[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 [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] Available via: http://judiciary.house.gov _________ U.S. GOVERNMENT PUBLISHING OFFICE 53-108 WASHINGTON : 2023 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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:] [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT] 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. [all]