     1
The Honorable Henry C. ``Hank'' Johnson, Ranking Member of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of Georgia......................................     3
The Honorable Jerrold Nadler, Ranking Member of the Committee on 
  the Judiciary from the State of New York.......................     4

                               WITNESSES

Scott Benavidez, Chair of Automotive Service Association; Owner, 
  Mr. B's Paint & Body Shop
  Oral Testimony.................................................     7
  Prepared Testimony.............................................     9
Paul Roberts, Founder, SecuRepairs.org; Founder, Editor-in-Chief, 
  Strategy Ledger
  Oral Testimony.................................................    46
  Prepared Testimony.............................................    48
Kyle Wiens, Co-Founder and CEO, iFixit
  Oral Testimony.................................................    52
  Prepared Testimony.............................................    55
Devlin Hartline, Legal Fellow, Hudson Institute's Forum for 
  Intellectual Property
  Oral Testimony.................................................    85
  Prepared Testimony.............................................    87
Aaron Perzanowski, Professor, Thomas W. Lacchia Professor of Law, 
  University of Michigan Law School
  Oral Testimony.................................................    95
  Prepared Testimony.............................................    97

          LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING

All materials submitted by the Subcommittee on Courts, 
  Intellectual Property, and the Internet, for the record are 
  listed below...................................................   143

An article entitled, ``POV: Congress is preventing us from fixing 
  McDonald's ice cream machines,'' Jul. 14, 2023, Fast Company, 
  submitted by the Honorable Russell Fry, a Member of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of South Carolina, for the record
Materials from the Honorable Darrell Issa, Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of California, for the record
    A statement from National Association of Mutual Insurance 
        Companies (NAMIC), Jul. 18, 2023
    A survey entitled, ``Survey Shows Support for Vehicle Right-
        to-Repair Laws,'' YouGov Survey of 1,000 vehicle owners 
        conducted Jun. 29-Jul. 5, 2023, CAR Coalition
    An article entitled, ``New Survey Shows Strong Support for 
        Federal Vehicle Right-to-Repair Laws, Independent Repair 
        Options,'' Jul. 13, 2023, CAR Coalition
    A document entitled, ``Updated White Paper on Protecting the 
        Consumer Patent Law Right of Repair and the Aftermarket 
        for Exterior Motor Vehicle Repair Parts: The SMART Act, 
        H.R. 1879, 117th Congress,'' Sept. 2022, Joshua D. 
        Sarnoff, Professor of Law, DePaul University College of 
        Law
    A document entitled, ``White Paper on the Right to Equitable 
        and Professional Auto Industry Repair (REPAIR) Act, H.R. 
        6570, 117th Congress,'' Sept. 2022, Aaron Perzanowski, 
        Professor of Law, University of Michigan
    A document entitled, ``NHTSA Right to Repair Letter 
        Background,'' Jul. 17, 2023
    A letter from Paul McCarthy, President and Chief Operating 
        Officer, MEMA Aftermarket Suppliers, Jul. 18, 2023, to 
        the Honorable Darrell Issa, Chair of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of California, and the Honorable Henry C. ``Hank'' 
        Johnson, Ranking Member of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        Georgia
    A letter from Intellectual Property Owners Association (IPO), 
        Jul. 18, 2023, to the Honorable Darrell Issa, Chair of 
        the Subcommittee on Courts, Intellectual Property, and 
        the Internet from the State of California, and the 
        Honorable Henry C. ``Hank'' Johnson, Ranking Member of 
        the Subcommittee on Courts, Intellectual Property, and 
        the Internet from the State of Georgia
    A letter from the Copyright Alliance, Jul. 24, 2023, to the 
        Honorable Darrell Issa, Chair of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of California, and the Honorable Henry C. ``Hank'' 
        Johnson, Ranking Member of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        Georgia
    A collection of letters from Auto Care Association, 
        Aftermarket Auto Parts Alliance, Inc., Automotive Parts 
        Hedquarters Inc. (APH), Federated Auto Parts, Part 
        Authority, Pronto Network Cooperative, and VIPAR Heavy 
        Duty, Inc.
Materials submitted by the Honorable Henry C. ``Hank'' Johnson, 
  Ranking Member of the Subcommittee on Courts, Intellectual 
  Property, and the Internet from the State of Georgia, for the 
  record
    A letter from Consumer Reports, Jul. 17, 2023, to the Ranking 
        Member Honorable Henry C. ``Hank'' Johnson, Ranking 
        Member of the Subcommittee on Courts, Intellectual 
        Property, and the Internet from the State of Georgia, and 
        the Honorable Darrell Issa, Chair of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of California
    A letter from the Alliance for Automotive Innovation, Jul. 
        18, 2023, to the Ranking Member Honorable Henry C. 
        ``Hank'' Johnson, Ranking Member of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of Georgia, and the Honorable Darrell Issa, Chair 
        of the Subcommittee on Courts, Intellectual Property, and 
        the Internet from the State of California
    A letter from the Center for Democracy and Technology, Jul. 
        18, 2023, to the Ranking Member Honorable Henry C. 
        ``Hank'' Johnson, Ranking Member of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of Georgia, and the Honorable Darrell Issa, Chair 
        of the Subcommittee on Courts, Intellectual Property, and 
        the Internet from the State of California
    A letter from the Intellectual Property Owners Association, 
        Jul. 18, 2023, to the Ranking Member Honorable Henry C. 
        ``Hank'' Johnson, Ranking Member of the Subcommittee on 
        Courts, Intellectual Property, and the Internet from the 
        State of Georgia, and the Honorable Darrell Issa, Chair 
        of the Subcommittee on Courts, Intellectual Property, and 
        the Internet from the State of California

                                APPENDIX

Materials submitted by Professor Perzanowski, Thomas W. Lacchia 
  Professor of Law, University of Michigan Law School, for the 
  record
    A letter from Professor Perzanowski, Thomas W. Lacchia 
        Professor of Law, University of Michigan Law School, Jul. 
        22, 2023, to the Honorable Darrell Issa, Chair of the 
        Subcommittee on Courts, Intellectual Property, and the 
        Internet from the State of California, the Honorable 
        Henry C. ``Hank'' Johnson, Ranking Member of the 
        Subcommittee on Courts, Intellectual Property, and the 
        Internet from the State of Georgia, and Members of the 
        Subcommittee
    A report entitled, ``Service Obstructor: John Deere's Repair 
        Software Prevents Farmers From Independently Fixing Their 
        Own Tractors,'' Jul. 2023, Kevin O'Reilly, U.S. PIRG 
        Education Fund, U.S. PIRG
Materials submitted by the Honorable Jim Jordan, Chair of the 
  Committee on the Judiciary from the State of Ohio, for the 
  record
    A letter from Peter Chandler, Vice President of Federal 
        Policy and Government Relations for TechNet, Jul. 17, 
        2023, to the Honorable Jim Jordan, Chair of the Committee 
        on the Judiciary from the State of Ohio, the Honorable 
        Darrell Issa, Chair of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        California, the Honorable Jerrold Nadler, Ranking Member 
        of the Committee on the Judiciary from the State of New 
        York, and the Honorable Henry C. ``Hank'' Johnson, 
        Ranking Member of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        Georgia
    A letter from George Slover and Hannah Babinski, Center for 
        Democracy & Technology, Jul. 18, 2023, to the Honorable 
        Darrell Issa, Chair of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        California, and the Honorable Henry C. ``Hank'' Johnson, 
        Ranking Member of the Subcommittee on Courts, 
        Intellectual Property, and the Internet from the State of 
        Georgia
    A letter from Tara Hairston, Senior Director of Technology, 
        Innovation, & Mobility Policy at Alliance for Automotive 
        Innovation, Jul. 18, 2023, to the Honorable Darrell Issa, 
        Chair of the Subcommittee on Courts, Intellectual 
        Property, and the Internet from the State of California, 
        and the Honorable Henry C. ``Hank'' Johnson, Ranking 
        Member of the Subcommittee on Courts, Intellectual 
        Property, and the Internet from the State of Georgia,

                 QUESTION AND RESPONSES FOR THE RECORD

Response from Professor Aaron Perzanowski, Professor, Thomas W. 
  Lacchia Professor of Law, University of Michigan Law School, 
  submitted by the Honorable Darrell Issa, Chair of the 
  Subcommittee on Courts, Intellectual Property, and the Internet 
  from the State of California, for the record

 
                      IS THERE A RIGHT TO REPAIR?

                              ----------                              


                         Tuesday, July 18, 2023

                        House of Representatives

           Subcommittee on Courts, Intellectual Property, and

                              the Internet

                       Committee on the Judiciary

                             Washington, DC

    The Committee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, the Hon. Darrell Issa 
[Chair of the Subcommittee] presiding.
    Members present: Representatives Issa, Fitzgerald, Bentz, 
Cline, Kiley, Lee, Fry, Johnson of Georgia, Nadler, Neguse, 
Ross, Lofgren, Dean, and Ivey.
    Mr. Issa. The Subcommittee will come to order. Without 
objection, the Chair is authorized to declare a recess at any 
time.
    We welcome everyone here today to this hearing on the right 
to repair. I will recognize myself for an opening statement.
    Thank you all for being here today and for advancing a 
better understanding of the critical issue for consumers, for 
business, and for the overall economy, and as you might hear me 
say repeatedly today, and for the environment.
    This hearing marks a unique opportunity for Members of the 
Subcommittee to come together to learn the positions of all 
sides of the right-to-repair ecosystem that this Subcommittee 
has jurisdiction over. It is clear that this Subcommittee lacks 
jurisdiction in antitrust which will be taken up by another 
Committee, but it is that combination of the power of those who 
object to the right to repair and those who for various reasons 
have an interest in seeing reliable, low cost, predictable 
parts to be available from multiple sources whenever possible.
    As I will say throughout the day and we will see throughout 
the day, these topics are passionate debate among the various 
stakeholders and that is an understatement including 
manufacturers, independent repair shops, environmentalists, and 
consumers.
    As we explore the importance and need for right-to-repair 
legislation, it is critical that we consider all perspectives 
and to ensure a balanced and effective solution. When I say 
that there is an importance for Federal legislation, I say so 
in no small part because States are finding solutions on their 
own and a patchwork of 40-50 separate solutions leads to 
confusion and, in fact, to a lack of exactly what we are hoping 
to have which is protection for the manufacturers and their 
copyrights and patents and an opportunity and an effective way 
to have safe replacement parts available to all.
    Let there be no doubt, the right to repair the product that 
you have purchased is a fundamental principle that individuals 
and businesses should not, under any circumstances, have any 
doubt as to where the bright lines are in their rights. From 
smartphones to home appliances to the firmware on cars, there 
is today doubt. The doubt is State by State, product by 
product. Many companies have a long tradition of after-market 
products. I will take, for example, if you have a CJ Jeep. 
There are so many places you can buy so many parts and in fact, 
the mystique of that World War II derivative product and its 
success and longevity of more than half a century relies on the 
fact that you cannot only buy a new vehicle today, but you can 
buy a 40- or 50-year-old vehicle and there are a plethora of 
parts available. That same company markets other products that 
today they would have you believe you should not have the same 
choice you have in that iconic vehicle. Hopefully, we will 
bring up some of those ambiguities between the after-market and 
the manufacturers today.
    The right to repair is about empowering consumers, 
promoting competition, and extending innovation. It can be a 
key; it can be a key driver of growth and prosperity. Right to 
repair fosters consumer choice and freedom to enable consumers 
to protect their investment and to extend the lifespan of their 
product and devices. It is a fundamental consumer principle.
    The hearing is also an opportunity to hear and learn from 
those with questions and concerns and we need to hear from 
them. The right to repair does have to be balanced with a deep 
and legitimate concern for safety. I think there can be no 
better example than of the factory-equipped airbags. These are 
classic examples of products which are being higher and higher 
tech which, in fact, often are of great cost, but quite 
frankly, as someone who once was in the auto security market, 
we also know that manufacturers live in terror that an 
automobile that has had its airbags deployed will have a 
replacement or a bypass put on to that vehicle and ultimately 
lead to the death or injury of a passenger.
    We must legitimately balance safety concerns. We must give 
an opportunity for those safety concerns to be heard. Let's 
have no doubt, flared fenders are, in fact, here to stay.
    While I am proud to sponsor the SMART Act, a bill that will 
expand consumer choice for automobile collision repair parts, 
decrease costs for both drivers and insurers, and enhance 
competition in the automotive repair parts market, it is not a 
be-all solution. It is only a small piece of the solution that 
we have here today. By enacting comprehensive and well thought 
right to repair, we can create fair competition, sustainable 
repair ecosystems and benefit all shareholders.
    Before I recognize the Ranking Member, I want to put 
forward two principles today. One well established, the concept 
that there is a standard essential patent, well understood, and 
by this Committee within our jurisdiction. There is no similar 
history of a standard essential copyright.
    Today in discussing the right to repair, hopefully we will 
look at both of those as principles that should, in fact, 
create a balance between the intellectual property holder, the 
investment they have made, the legitimate right to return on 
their investment that they have versus the fact that there is 
often no other choice but to step directly on what one would 
claim to be a patent or a copyright if there is going to be any 
replacement part or other repair part created or installed.
    So, with that, it is my pleasure to recognize the Ranking 
Member, Mr. Johnson of Georgia, for his opening statement.
    Mr. Johnson of Georgia. Thank you, Mr. Chair, and I would 
like to begin by thanking you for bringing together experts 
from both sides of this important conversation.
    Thank you also to our witnesses for being willing to lend 
us your time and your considerable knowledge today.
    I feel privileged to serve as Ranking Member of a 
Subcommittee that supports creators and keeps our American 
innovation system strong. Together, we on this Subcommittee, 
tackle complicated intellectual property policy issues that 
have no clear solutions in an often bipartisan manner and I am 
looking forward to doing so again today.
    Right to repair is one such thorny policy issue and the 
debate over an appropriate solution encompasses issues and 
individuals far outside the scope of this Subcommittee. 
Environmentalists, economists, and antitrust experts, to name a 
few, have all weighed in on the problem and proposed solutions, 
but we are here today because the question of repairability 
incorporates intellectual property concerns as well, including, 
but not limited to, the design patent and copyright spaces.
    Repair shops, once a common feature of every small-town 
main street, have become largely a distant memory. We have all 
had the experience of having a home appliance break and 
discovering that it would cost more to fix than to simply 
replace. So, we toss the microwave oven or vacuum cleaner or 
desk lamp into the trash and head to our local store for a new 
one. Fault for the demise of repair has been leveled at changes 
in production, poorly made devices, and an absence of economic 
incentives. These charges are not for us to determine today, 
but I would note that the incorporation of software into 
everyday items from coffee makers to cars has made an already 
challenging discussion even more complicated.
    Because businesses that seek to repair these broken items 
argue that some of the laws protecting patent and copyright 
holders pre-empt them from doing so, and they say that these 
intellectual property provisions are being deployed outside 
their contemplated purpose when the laws were first enacted.
    Others assert that this argument is what we have heard time 
and time again from those who find innovation protections 
inconvenient through their industry. They remind us that 
intellectual property laws exist to encourage investment in new 
ideas.
    I am here today to listen and learn and I am looking 
forward to hearing from our witnesses how any legislative 
solutions that come before this Committee can continue to 
protect our inventors and creators while increasing consumer 
choice.
    Much of the conversation about copyright interference with 
the repair market is focused on Section 1201 of the Digital 
Millennium Copyright Act or DMCA, which prevents digital piracy 
of online copyrighted works. When the DMCA was passed in 1998, 
those of us who had access to the internet at home used a dial-
up connection. We went out and bought a CD if we wanted to 
listen to a new album and phone calls were likely made on a 
device attached to the wall by a cord.
    Conversely, today, even the most mundane devices are 
connected to the Internet of Things. The world has changed and 
with it a number of items that fall under the auspices of 
Section 1201. In a 2017 report, the Copyright Office itself 
acknowledged that Section 1201(a), its protections for access 
controls, have the potential to implicate activities far 
outside the traditional scope of copyright law. Yet, Section 
1201 contains a provision allowing for triennial exemptions 
that is designed to prevent non-copyright infringers from 
running afoul of the statute.
    I am looking forward to hearing from the assembled 
witnesses about whether the DMCA and Section 1201, in 
particular, is working as intended. The debate over right to 
repair is not limited to copyright issues. Design patents, 
particularly, design patents for component parts of a vehicle 
are often the target of considerable criticism by car repair 
experts. As we explore solutions to this and other areas of 
intellectual property concern voiced by the repair community, 
it is crucial that we keep in mind the importance of patent 
protection through innovation and seek to ensure we leave 
behind a healthy system for generations to come.
    We should all agree that there is a problem with repair 
today and when the only option is to just buy a new one, we all 
lose. Finding a solution, however, is a weightier task, but it 
is one I look forward to seeking together.
    Thank you again, Chair Issa, for holding this important 
hearing and I look forward to hearing from our esteemed 
witnesses.
    Mr. Issa. I thank the gentleman. We now recognize the 
Ranking Member of the Full Committee, Mr. Nadler, for this 
opening statement.
    Mr. Nadler. Thank you, Mr. Chair. Mr. Chair, debate over 
whether consumers and repair shops have a right-to-repair 
devices and what the limitations to that right might be has 
grown louder over the past 10 years as technological 
innovations had added complexity to our products.
    Many of the laws protecting manufacturers and preventing 
individuals from bypassing access controls or making a 
replacement part are the same statutes that protect inventors 
and creators. Intersection of the right-to-repair movement with 
intellectual property rights is naturally a delicate issue and 
I appreciate the opportunity to work toward a bipartisan 
solution that respects both consumers and creators.
    I am grateful to Mr. Issa and Mr. Johnson for bringing in 
witnesses with wide-ranging perspectives on this matter and I 
am looking forward to hearing what role they believe Congress 
should play in addressing the issue of right to repair as it 
relates to intellectual property laws.
    The battle between repair businesses and manufacturers is 
no worse public or as acrimonious as it is between car 
companies, known in this context as original equipment 
manufacturers or OEMS, and repair shops. What was once 
exclusively a fight over design patent protections for vehicle 
component parts has expanded to encompass a broader swath of 
disagreements that expand far outside the purview of this 
Subcommittee.
    Vehicles are no longer simply gas-powered engines. Cars are 
computers on wheels. Who can repair those computers and how is 
already being considered at the State level. Citizens in 
Massachusetts, for example, passed the ballot initiative 
requiring any car with a telematics system to incorporate an 
open access data system allowing any repair shop to access the 
data. In response, some car companies simply cutoff access to 
remote start and other software-powered accessories, depriving 
consumers of these features.
    Determining who should be able to access and repair vehicle 
software is anything but straightforward and we must consider 
the serious personal privacy, cybersecurity, and intellectual 
property concerns inherent in automotive right to repair. As we 
consider these complex questions, we should remember that most 
consumers just want somebody to fix their cars when they break. 
For years, for generations, Americans have taken their cars to 
a local garage when something goes wrong, a right that was 
reaffirmed by a 2014 Memorandum of Understanding between the 
repair shops and the OEMs. It is highly concerning to me that 
in spite of the 2014 MOU, rather than seeking a fix to the 
safety and cyber concerns inherent in technological innovation, 
OEMs have sought to steer customers back to dealerships and 
away from the car mechanic that they trust.
    I was glad to see the recent agreement between OEMs and 
independent repair facilities on this issue and I am looking 
forward to hearing from our witnesses about what we can do 
moving forward to address this issue to the extent that it 
overlaps with intellectual property concerns.
    Software innovation is not limited to trucks and cars and 
other motor operated forms of transportation. The onset of the 
Interned of Things has prompted new debates over intellectual 
property protections and whether access to that software should 
be granted to make repairs.
    Many of us here today have had the experience of cracking 
our smartphone screen and spending the day trying to figure out 
how quickly we can get it back up and running. Right-to-repair 
advocates argue that a customer should be able to take the 
phone to any repair shop, not just to the manufacturer and they 
argue that such consumer choice would drastically lower the 
right to the cost of repair. Moreover, they say copyright 
protections designed to protect creators are being used to 
prevent such easy fixes, not just for phones, but also for 
printer cartridges, kitchen appliances, and other typically 
non-internet connected devices. We must proceed with great 
caution when considering any changes to the copyright laws to 
ensure that the fundamental rights of creators are protected.
    American laws protect software developers by granting them 
copyright ownership over the lines of code they write and the 
software they create. Section 1201 of the Digital Millennium 
Copyright Act prohibits circumventing any measures designed to 
prevent unauthorized access to this copyrighted material. 
Section 1201 also sets forth the process every three years to 
grant certain exemptions to these access controls and I look 
forward to hearing from our witnesses on whether the consumer 
protections we need can be found within the existing 1201 
process or whether further reforms are needed.
    The solution to protecting consumers in the market for 
repairs cannot be that copyright protections and design patents 
do not matter in the United States or that they only matter 
when they are convenient. Consumer protection and consumer 
choice, however, are also important and it is incumbent upon us 
in Congress to protect innovation while ensuring that everyday 
Americans aren't left holding the bill.
    Congress does its best work when we work together across 
the aisle, and I am optimistic that this issue can be one of 
those rare opportunities in today's political environment where 
we can reach consensus.
    I look forward to hearing what our witnesses from both 
sides of the debate have to say and again, I thank the Chair 
and Ranking Member for putting this panel together today. I 
yield back the balance of my time.
    Mr. Issa. I thank the Ranking Member. Without objection, 
all other opening statements will be included in the record. It 
is now my pleasure to introduce the panel of witnesses.
    Mr. Scott Benavidez, or close to it, is the owner of Mr. 
B's Paint and Body Shop, a family owned and operated collision 
repair facility in Albuquerque, New Mexico. He is the Chair of 
the Automotive Service Association or ASA which represents and 
advocates for automotive repair industry.
    Mr. Devlin Hartline is an Intellectual Property Innovation 
Legal Fellow at the Hudson Institute's Forum for Intellectual 
Property. He previously served as an Assistant Professor at 
George Mason University, the Scalia Law School, where he taught 
a course in intellectual property law and copyright, patent, 
and trademark law.
    Professor Aaron Perzanowski, or even further from the 
accurate perhaps, Professor is a Professor at the Thomas W. 
Lacchia Professor of Law at the University of Michigan Law 
School. His courses focus on intellectual property, trademarks, 
copyrights, and the law and policy of repair. He is an author 
of three books on intellectual property including the catchy 
term, the right to repair.
    Mr. Paul Roberts is the founder of SecurRepairs, an 
organization of information technology and security 
professionals who support the right to repair. He is also the 
publisher and Editor-in-Chief of The Security Ledger, an 
independent security news website.
    Mr. Kyle Wiens is the cofounder and CEO of iFixit, a 
website and retailer that provides repair guides for consumer 
products and sells replacement parts and specialized tools, 
meaning those tools that let you reset that pesky light on your 
dash. iFixit also advocates for the right to repair and other 
legislation.
    We welcome our witnesses here today. As is the rule of this 
Committee, I would ask you all to please rise to take the oath 
and raise your right hand as tradition.
    Do you swear or affirm, under penalty of perjury, that the 
testimony each of you is about to give will be the truth, and 
correct to the best of your knowledge, information, and belief, 
so help you God?
    Thank you, please be seated. Let the record reflect that 
all witnesses answered in the affirmative.
    As you may have seen on CSPAN in the past, we will tell you 
that you have five minutes and yes, we will gavel. However, 
your entire opening statements, along with additional 
information you want to have placed in the record now or for 
the five days after this hearing, will be put in. So, let there 
be no doubt, all that you want to say will be said in writing 
if not said orally here today.
    With that, please introduce yourself so I can get your 
pronunciation exactly right, Mr. Benavidez.
    Mr. Benavidez. Benavidez. Scott Benavidez.
    Mr. Issa. OK, thank you, Scott. You are recognized.

                  STATEMENT OF SCOTT BENAVIDEZ

    Mr. Benavidez. Thank you. Good morning, Chair Issa, Ranking 
Member Johnson, and Members of the Subcommittee. Thank you for 
providing me the opportunity to testify before you today.
    My name is Scott Benavidez. I am the Chair of the 
Automotive Service Association's Board of Directors. I am also 
a second-generation shop owner from Albuquerque, New Mexico, 
Mr. B's Paint and Body Shop.
    Independent automotive repair shops are responsible for the 
majority of all post-warranty repair services in the United 
States. ASA has been a steadfast advocate for right-to-repair 
principles, the right of car owners and independent repair 
shops to access vehicle service information needed to diagnose 
and repair vehicles for decades. We take this unequivocal 
stance because our members are on the front lines of the 
vehicle data access issue, and we have been very clear. We want 
to have access to the data necessary to repair our customers' 
vehicles.
    The 1990 Clean Air Act amendments assured independent shops 
the same emission service information that was provided by 
automobile manufacturers to franchised car dealers. In 2002, 
ASA signed an agreement with automakers stipulating that 
independent automotive repair shops would have access to the 
same emissions and nonemission service information provided to 
the manufacturers' franchised dealerships.
    Since 2002, the vehicles Americans rely on have become 
increasingly sophisticated and we know that rate of innovation 
will only accelerate. The way vehicle issues are diagnosed and 
repaired, evolves in tandem with technological advancement. The 
modern vehicle is essentially a computer on wheels and just 
like a typical computer, an enormous amount of information is 
passed wirelessly to and from the vehicle. In many instances, 
our shops wouldn't be able to diagnose and fix problems our 
customers ask them to solve if they didn't have access to 
telematics.
    Car owners deserve a competitive market from which they can 
select or repair who will fix their vehicle at the best price. 
Although today automotive repairers have access to vehicle data 
necessary for repairs, our industry has been concerned about 
the path forward for obtaining data in the vehicles moving into 
the marketplace. Newer vehicle technologies with an increasing 
number of sensors will present a challenge to our shops without 
access to the repair data. That is why last week, ASA proudly 
announced that it reached a landmark agreement with the 
automakers that ensures independent repair shops can diagnose 
and repair their customers' vehicles without hindrance from 
telematics nor any other innovation.
    With regards to the SMART Act, we support a competitive 
crash part marketplace, but without additional quality 
standards, we are concerned about the impact on shops and 
consumers. Although collision shops work closely with insurers 
as part of the direct repair program, we are mindful that our 
customers' vehicles are our first priority and that these 
vehicles must be safe and satisfactory to the customer when 
they leave our shops.
    We do have concerns when some insurers insist on repairs 
that are simply cheaper and quicker without regard to quality 
and safety. Repairers understand better than anyone the threat 
of replacement crash parts or lesser quality. We can and should 
have a competitive marketplace that doesn't compromise quality 
or safety. Deciding to only cover the cheapest option without 
understanding implications for quality leaves collision shops 
and their customers in a tough position. Very few consumers 
have the knowledge about these types of crash parts used on 
their vehicles as the numerous crash parts in the marketplace 
such as OEM, original equipment manufacturer, parts certified 
aftermarket parts, reconditioned crash parts, and recycled 
crash parts. Repairers can make recommendations, but their 
customers are unlikely to adhere if the insurance won't cover 
them.
    One of the top concerns we hear from our members and others 
at collision industry events is that collision repairs 
facilities should adhere to OEM repair procedures. This doesn't 
mean that OEM parts must be used in all cases, but OEM repair 
procedures should always be followed. Adhering to the 
manufacturers' guidelines allows independent repair shops to 
assure car owners their cars were repaired to the highest 
possible standard and protects them from unjust liability. 
Assuring more imported and other crash parts in the marketplace 
with limited quality standards gives insurance companies even 
more power to mandate that cheaper parts that may or may not 
meet quality expectations be installed, while leaving car 
owners and repairers to suffer the consequences.
    We fear the absence of quality standards in the SMART Act 
could negatively impact the quality of replacement crash parts, 
parts that look the same, may differ significantly in terms of 
quality and safety. Once again, car owners and repairers stand 
to suffer the most direct injuries and repercussions.
    Thank you again, Chair Issa, for convening this important 
hearing and allowing me to share the perspective of ASA and 
independent repair shops. I look forward to answering your 
questions today.
    [The prepared statement of Mr. Benavidez follows:] 
    
    
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    Mr. Issa. Thank you.
    Mr. Roberts.

                   STATEMENT OF PAUL ROBERTS

    Mr. Roberts. Chair Issa, Ranking Member Johnson, and 
Subcommittee Members, my name is Paul Roberts and I'm the 
founder of Secure Repairs. We're an organization of more than 
350 cybersecurity and information technology professionals who 
support the right to repair.
    I'm speaking to you today on behalf of our members to make 
clear that fair access to repair materials sought by right-to-
repair laws does not increase cyber risk, and, in fact, it can 
contribute to a healthier and more secure ecosystem of smart 
and connected devices.
    Proposed right-to-repair legislation considered by this 
Congress, such as the REPAIR Act or, last session, the Fair 
Repair Act, simply ask manufacturers that already provide 
repair information and tools to their authorized repair 
providers to also provide them at a fair and reasonable price 
to the owners of the devices and to third parties that they may 
wish to hire to do the work.
    By definition, the information covered by right-to-repair 
laws is not sensitive or protected, as evidenced by the fact 
that the manufacturers already distribute it widely to 
hundreds, thousands, or even tens of thousands of workers for 
their authorized repair providers. This could be everyone from 
mechanics working at auto dealerships to the folks staffing the 
Geek Squad at Best Buy.
    Also, we have yet to find any evidence that the types of 
information covered by right-to-repair laws, like schematic 
diagrams, service manuals, diagnostic software, and replacement 
parts, act as a portal to cyberattacks. The vast majority of 
attacks on internet-connected devices, from broadband routers, 
home appliances, and to automobiles, today exploit weaknesses 
in the embedded software produced and distributed by the 
manufacturers or, alternatively, weak device configuration. So, 
they're deployed on the internet in ways that make them 
vulnerable to attack.
    These security weaknesses are an epidemic. A recent study 
of the security of the Internet of Things devices by the 
company Phosphorus Labs--they're a cybersecurity company--found 
that 68 percent of Internet of Things devices contained high-
risk or critical software vulnerabilities.
    As an example, I'd like to call attention to the work of a 
group of independent researchers recently, led by Sam Curry, 
who published a report--and you can Google this--Web Hackers v. 
The Auto Industry. In January 2023, that group disclosed wide-
ranging and exploitable flaws in vehicle telematic systems from 
16 different auto manufacturers. At a leading GPS supplier to 
major automakers, the researchers claimed to have obtained full 
access to a companywide administration panel that gave them the 
ability to send arbitrary commands to an estimated 15.5 million 
vehicles, including vehicles used by first responders--police, 
fire, and so on.
    Hacks like this take place without any access to repair 
materials, nor is there any evidence that providing access to 
repair software will open the doors to new attacks. As an 
example, a diagnostic routine that identifies a failed 
component or reveals the operating temperature of a device 
doesn't provide access to the kinds of sensitive data that 
hackers are interested in.
    We're experiencing today an epidemic of insecure, hackable 
internet-connected devices. In response to that, we really need 
a reset. For the last 25 years, Section 1201 of the Digital 
Millennium Copyright Act has given manufacturers an incentive 
to deploy software locks widely and to limit access to security 
researchers.
    That's kind of a model, what we call in cybersecurity, 
security through obscurity. In other words, by keeping the 
workings of something secret, you're making it secure. In fact, 
that doesn't work because cyber criminals are very resourceful 
and they're very determined, and they don't really care what 
the law says.
    Section 1201 has also enabled what one researcher has 
described as ``dark patterns'' in the design and manufacture of 
hardware. That includes everything from locking out customers 
from access to administrative interfaces, administrative 
features of the products that they own, as well as practices 
like ``part pairing,'' which I will talk to you more about, in 
which manufacturers couple replaceable components, like screens 
and sensors and cameras, to specific device hardware. Such 
schemes make manufacturers and their authorized repair 
providers gatekeepers for repairs and, effectively, bar 
competition from the owners of the devices, as well as 
independent repair providers.
    As the Internet of Things ages, and manufacturers gradually 
step away from their responsibility to support and maintain 
deployed products--for example, by providing software updates 
and security patches--reforms to Section 1201 and the passage 
of right-to-repair laws can nurture a market-based response, a 
diverse ecosystem of small, after-market service providers that 
will step into the shoes of OEMs, supplying needed software 
updates and security patches, and servicing and repairing 
deployed devices. Such policy changes will also foster a range 
of business and employment opportunities up and down the 
economic ladder.
    To sum up, Federal right-to-repair legislation, like the 
REPAIR Act and the Fair Repair Act, will greatly improve the 
quality of life for consumers, families, and communities, while 
promoting small business and reducing e-waste throughout the 
country.
    On behalf of our more than 350 members, I urge this 
Committee to support the passage of right-to-repair legislation 
and reforms to Section 1201 of the DMCA, and I'm happy to 
answer any questions that you may have.
    [The prepared statement of Mr. Roberts follows:]
    
    
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    Mr. Issa. Thank you.
    Mr. Wiens?

                    STATEMENT OF KYLE WIENS

    Mr. Wiens. Thank you, Chair, Ranking Member, and--
    Mr. Issa. Your microphone may need a little more help.
    Mr. Wiens. I fixed it.
    [Laughter.]
    Thank you, Chair.
    Mr. Issa. So, quickly.
    [Laughter.]
    Mr. Wiens. I can do this.
    I did a workshop with EPA, and I took their microphone 
apart for them. So, I'm accustomed to these things.
    Mr. Issa. With all due respect, normally, Mr. Massie is 
here to take care of that for all of us.
    [Laughter.]
    Mr. Wiens. Appreciate it. Thank you so much for having me. 
It's an incredible honorable.
    I have been working on this issue really since high school. 
I was working at an authorized repair shop. I was working, 
making $6.50 an hour. The entire time I was in high school, I 
saved up for a computer for college. I bought this iBook for 
$1,850, took it to college, and, of course, the first thing I 
did was dropped it on the power plug. It was just devastating. 
It was my access to doing my schoolwork.
    So, my grandfather had given me a soldering iron when I 
went to school. He thought I was studying computer science and 
I would need the soldering iron. That's not what we do; we type 
on keyboards.
    I figured I could take it apart and just fix the cracked 
solder joint. So, I started trying to take the computer apart, 
and I realized very quickly that I was in over my head. There 
were cables and wires all over the place. I was like this is 
going to be an incredible pain.
    So, I did what I think anyone would do, and I Googled for 
how to open the computer. I knew what the service manuals 
looked like. I could not find the service manual anywhere.
    So, I bumbled my way through the repair. I got the whole 
computer apart, and then, the biggest mistake that I made was I 
went to sleep and figured I'll put the computer back together 
in the morning. Without a service manual, I managed to barely 
do it, but it was really hard.
    Afterwards, I was asking myself, why was this so difficult? 
I did a little more research and I learned that the service 
manual had been online, but Apple had sent DMCA takedowns to 
every single website that hosted the manual.
    So, the manufacturers are using legal avenues to stymy 
repair. That was really the window of opportunity. Wow, this 
really is a challenge. So, ever since then, I've been fighting 
to open up access.
    I took the computer apart again. I took pictures. I wrote 
my own manual. We published it online and it's been very 
popular. Last year, 1 in 10 Americans used iFixit to learn how 
to fix something, whether it's a cell phone or a car or a 
skateboard. We help people fix a wide variety of products.
    That's really important because we have to have a resilient 
alternative ecosystem for repair. You think about, what is 
local--what is American Main Street? You have, you have a post 
office and a repair shop. Unfortunately, we've seen the 
whittling down of Main Street, as the TV repair shops went away 
when the manufacturers cutoff access to the schematics; as the 
camera repair shops went away when Nikon and Canon decided to 
stop selling them parts. We've seen this systematically across 
the economy.
    In the enterprise space, you have Oracle and IBM saying 
that you can't get security updates to critical cyber 
infrastructure unless you buy a service contract with them. So, 
they're tying long-term service contracts with the security 
updates that are necessary to keep this infrastructure secure.
    Across the industry, we've been working on right-to-repair 
legislation in a number of States in the last couple of years. 
Massachusetts passed auto right to repair. Colorado passed 
electric wheelchair and tractor right to repair. We passed a 
broad, sweeping consumer electronics right to repair in New 
York, and then, Minnesota took it one step further, adding 
enterprise electronics and appliances. So, you're seeing this 
spread across the country. California has a bill that is poised 
to pass very soon.
    As we've advanced legislation, we've heard a lot of 
objections from manufacturers. Apple claims that--they've told 
legislators that if they could fix their iPhones, they'll hurt 
themselves with the batteries.
    John Deere doesn't really seem to care about the safety of 
farmers. They say that's not a concern, fixing tractors, but 
farmers will screw up the emission systems on the vehicles, if 
they mess with them.
    The car manufacturers don't really seem worried about the 
emission systems on vehicles. They think independent mechanics 
can do that just fine, but that mechanics will stalk their 
victims; they will stalk their customers--sorry--if they have 
access to telematics data.
    The medical device manufacturers don't really seem to care 
about the privacy of patients, but they're concerned that the 
hospitals, if they can repair their own equipment, will harm 
patients. I take that one personally because, during the 
pandemic, the hospital biomed technicians were instrumental in 
keeping the fleet of ventilators in this country functional and 
working.
    Over the last decade-plus, I've been working on Section 
1201, trying to get exemptions for the ability to repair 
products. The challenge that we've had in the Section 1202 
process--every triennial I go back, and we ask for permission 
to be able to fix our own things--is that the exemptions we've 
gotten really only apply to individual consumers. They aren't 
something that I could use to make a tool to provide one of you 
to fix yourself. So, for someone to take advantage of the 1201 
exemption that we have, they have to be a cybersecurity 
researcher and able to whittle their own tools and use it 
themselves, and that just doesn't scale.
    So, across the board, across the issues, we're seeing 
solutions rolling out, but the fix that is incumbent on 
Congress really, at this point, 1201 has to be solved here; it 
can't be solved anywhere else.
    Thank you very much.
    [The prepared statement of Mr. Wiens follows:]  
    
    
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    Mr. Issa. Thank you.
    Mr. Hartline?

                  STATEMENT OF DEVLIN HARTLINE

    Mr. Hartline. Chair Issa, Ranking Member Johnson, and 
Members of the Subcommittee, thank you for the invitation to 
testify at this timely and important hearing.
    My name is Devlin Hartline and I'm a legal fellow at the 
Hudson Institute's Forum for Intellectual Property.
    I'd like to start with a question posed by the title of 
this hearing: Is there a right to repair? The answer is, 
clearly, no. A right is a legally enforceable claim against 
another, but the courts have not recognized that manufacturers 
have the duty to help consumers make repairs. Instead, the 
courts have said that, while we have the ability to repair our 
things, we also have the duty not to infringe the IP rights in 
the process. So, it is, in fact, the manufacturers who have the 
relevant rights, not consumers.
    Right-to-repair supporters want lawmakers to force 
manufacturers to make the tools, parts, and knowhow needed to 
facilitate repairs available to consumers and independent 
repair shops. The assumption here is that anything standing in 
the way of repair opportunities must necessarily harm the 
public good. These tools, parts, and knowhow are often 
protected by IP rights, such as copyrights and design patents.
    We protect copyrighted works and patented inventions 
because, as the Constitution recognizes, this promotes the 
public good. We reward creators and innovators as an incentive 
for them to bring these things to the marketplace, and the 
public benefits from the introduction of new products and 
services that increase competition.
    Thus, the right-to-repair movement isn't based on a 
preexisting right. It's, instead, asking lawmakers to create a 
new right at the expense of the existing rights of IP owners.
    There have been several bills introduced at the Federal 
level, and they, generally, take one of two approaches. So, the 
first is to rewrite the Copyright Act or the Patent Act in a 
way that directly limits IP rights. So, this is the approach 
with the SMART Act and the Freedom to Repair Act.
    The second approach is to define the normal exercise of IP 
rights as an unfair or deceptive practice to be enforced by the 
FTC. This is the REPAIR Act and the Fair Repair Act.
    Of course, the FTC already has the authority to address 
unfair or deceptive trade practices. It's noteworthy that, even 
after promising to crack down on this 2 years ago, the FTC has 
not brought such an enforcement action against a manufacturer, 
though it has brought a few actions related to warranties.
    So, I submit that the reason for this is simple. IP owners 
are merely exercising their federally protected IP rights, and 
this is not actionable anticompetitive conduct. It is, instead, 
how the IP system is supposed to work. We grant IP owners 
exclusive rights, so they can exclude others, and this, in 
turn, promotes the investments to create and to commercialize 
these creative innovations in the marketplace. That promotes 
the public good.
    As tempting as it may be to take away or limit IP rights, 
so that others can copy, and then, call that competition, I 
would urge the Members to think about whether that truly 
represents sound economic policy. The fact that the definition 
of unfair or deceptive practices would have to be changed shows 
that it's not really a competition law problem.
    I would recommend against micromanaging the free-market 
system to pick winners and losers. The market does a great job 
of sorting this out already.
    With that, I, again, thank you for the invitation to speak 
today.
    [The prepared statement of Mr. Hartline follows:]  
    
    
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    Mr. Issa. Thank you.
    Please.

                 STATEMENT OF AARON PERZANOWSKI

    Mr. Perzanowski. Chair Issa, Ranking Member Johnson, and 
Members of the Subcommittee, thank you for the opportunity to 
speak with you all today.
    My name is Aaron Perzanowski. I am a Professor of Law at 
the University of Michigan. For the last 15 years, my academic 
research has focused on the intersection of personal and 
intellectual property rights in the digital economy.
    During that time, the right to repair has emerged as a 
central challenge to the notion that we, as consumers, control 
the devices that we buy. Instead, consumers, farmers, small 
businesses all find that manufacturers exert post-sale control 
over these devices, often in ways that frustrate repair.
    Repair is as old as humanity. Our Paleolithic ancestors 
repaired hand axes and other primitive tools. As our 
technologies have grown more complex from the Bronze Age 
through the Renaissance to the high-tech devices that we all 
have in our pockets here today, repair has always kept pace.
    Today, manufacturers are employing a range of strategies 
that restrict repair--from their hardware and software design 
choices to clampdowns on secondary markets. We also, 
troublingly, see attempts to leverage IP rights as tools to 
restrict repair.
    These efforts are a major departure from the historical 
treatment of repair under the law. The right to repair is not 
only consistent with nearly two centuries of IP law in the 
United States, but it reflects half a millennium of common-law 
property doctrine that rejects post-sale restrictions on 
personal property.
    As early as the 15th century, English property law 
recognized that, once a property owner sells an item, efforts 
to restrain how the new owner of that item can use it are 
inconsistent with the essential nature of private property and 
obnoxious to public policy.
    As the Supreme Court has repeatedly recognized, IP law's 
respect for the property interest of purchases of copyrighted 
and patented goods was profoundly shaped by this common-law 
tradition. In 1850, the Supreme Court recognized that the 
repair of a patented machine reflected, quote,

         . . . no more than the exercise of that right of care which 
        everyone may use to give duration to that which he owns.

A century later, the Court held that the repair of a 
convertible car roof was justified as an exercise of, quote, 
``the lawful right of the property owner to repair his 
property.''
Just a few years ago, the Court reaffirmed the rejection of 
post-sale restrictions under patent law in Impression Products 
v. Lexmark, a case about refurbishing printer ink cartridges.
    Copyright law, not surprisingly, has had fewer occasions to 
consider repair restrictions, but, as early as 1901, the 
Seventh Circuit recognized, quote, ``a right of repair or 
renewal,'' under U.S. copyright law.
    When a publisher sued to prevent a used book dealer from 
repairing and replacing damaged components of books, the Court 
said quote,

        The right of ownership in the book carries with it and includes 
        the right to maintain the book as nearly as possible in its 
        original condition.

    A century after that, Congress itself acknowledged repair 
as a right that owners enjoy, regardless of copyright 
restrictions, when it enacted Section 117(c) of the Copyright 
Act. That provision was designed to undue a Ninth Circuit 
decision that allowed copyright holders to prevent third-party 
repairs of computers. Section 117(c) explicitly permits owners 
of machines to make copies of computer programs in the course 
of maintenance or repair.
    Finally, the U.S. Copyright Office, over the last decade, 
has repeatedly concluded that diagnosis, repair, and 
maintenance activities are noninfringing when it comes to 
vehicles, consumer devices, and medical equipment.
    So, the right to repair is firmly rooted in basic 
principles of U.S. IP law. IP law can and does continue to 
interfere with repair. Kyle talked about overbroad copyright 
claims over service manuals that limit access to crucial 
information. Section 1201 of the DMCA makes it practically 
impossible for consumers to exercise their lawful right to 
repair a wide range of devices--from tractors to home 
electronics--even though the Copyright Office says those 
activities are noninfringing. The weakening of standards for 
design patents allow firms to choke off the supply of 
replacement parts needed to repair vehicles, home appliances, 
and other devices.
    So, I thank you all for your interest and your leadership 
on this issue, and I'm looking forward to your questions.
    [The prepared statement of Mr. Perzanowski follows:]   
    
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    Mr. Issa. Thank you.
    We will now go to Mr. Fitzgerald for the first five minutes 
of questioning.
    Mr. Fitzgerald. Thank you, Mr. Chair.
    Mr. Benavidez, the May 2023 Consumer Price Index showed 
that the cost of car repairs was up almost 20 percent. The 
National Auto Dealers Association found a similar kind of 
number when new car dealerships' service and parts sales 
totaled more than $137 billion in 2022--which is, again, up 
from $125 billion in the year before.
    This could be attributed to a number of factors, including 
the inflation that we're all well aware of. Also, used and new 
car shortages; the complexity of repairs, of course, which is 
what we're discussing. Or just the labor shortage when it comes 
to maintenance technicians across all industries.
    Supporters of the chairman's bill, the SMART Act, argue 
that consumers could save as much as $500 by repairing their 
vehicle with an after-market part versus a dealer. Now, that 
seems low to me, but that's the number that we're using.
    So, Mr. Benavidez, what are your strategies when you're 
trying to deal with the part shortages and the shortage of OEM 
parts compared to the shortage of after-market parts? What is 
kind of happening on the street, I guess is what I wanted to 
know.
    Mr. Benavidez. So, through the pandemic, we had seen some 
OEM companies not have as many parts in stock as we used to. 
That has gotten significantly better.
    We support a competitive marketplace. We want competitive 
parts in our industry. If you don't have the quality and safety 
aspect in them, if you just--in the SMART Act, it says, 
``similar appearance,'' right? If that's the only thing you're 
worried about, they're not, they're not apples-to-apples.
    We put on parts every day to secure my family, your family, 
in the next accident. When those parts lack the testing and the 
credibility to be on those vehicles, that's what hurts our 
shops, right? So, we want that competitive marketplace. We just 
wanted to add quality and safety to it.
    Mr. Fitzgerald. Very good.
    Switching topics here, Mr. Perzanowski, in the Northern 
part of my congressional seat, John Deere Horicon Works exists, 
which is, for the most part, a factory that does most of John 
Deere's lawn care line. We were pleased in January to see that 
the American Farm Bureau Federation and John Deere had signed 
an MOU. Basically, the MOU guaranteed farmers and ranchers the 
right to repair their own farm equipment, and that, obviously, 
extends to other products in the John Deere line. It is still 
too early to see kind of how this MOU is going to function or 
how it would work.
    Could you explain kind of what an MOU can do in this type 
of situation, and what it does and what it doesn't do as far as 
farmers and ranchers?
    Mr. Perzanowski. Yes, that you ask the question.
    So, I think MOUs, these memoranda of understanding which 
are private agreements between stakeholders in various 
industries to abide by a certain set of contractual provisions, 
can be helpful under certain circumstances. There was an MOU in 
2014 that grew out of the Massachusetts auto repair law that I 
think has been very effective--not perfect, but effective.
    I think there are a few things that you need to see in 
these MOUs for them to be helpful in this situation, right? 
One, we need real buy-in across the industry. The MOU that was 
signed last week in the auto industry does not represent a 
significant portion of the independent repair community.
    John Deere is one company among a handful that dominate in 
the agricultural space. So, even if they agree to a certain set 
of rules, that doesn't solve the problem industrywide.
    It's really important that there is some enforceable, legal 
set of rules here, so that these things have real teeth. That's 
part of the reason things worked well in Massachusetts. When 
companies can just sign voluntary agreements that allow them to 
walk away at any point, that doesn't have a whole lot of 
meaningful enforcement behind it.
    The Deere MOU is also problematic, I think, on its 
substance. Deere agrees to provide one software tool to 
farmers, but, as a report issued today by U.S. PIRG 
demonstrates, that particular software tool is insufficient. It 
doesn't solve the problem that farmers have when it comes to 
initializing replacement parts, the part pairing issue that was 
referred to in some of the earlier statements.
    So, I think they can be a useful tool, but, oftentimes, 
frankly, I think they are designed to generate good PR and to 
confuse arguments around the need for legislation. So, I think 
we have to look at them with some skepticism.
    Mr. Fitzgerald. Thank you very much. I yield back, Mr. 
Chair.
    Mr. Issa. I thank the gentleman.
    We now recognize the Ranking Member of the Subcommittee, 
Mr. Johnson of Georgia, for five minutes.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    Professor Mr. Benavidez, Professor Hartline says that it is 
owners of property don't have a legally enforceable right to 
repair that property. Do you agree with that statement?
    Mr. Perzanowski. So, I take a different view here. So, we 
can define the notion of a right in a number of ways. I don't 
want to bore you with property theory and talk about Hohfeld 
and give people who went to law school terrible flashbacks.
    One way to think about a right is as an affirmative power 
to force someone else to engage in some behavior. In some 
cases, that is what we are talking about, right. We are talking 
about imposing, especially on the State level, regulations that 
impose requirements on manufacturers. I think that is true of 
the REPAIR Act on the Federal level as well.
    I think part of what we also need to keep in mind is that 
sometimes what you need to effectuate a right is to eliminate 
barriers that stand in the way of that right. So, we can think 
about this I think helpfully in the context of tools that 
enable people to engage in repair.
    The State-level solution has been to require manufacturers 
to give their own tools to repair shops, sometimes compensated 
under fair and reasonable terms. The other solution would be to 
change Section 1201 to say let's allow independent repair shops 
to make their own tools. I think both of those solutions have 
some value to them.
    I also think it is really important to keep in mind that 
when we are talking about IP rights, there are always multiple 
sets of interests at stake. One of the key balances that IP has 
always tried to strike is the balance between the limited 
statutory exclusive rights that the patent and copyright acts 
create and the personal property rights of consumers who own 
these devices.
    So, I think a balancing is absolutely necessary and 
appropriate.
    Mr. Johnson of Georgia. Well, tell me, what precisely do 
you recommend Congress do to limit the scope of Section 1201, 
which you seem to be advocating?
    Mr. Perzanowski. So, I think the best solution for Section 
1201 is embodied in a piece of legislation that Representatives 
Jones and Spartz introduced in the last Congress, which would 
create a permanent exception to Section 1201 for repair that 
would apply not only to the act of circumvention, but would 
also apply to the creation and distribution of tools that are 
useful for repair purposes.
    That does not open the door to broad, unrestrained creation 
of circumvention tools, but tools that are targeted to the 
repair market.
    Mr. Johnson of Georgia. Professor Hartline, what is your 
take on this discussion?
    Mr. Hartline. So, I think even the cases that my friend 
cited, the 1850 case, the Supreme Court case in Aro, they all 
make the distinction between repair, which is permissible, and 
reconstruction, where you actually recreate the patented 
device, which is not.
    So, it is definitely a right of IP owners to prevent other 
people from practicing their invention or copying their works.
    Mr. Johnson of Georgia. Do they have a right to prevent 
repair of that personal property?
    Mr. Hartline. No, no, no. So, he cited a case about where 
you can repair a cover on a book. That is very different than 
recreating the book, every single word in it, right. So, there 
is a difference between repairing something and then crossing 
the line into violating the exclusive rights of IP owners in 
the patented product or the copyrighted book.
    So, the things that repair supporters are asking for is 
that, OK, if somebody has a design patent that covers an auto 
body part, well they have the right to exclude other people 
from making that part. Repair supporters say they shouldn't 
have that exclusive right because we could increase competition 
if we just took away their design patent, and now other people 
can make that part.
    So, that is competition. That is not the type of 
competition that IP law and competition law seek to support. 
That is like saying if we just let The Pirate Bay copy and 
distribute all the Disney blockbuster movies, then that is 
competition and prices will go down. That is not the way that 
we do it, right.
    So, competition means other people come up with new 
products and new services. So, that is what we should be trying 
to support.
    Mr. Johnson of Georgia. Thank you, I yield back.
    Mr. Issa. Thank you. Mr. Bentz.
    Mr. Bentz. Thank you, Mr. Chair.
    I think I will ask this question of Professor Perzanowski. 
It is this: If you are told at the time you are buying an Apple 
product that you can only have it repaired by Apple, aren't you 
adequately informed that you will need to go to that one place, 
and indeed may have to pay twice or even three times for 
something you bought once?
    What is the justification then if you were fully advised--
no one reads that 50-page contract at the beginning, but let's 
assume by some miracle they did. Then why should the right to 
repair interfere with that full disclosure?
    Mr. Perzanowski. Thank you so much for the question. So, I 
would begin by pointing out, as you do, that consumers are 
often not informed about the terms of these sorts of 
transactions, right.
    When you are presented with a 10,000 word license 
agreement, most consumers, and I think rationally, don't engage 
with those documents. They are designed to be difficult to read 
and difficult to understand.
    So, oftentimes consumers are lacking that kind of clear 
disclosure that I think they need to make informed decisions.
    Mr. Bentz. Right, and of course I took that off the table, 
so could you re-answer the question? Because I just want to 
know if I want that Apple product badly enough to submit, if 
you will, to having to pay for it three times, then why should 
we let this right, so-called right to repair, interfere with 
that agreement?
    Mr. Perzanowski. So, I think it is important to keep in 
mind here, right, that not only do we have questions about kind 
of the adequacy of these sorts of disclosures, but one reason 
that consumers are engaging in these transactions and buying 
these products is because of consumer lock-in, right.
    A consumer who buys one Apple product is far more likely to 
buy another because those devices communicate with each other 
offer sets of features that make it hard for consumers to break 
out of those ecosystems.
    I think it is also important that in some cases it is not 
just an absence of disclosure, but it is affirmatively 
misleading promises and statements that are being made in the 
marketplace. So, John Deere has a history of saying lots of 
things--
    Mr. Bentz. I am still not sure that you are answering my 
question. What I am really trying to get at is if the 
manufacturer of the product makes adequate disclosures and the 
consumer then agrees to purchase with those disclosures in 
mind, it would then seem to me that the consumer has waived any 
right to make this repair argument.
    I am going to move to Mr. Hartline for a minute. The 
opponents to repair argue the right-to-repair laws should 
weaken intellectual property, and I think you mentioned that. A 
bunch of States have passed these right-to-repair laws.
    So, have you seen a noticeable decline in intellectual 
activity as a result of what these States are doing? It is 
going to be hard to measure, is it not? Perhaps you have an 
example.
    Mr. Hartline. Well, so there are only two States that have 
passed laws related to electronic devices, and that is New York 
and Minnesota, and neither of those laws have really gone into 
effect yet. So, we don't know what is going to happen.
    What I suspect is going is, especially in the Minnesota 
law, which doesn't have a carve-out for Federal IP protection, 
is that there is going to be litigation over that law, based on 
the idea that it is preempted by Federal copyright law and 
patent law.
    The reason is because the Minnesota law tells IP owners 
that they have to turn over their IP-protected things. Federal 
law says no, you get to keep those to yourself.
    If you don't mind, I do want to talk about the idea that 
people know going in. Like I bought an iPhone, and I didn't 
read the 10,000-word thing. The point that you are making is as 
long as there are adequate disclosures and there is no fraud on 
the public, then these are not competition issues, and there is 
just nothing wrong with it.
    Mr. Bentz. I want to go back to one of the elements of this 
discussion I was researching over the weekend, and it was the 
interest I have in knowing where the 30 months comes from and 
knowing how you measure the value of the idea and then suddenly 
say we are going to protect it for 30 months. I just, so--
    Mr. Hartline. Well, I am sorry, the 30 months in the SMART 
Act, or--
    Mr. Bentz. Yes.
    Mr. Hartline. Oh, sure. Well, I am not an economist and 
that does seem arbitrary. The term right now for a design 
patent is 15 years. I don't know how to say what the optimal 
term is, but I do think it is a bad idea to take away people's 
design patents so you can let other people make exact copies 
and then say that is innovation.
    Mr. Bentz. Thank you all for being here. I yield back.
    Mr. Issa. Thank the gentleman. We now recognize the Ranking 
Member of the Full Committee, Mr. Nadler, for five minutes.
    Mr. Nadler. Thank you, Mr. Chair.
    Mr. Benavidez, I was deeply concerned to see the original 
equipment manufacturers react to the Massachusetts right-to-
repair ballot measure by suspending access to telematic 
accessories for vehicles sold in the State. How will the recent 
agreement between repair shops and OEMs affect consumer choice 
going forward?
    Mr. Benavidez. Thank you, Congressmen.
    Mr. Nadler. Are you concerned that we will end up with a 
patchwork of State laws governing right to repair?
    Mr. Benavidez. This agreement with the OEMs is great for us 
because we are going to, finally, get to put to the rest the 
fact that we don't have information, right, that we weren't 
able to get information.
    So, this is an agreement that we have worked on for a while 
to make sure that we have access to all information, including 
telematics in anything coming forward. It is in there that the 
commitment for both parties to support legislation if it needs 
to get there, but we would like this thing to stand on its own.
    This agreement has been needed for some time. We stand on 
the front lines of repairing these vehicles. We need this data, 
and we have this data. Right now, we have zero repair shops 
asking us, hey, we don't have the data, we can't get the data, 
we don't know how to fix it. We don't have that right now, 
Congressman.
    Mr. Nadler. How will this recent agreement affect consumer 
choice?
    Mr. Benavidez. What it will do is make sure that the 
consumer has the right to take it to a shop that has this 
access and can repair these vehicles properly. The consumer is, 
I don't want to say it--the consumer, when they come to my 
facility, the consumer does not know a lot about the choices 
that we get and what we have to do behind the scenes.
    They do not have that--they do not have that understanding. 
They look to us. They only get in an accident once every eight 
years. So, they rely on us to have that information. They rely 
on us to repair those vehicles properly.
    Mr. Nadler. Thank you. Mr. Roberts, same question. Same 
question.
    Mr. Roberts. In regarding to what impact that will have on 
repair?
    Mr. Nadler. How will the recent agreement between repair 
shops and OEMs affect consumer choice going forward, and are 
you concerned that we would end up with a patchwork of State 
laws governing the right to repair?
    Mr. Roberts. Well, first, the agreement, as was mentioned, 
does not represent the vast majority of after-market service 
providers and therefore is mostly performs a sort of public 
relations role rather than a functional role in terms of how 
the after-market will work.
    Is there concern about a patchwork of laws? Well, I think 
for consumers who are bending and breaking under the cost of 
high vehicle repairs and struggling to maintain their vehicles, 
they would rather have a State law than no law at all.
    So, I think yes, of course, from everybody's perspective it 
would be better to have one Federal law that applies across the 
country.
    Mr. Nadler. Thank you. Mr. Hartline, repair advocates argue 
that Section 1201 prevents noninfringing circumvention of 
access controls for repair purposes. Congress contemplated this 
use when it passed the DMCA in 1998, allowing for a triennial 
exemption process.
    Is the exemption process working as intended? If not, are 
there actions Congress can take to expand exemptions or make 
them easier to acquire?
    Mr. Hartline. So, what is important about the triennial 
rulemaking is that the proponent of an exemption has to come 
forward with evidence and demonstrate that there is actually a 
problem, and it relates to a certain class of works. Then they 
can get a temporary exemption for three years.
    So, it is true that the Copyright Office, well, the 
Librarian of Congress has the last--the few rulemakings has 
said that because using a copyrighted work in a way for repair, 
maintenance, etc., is fair use, that they grant the exemptions.
    These exemptions are quite narrow. They do not allow the 
trafficking of the computer programs that can crack the TPMs. 
So, it is very narrowly done.
    The concern is that if you were to create a permanent 
exemptions that opens things all the way up with access 
controls, copy controls, and trafficking thereof is now you are 
getting to the point of why we even have these TPMs under 1201 
in the first place. That is because they guard against piracy.
    So, the concern is that you are opening the piracy 
floodgates. You make these devices less secure, and then 
content owners are going to be less likely to want to put their 
content on these devices.
    Mr. Nadler. Thank you. Mr. Chair, my time has expired. I 
yield back.
    Mr. Issa. I thank the gentleman. We now go to Mr. Cline.
    Mr. Cline. I thank the Chair for holding this substantive 
and stimulating hearing.
    I had a farm conference yesterday with the secretary--or 
the Chair of the Ag Committee, and it is timely we are having 
this hearing today. Because in January of this year, the Farm 
Bureau Federation and John Deere signed an MOU that purports to 
guarantee farmers and ranchers the right to repair their own 
farm equipment.
    So, right now, we are kind of in a wait-and-see mode, but 
it is very interesting that it is kind of across industries.
    I will ask Professor Perzanowski how does Section 1201 of 
the DMCA impact the ability of consumers and independent repair 
shops to modify or repair devices that have proprietary 
software and data in the consumer electronics industry?
    Mr. Perzanowski. Thank you so much for the question. As we 
have been talking about the Copyright Office, in 2015, 2018, 
2021, and they are in the process for the current rulemaking, 
has determined that engaging in circumvention, the removal or 
bypassing of these digital locks for purposes of repair is 
perfectly lawful behavior.
    There is a major practical mismatch here between the legal 
rights that consumers enjoy under Federal law today and their 
practical ability to exercise those rights. That is because, as 
Devlin was just describing, the Section 1201 rulemaking does 
not extend to the creation or distribution of tools, right.
    So, I have the right under Federal law to remove the 
technological locks, say, on my video game consul if I want to 
swap out a broken disk drive. How do I do that? I like to think 
of myself as a pretty technologically sophisticated person. I 
don't have the first clue about how to do that. I need a person 
who can write that code, make that code available to consumers 
so that I can.
    All I am trying to do is swap out a broken disk drive on my 
video game.
    Mr. Cline. You would argue that code is proprietary, 
correct?
    Mr. Perzanowski. So, I am talking here about a third party 
making their own code, right, that is simply allowing me to 
engage in activity that the Copyright Office has repeatedly 
said is noninfringing, but I--
    Mr. Cline. You want to give them a map, is that 
essentially--
    Mr. Perzanowski. Absolutely, yes, I do.
    Mr. Cline. Do trade secrets play a role in the right-to-
repair debate?
    Mr. Perzanowski. There are occasions where trade secrets 
are important. I don't think in the context that we are talking 
about here with Section 1201 that we are typically running into 
trade secret issues. The State-level bills that have been 
introduced do typically address trade secrets and often have 
carve-outs there, and I think that is something worth 
considering in this debate.
    I think it is important to keep in mind that like just 
because we have some hypothetical worry about some unknown bad 
actor taking a tool that I use to fix my video game console--
    Mr. Cline. Well, it is not unknown, the Chinese do it all 
the time.
    Mr. Perzanowski. I don't think the Chinese are particularly 
worried about whether or not I can fix my video game console. 
In fact, I think that point is important.
    The bad actors already have these tools. All we are trying 
to do is get very targeted tools in the hands of law-abiding 
citizens who just want to repair the stuff they buy for their 
kids for Christmas, right. If the Chinese are going to hack the 
PlayStation, they have already done it.
    Mr. Cline. What role does the Library of Congress and 
Register of Copyrights have in granting exemptions to Section 
1201, and how does this process relate to right to repair?
    Mr. Perzanowski. So, the 1201 process is what established 
the legality of circumvention for repair purposes. When 
Congress created that rulemaking authority, it only extends to 
the act of circumvention, right, the actual removal.
    Congress did not give the Office or the Librarian the 
authority to grant exemptions to the trafficking provisions, 
and that is where I think legislative intervention is really 
important.
    Mr. Cline. Do you think State-level right-to-repair laws 
are having a positive or negative or just a complicating impact 
on ensuring that we safeguard IP protections for original--for 
OEMs, while also allowing consumers to repair their own 
products?
    Mr. Perzanowski. So, I think right now it is probably too 
early to say exactly what impact those State laws have had. 
Like this is all very new.
    I think we can say with some confidence that in a State 
like Colorado, which enacted a motorized wheelchair right-to-
repair law, that has had major practical advantages for folks 
who rely on those devices. They were waiting around for weeks 
and weeks and weeks for authorized repairs, and now they have 
the opportunity to have those devices that they rely on fixed 
in a more timely manner.
    The longer-term consequences, I have my own predictions, 
but I don't think I can say with confidence what that landscape 
looks like today.
    Mr. Cline. Thank you. I yield back.
    Mr. Issa. I thank the gentleman. We now go to the 
gentlelady, Ms. Ross, for five minutes.
    Ms. Ross. Thank you, Mr. Chair. Thank you to all the 
witnesses for your perspectives.
    This hearing provides an important opportunity for all of 
us to learn more about the right to repair and the role of 
intellectual property in the equipment that we purchase. The 
issues we are discussing today clearly are complex and involve 
numerous industries with different sorts of patents. Your 
perspective might be different based on the industry and the 
type of patent involved.
    Ultimately there may be no one-size-fits-all solution for 
repair, particularly given that some misrepairs could 
jeopardize the health and safety of users while others would 
not. For that reason it seems to me that regulations that 
govern, say, the repair of an airplane or an X-ray machine 
should differ from the regulations for the repair of ordinary 
household appliances or even maybe a computer.
    So, I want to ask a question first to Mr. Perzanowski and 
then Mr. Hartline after him. My district is home to many 
medical device manufacturers, and they are on the front lines 
of innovation. I want to make sure we encourage research and 
development while safety repairing machines when they break.
    So, should there be a different repair standard for 
lifesaving equipment versus for an everyday household item?
    Mr. Perzanowski. Thank you so much. It is a really 
important question. I think safety and security have to be 
important concerns any time we are talking about repair, 
regardless of who is making those repairs, whether it is an 
independent shop or an authorized provider. I think you are 
absolutely right; those risks are more salient when we are 
talking about medical devices.
    To the extent we are concerned about those issues, I don't 
think IP law is the right set of tools to use to ensure high 
quality repairs. Volkswagen held all the IP rights in its 
Dieselgate vehicles. Abbott held all the IP rights when they 
had to recall half a million pacemakers.
    So, I don't think the identity of the IP rights holder is 
what is going to get us to safe and secure repairs. So, I think 
the question is how do we do that? That is, frankly, it is 
beyond my expertise, but I would turn to the real experts here.
    The FDA issued a report in 2018 that concluded that 
independent repair of medical devices is safe and effective. I 
haven't seen evidence that runs to the contrary there. If I do, 
I am certainly open to it. I do think we have to have a really 
important conversation outside of the IP context about how we 
make sure that these repairs are safe.
    Ms. Ross. Who's responsible if they are not.
    Mr. Perzanowski. Absolutely.
    Ms. Ross. Mr. Hartline, briefly, because I do have another 
question.
    Mr. Hartline. Yes, thank you. So, I agree with medical 
equipment, that is when it is more important than ever that the 
right people are doing the repairs.
    So, we saw in the recent rulemaking at the Library of 
Congress that there was an exemption granted temporarily for 
medical equipment, and now there is a lawsuit that is at the 
D.C. Circuit right now, whether you know. It is kind of about 
whether it is a good idea, but it is mostly about whether it 
violates the APA.
    What I would say is there is absolutely nothing wrong with 
manufacturers parlaying their IP rights into repair 
opportunities. This is how they get more money, and they can 
invest that money, more R&D, more investment, more innovation.
    So, this is just part of a business model that IP supports, 
and there is absolutely nothing wrong with it. The benefit is 
the right people are fixing it.
    Ms. Ross. Thank you. Mr. Wiens, I wanted to talk to you. I 
loved your story. I would like you to share with us whether you 
think that there are any cyber security implications for the 
right to repair.
    Mr. Wiens. Across the board, the question is who should we 
be able to inspect what is happening with these devices? What 
we have found is that when you have access to some amount of 
repair information, it makes information available to cyber 
security researchers, who are able to do better work.
    We have found, I write software, iFixit, has had 
vulnerabilities in the past. We work directly with researchers, 
and they give us feedback and we improve it and we fix those 
problems.
    So, when you have a little bit of sunshine on what is 
happening, that enablement of security research is really 
profound. We have actually talked about one of the challenges 
with Section 1201, it doesn't just ban repair tools, it also 
bans the distribution of cyber security tools.
    So, we have seen security researchers--Apple sued a company 
that made a security research tool under 1201. That tool has 
markedly made the world more secure. It is very popular among 
government security researchers.
    So, I think that is kind of the sweet spot, is allow some 
third-party inspection, it will make the product better.
    Ms. Ross. Thank you. Mr. Chair, I yield back.
    Mr. Issa. Thank you and thank you for your round of 
questioning. Mr. Fry.
    Mr. Fry. Thank you, Mr. Chair.
    It is July in South Carolina, and people are flocking in 
from all over the country to vacation. I will tell you 
something, that one of the most profound disappointments in 
life is when you go to a McDonald's or other fast-food 
establishment and you want to get a cold ice cream, an ice 
cream on a hot summer day, and your hopes and your dreams are 
dashed because the machine is broken.
    Who, and I know this is kind of out of order, but who here 
has experienced that? Show of hands.
    [Show of hands.]
    Mr. Fry. Pretty much everybody, unanimously, right.
    So, you are disappointed because it is hot and you assume 
two things, one of two things. You assume that the employees 
don't want to make the ice cream, or you assume that the 
franchisee doesn't want to provide that because of something.
    In reality, according to Mr. Wiens, your op-ed, it goes 
much deeper than that. There are 1201 Section issues that 
pertain to this on who can fix the machine so that customers 
like me can get that great frosty from Wendy's or McFlurry from 
McDonald's.
    Real quickly, Mr. Wiens, just you know, and, Mr. Chair, 
with unanimous consent, I would like to enter into the record 
Mr. Wiens' op-ed, ``Congress Is Preventing Us from Fixing 
McDonald's Ice Cream Machines.''
    Mr. Issa. Without objection, so ordered.
    Mr. Fry. Now, I think it is really important, and Mr. 
Fixit, if you can, can you elaborate on how current 
restrictions on the right to repair affect the average 
consumer, and particularly touch on the cost and the 
convenience for the consumer.
    Mr. Wiens. Well, first let me say it is not the poor 
McDonald's employees' fault. It is the machine's fault.
    So, these ice cream machines are made by Taylor, and there 
is an incredibly complex, baroque set of touch screens you have 
to go through. Then there is a service password you have to be 
able to get past to access the settings that really allow you 
to do what you want.
    So, in an ideal world, you would have an entrepreneur who 
would come along and make a tool to make it easier for 
McDonald's. Maybe they could, they have an app on their phone 
that they could use and configure and help them diagnose and 
repair the machine. Unfortunately, the company who made that 
tool is struggling legally because of all these challenges.
    Across the board, if we had innovation outside of the 
manufacturers to be able to develop new tools for fixing ice 
cream machines or anything else, you have a whole flowering 
ecosystem of repair tools. Right now, it doesn't exist.
    The U.S. is like this black hole where innovation in banned 
in software repair. I can't--there's all kinds of opportunities 
I could see. I had a farmer ask me for help fixing his John 
Deere tractor, and I had to say I can't do that particular 
repair because it is illegal.
    I would love to build a cool app for helping him diagnose 
and fix his tractor and get back in the field faster. We don't 
have that marketplace right now. It is like farmers have been 
forced to like use cracked Ukrainian versions of John Deere's 
diagnostic software.
    Mr. Fry. Right, so it is not, again, it is not just ice 
cream machines. I led off with that, but it is farmers, it is 
farm equipment, it is iPhones, it is somebody's Xbox, right.
    These are all things--in your experience, what are the 
challenges that these customers and stakeholders face when they 
are trying to repair their own devices? What are some things 
that they face?
    Mr. Wiens. It is absolutely infuriating. If you are--OK, so 
my friend, a farmer in San Luis Obispo, Dave grows all kinds of 
amazing produces. He has a $300,000 John Deere tractor.
    Came to me and said hey, there is a bad sensor. It is going 
to take a week to get that sensor sent out from Indiana and I 
need to use the tractor in that time. Will you help me bypass 
the sensor?
    I could hypothetically modify on the software on the 
tractor to do that. Practically I didn't have the legal 
ability. So, he had to go and rent an expensive tractor for the 
week. This is impacting people's lives every single day.
    Mr. Fry. Right, so and to pivot a little bit, what role do 
you use from a Federal side from legislation, and what specific 
measures do you think might be included in such legislation?
    Mr. Wiens. So, we have seen kind of the solutions being 
approached from two angles. At the State level, you have States 
saying John Deere and other manufacturers, if you have a 
dealership that has fancy tools, sell those tools to consumers 
and to independent shops, allow that competition.
    At the Federal level what we can is enable a competitive 
marketplace for those tools. So, rather than compelling John 
Deere to sell the tool, we could say hey, it is legal for 
someone, an entrepreneur, to make a competing too. You have 
this in the car market.
    You can take your car down to AutoZone and you can buy a 
scan tool, plug it into your car, and it will decode some of 
the error messages. Those tools exist in the auto market 
because we have a standard diagnostic interface on cars that 
you can access without circumventing a DPM. We don't have that 
for any other products.
    So, another farmer in my town, he showed me how if he has a 
transmission go out on the truck, he can fix that. If has a 
transmission go out on his John Deere tractor, he can't. He can 
physically install the transmission, but he can't program it to 
make it work. I would love to be able to make a software tool 
to enable him to replace his transmission.
    Mr. Fry. Thank you. Mr. Chair, I yield back.
    Mr. Issa. Thank you. We now go to Ms. Lofgren for her round 
of questioning.
    Ms. Lofgren. Thank you very much, Mr. Chair.
    As I have listened to this testimony and the questions, a 
couple of things come to mind. First, what we are looking at, 
and you and I have talked about, is relief for design patents 
in automobiles has nothing to do with utility patents. I just 
thought it was important to note that.
    Then as to adequate disclosure, I remember when we were 
talking about this in the 1990's, a situation where a nonprofit 
had put a, on like page 25 of their disclosure, if you have 
read this far, we will give you $1,000. No one collected the 
thousand dollars. So, it is not really, most of these are not 
meaningful disclosure.
    I just think it is important to go back to 1998--only the 
Ranking Member and I were here at that time--and what we were 
trying to do with the DMCA. At the time, we were concerned, and 
I think rightly so, that there was theft of copyrighted 
material, songs, movies, and the like.
    The protection that was being advanced was to preclude 
hacking into that copyright-protected material with TPMs. I was 
for that. I thought that was a good idea because that piracy 
was improper and wrong, and this was a way to solve it.
    At the time, though, I remember raising the issue, what if 
these TPMs are going to be used to protect noncontent and we 
ought to address that. We didn't come to an agreement on that. 
The compromise was to have the Copyright Office revisit this 
periodically for relief, should that occur.
    I think it has been pretty clear that process has not 
worked perfectly well. For them to pay attention to something, 
there has to be a huge stink in the country. For example, the 
monopolies on cellphones. People were upset about it; we had a 
hearing about it.
    So, finally, they dealt with that. Other monopolies, we 
didn't do TPMs so monopolies could control products. That was 
never the intent.
    So, I think the process didn't really work as had intended, 
and the process has to do with the lack of scope, as well as 
tools. We left the tool part out when we did the DMCA.
    So, I guess the question is, and maybe Professor, you could 
address this, could we craft a measure that allows for tools to 
disable TPMs when the TPMs are being used not for content 
protection, as was intended, but to promote essentially 
monopolies through products. Is there a way to do that?
    Then the other thing is cyber security, is there a way to 
narrowly define an exemption for cyber security? Because that 
would be very helpful for society at large, and by the way, I 
think would help reform the CFAA, which Congressman 
Sensenbrenner and I tried to do a number of years ago. We 
didn't get any traction, but the misuse of the CFAA for 
legitimate researchers continues to be a problem.
    Can you suggest ways that we could narrowly craft a change 
that would still protect content holders?
    Mr. Perzanowski. Thank you so much for the question. I am 
little reluctant to try to start drafting statutory language on 
the fly.
    Ms. Lofgren. Fair enough.
    Mr. Perzanowski. I think the point you raise is a really 
important one. I think that the previous proposals about 
creating new statutory exemptions for repair purposes go a long 
way to limiting the scope of Section 1201 beyond the kind of 
entertainment content that was originally Congress's goal to 
protect. I completely agree with your kind of recounting of 
that story.
    There are existing statutory exemptions in Section 1201 
that I think can serve as a useful model. They are very narrow. 
I would like to see some of those expanded. They go to 
encryption research, security testing. There is a law 
enforcement exemption.
    I think looking at the existing language can be a helpful 
model for a repair exemption, and also for addressing some of 
those cyber security concerns that you--
    Ms. Lofgren. At the time that we wrote it, we weren't 
really envisioning the red hat movement that we see today and 
the utility that that has provided for more secure software. We 
did the best we could, but it was 1998 and a lot of things have 
changed since then.
    Mr. Chair, my time has expired, but I am hopeful that we 
can address this issue. Protect the content that we always 
wanted to protect, but let people own the things they thought 
they owned, instead of finding out that it is only a lease.
    I yield back.
    Mr. Issa. I thank the gentlelady.
    I now ask unanimous consent for the record that the 
documents from the National Association of Mutual Insurance 
Companies; documents concerning the new YouGov poll, it is a 
one-pager; the YouGov poll release itself; the SMART Act white 
paper; the REPAIR Act white paper; the Vehicle Suppliers 
Association documents; and the attached documents and a 
compilation of letters in opposition to the announced MOU for 
groups representing more than 200,000 repair shops of the ASA--
I'm sorry, ASA representing 201,000 shops total--be placed in 
the record; and a survey that demonstrates strong support for 
Federal vehicle right-to-repair legislation be placed in the 
record.
    Without objection, it is all in. We now go to the 
gentlelady, Ms. Lee, for her questioning.
    Ms. Lee. Thank you, Mr. Chair, for hosting this important 
hearing today and for your leadership on this issue. I am proud 
to join with you in this subject.
    I would like to being with returning to you, Professor 
Perzanowski, on this question. Obviously, one of our concerns 
is the rising cost of repairs when coupled with the rising cost 
of vehicles, how this affects consumers.
    I would like for you to talk with us about the effect that 
you anticipate passage of the SMART Act might have on insurance 
rates for consumers, and whether it is something we anticipate 
a decrease in rates, lower costs as parts and repairs become 
more accessible for consumers.
    Mr. Perzanowski. Thank you so much for the question. So, I 
think if we see passage of the SMART Act, we can anticipate 
significant reductions in the expenses associated with auto 
collision repairs. Estimates are that design patents on 
collision parts are responsible for about $1.5 billion in 
additional expenditures.
    We see price premiums on OEM parts over third-party parts 
often reaching into like the 40 percent range, right. So, these 
are pretty significant cost savings associated with that.
    Part of this problem I think does relate back to the kind 
of unique structure of this market. Most consumers are not 
paying out of pocket for collision repairs. Those costs are 
being covered by their auto insurance provider.
    So, the consumer doesn't see that the--I am pulling this 
from memory, so don't hold me to this figure--but the side view 
mirror of a Ford Fiesta costing $1,500.
    That is not something that the consumer is confronted with, 
right. So, this goes back to the question of notice. Do 
consumers know when they buy that vehicle that the repairs are 
going to be that expensive? I think in most cases they don't.
    So, I think the SMART Act is a very targeted solution to 
this problem. I do think it is important to note that the 
design patent issue for replacement parts is not limited to the 
automotive industry. I think it is the most I think that is the 
area where the problem is most pressing.
    Home appliances, consumer electronics. We see companies 
getting design patents on replacement water filters for 
refrigerators so that they can charge three times as much when 
the little light comes on your fridge to tell you that your 
water might not be as clean as you want it to be.
    So, I think we have to think about that problem across a 
range of industries. The automotive industry I think is 
absolutely the right place to start.
    Ms. Lee. All right, and staying with the automotive 
industry and the concept of the SMART Act, would passage of the 
SMART Act in your view promote entry into the repair market of 
more mom-and-pop or independent shops? If so, how would that 
advantage the end consumer?
    Mr. Perzanowski. So, I think in an environment where 
consumers are facing lower costs for repairs and fewer vehicles 
are being totaled, right. One of the byproducts here of the 
high prices of these replacement parts is more and more 
vehicles are being totaled.
    So, we would see more opportunity for competition in those 
marketplaces. Generally, right, we rely on this principle that 
the more competition we see, the lower prices are going to be 
and the higher quality is going to be. So, I think that is 
beneficial.
    Ms. Lee. Mr. Roberts, you look like you had something to 
add there.
    Mr. Roberts. No, not really. I think that what Aaron said 
is correct, which is, one of the key goals of right-to-repair 
legislation is to promote a vibrant ecosystem of service and 
repair.
    One point I would just make is that with the internet of 
things, right, we are going to facing a crisis in the very near 
future as manufacturers of everything from home appliances to 
personal electronics to equipment, as those products age and 
those manufacturers walk away from their responsibility to 
maintain them.
    So, we are no longer supporting the software. We are no 
longer issuing security updates. Who will step in to maintain 
those devices, keep them secure, keep them operating, right.
    The manufacturers walked away, do we just get rid of them? 
No, because the equipment still works perfectly. We are going 
to need a market-based response to that. We are going to need 
small businesses to step up and say hey, I will keep that 
Samsung dishwasher working for another 20 years.
    That is a huge economic opportunity for this country, but 
we cannot do it in the existing system because of the types of 
restrictions that we are talking about.
    So, this is really about enabling a secure future in which 
when you buy a dishwasher with a 20-year lifespan or 25-year 
lifespan, it is going to last those 25 years, not the five to 
six years that the manufacturer has decided that is how long we 
want to support the software for.
    There are cyber security implications for that as well, 
obviously.
    Ms. Lee. Thank you. Mr. Chair, I yield back.
    Mr. Issa. I thank the gentlelady. We now go to the 
gentlelady, Ms. Dean.
    Ms. Dean. Thank you, Mr. Chair. I thank the Ranking Member 
and you both for bringing us this thoughtful hearing. I thank 
those who have come to testify for your thought-provoking 
information and expertise.
    Mr. Benavidez, I was interested in talking with you because 
I am a little nostalgic. My grandfather, Bill Dean, had a 
garage in Germantown, Philadelphia, part of Germantown, 
Pennsylvania. Dean's Auto. His slogan was ``The dean of them 
all, we repair everything, the dean of them all,'' something 
like that.
    How he advised me when I bought my first used car. I bought 
a Mazda RX-7 used. I think it had the pop-up lights and an 
electric--it was a gray car--rotary engine, remember? An 
electric antenna.
    He warned me, he said, ``Mad, when you do that, you are 
going to wind up with more repairs.'' More gadgets, more 
repairs. Well, that didn't stop me. I loved the car; it was a 
lot of fun.
    I was thinking of you. Bring us up to speed. If my 
grandfather were here today, what is it like in your repair 
shop, your body shop, your repair shop, with the challenges 
that come in as a result of a vehicle breaking down or being 
backed into, whatever it? What has happened in the last 10-20 
years?
    Mr. Roberts. Thank you, Congresswoman. You would be 
astounded at what we face on a daily basis.
    We are dealing with more crash parts, more electronics, 
more lane departures, more--I see that guy in the commercial 
and he is clapping his hands as he is driving that vehicle. I 
have to put that vehicle back on the road after it gets in an 
accident so he can clap again as he goes down the road.
    It is very difficult. It is a scary business to be in. 
Sometimes I go to industry events, and I come back to my dad, 
who is still working at the shop, and say, ``Dad, this might be 
time for us to get out of this.'' Because it is scary how--and 
put my kids in the car, put your kids in the car.
    We have lane warnings and we have departures that--we have 
automatic breaking now that we have to make sure is correct. 
There is an emblem inside the Toyota at the front of the Toyota 
that is a radar emblem. If we don't put the correct emblem on 
that vehicle, that car can get in accident again, quickly, 
right as it leaves my shop.
    It is very disturbing, what we have to go through.
    Ms. Dean. So, essential to you, for your peace of mind and 
your ability to do your job well, is the repair data, very 
transparently. Is that correct?
    Mr. Roberts. Absolutely. It is the one thing we count on. 
From when it comes into my shop, we look up repair data to fix 
the vehicles. When we check it in to get it to the repair 
inside the shop, we look at the repair data.
    When we give it to my technician, we look at the repair 
data. When it gets out of his hands, we look at the repair 
data. When we return it back to the customer, we have to scan 
it again and make sure we look at that repair data.
    So, we are constantly needing that data to repair those 
vehicles.
    Ms. Dean. Thank you very much. Mr. Wiens, in your written 
testimony, you concluded,

        A robust repair market creates and expands job opportunities in 
        the United States, keeps reusable, repairable products out of 
        the waste and recycling streams, and gives consumers more 
        options for what to do with a malfunctioning product.

I am in favor of all those things. How do you respond to the 
suggestion that the right to repair is harmful to U.S. 
businesses, is harmful to content creators?
    Mr. Wiens. Well, I don't think the right to repair has much 
to do with content creators. It really is, it is a balance 
between big business and small business. The question is who 
gets to decide what happens with our things. Who gets to decide 
at every step of the way.
    I have worked a lot with Apple products over the years, and 
Apple's perspective is that they want to be the one to decide. 
Right now, Apple has a repair program, but you have to do a 
repair, you have to give them your serial number ahead of time, 
and they like decide, they basically give explicit permission.
    When the repair tool phones home to Apple and says can I do 
this repair, Apple says, ``yes, the serial number is 
authorized, and they allow just that repair.''
    If I wanted to do that same repair on that phone the next 
day, I wouldn't have permission. So, small businesses need the 
ability to innovate.
    I am going to be, tomorrow I am going to be at a repair 
shop in Minnesota called re:power, where they take 
disadvantaged folks who didn't have economic opportunities, 
they use iFixit guides. They train them to do repairs. They are 
taking discarded electronics, fixing them, and selling them in 
the community.
    Ms. Dean. All right, interesting. Thank you, I yield back.
    Mr. Issa. I thank the gentlelady. We now go to the 
gentleman from California, Mr. Kiley.
    Mr. Kiley. I yield back to the Chair.
    Mr. Issa. Yielding to the Chair, I will use that time.
    Today we are primarily talking about Section 8, Clause 8. I 
will read it because it is short. ``Patent and copyright 
clause.'' It says,

        The Congress shall have the power to promote the progress of 
        science and useful arts by securing for a limited time to 
        authors and inventors the exclusive right to their respective 
        writings and discoveries.

    Mr. Hartline, I am going to start with you. On a design 
patent, what is the discovery?
    Mr. Hartline. Well, so a design patent is a new, original--
    Mr. Issa. It is an ornamental statement--
    Mr. Hartline. Ornamental design.
    Mr. Issa. Is it true that the United States is one of the 
few countries that actually recognizes ornamental designs for 
purposes of a 15-year exclusion?
    Mr. Hartline. I am not familiar with international patent 
law, I am sorry.
    Mr. Issa. OK, well, let's just say--
    Mr. Hartline. It has been recognized here for over a 
century.
    Mr. Issa. Right, we have had them for a period of time. 
They have had different periods and so on. Because they are 
ornamental in nature, does each part have to be uniquely 
ornamental, or does the Patent Office, to your knowledge as a 
professor, do they grant it based on what appears to be a 
distinctive, different design than the one that came in the day 
before?
    Mr. Hartline. I am not a design patent law expert. When I 
taught patent law, I covered utility patents. I skipped design 
patents, so.
    Mr. Issa. I don't blame you, because design patents 
historically basically prevent your competitor from making a 
deceptively similar product. Would you all agree? I see the 
heads nodding.
    So, much of the discussion today is, in fact, on protection 
that is granted by design patents. Much of what we are looking 
at doing is to modify, enhance, or define design patents in a 
way in which they do not exclude six, or seven, or eight years 
later that faded headlight that can no longer be polished to be 
usable from costing you $1,500-$2,500 each to replace something 
that used to be available at the auto parts store for about six 
bucks.
    Mr. Roberts, you are shaking your head. Why don't you opine 
on that, if you don't mind.
    Mr. Roberts. Yes, you make a really good point, Chair Issa. 
I think the point here is to focus on the downstream impact of 
these policies.
    One thing I would point out, again, and hashtag not a 
lawyer and also not in the auto business. My understanding is 
the use of design patents has increased dramatically, even 
exponentially in the last 10-15 years.
    If you go back to the 90's or 80's, parts makers, auto 
makers were not applying these types of patents to replaceable 
parts like bumpers and rear-view mirrors. Somebody had a 
business decision that if you can do so, then we can capture 
more of that aftermarket by outlawing identical after-market 
replacements.
    That has a huge downstream impact on car owners and on 
insurers and on all of us. So, yes, I think you make a really 
valid point.
    Mr. Issa. Well, in the time Mr. Kiley has yielded me, I am 
going to ask one more question that is salient to all this, and 
that is we haven't talked much about True Parts.
    I happen to have one of Coparts, one of the major companies 
that recovers automobiles. Totals them out, resells them, 
exports them, any number of uses. Generally, they are receiving 
it from an insured in a total-out.
    Now, historically, the founder of that company started off 
cutting parts off Dodge and Chryslers and selling to people who 
then put them onto their vehicle and kept it running.
    Today many of those items, and I will start with Mr. Wiens, 
many of those items, because of the DMCA as it is presently 
interpreted, when you take the authentic transmission, the 
authentic radio, the authentic product off of a near-identical 
make or model of a car, or for that matter, going further even 
though that is not their business, an IBM computer, a Dell 
computer, whatever.
    To put these two original, authentic products back together 
again, you need software, which is not provided, and which is 
being withheld. Is that correct?
    Mr. Wiens. That is correct. If I take a brand-new iPhone 
14, and I have two of them, and I swap the screens between 
those, you don't get full functionality back. You are missing a 
number of key features.
    I included in my written testimony a chart of the increase 
in these parts pairing over time. So, we got our start doing 
exactly what your constituent did. We would disassemble laptops 
and sells the parts. That is increasingly hard to do.
    We took a MacBook Pro, we took screens between of them, and 
it just didn't work without a software tool that Apple makes. 
Of course, I would like to maybe be able to make an alternative 
software tool to Apple's, but I can't right now.
    Mr. Issa. Mr. Hartline, you have been quite an advocate 
today for some of these issues, perhaps in opposition to what 
we are proposing.
    Would it surprise you to know that, for example, IBM buys 
used parts back from companies that supply them to keep very 
old IBMs with important software on them, such as the IRS, when 
they no longer make them, while at the same time opposing, 
opposes allowing that same company to sell them to companies 
that are not using their ``maintenance,'' remembering that the 
maintenance is not IBM making the parts, but in fact buying 
them off the market?
    How do you reconcile that within the questions of what I 
said, which was this intellectual property question that we are 
looking at modifying to create a better right-to-repair market?
    Mr. Hartline. So, I am not familiar with the IBM story, in 
particular, but what it sounds like to me is you have got 
somebody who has IP protection because they created something 
new, something useful, etc., and what do they get? They get a 
right to exclude.
    So, they can use that right to exclude to create business 
relationships and to increase their profits, which they in turn 
use on R&D and we get more innovation.
    Mr. Issa. My time has expired. I would cite for all of us 
that the first use and sale doctrine said,

        You have given off those very rights when you sell those two 
        IBM products that now are trying to be merged.

With that, we will go to Mr. Ivey.
    Mr. Ivey. Thank you, Mr. Chair. I want to take a minute to 
commend you for this hearing. I greatly appreciate the 
opportunity to look at actual legislation that can make a 
difference in the lives of the American people and thank you 
for doing this work.
    I did want to followup, Mr. Roberts, that you had a point 
about I guess companies potentially walking away from repair 
obligations. What struck me is pretty important, but I hadn't 
really heard much about how to address that. You discuss the 
issue.
    Are there ways to fix that problem? Then the sort of 
inversion of that I suppose is them not walking away, but the 
capture scenario that the Chair just mentioned, where you sort 
of buy up the items so that they can't be used again for 
resale?
    Mr. Roberts. So, I mean obviously my background and 
expertise here is around issues in cyber security, so I will 
defer to some of the other panelists on some of the legal and 
market issues.
    What I would say is that both of the things that we are 
really proposing or talking about here, which would be changes 
to Section 1201 of the DMCA, as well as passage of robust 
right-to-repair laws, would empower a market-based response to 
keeping the internet of things working, secure, and 
functioning.
    The DMCA 1201 reforms, by making it clear that you can 
circumvent software locks for the purpose of repair and 
maintenance and upkeep, right. So, that would take the threat 
of the Federal crime away from small business owners as well as 
security researchers who are interested in plumbing that 
software for purposes of maintenance, upkeep, and repair.
    On the right to repair, by making the tools available to 
maintain and upkeep products, diagnostic software, schematic 
diagram service manuals available, once again, you will be 
empowering small business owners to set up repair shops and say 
I am going to keep your smart appliance running for its full 
25-30-years lifespan.
    I am going to support my family doing that locally and not 
be basically choked out of business by a company that says, 
well, you don't have the right to access this product.
    From a cyber security perspective, that is really 
important, because one thing we don't want is a population of 
millions or tens of millions of out-of-date, unsupported, 
unpatched, insecure, internet-connected home appliances, 
webcams, home routers out there available to Nation-State 
actors, cybercriminal groups to compromise and use for their 
own purposes.
    That is something we already see, particularly around 
broadband routers and other types of devices. It is a real 
threat going forward that I think these types of changes would 
support.
    Mr. Ivey. Anyone else on the panel want to take a crack at 
that?
    Mr. Wiens. Sure, we need to find a way to get these devices 
secure. I like to call the internet of things the internet of 
outdated Linux distributions.
    It is old software. The LG's website says that you should 
check for security patches for your refrigerator every other 
month. Then the manufacturers often are not following up, they 
are not spending the resources.
    We see how often do you get updates for an Android phone? A 
couple years and then the manufacturers stop doing it.
    Google with their Chromebooks, we see schools--I heard 
about a school yesterday that had 20 pallets of Chromebooks 
that they bought during the pandemic for their students that 
they are having to throw away because they can't get security 
updates for them anymore.
    We need to find a way to make these things last longer. 
Sometimes it is incumbent on the manufacturer. We should talk 
about maybe asking them to make security updates available 
longer.
    At some point also we need to take the ownership on 
ourselves and allow the rest of us to maintain it and patch 
these devices. We do not have permission right now to patch the 
devices. It wouldn't be legal for me to make a tool to break 
the lock on those Chromebooks to allow a school district to use 
them longer.
    Mr. Ivey. Thank you. Mr. Chair, I yield back.
    Mr. Issa. I thank the gentleman. We will now go to the 
gentleman from Colorado for five minutes.
    Mr. Neguse. I thank the Chair.
    First and foremost, let me echo the sentiments of my 
colleague from Maryland in terms of thanking the Chair and the 
Ranking Member for hosting this important hearing, which I 
think is substantive and concerns an issue for which there 
seems to be an emerging bipartisan consensus. So, I think that 
the Chair is very thoughtful in terms of putting this hearing 
together.
    Of course, I thank all the witnesses for their testimony, 
both the written testimony and their testimony today verbally.
    My home State, I represent Colorado in the U.S. Congress. 
As you all know, and I believe it has come up once or twice 
here, that Colorado has been a leader in this regard with 
respect to right to repair.
    Last year, our State proudly enacted the right to repair 
for powered wheelchairs. This year the State legislature acted 
yet again, by enacting the first right-to-repair legislation 
for agricultural equipment, a really big deal for the farmers 
and ranchers that I represent in Northern Colorado and 
Northwest Colorado. They are critical steps, in my view, to 
protect consumers, improve innovation, spur economic growth.
    I am hopeful that other States will emulate the model that 
Colorado has adopted. Of course, we can take some lessons 
learned as well here in the U.S. Congress, and potentially 
pursue this at the Federal level.
    There are many of you who have worked on this. I want to, 
perhaps, start with you, Professor Perzanowski, because I know 
that you played an active role, my understanding, in supporting 
Colorado's State efforts for right-to-repair legislation.
    I wonder if you might be able to expound a bit on the 
benefits for our farmers, in particular, in the agricultural 
context?
    I have listened to some of the debate. I am a lawyer, so 
was a Chief Regulator in Colorado for many years, so appreciate 
the very academic and almost esoteric debate that we have been 
having in the context of IP patent law, and the different 
theories as to whether or not it permits the kind of right-to-
repair legislation that we have enacted at the State level.
    I would like to kind of cut through all that and get to the 
core of why we are here, which is it is a big deal for our 
farmers. It is going to have a profound impact on many of my 
constituents. I wonder if you might be able to offer your 
thoughts, Professor?
    Mr. Perzanowski. Sure. Thanks so much.
    In a lot of instances this conversation, and we have 
touched on this earlier, focuses on cost savings. Right? Cost 
savings are an important consideration. Right? Farmers aren't 
thrilled that they have to pay a technician from the John Deere 
dealer to drive maybe hours to get to their farm and connect 
their laptop and to download these payload files to enable 
their equipment to work.
    In the agricultural space the thing I hear most often in 
the conversations I have with farmers is--and Kyle touched on 
this a bit earlier--a real concern about the time sensitivity 
of their work.
    If your tractor is out of commission for a week or two in 
the wrong part of the season, that is going to have disastrous 
effects, right, not only on that farm's economic outlook, but 
collectively it can have an impact, not to be hyperbolic here, 
but on our national food supply.
    So, it is really important that farmers have flexibility in 
terms of where and how they execute repairs, so that they can 
get their equipment back up and running.
    If my laptop breaks and I can't get it fixed for a week or 
two, I am annoyed. There will be emails that go unanswered. The 
world will continue to spin. That is not the case in the 
agricultural space where we have to be much more concerned.
    Mr. Neguse. Thank you, Professor. I couldn't agree with you 
more.
    I wonder, perhaps you can talk about this in the context, 
and perhaps this has come up previously, of repair manuals. Do 
you think repair manuals are copyrightable material?
    Mr. Perzanowski. That's a great question.
    So, I think the copyright in a repair manual, to the extent 
it exists, is incredibly thin. Right? So, copyright law does 
not protect facts. It does not protect ideas. It does not 
protect systems or processes. So, if you look at most repair 
manuals, they are describing in very plain, literal language, 
step-by-step processes for interpreting error codes or 
replacing a component part.
    So, I am pretty skeptical of the copyright claims that we 
see there. There has not been a whole lot of litigation around 
repair manuals. There was a case involving Gulfstream where the 
court determined that the copying and distribution of those 
repair manuals was a fair use. I think that is the right way to 
resolve that.
    Mr. Neguse. I see my time has expired. So, I will simply 
say, with the Chair's indulgence, that I am a champion for the 
free market. I believe firmly in the competitive marketplace.
    I think the solutions we are discussing today and will 
continue to discuss after today, the conclusion of today's 
hearing, are about supporting the free market and ensuring that 
IP and copyright law is not so distorted that we lose the 
forest for the trees. Because a lot of Americans out there, to 
the extent they are watching this hearing, are wondering how in 
the world a repair manual for a tractor, for a household 
consumer item could somehow be construed as such through a 
legal doctrine to as preclude a consumer, a farmer, a citizen 
to be able to repair that product.
    So, with that, I yield back, Mr. Chair, my time.
    Mr. Issa. I thank the gentleman.
    I now recognize the Ranking Member for a unanimous consent.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    I have a letter from Consumer Reports, a letter from the 
Alliance for Automotive Innovation, a letter from the Center 
for Democracy and Technology, and a letter from the 
Intellectual Property Owners Association which I ask to enter 
into the record with unanimous consent.
    Mr. Issa. Without objection, so ordered.
    I now recognizing myself in closing a little bit here my 
round of questioning.
    We have had a lot of discussion. I want to try to bring a 
couple of items back.
    I talked earlier about two authentic parts that are not 
able to be put together without a third-party tool. Of the five 
of you, does anyone defend the authentic parts, bought and paid 
for by one or more individuals, from being continued to be 
used, used and put back together, somehow as a right of the 
manufacturer to prohibit this?
    Anyone? Mr. Hartline, I had hoped that you might.
    Mr. Hartline. You were looking at me.
    So, I am trying to understand. So, this is a 
reauthentication thing? So, like--
    Mr. Issa. Exactly. As Mr. Roberts said--I think it was Mr. 
Roberts, if I take, if I take this phone, which has a dying 
battery which needs replaced--
    Mr. Hartline. Yes.
    Mr. Issa. --and my other phone, which has a cracked screen, 
and I go in and say, could you make one of them work for me, 
please? Put the good battery in with the good display, or vice 
versa. Both have a chip interface designed to stop them from 
being put in.
    As a matter of fact, even though the battery is authentic, 
if I simply put it into a different one it will tell me and it 
will give me an error code saying it is not an authentic 
battery every time.
    I love Apple. I have consumed a tremendous amount of their 
products. That is deliberately designed, even with authentic 
parts, to prohibit the reuse.
    Mr. Hartline. There is a lot of business reasons why they 
do it, including security. I know that used to be you put your 
thumb on the thing to open it up. So, they wanted to make sure 
that people weren't able to replace it to break into people's 
phones. All of our personal information is in the phones.
    I understand that Apple, in particular, you don't have to 
go to the Genius Bar anymore. Right? They have a repair 
program. They will actually send you the parts. They will sell 
you the parts. They will send you the tools. It is the exact 
same tolls that the guys in the Apple store have; right?
    Mr. Issa. Wait a second. The only question--
    Mr. Hartline. Yes.
    Mr. Issa. --before us is whether it is Apple--and I don't 
want to talk about Apple, particularly,--
    Mr. Hartline. Yes.
    Mr. Issa. --because each of these companies is different. 
If I remove from my BMW, at least during certain models, I 
remove the radio, unplug it, and then plug it back in simply 
because I was fiddling around with the dash, I now have to go 
back to the dealer to reinstall it.
    Similarly, the transmission example, authentic tran--I have 
got two John Deere tractors, one has got a busted engine, the 
other has got a busted transmission. Currently, they will 
prohibit you from moving the transmission from one to the 
other.
    From a standpoint of intellectual property, where in God's 
green Earth, or the Constitution, are any of those designed to 
be rights that belong to the manufacturer rather than rights 
that belong to the owners of those two John Deere tractors?
    Mr. Hartline. So, those are a bunch of different 
situations. So, I think there would be underlying facts that 
differ with each. Right?
    So, we started on the iPhone. I was going to point out that 
iPhone will actually give you the tool to synchronize it.
    Mr. Issa. Yes.
    Mr. Hartline. In those other situations, I don't the 
business justification for it. If it is not an IT problem, how 
is that an IT problem? Right?
    So, if that is locked up with the TPM and you have to 
bypass the TPM, well, then that is the violation of 1201. So, 
that is how they can, that is how they can lock--
    Mr. Issa. So, what you are saying is that Congress has 
created an impediment to the right to repair.
    Mr. Roberts, would you say that is correct, that in fact 
the right to repair, were Congress never to have done anything 
since George and Thomas were our Presidents, so to speak, 
knowing those two presidents, we would be able to do things we 
are not able to do because they are now prohibited by acts of 
Congress?
    Mr. Roberts. Yes.
    We certainly know, going back to the fifties, sixties, 
seventies there was a much more; first, companies would ship 
products with service and repair manuals with schematic, 
detailed schematic diagrams, with the understanding that owners 
would want to replace and service them.
    What I would say is, yes, absolutely, I doubt very much--
and I know we had Members who were here in 1998 authoring the 
DMCA--I think if you had said to them, in 25 years' time this 
law will be used to prevent somebody with a broken dishwasher 
from getting that serviced by their local repair shop or by 
fixing it themselves. This law will prevent them from doing 
that.
    I doubt very much they would have said, yes, that is pretty 
much what we want.
    Mr. Issa. Yes. I will tell you that I was the Chair of the 
Consumer Electronics, what is now the Consumer Electronics 
Association in 1998, and we did predict a lot of these items 
were going to be expanded beyond the scope of the original.
    I have got just two, two closing quick questions. Oh, and 
then the Ranking Member has a couple questions.
    Constructive abandonment. Is there anyone that disagrees 
that when a company takes, for example, its copyright and 
simply abandons it. The historic intent, not codified in law, 
but historic intent is that if you abandon your copyright such 
as you no longer make the instruction manuals available, or 
your firmware updates simply are no longer posted, or your 
company goes out of business, in fact, even though today from 
time to time there is content, is there anyone that doubts that 
this should be a protected right to the consumer to be able to 
get that now obsolete or unavailable data?
    Seeing none, I will take that as the first full agreement 
of the day.
    The last one is, there anyone that doesn't believe in the 
first use document, that if I buy authentic product that I 
should be able to use and reuse it? That any attempt to turn a 
piece of equipment into a brick simply because it transferred 
from Owner A to Owner B is inherently wrong under the many 
traditions and laws of the United States?
    I will take that as agreement No. 2.
    I am now told to say the following: I have introduced a 
bill under discussion, the SMART Act, H.R. 1707, which would 
help solve the problems of limited access to parts. My 
colleague Dr. Dunn of Florida has introduced the REPAIR Act, 
H.R. 906, which would help solve an issue, limited access to 
basic repair and maintenance and data in your vehicle.
    The question is, would you commit today to work with us, 
each of you on the panel, in advancing those bills and making 
such changes as would make them acceptable to all of you?
    [Affirmative nods.]
    Mr. Issa. I see yeses. So, I will take three in a row.
    I now recognize the Ranking Member.
    Mr. Johnson of Georgia. Thank you, Mr. Chair.
    This question is to both Mr. Benvanidez--Benavidez, I am 
sorry, and Mr. Roberts.
    The 2014 Memorandum of Understanding between the original 
equipment manufacturers and the repair associations guaranteed 
that the OEMs would provide the same service information and 
tools to independent repair shops as they do their franchise 
dealers.
    How has this agreement worked in practice?
    Do you believe we need Federal legislation on the right to 
repair?
    Mr. Benavidez. We would hope that it would stand on its 
own, our agreement with the automakers. We are not against 
legislation if it adheres to this agreement.
    We do not, right now, have any shops clamoring for data. We 
just don't have it. We get it from the 2014 Amendment.
    We get this data now. We use this data every day. We are 
able to repair these vehicles with that data.
    Mr. Johnson of Georgia. Thank you.
    Mr. Roberts?
    Mr. Roberts. We urgently need a Federal version of the 
Massachusetts law, the Repair Act.
    First, Mr. Benavidez is right, right now this is not an 
urgent issue because most of the cars out there are older 
vehicles. As we move forward, as telematic systems evolve, as 
automakers continue their trend of moving more and more 
information to telematic systems, this is going to become a 
bigger problem.
    I will point out another problem, which is the 
Massachusetts law is contingent on data transfers of diagnostic 
and repair information via the OBD, or onboard diagnostic-II 
port, under the dashboard. That is only there because of the 
Federal Clean Air Law.
    Electronic vehicles don't have that port because they don't 
have emissions. So, in the very near future as we shift to 
electronic vehicles that data access port will no longer be 
there. It will all be telematics data. So, the utility of the 
Massachusetts law is going to decline over time going forward.
    Again, when you start talking about right to repair you 
become like this crazy person who talks about right to repair 
every time it comes up. One thing I try and stress to people 
when I talk to them about auto repair is if you live in 
Michigan or California and you have taken your vehicle to the 
local independent repair shop, you have only done that because 
the voters in Massachusetts passed a ballot measure over a 
decade ago, and then updated it in November 2020.
    That is the very thin thread that our right to use 
independent auto repair hangs by in this country. That is not 
the way it is supposed to be.
    This is something that affects vehicle owners, hundreds of 
millions of them in all 50 States. It is the type of thing that 
the Federal Government needs to address with Federal 
legislation. It should not hang by this very thin thread.
    Mr. Johnson of Georgia. Thank you.
    Professor Hartline, are software updates new creations and, 
thus, copyrightable?
    Mr. Hartline. Software updates, yes. They are computer 
programs and Congress said explicitly in 1980, but it was 
understood before then, that computer programs are literary 
works, and they are protected just like any other copyrighted 
work.
    Mr. Johnson of Georgia. Thank you.
    Mr. Professor Perzanowski, do you disagree?
    Mr. Perzanowski. I don't disagree at all that software 
updates are protectable subject matter under the Copyright Act.
    What I think is important to keep in mind, right, is the 
Copyright Act, and copyrights, exclusive rights, and all the 
exceptions and limitations to copyrights, exclusive rights, are 
created by Congress. So, if you think those rights are 
interfering with other important issues and concerns, then I 
think Congress has, clearly has the power to make changes to 
the copyright law to best serve what you ultimately determine 
to be in the public interest.
    Mr. Johnson of Georgia. Thank you.
    I yield back.
    Mr. Issa. Thank you.
    I am going to followup just very briefly on that.
    Mr. Hartline, you said that it is a right. We already 
talked about abandonment. Let's leave the abandonment alone for 
a moment.
    Copyright is not a right to exclude, as you know. For the 
most part, copyright you get a reasonable fee or license. If I 
have a piece of music, I don't inherently have the ability to 
stop people from performing and the like. So, we understand it 
is different than patent in the sense of the right to exclude 
is not traditional.
    Let me ask you an important question: If I give away my 
software to every single person. I put it online and allow you 
to update it. I even push it through to try to encourage you. 
Matter of fact, I make it to where it is a nuisance to use your 
iPhone if you haven't updated because it is going to give you 
the red thing. If I do all of that, have I in fact, to a great 
extent, made my copyright a public domain for purposes of 
authentic users of the material using it at their own pleasure, 
for example, that iPhone 8-10, the archived copyright when 
Apple no longer updates?
    Mr. Hartline. So, I disagree with your premise, 
respectfully, that copyright is a right to exclude. Right? We 
can exclude other people from making copies, from distributing 
copies, from performing, and from displaying.
    I understand what you are saying. If you are putting out 
these software updates and people download them, the person who 
created those things is not giving up their rights because you 
have to distinguish between the copy, which the recipient gets, 
and then the copyright, which the copyright owner has.
    Mr. Issa. I understand. You don't, nobody gets ownership of 
the original text, software, and the like. The fact is that if 
you give free to many, do you give free to all?
    Mr. Roberts, you were shaking your head perhaps a little 
differently.
    I would like to close this off by having people answer that 
basic question of if you are a company, and we will leave 
company names aside, but you make VOIP phones, and you push 
through not only the original firmware, but all the updates for 
months or years, and then a hypothetical, the transfer of that 
product, they simply say, well, you no longer own that. Is that 
really consistent with the existing law, recognizing that we 
have the right to change law, but even under existing law?
    Mr. Roberts. I think it is unclear. I am not a lawyer, so I 
don't want to weigh in on that.
    All I would say is that the cost to society of 
manufacturers being able to reach beyond the point of sale and 
exert that type of control on sale and reuse of their products 
is very high for consumers. From a cybersecurity standpoint 
presents many problems in terms of maintaining, again, a secure 
ecosystem of deployed devices that are internet connected.
    Mr. Issa. OK. My last closing statement was my opening 
statement. We all understand that there is what we call a 
standard patent, one which you do not have the right to exclude 
but, rather, because it has been put into use as a standard 
essential patent, it therefore is entitled to reasonable 
royalties, but not to exclusion.
    Who would like to make the case that an equally standard 
essential copyright should not and does not effectively exist 
when it becomes essential to the continued operation of a 
product, or even when that copyright becomes part of the 
standard? Who would like to argue against it?
    Yes?
    Mr. Perzanowski. So, I think this idea of a standard 
essential copyright is getting at something really important. 
Right? Access to firmware and other code is really essential to 
the functioning and repair of lots of devices.
    I think there are some important differences between the 
standard essential patent context and what we are talking about 
here is that the standard essential patent context we are 
relying on standard-setting bodies to identify technologies, 
and to require companies to license their patents under fair, 
reasonable, and nondiscriminatory terms.
    We don't quite have that infrastructure in place in the 
copyright context. What we do have are compulsory licenses that 
exist within the Copyright Act already, one of which you were 
alluding to earlier, the mechanical license for musical works.
    We also have compulsory licenses for retransmissions of 
satellite and broadcast content that essentially say the 
copyright owner is entitled to compensation of some form, but 
they are not entitled to prevent people from using or accessing 
that underlying work.
    That could be a useful framework here for getting owners of 
devices access to the firmware that they need.
    Mr. Issa. Well, and that is to be continued, as you can 
imagine.
    This concludes today's hearing. I want to thank our 
witnesses for not only being here but staying into overtime.
    Without objections, all Members will have five legislative 
days to submit additional written questions for the witnesses, 
and additional materials for the record.
    With that, we stand adjourned. Thank you.
    [Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]

    All materials submitted for the record by Members of the 
Subcommittee on Courts, Intellectual Property, and the Internet 
can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent 
.aspx?EventID=116230.

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