[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
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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?
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Tuesday, July 18, 2023
House of Representatives
Subcommittee on Courts, Intellectual Property, and
the Internet
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, the Hon. Darrell Issa
[Chair of the Subcommittee] presiding.
Members present: Representatives Issa, Fitzgerald, Bentz,
Cline, Kiley, Lee, Fry, Johnson of Georgia, Nadler, Neguse,
Ross, Lofgren, Dean, and Ivey.
Mr. Issa. The Subcommittee will come to order. Without
objection, the Chair is authorized to declare a recess at any
time.
We welcome everyone here today to this hearing on the right
to repair. I will recognize myself for an opening statement.
Thank you all for being here today and for advancing a
better understanding of the critical issue for consumers, for
business, and for the overall economy, and as you might hear me
say repeatedly today, and for the environment.
This hearing marks a unique opportunity for Members of the
Subcommittee to come together to learn the positions of all
sides of the right-to-repair ecosystem that this Subcommittee
has jurisdiction over. It is clear that this Subcommittee lacks
jurisdiction in antitrust which will be taken up by another
Committee, but it is that combination of the power of those who
object to the right to repair and those who for various reasons
have an interest in seeing reliable, low cost, predictable
parts to be available from multiple sources whenever possible.
As I will say throughout the day and we will see throughout
the day, these topics are passionate debate among the various
stakeholders and that is an understatement including
manufacturers, independent repair shops, environmentalists, and
consumers.
As we explore the importance and need for right-to-repair
legislation, it is critical that we consider all perspectives
and to ensure a balanced and effective solution. When I say
that there is an importance for Federal legislation, I say so
in no small part because States are finding solutions on their
own and a patchwork of 40-50 separate solutions leads to
confusion and, in fact, to a lack of exactly what we are hoping
to have which is protection for the manufacturers and their
copyrights and patents and an opportunity and an effective way
to have safe replacement parts available to all.
Let there be no doubt, the right to repair the product that
you have purchased is a fundamental principle that individuals
and businesses should not, under any circumstances, have any
doubt as to where the bright lines are in their rights. From
smartphones to home appliances to the firmware on cars, there
is today doubt. The doubt is State by State, product by
product. Many companies have a long tradition of after-market
products. I will take, for example, if you have a CJ Jeep.
There are so many places you can buy so many parts and in fact,
the mystique of that World War II derivative product and its
success and longevity of more than half a century relies on the
fact that you cannot only buy a new vehicle today, but you can
buy a 40- or 50-year-old vehicle and there are a plethora of
parts available. That same company markets other products that
today they would have you believe you should not have the same
choice you have in that iconic vehicle. Hopefully, we will
bring up some of those ambiguities between the after-market and
the manufacturers today.
The right to repair is about empowering consumers,
promoting competition, and extending innovation. It can be a
key; it can be a key driver of growth and prosperity. Right to
repair fosters consumer choice and freedom to enable consumers
to protect their investment and to extend the lifespan of their
product and devices. It is a fundamental consumer principle.
The hearing is also an opportunity to hear and learn from
those with questions and concerns and we need to hear from
them. The right to repair does have to be balanced with a deep
and legitimate concern for safety. I think there can be no
better example than of the factory-equipped airbags. These are
classic examples of products which are being higher and higher
tech which, in fact, often are of great cost, but quite
frankly, as someone who once was in the auto security market,
we also know that manufacturers live in terror that an
automobile that has had its airbags deployed will have a
replacement or a bypass put on to that vehicle and ultimately
lead to the death or injury of a passenger.
We must legitimately balance safety concerns. We must give
an opportunity for those safety concerns to be heard. Let's
have no doubt, flared fenders are, in fact, here to stay.
While I am proud to sponsor the SMART Act, a bill that will
expand consumer choice for automobile collision repair parts,
decrease costs for both drivers and insurers, and enhance
competition in the automotive repair parts market, it is not a
be-all solution. It is only a small piece of the solution that
we have here today. By enacting comprehensive and well thought
right to repair, we can create fair competition, sustainable
repair ecosystems and benefit all shareholders.
Before I recognize the Ranking Member, I want to put
forward two principles today. One well established, the concept
that there is a standard essential patent, well understood, and
by this Committee within our jurisdiction. There is no similar
history of a standard essential copyright.
Today in discussing the right to repair, hopefully we will
look at both of those as principles that should, in fact,
create a balance between the intellectual property holder, the
investment they have made, the legitimate right to return on
their investment that they have versus the fact that there is
often no other choice but to step directly on what one would
claim to be a patent or a copyright if there is going to be any
replacement part or other repair part created or installed.
So, with that, it is my pleasure to recognize the Ranking
Member, Mr. Johnson of Georgia, for his opening statement.
Mr. Johnson of Georgia. Thank you, Mr. Chair, and I would
like to begin by thanking you for bringing together experts
from both sides of this important conversation.
Thank you also to our witnesses for being willing to lend
us your time and your considerable knowledge today.
I feel privileged to serve as Ranking Member of a
Subcommittee that supports creators and keeps our American
innovation system strong. Together, we on this Subcommittee,
tackle complicated intellectual property policy issues that
have no clear solutions in an often bipartisan manner and I am
looking forward to doing so again today.
Right to repair is one such thorny policy issue and the
debate over an appropriate solution encompasses issues and
individuals far outside the scope of this Subcommittee.
Environmentalists, economists, and antitrust experts, to name a
few, have all weighed in on the problem and proposed solutions,
but we are here today because the question of repairability
incorporates intellectual property concerns as well, including,
but not limited to, the design patent and copyright spaces.
Repair shops, once a common feature of every small-town
main street, have become largely a distant memory. We have all
had the experience of having a home appliance break and
discovering that it would cost more to fix than to simply
replace. So, we toss the microwave oven or vacuum cleaner or
desk lamp into the trash and head to our local store for a new
one. Fault for the demise of repair has been leveled at changes
in production, poorly made devices, and an absence of economic
incentives. These charges are not for us to determine today,
but I would note that the incorporation of software into
everyday items from coffee makers to cars has made an already
challenging discussion even more complicated.
Because businesses that seek to repair these broken items
argue that some of the laws protecting patent and copyright
holders pre-empt them from doing so, and they say that these
intellectual property provisions are being deployed outside
their contemplated purpose when the laws were first enacted.
Others assert that this argument is what we have heard time
and time again from those who find innovation protections
inconvenient through their industry. They remind us that
intellectual property laws exist to encourage investment in new
ideas.
I am here today to listen and learn and I am looking
forward to hearing from our witnesses how any legislative
solutions that come before this Committee can continue to
protect our inventors and creators while increasing consumer
choice.
Much of the conversation about copyright interference with
the repair market is focused on Section 1201 of the Digital
Millennium Copyright Act or DMCA, which prevents digital piracy
of online copyrighted works. When the DMCA was passed in 1998,
those of us who had access to the internet at home used a dial-
up connection. We went out and bought a CD if we wanted to
listen to a new album and phone calls were likely made on a
device attached to the wall by a cord.
Conversely, today, even the most mundane devices are
connected to the Internet of Things. The world has changed and
with it a number of items that fall under the auspices of
Section 1201. In a 2017 report, the Copyright Office itself
acknowledged that Section 1201(a), its protections for access
controls, have the potential to implicate activities far
outside the traditional scope of copyright law. Yet, Section
1201 contains a provision allowing for triennial exemptions
that is designed to prevent non-copyright infringers from
running afoul of the statute.
I am looking forward to hearing from the assembled
witnesses about whether the DMCA and Section 1201, in
particular, is working as intended. The debate over right to
repair is not limited to copyright issues. Design patents,
particularly, design patents for component parts of a vehicle
are often the target of considerable criticism by car repair
experts. As we explore solutions to this and other areas of
intellectual property concern voiced by the repair community,
it is crucial that we keep in mind the importance of patent
protection through innovation and seek to ensure we leave
behind a healthy system for generations to come.
We should all agree that there is a problem with repair
today and when the only option is to just buy a new one, we all
lose. Finding a solution, however, is a weightier task, but it
is one I look forward to seeking together.
Thank you again, Chair Issa, for holding this important
hearing and I look forward to hearing from our esteemed
witnesses.
Mr. Issa. I thank the gentleman. We now recognize the
Ranking Member of the Full Committee, Mr. Nadler, for this
opening statement.
Mr. Nadler. Thank you, Mr. Chair. Mr. Chair, debate over
whether consumers and repair shops have a right-to-repair
devices and what the limitations to that right might be has
grown louder over the past 10 years as technological
innovations had added complexity to our products.
Many of the laws protecting manufacturers and preventing
individuals from bypassing access controls or making a
replacement part are the same statutes that protect inventors
and creators. Intersection of the right-to-repair movement with
intellectual property rights is naturally a delicate issue and
I appreciate the opportunity to work toward a bipartisan
solution that respects both consumers and creators.
I am grateful to Mr. Issa and Mr. Johnson for bringing in
witnesses with wide-ranging perspectives on this matter and I
am looking forward to hearing what role they believe Congress
should play in addressing the issue of right to repair as it
relates to intellectual property laws.
The battle between repair businesses and manufacturers is
no worse public or as acrimonious as it is between car
companies, known in this context as original equipment
manufacturers or OEMS, and repair shops. What was once
exclusively a fight over design patent protections for vehicle
component parts has expanded to encompass a broader swath of
disagreements that expand far outside the purview of this
Subcommittee.
Vehicles are no longer simply gas-powered engines. Cars are
computers on wheels. Who can repair those computers and how is
already being considered at the State level. Citizens in
Massachusetts, for example, passed the ballot initiative
requiring any car with a telematics system to incorporate an
open access data system allowing any repair shop to access the
data. In response, some car companies simply cutoff access to
remote start and other software-powered accessories, depriving
consumers of these features.
Determining who should be able to access and repair vehicle
software is anything but straightforward and we must consider
the serious personal privacy, cybersecurity, and intellectual
property concerns inherent in automotive right to repair. As we
consider these complex questions, we should remember that most
consumers just want somebody to fix their cars when they break.
For years, for generations, Americans have taken their cars to
a local garage when something goes wrong, a right that was
reaffirmed by a 2014 Memorandum of Understanding between the
repair shops and the OEMs. It is highly concerning to me that
in spite of the 2014 MOU, rather than seeking a fix to the
safety and cyber concerns inherent in technological innovation,
OEMs have sought to steer customers back to dealerships and
away from the car mechanic that they trust.
I was glad to see the recent agreement between OEMs and
independent repair facilities on this issue and I am looking
forward to hearing from our witnesses about what we can do
moving forward to address this issue to the extent that it
overlaps with intellectual property concerns.
Software innovation is not limited to trucks and cars and
other motor operated forms of transportation. The onset of the
Interned of Things has prompted new debates over intellectual
property protections and whether access to that software should
be granted to make repairs.
Many of us here today have had the experience of cracking
our smartphone screen and spending the day trying to figure out
how quickly we can get it back up and running. Right-to-repair
advocates argue that a customer should be able to take the
phone to any repair shop, not just to the manufacturer and they
argue that such consumer choice would drastically lower the
right to the cost of repair. Moreover, they say copyright
protections designed to protect creators are being used to
prevent such easy fixes, not just for phones, but also for
printer cartridges, kitchen appliances, and other typically
non-internet connected devices. We must proceed with great
caution when considering any changes to the copyright laws to
ensure that the fundamental rights of creators are protected.
American laws protect software developers by granting them
copyright ownership over the lines of code they write and the
software they create. Section 1201 of the Digital Millennium
Copyright Act prohibits circumventing any measures designed to
prevent unauthorized access to this copyrighted material.
Section 1201 also sets forth the process every three years to
grant certain exemptions to these access controls and I look
forward to hearing from our witnesses on whether the consumer
protections we need can be found within the existing 1201
process or whether further reforms are needed.
The solution to protecting consumers in the market for
repairs cannot be that copyright protections and design patents
do not matter in the United States or that they only matter
when they are convenient. Consumer protection and consumer
choice, however, are also important and it is incumbent upon us
in Congress to protect innovation while ensuring that everyday
Americans aren't left holding the bill.
Congress does its best work when we work together across
the aisle, and I am optimistic that this issue can be one of
those rare opportunities in today's political environment where
we can reach consensus.
I look forward to hearing what our witnesses from both
sides of the debate have to say and again, I thank the Chair
and Ranking Member for putting this panel together today. I
yield back the balance of my time.
Mr. Issa. I thank the Ranking Member. Without objection,
all other opening statements will be included in the record. It
is now my pleasure to introduce the panel of witnesses.
Mr. Scott Benavidez, or close to it, is the owner of Mr.
B's Paint and Body Shop, a family owned and operated collision
repair facility in Albuquerque, New Mexico. He is the Chair of
the Automotive Service Association or ASA which represents and
advocates for automotive repair industry.
Mr. Devlin Hartline is an Intellectual Property Innovation
Legal Fellow at the Hudson Institute's Forum for Intellectual
Property. He previously served as an Assistant Professor at
George Mason University, the Scalia Law School, where he taught
a course in intellectual property law and copyright, patent,
and trademark law.
Professor Aaron Perzanowski, or even further from the
accurate perhaps, Professor is a Professor at the Thomas W.
Lacchia Professor of Law at the University of Michigan Law
School. His courses focus on intellectual property, trademarks,
copyrights, and the law and policy of repair. He is an author
of three books on intellectual property including the catchy
term, the right to repair.
Mr. Paul Roberts is the founder of SecurRepairs, an
organization of information technology and security
professionals who support the right to repair. He is also the
publisher and Editor-in-Chief of The Security Ledger, an
independent security news website.
Mr. Kyle Wiens is the cofounder and CEO of iFixit, a
website and retailer that provides repair guides for consumer
products and sells replacement parts and specialized tools,
meaning those tools that let you reset that pesky light on your
dash. iFixit also advocates for the right to repair and other
legislation.
We welcome our witnesses here today. As is the rule of this
Committee, I would ask you all to please rise to take the oath
and raise your right hand as tradition.
Do you swear or affirm, under penalty of perjury, that the
testimony each of you is about to give will be the truth, and
correct to the best of your knowledge, information, and belief,
so help you God?
Thank you, please be seated. Let the record reflect that
all witnesses answered in the affirmative.
As you may have seen on CSPAN in the past, we will tell you
that you have five minutes and yes, we will gavel. However,
your entire opening statements, along with additional
information you want to have placed in the record now or for
the five days after this hearing, will be put in. So, let there
be no doubt, all that you want to say will be said in writing
if not said orally here today.
With that, please introduce yourself so I can get your
pronunciation exactly right, Mr. Benavidez.
Mr. Benavidez. Benavidez. Scott Benavidez.
Mr. Issa. OK, thank you, Scott. You are recognized.
STATEMENT OF SCOTT BENAVIDEZ
Mr. Benavidez. Thank you. Good morning, Chair Issa, Ranking
Member Johnson, and Members of the Subcommittee. Thank you for
providing me the opportunity to testify before you today.
My name is Scott Benavidez. I am the Chair of the
Automotive Service Association's Board of Directors. I am also
a second-generation shop owner from Albuquerque, New Mexico,
Mr. B's Paint and Body Shop.
Independent automotive repair shops are responsible for the
majority of all post-warranty repair services in the United
States. ASA has been a steadfast advocate for right-to-repair
principles, the right of car owners and independent repair
shops to access vehicle service information needed to diagnose
and repair vehicles for decades. We take this unequivocal
stance because our members are on the front lines of the
vehicle data access issue, and we have been very clear. We want
to have access to the data necessary to repair our customers'
vehicles.
The 1990 Clean Air Act amendments assured independent shops
the same emission service information that was provided by
automobile manufacturers to franchised car dealers. In 2002,
ASA signed an agreement with automakers stipulating that
independent automotive repair shops would have access to the
same emissions and nonemission service information provided to
the manufacturers' franchised dealerships.
Since 2002, the vehicles Americans rely on have become
increasingly sophisticated and we know that rate of innovation
will only accelerate. The way vehicle issues are diagnosed and
repaired, evolves in tandem with technological advancement. The
modern vehicle is essentially a computer on wheels and just
like a typical computer, an enormous amount of information is
passed wirelessly to and from the vehicle. In many instances,
our shops wouldn't be able to diagnose and fix problems our
customers ask them to solve if they didn't have access to
telematics.
Car owners deserve a competitive market from which they can
select or repair who will fix their vehicle at the best price.
Although today automotive repairers have access to vehicle data
necessary for repairs, our industry has been concerned about
the path forward for obtaining data in the vehicles moving into
the marketplace. Newer vehicle technologies with an increasing
number of sensors will present a challenge to our shops without
access to the repair data. That is why last week, ASA proudly
announced that it reached a landmark agreement with the
automakers that ensures independent repair shops can diagnose
and repair their customers' vehicles without hindrance from
telematics nor any other innovation.
With regards to the SMART Act, we support a competitive
crash part marketplace, but without additional quality
standards, we are concerned about the impact on shops and
consumers. Although collision shops work closely with insurers
as part of the direct repair program, we are mindful that our
customers' vehicles are our first priority and that these
vehicles must be safe and satisfactory to the customer when
they leave our shops.
We do have concerns when some insurers insist on repairs
that are simply cheaper and quicker without regard to quality
and safety. Repairers understand better than anyone the threat
of replacement crash parts or lesser quality. We can and should
have a competitive marketplace that doesn't compromise quality
or safety. Deciding to only cover the cheapest option without
understanding implications for quality leaves collision shops
and their customers in a tough position. Very few consumers
have the knowledge about these types of crash parts used on
their vehicles as the numerous crash parts in the marketplace
such as OEM, original equipment manufacturer, parts certified
aftermarket parts, reconditioned crash parts, and recycled
crash parts. Repairers can make recommendations, but their
customers are unlikely to adhere if the insurance won't cover
them.
One of the top concerns we hear from our members and others
at collision industry events is that collision repairs
facilities should adhere to OEM repair procedures. This doesn't
mean that OEM parts must be used in all cases, but OEM repair
procedures should always be followed. Adhering to the
manufacturers' guidelines allows independent repair shops to
assure car owners their cars were repaired to the highest
possible standard and protects them from unjust liability.
Assuring more imported and other crash parts in the marketplace
with limited quality standards gives insurance companies even
more power to mandate that cheaper parts that may or may not
meet quality expectations be installed, while leaving car
owners and repairers to suffer the consequences.
We fear the absence of quality standards in the SMART Act
could negatively impact the quality of replacement crash parts,
parts that look the same, may differ significantly in terms of
quality and safety. Once again, car owners and repairers stand
to suffer the most direct injuries and repercussions.
Thank you again, Chair Issa, for convening this important
hearing and allowing me to share the perspective of ASA and
independent repair shops. I look forward to answering your
questions today.
[The prepared statement of Mr. Benavidez follows:]
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Mr. Issa. Thank you.
Mr. Roberts.
STATEMENT OF PAUL ROBERTS
Mr. Roberts. Chair Issa, Ranking Member Johnson, and
Subcommittee Members, my name is Paul Roberts and I'm the
founder of Secure Repairs. We're an organization of more than
350 cybersecurity and information technology professionals who
support the right to repair.
I'm speaking to you today on behalf of our members to make
clear that fair access to repair materials sought by right-to-
repair laws does not increase cyber risk, and, in fact, it can
contribute to a healthier and more secure ecosystem of smart
and connected devices.
Proposed right-to-repair legislation considered by this
Congress, such as the REPAIR Act or, last session, the Fair
Repair Act, simply ask manufacturers that already provide
repair information and tools to their authorized repair
providers to also provide them at a fair and reasonable price
to the owners of the devices and to third parties that they may
wish to hire to do the work.
By definition, the information covered by right-to-repair
laws is not sensitive or protected, as evidenced by the fact
that the manufacturers already distribute it widely to
hundreds, thousands, or even tens of thousands of workers for
their authorized repair providers. This could be everyone from
mechanics working at auto dealerships to the folks staffing the
Geek Squad at Best Buy.
Also, we have yet to find any evidence that the types of
information covered by right-to-repair laws, like schematic
diagrams, service manuals, diagnostic software, and replacement
parts, act as a portal to cyberattacks. The vast majority of
attacks on internet-connected devices, from broadband routers,
home appliances, and to automobiles, today exploit weaknesses
in the embedded software produced and distributed by the
manufacturers or, alternatively, weak device configuration. So,
they're deployed on the internet in ways that make them
vulnerable to attack.
These security weaknesses are an epidemic. A recent study
of the security of the Internet of Things devices by the
company Phosphorus Labs--they're a cybersecurity company--found
that 68 percent of Internet of Things devices contained high-
risk or critical software vulnerabilities.
As an example, I'd like to call attention to the work of a
group of independent researchers recently, led by Sam Curry,
who published a report--and you can Google this--Web Hackers v.
The Auto Industry. In January 2023, that group disclosed wide-
ranging and exploitable flaws in vehicle telematic systems from
16 different auto manufacturers. At a leading GPS supplier to
major automakers, the researchers claimed to have obtained full
access to a companywide administration panel that gave them the
ability to send arbitrary commands to an estimated 15.5 million
vehicles, including vehicles used by first responders--police,
fire, and so on.
Hacks like this take place without any access to repair
materials, nor is there any evidence that providing access to
repair software will open the doors to new attacks. As an
example, a diagnostic routine that identifies a failed
component or reveals the operating temperature of a device
doesn't provide access to the kinds of sensitive data that
hackers are interested in.
We're experiencing today an epidemic of insecure, hackable
internet-connected devices. In response to that, we really need
a reset. For the last 25 years, Section 1201 of the Digital
Millennium Copyright Act has given manufacturers an incentive
to deploy software locks widely and to limit access to security
researchers.
That's kind of a model, what we call in cybersecurity,
security through obscurity. In other words, by keeping the
workings of something secret, you're making it secure. In fact,
that doesn't work because cyber criminals are very resourceful
and they're very determined, and they don't really care what
the law says.
Section 1201 has also enabled what one researcher has
described as ``dark patterns'' in the design and manufacture of
hardware. That includes everything from locking out customers
from access to administrative interfaces, administrative
features of the products that they own, as well as practices
like ``part pairing,'' which I will talk to you more about, in
which manufacturers couple replaceable components, like screens
and sensors and cameras, to specific device hardware. Such
schemes make manufacturers and their authorized repair
providers gatekeepers for repairs and, effectively, bar
competition from the owners of the devices, as well as
independent repair providers.
As the Internet of Things ages, and manufacturers gradually
step away from their responsibility to support and maintain
deployed products--for example, by providing software updates
and security patches--reforms to Section 1201 and the passage
of right-to-repair laws can nurture a market-based response, a
diverse ecosystem of small, after-market service providers that
will step into the shoes of OEMs, supplying needed software
updates and security patches, and servicing and repairing
deployed devices. Such policy changes will also foster a range
of business and employment opportunities up and down the
economic ladder.
To sum up, Federal right-to-repair legislation, like the
REPAIR Act and the Fair Repair Act, will greatly improve the
quality of life for consumers, families, and communities, while
promoting small business and reducing e-waste throughout the
country.
On behalf of our more than 350 members, I urge this
Committee to support the passage of right-to-repair legislation
and reforms to Section 1201 of the DMCA, and I'm happy to
answer any questions that you may have.
[The prepared statement of Mr. Roberts follows:]
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Mr. Issa. Thank you.
Mr. Wiens?
STATEMENT OF KYLE WIENS
Mr. Wiens. Thank you, Chair, Ranking Member, and--
Mr. Issa. Your microphone may need a little more help.
Mr. Wiens. I fixed it.
[Laughter.]
Thank you, Chair.
Mr. Issa. So, quickly.
[Laughter.]
Mr. Wiens. I can do this.
I did a workshop with EPA, and I took their microphone
apart for them. So, I'm accustomed to these things.
Mr. Issa. With all due respect, normally, Mr. Massie is
here to take care of that for all of us.
[Laughter.]
Mr. Wiens. Appreciate it. Thank you so much for having me.
It's an incredible honorable.
I have been working on this issue really since high school.
I was working at an authorized repair shop. I was working,
making $6.50 an hour. The entire time I was in high school, I
saved up for a computer for college. I bought this iBook for
$1,850, took it to college, and, of course, the first thing I
did was dropped it on the power plug. It was just devastating.
It was my access to doing my schoolwork.
So, my grandfather had given me a soldering iron when I
went to school. He thought I was studying computer science and
I would need the soldering iron. That's not what we do; we type
on keyboards.
I figured I could take it apart and just fix the cracked
solder joint. So, I started trying to take the computer apart,
and I realized very quickly that I was in over my head. There
were cables and wires all over the place. I was like this is
going to be an incredible pain.
So, I did what I think anyone would do, and I Googled for
how to open the computer. I knew what the service manuals
looked like. I could not find the service manual anywhere.
So, I bumbled my way through the repair. I got the whole
computer apart, and then, the biggest mistake that I made was I
went to sleep and figured I'll put the computer back together
in the morning. Without a service manual, I managed to barely
do it, but it was really hard.
Afterwards, I was asking myself, why was this so difficult?
I did a little more research and I learned that the service
manual had been online, but Apple had sent DMCA takedowns to
every single website that hosted the manual.
So, the manufacturers are using legal avenues to stymy
repair. That was really the window of opportunity. Wow, this
really is a challenge. So, ever since then, I've been fighting
to open up access.
I took the computer apart again. I took pictures. I wrote
my own manual. We published it online and it's been very
popular. Last year, 1 in 10 Americans used iFixit to learn how
to fix something, whether it's a cell phone or a car or a
skateboard. We help people fix a wide variety of products.
That's really important because we have to have a resilient
alternative ecosystem for repair. You think about, what is
local--what is American Main Street? You have, you have a post
office and a repair shop. Unfortunately, we've seen the
whittling down of Main Street, as the TV repair shops went away
when the manufacturers cutoff access to the schematics; as the
camera repair shops went away when Nikon and Canon decided to
stop selling them parts. We've seen this systematically across
the economy.
In the enterprise space, you have Oracle and IBM saying
that you can't get security updates to critical cyber
infrastructure unless you buy a service contract with them. So,
they're tying long-term service contracts with the security
updates that are necessary to keep this infrastructure secure.
Across the industry, we've been working on right-to-repair
legislation in a number of States in the last couple of years.
Massachusetts passed auto right to repair. Colorado passed
electric wheelchair and tractor right to repair. We passed a
broad, sweeping consumer electronics right to repair in New
York, and then, Minnesota took it one step further, adding
enterprise electronics and appliances. So, you're seeing this
spread across the country. California has a bill that is poised
to pass very soon.
As we've advanced legislation, we've heard a lot of
objections from manufacturers. Apple claims that--they've told
legislators that if they could fix their iPhones, they'll hurt
themselves with the batteries.
John Deere doesn't really seem to care about the safety of
farmers. They say that's not a concern, fixing tractors, but
farmers will screw up the emission systems on the vehicles, if
they mess with them.
The car manufacturers don't really seem worried about the
emission systems on vehicles. They think independent mechanics
can do that just fine, but that mechanics will stalk their
victims; they will stalk their customers--sorry--if they have
access to telematics data.
The medical device manufacturers don't really seem to care
about the privacy of patients, but they're concerned that the
hospitals, if they can repair their own equipment, will harm
patients. I take that one personally because, during the
pandemic, the hospital biomed technicians were instrumental in
keeping the fleet of ventilators in this country functional and
working.
Over the last decade-plus, I've been working on Section
1201, trying to get exemptions for the ability to repair
products. The challenge that we've had in the Section 1202
process--every triennial I go back, and we ask for permission
to be able to fix our own things--is that the exemptions we've
gotten really only apply to individual consumers. They aren't
something that I could use to make a tool to provide one of you
to fix yourself. So, for someone to take advantage of the 1201
exemption that we have, they have to be a cybersecurity
researcher and able to whittle their own tools and use it
themselves, and that just doesn't scale.
So, across the board, across the issues, we're seeing
solutions rolling out, but the fix that is incumbent on
Congress really, at this point, 1201 has to be solved here; it
can't be solved anywhere else.
Thank you very much.
[The prepared statement of Mr. Wiens follows:]
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Mr. Issa. Thank you.
Mr. Hartline?
STATEMENT OF DEVLIN HARTLINE
Mr. Hartline. Chair Issa, Ranking Member Johnson, and
Members of the Subcommittee, thank you for the invitation to
testify at this timely and important hearing.
My name is Devlin Hartline and I'm a legal fellow at the
Hudson Institute's Forum for Intellectual Property.
I'd like to start with a question posed by the title of
this hearing: Is there a right to repair? The answer is,
clearly, no. A right is a legally enforceable claim against
another, but the courts have not recognized that manufacturers
have the duty to help consumers make repairs. Instead, the
courts have said that, while we have the ability to repair our
things, we also have the duty not to infringe the IP rights in
the process. So, it is, in fact, the manufacturers who have the
relevant rights, not consumers.
Right-to-repair supporters want lawmakers to force
manufacturers to make the tools, parts, and knowhow needed to
facilitate repairs available to consumers and independent
repair shops. The assumption here is that anything standing in
the way of repair opportunities must necessarily harm the
public good. These tools, parts, and knowhow are often
protected by IP rights, such as copyrights and design patents.
We protect copyrighted works and patented inventions
because, as the Constitution recognizes, this promotes the
public good. We reward creators and innovators as an incentive
for them to bring these things to the marketplace, and the
public benefits from the introduction of new products and
services that increase competition.
Thus, the right-to-repair movement isn't based on a
preexisting right. It's, instead, asking lawmakers to create a
new right at the expense of the existing rights of IP owners.
There have been several bills introduced at the Federal
level, and they, generally, take one of two approaches. So, the
first is to rewrite the Copyright Act or the Patent Act in a
way that directly limits IP rights. So, this is the approach
with the SMART Act and the Freedom to Repair Act.
The second approach is to define the normal exercise of IP
rights as an unfair or deceptive practice to be enforced by the
FTC. This is the REPAIR Act and the Fair Repair Act.
Of course, the FTC already has the authority to address
unfair or deceptive trade practices. It's noteworthy that, even
after promising to crack down on this 2 years ago, the FTC has
not brought such an enforcement action against a manufacturer,
though it has brought a few actions related to warranties.
So, I submit that the reason for this is simple. IP owners
are merely exercising their federally protected IP rights, and
this is not actionable anticompetitive conduct. It is, instead,
how the IP system is supposed to work. We grant IP owners
exclusive rights, so they can exclude others, and this, in
turn, promotes the investments to create and to commercialize
these creative innovations in the marketplace. That promotes
the public good.
As tempting as it may be to take away or limit IP rights,
so that others can copy, and then, call that competition, I
would urge the Members to think about whether that truly
represents sound economic policy. The fact that the definition
of unfair or deceptive practices would have to be changed shows
that it's not really a competition law problem.
I would recommend against micromanaging the free-market
system to pick winners and losers. The market does a great job
of sorting this out already.
With that, I, again, thank you for the invitation to speak
today.
[The prepared statement of Mr. Hartline follows:]
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Mr. Issa. Thank you.
Please.
STATEMENT OF AARON PERZANOWSKI
Mr. Perzanowski. Chair Issa, Ranking Member Johnson, and
Members of the Subcommittee, thank you for the opportunity to
speak with you all today.
My name is Aaron Perzanowski. I am a Professor of Law at
the University of Michigan. For the last 15 years, my academic
research has focused on the intersection of personal and
intellectual property rights in the digital economy.
During that time, the right to repair has emerged as a
central challenge to the notion that we, as consumers, control
the devices that we buy. Instead, consumers, farmers, small
businesses all find that manufacturers exert post-sale control
over these devices, often in ways that frustrate repair.
Repair is as old as humanity. Our Paleolithic ancestors
repaired hand axes and other primitive tools. As our
technologies have grown more complex from the Bronze Age
through the Renaissance to the high-tech devices that we all
have in our pockets here today, repair has always kept pace.
Today, manufacturers are employing a range of strategies
that restrict repair--from their hardware and software design
choices to clampdowns on secondary markets. We also,
troublingly, see attempts to leverage IP rights as tools to
restrict repair.
These efforts are a major departure from the historical
treatment of repair under the law. The right to repair is not
only consistent with nearly two centuries of IP law in the
United States, but it reflects half a millennium of common-law
property doctrine that rejects post-sale restrictions on
personal property.
As early as the 15th century, English property law
recognized that, once a property owner sells an item, efforts
to restrain how the new owner of that item can use it are
inconsistent with the essential nature of private property and
obnoxious to public policy.
As the Supreme Court has repeatedly recognized, IP law's
respect for the property interest of purchases of copyrighted
and patented goods was profoundly shaped by this common-law
tradition. In 1850, the Supreme Court recognized that the
repair of a patented machine reflected, quote,
. . . no more than the exercise of that right of care which
everyone may use to give duration to that which he owns.
A century later, the Court held that the repair of a
convertible car roof was justified as an exercise of, quote,
``the lawful right of the property owner to repair his
property.''
Just a few years ago, the Court reaffirmed the rejection of
post-sale restrictions under patent law in Impression Products
v. Lexmark, a case about refurbishing printer ink cartridges.
Copyright law, not surprisingly, has had fewer occasions to
consider repair restrictions, but, as early as 1901, the
Seventh Circuit recognized, quote, ``a right of repair or
renewal,'' under U.S. copyright law.
When a publisher sued to prevent a used book dealer from
repairing and replacing damaged components of books, the Court
said quote,
The right of ownership in the book carries with it and includes
the right to maintain the book as nearly as possible in its
original condition.
A century after that, Congress itself acknowledged repair
as a right that owners enjoy, regardless of copyright
restrictions, when it enacted Section 117(c) of the Copyright
Act. That provision was designed to undue a Ninth Circuit
decision that allowed copyright holders to prevent third-party
repairs of computers. Section 117(c) explicitly permits owners
of machines to make copies of computer programs in the course
of maintenance or repair.
Finally, the U.S. Copyright Office, over the last decade,
has repeatedly concluded that diagnosis, repair, and
maintenance activities are noninfringing when it comes to
vehicles, consumer devices, and medical equipment.
So, the right to repair is firmly rooted in basic
principles of U.S. IP law. IP law can and does continue to
interfere with repair. Kyle talked about overbroad copyright
claims over service manuals that limit access to crucial
information. Section 1201 of the DMCA makes it practically
impossible for consumers to exercise their lawful right to
repair a wide range of devices--from tractors to home
electronics--even though the Copyright Office says those
activities are noninfringing. The weakening of standards for
design patents allow firms to choke off the supply of
replacement parts needed to repair vehicles, home appliances,
and other devices.
So, I thank you all for your interest and your leadership
on this issue, and I'm looking forward to your questions.
[The prepared statement of Mr. Perzanowski follows:]
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Mr. Issa. Thank you.
We will now go to Mr. Fitzgerald for the first five minutes
of questioning.
Mr. Fitzgerald. Thank you, Mr. Chair.
Mr. Benavidez, the May 2023 Consumer Price Index showed
that the cost of car repairs was up almost 20 percent. The
National Auto Dealers Association found a similar kind of
number when new car dealerships' service and parts sales
totaled more than $137 billion in 2022--which is, again, up
from $125 billion in the year before.
This could be attributed to a number of factors, including
the inflation that we're all well aware of. Also, used and new
car shortages; the complexity of repairs, of course, which is
what we're discussing. Or just the labor shortage when it comes
to maintenance technicians across all industries.
Supporters of the chairman's bill, the SMART Act, argue
that consumers could save as much as $500 by repairing their
vehicle with an after-market part versus a dealer. Now, that
seems low to me, but that's the number that we're using.
So, Mr. Benavidez, what are your strategies when you're
trying to deal with the part shortages and the shortage of OEM
parts compared to the shortage of after-market parts? What is
kind of happening on the street, I guess is what I wanted to
know.
Mr. Benavidez. So, through the pandemic, we had seen some
OEM companies not have as many parts in stock as we used to.
That has gotten significantly better.
We support a competitive marketplace. We want competitive
parts in our industry. If you don't have the quality and safety
aspect in them, if you just--in the SMART Act, it says,
``similar appearance,'' right? If that's the only thing you're
worried about, they're not, they're not apples-to-apples.
We put on parts every day to secure my family, your family,
in the next accident. When those parts lack the testing and the
credibility to be on those vehicles, that's what hurts our
shops, right? So, we want that competitive marketplace. We just
wanted to add quality and safety to it.
Mr. Fitzgerald. Very good.
Switching topics here, Mr. Perzanowski, in the Northern
part of my congressional seat, John Deere Horicon Works exists,
which is, for the most part, a factory that does most of John
Deere's lawn care line. We were pleased in January to see that
the American Farm Bureau Federation and John Deere had signed
an MOU. Basically, the MOU guaranteed farmers and ranchers the
right to repair their own farm equipment, and that, obviously,
extends to other products in the John Deere line. It is still
too early to see kind of how this MOU is going to function or
how it would work.
Could you explain kind of what an MOU can do in this type
of situation, and what it does and what it doesn't do as far as
farmers and ranchers?
Mr. Perzanowski. Yes, that you ask the question.
So, I think MOUs, these memoranda of understanding which
are private agreements between stakeholders in various
industries to abide by a certain set of contractual provisions,
can be helpful under certain circumstances. There was an MOU in
2014 that grew out of the Massachusetts auto repair law that I
think has been very effective--not perfect, but effective.
I think there are a few things that you need to see in
these MOUs for them to be helpful in this situation, right?
One, we need real buy-in across the industry. The MOU that was
signed last week in the auto industry does not represent a
significant portion of the independent repair community.
John Deere is one company among a handful that dominate in
the agricultural space. So, even if they agree to a certain set
of rules, that doesn't solve the problem industrywide.
It's really important that there is some enforceable, legal
set of rules here, so that these things have real teeth. That's
part of the reason things worked well in Massachusetts. When
companies can just sign voluntary agreements that allow them to
walk away at any point, that doesn't have a whole lot of
meaningful enforcement behind it.
The Deere MOU is also problematic, I think, on its
substance. Deere agrees to provide one software tool to
farmers, but, as a report issued today by U.S. PIRG
demonstrates, that particular software tool is insufficient. It
doesn't solve the problem that farmers have when it comes to
initializing replacement parts, the part pairing issue that was
referred to in some of the earlier statements.
So, I think they can be a useful tool, but, oftentimes,
frankly, I think they are designed to generate good PR and to
confuse arguments around the need for legislation. So, I think
we have to look at them with some skepticism.
Mr. Fitzgerald. Thank you very much. I yield back, Mr.
Chair.
Mr. Issa. I thank the gentleman.
We now recognize the Ranking Member of the Subcommittee,
Mr. Johnson of Georgia, for five minutes.
Mr. Johnson of Georgia. Thank you, Mr. Chair.
Professor Mr. Benavidez, Professor Hartline says that it is
owners of property don't have a legally enforceable right to
repair that property. Do you agree with that statement?
Mr. Perzanowski. So, I take a different view here. So, we
can define the notion of a right in a number of ways. I don't
want to bore you with property theory and talk about Hohfeld
and give people who went to law school terrible flashbacks.
One way to think about a right is as an affirmative power
to force someone else to engage in some behavior. In some
cases, that is what we are talking about, right. We are talking
about imposing, especially on the State level, regulations that
impose requirements on manufacturers. I think that is true of
the REPAIR Act on the Federal level as well.
I think part of what we also need to keep in mind is that
sometimes what you need to effectuate a right is to eliminate
barriers that stand in the way of that right. So, we can think
about this I think helpfully in the context of tools that
enable people to engage in repair.
The State-level solution has been to require manufacturers
to give their own tools to repair shops, sometimes compensated
under fair and reasonable terms. The other solution would be to
change Section 1201 to say let's allow independent repair shops
to make their own tools. I think both of those solutions have
some value to them.
I also think it is really important to keep in mind that
when we are talking about IP rights, there are always multiple
sets of interests at stake. One of the key balances that IP has
always tried to strike is the balance between the limited
statutory exclusive rights that the patent and copyright acts
create and the personal property rights of consumers who own
these devices.
So, I think a balancing is absolutely necessary and
appropriate.
Mr. Johnson of Georgia. Well, tell me, what precisely do
you recommend Congress do to limit the scope of Section 1201,
which you seem to be advocating?
Mr. Perzanowski. So, I think the best solution for Section
1201 is embodied in a piece of legislation that Representatives
Jones and Spartz introduced in the last Congress, which would
create a permanent exception to Section 1201 for repair that
would apply not only to the act of circumvention, but would
also apply to the creation and distribution of tools that are
useful for repair purposes.
That does not open the door to broad, unrestrained creation
of circumvention tools, but tools that are targeted to the
repair market.
Mr. Johnson of Georgia. Professor Hartline, what is your
take on this discussion?
Mr. Hartline. So, I think even the cases that my friend
cited, the 1850 case, the Supreme Court case in Aro, they all
make the distinction between repair, which is permissible, and
reconstruction, where you actually recreate the patented
device, which is not.
So, it is definitely a right of IP owners to prevent other
people from practicing their invention or copying their works.
Mr. Johnson of Georgia. Do they have a right to prevent
repair of that personal property?
Mr. Hartline. No, no, no. So, he cited a case about where
you can repair a cover on a book. That is very different than
recreating the book, every single word in it, right. So, there
is a difference between repairing something and then crossing
the line into violating the exclusive rights of IP owners in
the patented product or the copyrighted book.
So, the things that repair supporters are asking for is
that, OK, if somebody has a design patent that covers an auto
body part, well they have the right to exclude other people
from making that part. Repair supporters say they shouldn't
have that exclusive right because we could increase competition
if we just took away their design patent, and now other people
can make that part.
So, that is competition. That is not the type of
competition that IP law and competition law seek to support.
That is like saying if we just let The Pirate Bay copy and
distribute all the Disney blockbuster movies, then that is
competition and prices will go down. That is not the way that
we do it, right.
So, competition means other people come up with new
products and new services. So, that is what we should be trying
to support.
Mr. Johnson of Georgia. Thank you, I yield back.
Mr. Issa. Thank you. Mr. Bentz.
Mr. Bentz. Thank you, Mr. Chair.
I think I will ask this question of Professor Perzanowski.
It is this: If you are told at the time you are buying an Apple
product that you can only have it repaired by Apple, aren't you
adequately informed that you will need to go to that one place,
and indeed may have to pay twice or even three times for
something you bought once?
What is the justification then if you were fully advised--
no one reads that 50-page contract at the beginning, but let's
assume by some miracle they did. Then why should the right to
repair interfere with that full disclosure?
Mr. Perzanowski. Thank you so much for the question. So, I
would begin by pointing out, as you do, that consumers are
often not informed about the terms of these sorts of
transactions, right.
When you are presented with a 10,000 word license
agreement, most consumers, and I think rationally, don't engage
with those documents. They are designed to be difficult to read
and difficult to understand.
So, oftentimes consumers are lacking that kind of clear
disclosure that I think they need to make informed decisions.
Mr. Bentz. Right, and of course I took that off the table,
so could you re-answer the question? Because I just want to
know if I want that Apple product badly enough to submit, if
you will, to having to pay for it three times, then why should
we let this right, so-called right to repair, interfere with
that agreement?
Mr. Perzanowski. So, I think it is important to keep in
mind here, right, that not only do we have questions about kind
of the adequacy of these sorts of disclosures, but one reason
that consumers are engaging in these transactions and buying
these products is because of consumer lock-in, right.
A consumer who buys one Apple product is far more likely to
buy another because those devices communicate with each other
offer sets of features that make it hard for consumers to break
out of those ecosystems.
I think it is also important that in some cases it is not
just an absence of disclosure, but it is affirmatively
misleading promises and statements that are being made in the
marketplace. So, John Deere has a history of saying lots of
things--
Mr. Bentz. I am still not sure that you are answering my
question. What I am really trying to get at is if the
manufacturer of the product makes adequate disclosures and the
consumer then agrees to purchase with those disclosures in
mind, it would then seem to me that the consumer has waived any
right to make this repair argument.
I am going to move to Mr. Hartline for a minute. The
opponents to repair argue the right-to-repair laws should
weaken intellectual property, and I think you mentioned that. A
bunch of States have passed these right-to-repair laws.
So, have you seen a noticeable decline in intellectual
activity as a result of what these States are doing? It is
going to be hard to measure, is it not? Perhaps you have an
example.
Mr. Hartline. Well, so there are only two States that have
passed laws related to electronic devices, and that is New York
and Minnesota, and neither of those laws have really gone into
effect yet. So, we don't know what is going to happen.
What I suspect is going is, especially in the Minnesota
law, which doesn't have a carve-out for Federal IP protection,
is that there is going to be litigation over that law, based on
the idea that it is preempted by Federal copyright law and
patent law.
The reason is because the Minnesota law tells IP owners
that they have to turn over their IP-protected things. Federal
law says no, you get to keep those to yourself.
If you don't mind, I do want to talk about the idea that
people know going in. Like I bought an iPhone, and I didn't
read the 10,000-word thing. The point that you are making is as
long as there are adequate disclosures and there is no fraud on
the public, then these are not competition issues, and there is
just nothing wrong with it.
Mr. Bentz. I want to go back to one of the elements of this
discussion I was researching over the weekend, and it was the
interest I have in knowing where the 30 months comes from and
knowing how you measure the value of the idea and then suddenly
say we are going to protect it for 30 months. I just, so--
Mr. Hartline. Well, I am sorry, the 30 months in the SMART
Act, or--
Mr. Bentz. Yes.
Mr. Hartline. Oh, sure. Well, I am not an economist and
that does seem arbitrary. The term right now for a design
patent is 15 years. I don't know how to say what the optimal
term is, but I do think it is a bad idea to take away people's
design patents so you can let other people make exact copies
and then say that is innovation.
Mr. Bentz. Thank you all for being here. I yield back.
Mr. Issa. Thank the gentleman. We now recognize the Ranking
Member of the Full Committee, Mr. Nadler, for five minutes.
Mr. Nadler. Thank you, Mr. Chair.
Mr. Benavidez, I was deeply concerned to see the original
equipment manufacturers react to the Massachusetts right-to-
repair ballot measure by suspending access to telematic
accessories for vehicles sold in the State. How will the recent
agreement between repair shops and OEMs affect consumer choice
going forward?
Mr. Benavidez. Thank you, Congressmen.
Mr. Nadler. Are you concerned that we will end up with a
patchwork of State laws governing right to repair?
Mr. Benavidez. This agreement with the OEMs is great for us
because we are going to, finally, get to put to the rest the
fact that we don't have information, right, that we weren't
able to get information.
So, this is an agreement that we have worked on for a while
to make sure that we have access to all information, including
telematics in anything coming forward. It is in there that the
commitment for both parties to support legislation if it needs
to get there, but we would like this thing to stand on its own.
This agreement has been needed for some time. We stand on
the front lines of repairing these vehicles. We need this data,
and we have this data. Right now, we have zero repair shops
asking us, hey, we don't have the data, we can't get the data,
we don't know how to fix it. We don't have that right now,
Congressman.
Mr. Nadler. How will this recent agreement affect consumer
choice?
Mr. Benavidez. What it will do is make sure that the
consumer has the right to take it to a shop that has this
access and can repair these vehicles properly. The consumer is,
I don't want to say it--the consumer, when they come to my
facility, the consumer does not know a lot about the choices
that we get and what we have to do behind the scenes.
They do not have that--they do not have that understanding.
They look to us. They only get in an accident once every eight
years. So, they rely on us to have that information. They rely
on us to repair those vehicles properly.
Mr. Nadler. Thank you. Mr. Roberts, same question. Same
question.
Mr. Roberts. In regarding to what impact that will have on
repair?
Mr. Nadler. How will the recent agreement between repair
shops and OEMs affect consumer choice going forward, and are
you concerned that we would end up with a patchwork of State
laws governing the right to repair?
Mr. Roberts. Well, first, the agreement, as was mentioned,
does not represent the vast majority of after-market service
providers and therefore is mostly performs a sort of public
relations role rather than a functional role in terms of how
the after-market will work.
Is there concern about a patchwork of laws? Well, I think
for consumers who are bending and breaking under the cost of
high vehicle repairs and struggling to maintain their vehicles,
they would rather have a State law than no law at all.
So, I think yes, of course, from everybody's perspective it
would be better to have one Federal law that applies across the
country.
Mr. Nadler. Thank you. Mr. Hartline, repair advocates argue
that Section 1201 prevents noninfringing circumvention of
access controls for repair purposes. Congress contemplated this
use when it passed the DMCA in 1998, allowing for a triennial
exemption process.
Is the exemption process working as intended? If not, are
there actions Congress can take to expand exemptions or make
them easier to acquire?
Mr. Hartline. So, what is important about the triennial
rulemaking is that the proponent of an exemption has to come
forward with evidence and demonstrate that there is actually a
problem, and it relates to a certain class of works. Then they
can get a temporary exemption for three years.
So, it is true that the Copyright Office, well, the
Librarian of Congress has the last--the few rulemakings has
said that because using a copyrighted work in a way for repair,
maintenance, etc., is fair use, that they grant the exemptions.
These exemptions are quite narrow. They do not allow the
trafficking of the computer programs that can crack the TPMs.
So, it is very narrowly done.
The concern is that if you were to create a permanent
exemptions that opens things all the way up with access
controls, copy controls, and trafficking thereof is now you are
getting to the point of why we even have these TPMs under 1201
in the first place. That is because they guard against piracy.
So, the concern is that you are opening the piracy
floodgates. You make these devices less secure, and then
content owners are going to be less likely to want to put their
content on these devices.
Mr. Nadler. Thank you. Mr. Chair, my time has expired. I
yield back.
Mr. Issa. I thank the gentleman. We now go to Mr. Cline.
Mr. Cline. I thank the Chair for holding this substantive
and stimulating hearing.
I had a farm conference yesterday with the secretary--or
the Chair of the Ag Committee, and it is timely we are having
this hearing today. Because in January of this year, the Farm
Bureau Federation and John Deere signed an MOU that purports to
guarantee farmers and ranchers the right to repair their own
farm equipment.
So, right now, we are kind of in a wait-and-see mode, but
it is very interesting that it is kind of across industries.
I will ask Professor Perzanowski how does Section 1201 of
the DMCA impact the ability of consumers and independent repair
shops to modify or repair devices that have proprietary
software and data in the consumer electronics industry?
Mr. Perzanowski. Thank you so much for the question. As we
have been talking about the Copyright Office, in 2015, 2018,
2021, and they are in the process for the current rulemaking,
has determined that engaging in circumvention, the removal or
bypassing of these digital locks for purposes of repair is
perfectly lawful behavior.
There is a major practical mismatch here between the legal
rights that consumers enjoy under Federal law today and their
practical ability to exercise those rights. That is because, as
Devlin was just describing, the Section 1201 rulemaking does
not extend to the creation or distribution of tools, right.
So, I have the right under Federal law to remove the
technological locks, say, on my video game consul if I want to
swap out a broken disk drive. How do I do that? I like to think
of myself as a pretty technologically sophisticated person. I
don't have the first clue about how to do that. I need a person
who can write that code, make that code available to consumers
so that I can.
All I am trying to do is swap out a broken disk drive on my
video game.
Mr. Cline. You would argue that code is proprietary,
correct?
Mr. Perzanowski. So, I am talking here about a third party
making their own code, right, that is simply allowing me to
engage in activity that the Copyright Office has repeatedly
said is noninfringing, but I--
Mr. Cline. You want to give them a map, is that
essentially--
Mr. Perzanowski. Absolutely, yes, I do.
Mr. Cline. Do trade secrets play a role in the right-to-
repair debate?
Mr. Perzanowski. There are occasions where trade secrets
are important. I don't think in the context that we are talking
about here with Section 1201 that we are typically running into
trade secret issues. The State-level bills that have been
introduced do typically address trade secrets and often have
carve-outs there, and I think that is something worth
considering in this debate.
I think it is important to keep in mind that like just
because we have some hypothetical worry about some unknown bad
actor taking a tool that I use to fix my video game console--
Mr. Cline. Well, it is not unknown, the Chinese do it all
the time.
Mr. Perzanowski. I don't think the Chinese are particularly
worried about whether or not I can fix my video game console.
In fact, I think that point is important.
The bad actors already have these tools. All we are trying
to do is get very targeted tools in the hands of law-abiding
citizens who just want to repair the stuff they buy for their
kids for Christmas, right. If the Chinese are going to hack the
PlayStation, they have already done it.
Mr. Cline. What role does the Library of Congress and
Register of Copyrights have in granting exemptions to Section
1201, and how does this process relate to right to repair?
Mr. Perzanowski. So, the 1201 process is what established
the legality of circumvention for repair purposes. When
Congress created that rulemaking authority, it only extends to
the act of circumvention, right, the actual removal.
Congress did not give the Office or the Librarian the
authority to grant exemptions to the trafficking provisions,
and that is where I think legislative intervention is really
important.
Mr. Cline. Do you think State-level right-to-repair laws
are having a positive or negative or just a complicating impact
on ensuring that we safeguard IP protections for original--for
OEMs, while also allowing consumers to repair their own
products?
Mr. Perzanowski. So, I think right now it is probably too
early to say exactly what impact those State laws have had.
Like this is all very new.
I think we can say with some confidence that in a State
like Colorado, which enacted a motorized wheelchair right-to-
repair law, that has had major practical advantages for folks
who rely on those devices. They were waiting around for weeks
and weeks and weeks for authorized repairs, and now they have
the opportunity to have those devices that they rely on fixed
in a more timely manner.
The longer-term consequences, I have my own predictions,
but I don't think I can say with confidence what that landscape
looks like today.
Mr. Cline. Thank you. I yield back.
Mr. Issa. I thank the gentleman. We now go to the
gentlelady, Ms. Ross, for five minutes.
Ms. Ross. Thank you, Mr. Chair. Thank you to all the
witnesses for your perspectives.
This hearing provides an important opportunity for all of
us to learn more about the right to repair and the role of
intellectual property in the equipment that we purchase. The
issues we are discussing today clearly are complex and involve
numerous industries with different sorts of patents. Your
perspective might be different based on the industry and the
type of patent involved.
Ultimately there may be no one-size-fits-all solution for
repair, particularly given that some misrepairs could
jeopardize the health and safety of users while others would
not. For that reason it seems to me that regulations that
govern, say, the repair of an airplane or an X-ray machine
should differ from the regulations for the repair of ordinary
household appliances or even maybe a computer.
So, I want to ask a question first to Mr. Perzanowski and
then Mr. Hartline after him. My district is home to many
medical device manufacturers, and they are on the front lines
of innovation. I want to make sure we encourage research and
development while safety repairing machines when they break.
So, should there be a different repair standard for
lifesaving equipment versus for an everyday household item?
Mr. Perzanowski. Thank you so much. It is a really
important question. I think safety and security have to be
important concerns any time we are talking about repair,
regardless of who is making those repairs, whether it is an
independent shop or an authorized provider. I think you are
absolutely right; those risks are more salient when we are
talking about medical devices.
To the extent we are concerned about those issues, I don't
think IP law is the right set of tools to use to ensure high
quality repairs. Volkswagen held all the IP rights in its
Dieselgate vehicles. Abbott held all the IP rights when they
had to recall half a million pacemakers.
So, I don't think the identity of the IP rights holder is
what is going to get us to safe and secure repairs. So, I think
the question is how do we do that? That is, frankly, it is
beyond my expertise, but I would turn to the real experts here.
The FDA issued a report in 2018 that concluded that
independent repair of medical devices is safe and effective. I
haven't seen evidence that runs to the contrary there. If I do,
I am certainly open to it. I do think we have to have a really
important conversation outside of the IP context about how we
make sure that these repairs are safe.
Ms. Ross. Who's responsible if they are not.
Mr. Perzanowski. Absolutely.
Ms. Ross. Mr. Hartline, briefly, because I do have another
question.
Mr. Hartline. Yes, thank you. So, I agree with medical
equipment, that is when it is more important than ever that the
right people are doing the repairs.
So, we saw in the recent rulemaking at the Library of
Congress that there was an exemption granted temporarily for
medical equipment, and now there is a lawsuit that is at the
D.C. Circuit right now, whether you know. It is kind of about
whether it is a good idea, but it is mostly about whether it
violates the APA.
What I would say is there is absolutely nothing wrong with
manufacturers parlaying their IP rights into repair
opportunities. This is how they get more money, and they can
invest that money, more R&D, more investment, more innovation.
So, this is just part of a business model that IP supports,
and there is absolutely nothing wrong with it. The benefit is
the right people are fixing it.
Ms. Ross. Thank you. Mr. Wiens, I wanted to talk to you. I
loved your story. I would like you to share with us whether you
think that there are any cyber security implications for the
right to repair.
Mr. Wiens. Across the board, the question is who should we
be able to inspect what is happening with these devices? What
we have found is that when you have access to some amount of
repair information, it makes information available to cyber
security researchers, who are able to do better work.
We have found, I write software, iFixit, has had
vulnerabilities in the past. We work directly with researchers,
and they give us feedback and we improve it and we fix those
problems.
So, when you have a little bit of sunshine on what is
happening, that enablement of security research is really
profound. We have actually talked about one of the challenges
with Section 1201, it doesn't just ban repair tools, it also
bans the distribution of cyber security tools.
So, we have seen security researchers--Apple sued a company
that made a security research tool under 1201. That tool has
markedly made the world more secure. It is very popular among
government security researchers.
So, I think that is kind of the sweet spot, is allow some
third-party inspection, it will make the product better.
Ms. Ross. Thank you. Mr. Chair, I yield back.
Mr. Issa. Thank you and thank you for your round of
questioning. Mr. Fry.
Mr. Fry. Thank you, Mr. Chair.
It is July in South Carolina, and people are flocking in
from all over the country to vacation. I will tell you
something, that one of the most profound disappointments in
life is when you go to a McDonald's or other fast-food
establishment and you want to get a cold ice cream, an ice
cream on a hot summer day, and your hopes and your dreams are
dashed because the machine is broken.
Who, and I know this is kind of out of order, but who here
has experienced that? Show of hands.
[Show of hands.]
Mr. Fry. Pretty much everybody, unanimously, right.
So, you are disappointed because it is hot and you assume
two things, one of two things. You assume that the employees
don't want to make the ice cream, or you assume that the
franchisee doesn't want to provide that because of something.
In reality, according to Mr. Wiens, your op-ed, it goes
much deeper than that. There are 1201 Section issues that
pertain to this on who can fix the machine so that customers
like me can get that great frosty from Wendy's or McFlurry from
McDonald's.
Real quickly, Mr. Wiens, just you know, and, Mr. Chair,
with unanimous consent, I would like to enter into the record
Mr. Wiens' op-ed, ``Congress Is Preventing Us from Fixing
McDonald's Ice Cream Machines.''
Mr. Issa. Without objection, so ordered.
Mr. Fry. Now, I think it is really important, and Mr.
Fixit, if you can, can you elaborate on how current
restrictions on the right to repair affect the average
consumer, and particularly touch on the cost and the
convenience for the consumer.
Mr. Wiens. Well, first let me say it is not the poor
McDonald's employees' fault. It is the machine's fault.
So, these ice cream machines are made by Taylor, and there
is an incredibly complex, baroque set of touch screens you have
to go through. Then there is a service password you have to be
able to get past to access the settings that really allow you
to do what you want.
So, in an ideal world, you would have an entrepreneur who
would come along and make a tool to make it easier for
McDonald's. Maybe they could, they have an app on their phone
that they could use and configure and help them diagnose and
repair the machine. Unfortunately, the company who made that
tool is struggling legally because of all these challenges.
Across the board, if we had innovation outside of the
manufacturers to be able to develop new tools for fixing ice
cream machines or anything else, you have a whole flowering
ecosystem of repair tools. Right now, it doesn't exist.
The U.S. is like this black hole where innovation in banned
in software repair. I can't--there's all kinds of opportunities
I could see. I had a farmer ask me for help fixing his John
Deere tractor, and I had to say I can't do that particular
repair because it is illegal.
I would love to build a cool app for helping him diagnose
and fix his tractor and get back in the field faster. We don't
have that marketplace right now. It is like farmers have been
forced to like use cracked Ukrainian versions of John Deere's
diagnostic software.
Mr. Fry. Right, so it is not, again, it is not just ice
cream machines. I led off with that, but it is farmers, it is
farm equipment, it is iPhones, it is somebody's Xbox, right.
These are all things--in your experience, what are the
challenges that these customers and stakeholders face when they
are trying to repair their own devices? What are some things
that they face?
Mr. Wiens. It is absolutely infuriating. If you are--OK, so
my friend, a farmer in San Luis Obispo, Dave grows all kinds of
amazing produces. He has a $300,000 John Deere tractor.
Came to me and said hey, there is a bad sensor. It is going
to take a week to get that sensor sent out from Indiana and I
need to use the tractor in that time. Will you help me bypass
the sensor?
I could hypothetically modify on the software on the
tractor to do that. Practically I didn't have the legal
ability. So, he had to go and rent an expensive tractor for the
week. This is impacting people's lives every single day.
Mr. Fry. Right, so and to pivot a little bit, what role do
you use from a Federal side from legislation, and what specific
measures do you think might be included in such legislation?
Mr. Wiens. So, we have seen kind of the solutions being
approached from two angles. At the State level, you have States
saying John Deere and other manufacturers, if you have a
dealership that has fancy tools, sell those tools to consumers
and to independent shops, allow that competition.
At the Federal level what we can is enable a competitive
marketplace for those tools. So, rather than compelling John
Deere to sell the tool, we could say hey, it is legal for
someone, an entrepreneur, to make a competing too. You have
this in the car market.
You can take your car down to AutoZone and you can buy a
scan tool, plug it into your car, and it will decode some of
the error messages. Those tools exist in the auto market
because we have a standard diagnostic interface on cars that
you can access without circumventing a DPM. We don't have that
for any other products.
So, another farmer in my town, he showed me how if he has a
transmission go out on the truck, he can fix that. If has a
transmission go out on his John Deere tractor, he can't. He can
physically install the transmission, but he can't program it to
make it work. I would love to be able to make a software tool
to enable him to replace his transmission.
Mr. Fry. Thank you. Mr. Chair, I yield back.
Mr. Issa. Thank you. We now go to Ms. Lofgren for her round
of questioning.
Ms. Lofgren. Thank you very much, Mr. Chair.
As I have listened to this testimony and the questions, a
couple of things come to mind. First, what we are looking at,
and you and I have talked about, is relief for design patents
in automobiles has nothing to do with utility patents. I just
thought it was important to note that.
Then as to adequate disclosure, I remember when we were
talking about this in the 1990's, a situation where a nonprofit
had put a, on like page 25 of their disclosure, if you have
read this far, we will give you $1,000. No one collected the
thousand dollars. So, it is not really, most of these are not
meaningful disclosure.
I just think it is important to go back to 1998--only the
Ranking Member and I were here at that time--and what we were
trying to do with the DMCA. At the time, we were concerned, and
I think rightly so, that there was theft of copyrighted
material, songs, movies, and the like.
The protection that was being advanced was to preclude
hacking into that copyright-protected material with TPMs. I was
for that. I thought that was a good idea because that piracy
was improper and wrong, and this was a way to solve it.
At the time, though, I remember raising the issue, what if
these TPMs are going to be used to protect noncontent and we
ought to address that. We didn't come to an agreement on that.
The compromise was to have the Copyright Office revisit this
periodically for relief, should that occur.
I think it has been pretty clear that process has not
worked perfectly well. For them to pay attention to something,
there has to be a huge stink in the country. For example, the
monopolies on cellphones. People were upset about it; we had a
hearing about it.
So, finally, they dealt with that. Other monopolies, we
didn't do TPMs so monopolies could control products. That was
never the intent.
So, I think the process didn't really work as had intended,
and the process has to do with the lack of scope, as well as
tools. We left the tool part out when we did the DMCA.
So, I guess the question is, and maybe Professor, you could
address this, could we craft a measure that allows for tools to
disable TPMs when the TPMs are being used not for content
protection, as was intended, but to promote essentially
monopolies through products. Is there a way to do that?
Then the other thing is cyber security, is there a way to
narrowly define an exemption for cyber security? Because that
would be very helpful for society at large, and by the way, I
think would help reform the CFAA, which Congressman
Sensenbrenner and I tried to do a number of years ago. We
didn't get any traction, but the misuse of the CFAA for
legitimate researchers continues to be a problem.
Can you suggest ways that we could narrowly craft a change
that would still protect content holders?
Mr. Perzanowski. Thank you so much for the question. I am
little reluctant to try to start drafting statutory language on
the fly.
Ms. Lofgren. Fair enough.
Mr. Perzanowski. I think the point you raise is a really
important one. I think that the previous proposals about
creating new statutory exemptions for repair purposes go a long
way to limiting the scope of Section 1201 beyond the kind of
entertainment content that was originally Congress's goal to
protect. I completely agree with your kind of recounting of
that story.
There are existing statutory exemptions in Section 1201
that I think can serve as a useful model. They are very narrow.
I would like to see some of those expanded. They go to
encryption research, security testing. There is a law
enforcement exemption.
I think looking at the existing language can be a helpful
model for a repair exemption, and also for addressing some of
those cyber security concerns that you--
Ms. Lofgren. At the time that we wrote it, we weren't
really envisioning the red hat movement that we see today and
the utility that that has provided for more secure software. We
did the best we could, but it was 1998 and a lot of things have
changed since then.
Mr. Chair, my time has expired, but I am hopeful that we
can address this issue. Protect the content that we always
wanted to protect, but let people own the things they thought
they owned, instead of finding out that it is only a lease.
I yield back.
Mr. Issa. I thank the gentlelady.
I now ask unanimous consent for the record that the
documents from the National Association of Mutual Insurance
Companies; documents concerning the new YouGov poll, it is a
one-pager; the YouGov poll release itself; the SMART Act white
paper; the REPAIR Act white paper; the Vehicle Suppliers
Association documents; and the attached documents and a
compilation of letters in opposition to the announced MOU for
groups representing more than 200,000 repair shops of the ASA--
I'm sorry, ASA representing 201,000 shops total--be placed in
the record; and a survey that demonstrates strong support for
Federal vehicle right-to-repair legislation be placed in the
record.
Without objection, it is all in. We now go to the
gentlelady, Ms. Lee, for her questioning.
Ms. Lee. Thank you, Mr. Chair, for hosting this important
hearing today and for your leadership on this issue. I am proud
to join with you in this subject.
I would like to being with returning to you, Professor
Perzanowski, on this question. Obviously, one of our concerns
is the rising cost of repairs when coupled with the rising cost
of vehicles, how this affects consumers.
I would like for you to talk with us about the effect that
you anticipate passage of the SMART Act might have on insurance
rates for consumers, and whether it is something we anticipate
a decrease in rates, lower costs as parts and repairs become
more accessible for consumers.
Mr. Perzanowski. Thank you so much for the question. So, I
think if we see passage of the SMART Act, we can anticipate
significant reductions in the expenses associated with auto
collision repairs. Estimates are that design patents on
collision parts are responsible for about $1.5 billion in
additional expenditures.
We see price premiums on OEM parts over third-party parts
often reaching into like the 40 percent range, right. So, these
are pretty significant cost savings associated with that.
Part of this problem I think does relate back to the kind
of unique structure of this market. Most consumers are not
paying out of pocket for collision repairs. Those costs are
being covered by their auto insurance provider.
So, the consumer doesn't see that the--I am pulling this
from memory, so don't hold me to this figure--but the side view
mirror of a Ford Fiesta costing $1,500.
That is not something that the consumer is confronted with,
right. So, this goes back to the question of notice. Do
consumers know when they buy that vehicle that the repairs are
going to be that expensive? I think in most cases they don't.
So, I think the SMART Act is a very targeted solution to
this problem. I do think it is important to note that the
design patent issue for replacement parts is not limited to the
automotive industry. I think it is the most I think that is the
area where the problem is most pressing.
Home appliances, consumer electronics. We see companies
getting design patents on replacement water filters for
refrigerators so that they can charge three times as much when
the little light comes on your fridge to tell you that your
water might not be as clean as you want it to be.
So, I think we have to think about that problem across a
range of industries. The automotive industry I think is
absolutely the right place to start.
Ms. Lee. All right, and staying with the automotive
industry and the concept of the SMART Act, would passage of the
SMART Act in your view promote entry into the repair market of
more mom-and-pop or independent shops? If so, how would that
advantage the end consumer?
Mr. Perzanowski. So, I think in an environment where
consumers are facing lower costs for repairs and fewer vehicles
are being totaled, right. One of the byproducts here of the
high prices of these replacement parts is more and more
vehicles are being totaled.
So, we would see more opportunity for competition in those
marketplaces. Generally, right, we rely on this principle that
the more competition we see, the lower prices are going to be
and the higher quality is going to be. So, I think that is
beneficial.
Ms. Lee. Mr. Roberts, you look like you had something to
add there.
Mr. Roberts. No, not really. I think that what Aaron said
is correct, which is, one of the key goals of right-to-repair
legislation is to promote a vibrant ecosystem of service and
repair.
One point I would just make is that with the internet of
things, right, we are going to facing a crisis in the very near
future as manufacturers of everything from home appliances to
personal electronics to equipment, as those products age and
those manufacturers walk away from their responsibility to
maintain them.
So, we are no longer supporting the software. We are no
longer issuing security updates. Who will step in to maintain
those devices, keep them secure, keep them operating, right.
The manufacturers walked away, do we just get rid of them?
No, because the equipment still works perfectly. We are going
to need a market-based response to that. We are going to need
small businesses to step up and say hey, I will keep that
Samsung dishwasher working for another 20 years.
That is a huge economic opportunity for this country, but
we cannot do it in the existing system because of the types of
restrictions that we are talking about.
So, this is really about enabling a secure future in which
when you buy a dishwasher with a 20-year lifespan or 25-year
lifespan, it is going to last those 25 years, not the five to
six years that the manufacturer has decided that is how long we
want to support the software for.
There are cyber security implications for that as well,
obviously.
Ms. Lee. Thank you. Mr. Chair, I yield back.
Mr. Issa. I thank the gentlelady. We now go to the
gentlelady, Ms. Dean.
Ms. Dean. Thank you, Mr. Chair. I thank the Ranking Member
and you both for bringing us this thoughtful hearing. I thank
those who have come to testify for your thought-provoking
information and expertise.
Mr. Benavidez, I was interested in talking with you because
I am a little nostalgic. My grandfather, Bill Dean, had a
garage in Germantown, Philadelphia, part of Germantown,
Pennsylvania. Dean's Auto. His slogan was ``The dean of them
all, we repair everything, the dean of them all,'' something
like that.
How he advised me when I bought my first used car. I bought
a Mazda RX-7 used. I think it had the pop-up lights and an
electric--it was a gray car--rotary engine, remember? An
electric antenna.
He warned me, he said, ``Mad, when you do that, you are
going to wind up with more repairs.'' More gadgets, more
repairs. Well, that didn't stop me. I loved the car; it was a
lot of fun.
I was thinking of you. Bring us up to speed. If my
grandfather were here today, what is it like in your repair
shop, your body shop, your repair shop, with the challenges
that come in as a result of a vehicle breaking down or being
backed into, whatever it? What has happened in the last 10-20
years?
Mr. Roberts. Thank you, Congresswoman. You would be
astounded at what we face on a daily basis.
We are dealing with more crash parts, more electronics,
more lane departures, more--I see that guy in the commercial
and he is clapping his hands as he is driving that vehicle. I
have to put that vehicle back on the road after it gets in an
accident so he can clap again as he goes down the road.
It is very difficult. It is a scary business to be in.
Sometimes I go to industry events, and I come back to my dad,
who is still working at the shop, and say, ``Dad, this might be
time for us to get out of this.'' Because it is scary how--and
put my kids in the car, put your kids in the car.
We have lane warnings and we have departures that--we have
automatic breaking now that we have to make sure is correct.
There is an emblem inside the Toyota at the front of the Toyota
that is a radar emblem. If we don't put the correct emblem on
that vehicle, that car can get in accident again, quickly,
right as it leaves my shop.
It is very disturbing, what we have to go through.
Ms. Dean. So, essential to you, for your peace of mind and
your ability to do your job well, is the repair data, very
transparently. Is that correct?
Mr. Roberts. Absolutely. It is the one thing we count on.
From when it comes into my shop, we look up repair data to fix
the vehicles. When we check it in to get it to the repair
inside the shop, we look at the repair data.
When we give it to my technician, we look at the repair
data. When it gets out of his hands, we look at the repair
data. When we return it back to the customer, we have to scan
it again and make sure we look at that repair data.
So, we are constantly needing that data to repair those
vehicles.
Ms. Dean. Thank you very much. Mr. Wiens, in your written
testimony, you concluded,
A robust repair market creates and expands job opportunities in
the United States, keeps reusable, repairable products out of
the waste and recycling streams, and gives consumers more
options for what to do with a malfunctioning product.
I am in favor of all those things. How do you respond to the
suggestion that the right to repair is harmful to U.S.
businesses, is harmful to content creators?
Mr. Wiens. Well, I don't think the right to repair has much
to do with content creators. It really is, it is a balance
between big business and small business. The question is who
gets to decide what happens with our things. Who gets to decide
at every step of the way.
I have worked a lot with Apple products over the years, and
Apple's perspective is that they want to be the one to decide.
Right now, Apple has a repair program, but you have to do a
repair, you have to give them your serial number ahead of time,
and they like decide, they basically give explicit permission.
When the repair tool phones home to Apple and says can I do
this repair, Apple says, ``yes, the serial number is
authorized, and they allow just that repair.''
If I wanted to do that same repair on that phone the next
day, I wouldn't have permission. So, small businesses need the
ability to innovate.
I am going to be, tomorrow I am going to be at a repair
shop in Minnesota called re:power, where they take
disadvantaged folks who didn't have economic opportunities,
they use iFixit guides. They train them to do repairs. They are
taking discarded electronics, fixing them, and selling them in
the community.
Ms. Dean. All right, interesting. Thank you, I yield back.
Mr. Issa. I thank the gentlelady. We now go to the
gentleman from California, Mr. Kiley.
Mr. Kiley. I yield back to the Chair.
Mr. Issa. Yielding to the Chair, I will use that time.
Today we are primarily talking about Section 8, Clause 8. I
will read it because it is short. ``Patent and copyright
clause.'' It says,
The Congress shall have the power to promote the progress of
science and useful arts by securing for a limited time to
authors and inventors the exclusive right to their respective
writings and discoveries.
Mr. Hartline, I am going to start with you. On a design
patent, what is the discovery?
Mr. Hartline. Well, so a design patent is a new, original--
Mr. Issa. It is an ornamental statement--
Mr. Hartline. Ornamental design.
Mr. Issa. Is it true that the United States is one of the
few countries that actually recognizes ornamental designs for
purposes of a 15-year exclusion?
Mr. Hartline. I am not familiar with international patent
law, I am sorry.
Mr. Issa. OK, well, let's just say--
Mr. Hartline. It has been recognized here for over a
century.
Mr. Issa. Right, we have had them for a period of time.
They have had different periods and so on. Because they are
ornamental in nature, does each part have to be uniquely
ornamental, or does the Patent Office, to your knowledge as a
professor, do they grant it based on what appears to be a
distinctive, different design than the one that came in the day
before?
Mr. Hartline. I am not a design patent law expert. When I
taught patent law, I covered utility patents. I skipped design
patents, so.
Mr. Issa. I don't blame you, because design patents
historically basically prevent your competitor from making a
deceptively similar product. Would you all agree? I see the
heads nodding.
So, much of the discussion today is, in fact, on protection
that is granted by design patents. Much of what we are looking
at doing is to modify, enhance, or define design patents in a
way in which they do not exclude six, or seven, or eight years
later that faded headlight that can no longer be polished to be
usable from costing you $1,500-$2,500 each to replace something
that used to be available at the auto parts store for about six
bucks.
Mr. Roberts, you are shaking your head. Why don't you opine
on that, if you don't mind.
Mr. Roberts. Yes, you make a really good point, Chair Issa.
I think the point here is to focus on the downstream impact of
these policies.
One thing I would point out, again, and hashtag not a
lawyer and also not in the auto business. My understanding is
the use of design patents has increased dramatically, even
exponentially in the last 10-15 years.
If you go back to the 90's or 80's, parts makers, auto
makers were not applying these types of patents to replaceable
parts like bumpers and rear-view mirrors. Somebody had a
business decision that if you can do so, then we can capture
more of that aftermarket by outlawing identical after-market
replacements.
That has a huge downstream impact on car owners and on
insurers and on all of us. So, yes, I think you make a really
valid point.
Mr. Issa. Well, in the time Mr. Kiley has yielded me, I am
going to ask one more question that is salient to all this, and
that is we haven't talked much about True Parts.
I happen to have one of Coparts, one of the major companies
that recovers automobiles. Totals them out, resells them,
exports them, any number of uses. Generally, they are receiving
it from an insured in a total-out.
Now, historically, the founder of that company started off
cutting parts off Dodge and Chryslers and selling to people who
then put them onto their vehicle and kept it running.
Today many of those items, and I will start with Mr. Wiens,
many of those items, because of the DMCA as it is presently
interpreted, when you take the authentic transmission, the
authentic radio, the authentic product off of a near-identical
make or model of a car, or for that matter, going further even
though that is not their business, an IBM computer, a Dell
computer, whatever.
To put these two original, authentic products back together
again, you need software, which is not provided, and which is
being withheld. Is that correct?
Mr. Wiens. That is correct. If I take a brand-new iPhone
14, and I have two of them, and I swap the screens between
those, you don't get full functionality back. You are missing a
number of key features.
I included in my written testimony a chart of the increase
in these parts pairing over time. So, we got our start doing
exactly what your constituent did. We would disassemble laptops
and sells the parts. That is increasingly hard to do.
We took a MacBook Pro, we took screens between of them, and
it just didn't work without a software tool that Apple makes.
Of course, I would like to maybe be able to make an alternative
software tool to Apple's, but I can't right now.
Mr. Issa. Mr. Hartline, you have been quite an advocate
today for some of these issues, perhaps in opposition to what
we are proposing.
Would it surprise you to know that, for example, IBM buys
used parts back from companies that supply them to keep very
old IBMs with important software on them, such as the IRS, when
they no longer make them, while at the same time opposing,
opposes allowing that same company to sell them to companies
that are not using their ``maintenance,'' remembering that the
maintenance is not IBM making the parts, but in fact buying
them off the market?
How do you reconcile that within the questions of what I
said, which was this intellectual property question that we are
looking at modifying to create a better right-to-repair market?
Mr. Hartline. So, I am not familiar with the IBM story, in
particular, but what it sounds like to me is you have got
somebody who has IP protection because they created something
new, something useful, etc., and what do they get? They get a
right to exclude.
So, they can use that right to exclude to create business
relationships and to increase their profits, which they in turn
use on R&D and we get more innovation.
Mr. Issa. My time has expired. I would cite for all of us
that the first use and sale doctrine said,
You have given off those very rights when you sell those two
IBM products that now are trying to be merged.
With that, we will go to Mr. Ivey.
Mr. Ivey. Thank you, Mr. Chair. I want to take a minute to
commend you for this hearing. I greatly appreciate the
opportunity to look at actual legislation that can make a
difference in the lives of the American people and thank you
for doing this work.
I did want to followup, Mr. Roberts, that you had a point
about I guess companies potentially walking away from repair
obligations. What struck me is pretty important, but I hadn't
really heard much about how to address that. You discuss the
issue.
Are there ways to fix that problem? Then the sort of
inversion of that I suppose is them not walking away, but the
capture scenario that the Chair just mentioned, where you sort
of buy up the items so that they can't be used again for
resale?
Mr. Roberts. So, I mean obviously my background and
expertise here is around issues in cyber security, so I will
defer to some of the other panelists on some of the legal and
market issues.
What I would say is that both of the things that we are
really proposing or talking about here, which would be changes
to Section 1201 of the DMCA, as well as passage of robust
right-to-repair laws, would empower a market-based response to
keeping the internet of things working, secure, and
functioning.
The DMCA 1201 reforms, by making it clear that you can
circumvent software locks for the purpose of repair and
maintenance and upkeep, right. So, that would take the threat
of the Federal crime away from small business owners as well as
security researchers who are interested in plumbing that
software for purposes of maintenance, upkeep, and repair.
On the right to repair, by making the tools available to
maintain and upkeep products, diagnostic software, schematic
diagram service manuals available, once again, you will be
empowering small business owners to set up repair shops and say
I am going to keep your smart appliance running for its full
25-30-years lifespan.
I am going to support my family doing that locally and not
be basically choked out of business by a company that says,
well, you don't have the right to access this product.
From a cyber security perspective, that is really
important, because one thing we don't want is a population of
millions or tens of millions of out-of-date, unsupported,
unpatched, insecure, internet-connected home appliances,
webcams, home routers out there available to Nation-State
actors, cybercriminal groups to compromise and use for their
own purposes.
That is something we already see, particularly around
broadband routers and other types of devices. It is a real
threat going forward that I think these types of changes would
support.
Mr. Ivey. Anyone else on the panel want to take a crack at
that?
Mr. Wiens. Sure, we need to find a way to get these devices
secure. I like to call the internet of things the internet of
outdated Linux distributions.
It is old software. The LG's website says that you should
check for security patches for your refrigerator every other
month. Then the manufacturers often are not following up, they
are not spending the resources.
We see how often do you get updates for an Android phone? A
couple years and then the manufacturers stop doing it.
Google with their Chromebooks, we see schools--I heard
about a school yesterday that had 20 pallets of Chromebooks
that they bought during the pandemic for their students that
they are having to throw away because they can't get security
updates for them anymore.
We need to find a way to make these things last longer.
Sometimes it is incumbent on the manufacturer. We should talk
about maybe asking them to make security updates available
longer.
At some point also we need to take the ownership on
ourselves and allow the rest of us to maintain it and patch
these devices. We do not have permission right now to patch the
devices. It wouldn't be legal for me to make a tool to break
the lock on those Chromebooks to allow a school district to use
them longer.
Mr. Ivey. Thank you. Mr. Chair, I yield back.
Mr. Issa. I thank the gentleman. We will now go to the
gentleman from Colorado for five minutes.
Mr. Neguse. I thank the Chair.
First and foremost, let me echo the sentiments of my
colleague from Maryland in terms of thanking the Chair and the
Ranking Member for hosting this important hearing, which I
think is substantive and concerns an issue for which there
seems to be an emerging bipartisan consensus. So, I think that
the Chair is very thoughtful in terms of putting this hearing
together.
Of course, I thank all the witnesses for their testimony,
both the written testimony and their testimony today verbally.
My home State, I represent Colorado in the U.S. Congress.
As you all know, and I believe it has come up once or twice
here, that Colorado has been a leader in this regard with
respect to right to repair.
Last year, our State proudly enacted the right to repair
for powered wheelchairs. This year the State legislature acted
yet again, by enacting the first right-to-repair legislation
for agricultural equipment, a really big deal for the farmers
and ranchers that I represent in Northern Colorado and
Northwest Colorado. They are critical steps, in my view, to
protect consumers, improve innovation, spur economic growth.
I am hopeful that other States will emulate the model that
Colorado has adopted. Of course, we can take some lessons
learned as well here in the U.S. Congress, and potentially
pursue this at the Federal level.
There are many of you who have worked on this. I want to,
perhaps, start with you, Professor Perzanowski, because I know
that you played an active role, my understanding, in supporting
Colorado's State efforts for right-to-repair legislation.
I wonder if you might be able to expound a bit on the
benefits for our farmers, in particular, in the agricultural
context?
I have listened to some of the debate. I am a lawyer, so
was a Chief Regulator in Colorado for many years, so appreciate
the very academic and almost esoteric debate that we have been
having in the context of IP patent law, and the different
theories as to whether or not it permits the kind of right-to-
repair legislation that we have enacted at the State level.
I would like to kind of cut through all that and get to the
core of why we are here, which is it is a big deal for our
farmers. It is going to have a profound impact on many of my
constituents. I wonder if you might be able to offer your
thoughts, Professor?
Mr. Perzanowski. Sure. Thanks so much.
In a lot of instances this conversation, and we have
touched on this earlier, focuses on cost savings. Right? Cost
savings are an important consideration. Right? Farmers aren't
thrilled that they have to pay a technician from the John Deere
dealer to drive maybe hours to get to their farm and connect
their laptop and to download these payload files to enable
their equipment to work.
In the agricultural space the thing I hear most often in
the conversations I have with farmers is--and Kyle touched on
this a bit earlier--a real concern about the time sensitivity
of their work.
If your tractor is out of commission for a week or two in
the wrong part of the season, that is going to have disastrous
effects, right, not only on that farm's economic outlook, but
collectively it can have an impact, not to be hyperbolic here,
but on our national food supply.
So, it is really important that farmers have flexibility in
terms of where and how they execute repairs, so that they can
get their equipment back up and running.
If my laptop breaks and I can't get it fixed for a week or
two, I am annoyed. There will be emails that go unanswered. The
world will continue to spin. That is not the case in the
agricultural space where we have to be much more concerned.
Mr. Neguse. Thank you, Professor. I couldn't agree with you
more.
I wonder, perhaps you can talk about this in the context,
and perhaps this has come up previously, of repair manuals. Do
you think repair manuals are copyrightable material?
Mr. Perzanowski. That's a great question.
So, I think the copyright in a repair manual, to the extent
it exists, is incredibly thin. Right? So, copyright law does
not protect facts. It does not protect ideas. It does not
protect systems or processes. So, if you look at most repair
manuals, they are describing in very plain, literal language,
step-by-step processes for interpreting error codes or
replacing a component part.
So, I am pretty skeptical of the copyright claims that we
see there. There has not been a whole lot of litigation around
repair manuals. There was a case involving Gulfstream where the
court determined that the copying and distribution of those
repair manuals was a fair use. I think that is the right way to
resolve that.
Mr. Neguse. I see my time has expired. So, I will simply
say, with the Chair's indulgence, that I am a champion for the
free market. I believe firmly in the competitive marketplace.
I think the solutions we are discussing today and will
continue to discuss after today, the conclusion of today's
hearing, are about supporting the free market and ensuring that
IP and copyright law is not so distorted that we lose the
forest for the trees. Because a lot of Americans out there, to
the extent they are watching this hearing, are wondering how in
the world a repair manual for a tractor, for a household
consumer item could somehow be construed as such through a
legal doctrine to as preclude a consumer, a farmer, a citizen
to be able to repair that product.
So, with that, I yield back, Mr. Chair, my time.
Mr. Issa. I thank the gentleman.
I now recognize the Ranking Member for a unanimous consent.
Mr. Johnson of Georgia. Thank you, Mr. Chair.
I have a letter from Consumer Reports, a letter from the
Alliance for Automotive Innovation, a letter from the Center
for Democracy and Technology, and a letter from the
Intellectual Property Owners Association which I ask to enter
into the record with unanimous consent.
Mr. Issa. Without objection, so ordered.
I now recognizing myself in closing a little bit here my
round of questioning.
We have had a lot of discussion. I want to try to bring a
couple of items back.
I talked earlier about two authentic parts that are not
able to be put together without a third-party tool. Of the five
of you, does anyone defend the authentic parts, bought and paid
for by one or more individuals, from being continued to be
used, used and put back together, somehow as a right of the
manufacturer to prohibit this?
Anyone? Mr. Hartline, I had hoped that you might.
Mr. Hartline. You were looking at me.
So, I am trying to understand. So, this is a
reauthentication thing? So, like--
Mr. Issa. Exactly. As Mr. Roberts said--I think it was Mr.
Roberts, if I take, if I take this phone, which has a dying
battery which needs replaced--
Mr. Hartline. Yes.
Mr. Issa. --and my other phone, which has a cracked screen,
and I go in and say, could you make one of them work for me,
please? Put the good battery in with the good display, or vice
versa. Both have a chip interface designed to stop them from
being put in.
As a matter of fact, even though the battery is authentic,
if I simply put it into a different one it will tell me and it
will give me an error code saying it is not an authentic
battery every time.
I love Apple. I have consumed a tremendous amount of their
products. That is deliberately designed, even with authentic
parts, to prohibit the reuse.
Mr. Hartline. There is a lot of business reasons why they
do it, including security. I know that used to be you put your
thumb on the thing to open it up. So, they wanted to make sure
that people weren't able to replace it to break into people's
phones. All of our personal information is in the phones.
I understand that Apple, in particular, you don't have to
go to the Genius Bar anymore. Right? They have a repair
program. They will actually send you the parts. They will sell
you the parts. They will send you the tools. It is the exact
same tolls that the guys in the Apple store have; right?
Mr. Issa. Wait a second. The only question--
Mr. Hartline. Yes.
Mr. Issa. --before us is whether it is Apple--and I don't
want to talk about Apple, particularly,--
Mr. Hartline. Yes.
Mr. Issa. --because each of these companies is different.
If I remove from my BMW, at least during certain models, I
remove the radio, unplug it, and then plug it back in simply
because I was fiddling around with the dash, I now have to go
back to the dealer to reinstall it.
Similarly, the transmission example, authentic tran--I have
got two John Deere tractors, one has got a busted engine, the
other has got a busted transmission. Currently, they will
prohibit you from moving the transmission from one to the
other.
From a standpoint of intellectual property, where in God's
green Earth, or the Constitution, are any of those designed to
be rights that belong to the manufacturer rather than rights
that belong to the owners of those two John Deere tractors?
Mr. Hartline. So, those are a bunch of different
situations. So, I think there would be underlying facts that
differ with each. Right?
So, we started on the iPhone. I was going to point out that
iPhone will actually give you the tool to synchronize it.
Mr. Issa. Yes.
Mr. Hartline. In those other situations, I don't the
business justification for it. If it is not an IT problem, how
is that an IT problem? Right?
So, if that is locked up with the TPM and you have to
bypass the TPM, well, then that is the violation of 1201. So,
that is how they can, that is how they can lock--
Mr. Issa. So, what you are saying is that Congress has
created an impediment to the right to repair.
Mr. Roberts, would you say that is correct, that in fact
the right to repair, were Congress never to have done anything
since George and Thomas were our Presidents, so to speak,
knowing those two presidents, we would be able to do things we
are not able to do because they are now prohibited by acts of
Congress?
Mr. Roberts. Yes.
We certainly know, going back to the fifties, sixties,
seventies there was a much more; first, companies would ship
products with service and repair manuals with schematic,
detailed schematic diagrams, with the understanding that owners
would want to replace and service them.
What I would say is, yes, absolutely, I doubt very much--
and I know we had Members who were here in 1998 authoring the
DMCA--I think if you had said to them, in 25 years' time this
law will be used to prevent somebody with a broken dishwasher
from getting that serviced by their local repair shop or by
fixing it themselves. This law will prevent them from doing
that.
I doubt very much they would have said, yes, that is pretty
much what we want.
Mr. Issa. Yes. I will tell you that I was the Chair of the
Consumer Electronics, what is now the Consumer Electronics
Association in 1998, and we did predict a lot of these items
were going to be expanded beyond the scope of the original.
I have got just two, two closing quick questions. Oh, and
then the Ranking Member has a couple questions.
Constructive abandonment. Is there anyone that disagrees
that when a company takes, for example, its copyright and
simply abandons it. The historic intent, not codified in law,
but historic intent is that if you abandon your copyright such
as you no longer make the instruction manuals available, or
your firmware updates simply are no longer posted, or your
company goes out of business, in fact, even though today from
time to time there is content, is there anyone that doubts that
this should be a protected right to the consumer to be able to
get that now obsolete or unavailable data?
Seeing none, I will take that as the first full agreement
of the day.
The last one is, there anyone that doesn't believe in the
first use document, that if I buy authentic product that I
should be able to use and reuse it? That any attempt to turn a
piece of equipment into a brick simply because it transferred
from Owner A to Owner B is inherently wrong under the many
traditions and laws of the United States?
I will take that as agreement No. 2.
I am now told to say the following: I have introduced a
bill under discussion, the SMART Act, H.R. 1707, which would
help solve the problems of limited access to parts. My
colleague Dr. Dunn of Florida has introduced the REPAIR Act,
H.R. 906, which would help solve an issue, limited access to
basic repair and maintenance and data in your vehicle.
The question is, would you commit today to work with us,
each of you on the panel, in advancing those bills and making
such changes as would make them acceptable to all of you?
[Affirmative nods.]
Mr. Issa. I see yeses. So, I will take three in a row.
I now recognize the Ranking Member.
Mr. Johnson of Georgia. Thank you, Mr. Chair.
This question is to both Mr. Benvanidez--Benavidez, I am
sorry, and Mr. Roberts.
The 2014 Memorandum of Understanding between the original
equipment manufacturers and the repair associations guaranteed
that the OEMs would provide the same service information and
tools to independent repair shops as they do their franchise
dealers.
How has this agreement worked in practice?
Do you believe we need Federal legislation on the right to
repair?
Mr. Benavidez. We would hope that it would stand on its
own, our agreement with the automakers. We are not against
legislation if it adheres to this agreement.
We do not, right now, have any shops clamoring for data. We
just don't have it. We get it from the 2014 Amendment.
We get this data now. We use this data every day. We are
able to repair these vehicles with that data.
Mr. Johnson of Georgia. Thank you.
Mr. Roberts?
Mr. Roberts. We urgently need a Federal version of the
Massachusetts law, the Repair Act.
First, Mr. Benavidez is right, right now this is not an
urgent issue because most of the cars out there are older
vehicles. As we move forward, as telematic systems evolve, as
automakers continue their trend of moving more and more
information to telematic systems, this is going to become a
bigger problem.
I will point out another problem, which is the
Massachusetts law is contingent on data transfers of diagnostic
and repair information via the OBD, or onboard diagnostic-II
port, under the dashboard. That is only there because of the
Federal Clean Air Law.
Electronic vehicles don't have that port because they don't
have emissions. So, in the very near future as we shift to
electronic vehicles that data access port will no longer be
there. It will all be telematics data. So, the utility of the
Massachusetts law is going to decline over time going forward.
Again, when you start talking about right to repair you
become like this crazy person who talks about right to repair
every time it comes up. One thing I try and stress to people
when I talk to them about auto repair is if you live in
Michigan or California and you have taken your vehicle to the
local independent repair shop, you have only done that because
the voters in Massachusetts passed a ballot measure over a
decade ago, and then updated it in November 2020.
That is the very thin thread that our right to use
independent auto repair hangs by in this country. That is not
the way it is supposed to be.
This is something that affects vehicle owners, hundreds of
millions of them in all 50 States. It is the type of thing that
the Federal Government needs to address with Federal
legislation. It should not hang by this very thin thread.
Mr. Johnson of Georgia. Thank you.
Professor Hartline, are software updates new creations and,
thus, copyrightable?
Mr. Hartline. Software updates, yes. They are computer
programs and Congress said explicitly in 1980, but it was
understood before then, that computer programs are literary
works, and they are protected just like any other copyrighted
work.
Mr. Johnson of Georgia. Thank you.
Mr. Professor Perzanowski, do you disagree?
Mr. Perzanowski. I don't disagree at all that software
updates are protectable subject matter under the Copyright Act.
What I think is important to keep in mind, right, is the
Copyright Act, and copyrights, exclusive rights, and all the
exceptions and limitations to copyrights, exclusive rights, are
created by Congress. So, if you think those rights are
interfering with other important issues and concerns, then I
think Congress has, clearly has the power to make changes to
the copyright law to best serve what you ultimately determine
to be in the public interest.
Mr. Johnson of Georgia. Thank you.
I yield back.
Mr. Issa. Thank you.
I am going to followup just very briefly on that.
Mr. Hartline, you said that it is a right. We already
talked about abandonment. Let's leave the abandonment alone for
a moment.
Copyright is not a right to exclude, as you know. For the
most part, copyright you get a reasonable fee or license. If I
have a piece of music, I don't inherently have the ability to
stop people from performing and the like. So, we understand it
is different than patent in the sense of the right to exclude
is not traditional.
Let me ask you an important question: If I give away my
software to every single person. I put it online and allow you
to update it. I even push it through to try to encourage you.
Matter of fact, I make it to where it is a nuisance to use your
iPhone if you haven't updated because it is going to give you
the red thing. If I do all of that, have I in fact, to a great
extent, made my copyright a public domain for purposes of
authentic users of the material using it at their own pleasure,
for example, that iPhone 8-10, the archived copyright when
Apple no longer updates?
Mr. Hartline. So, I disagree with your premise,
respectfully, that copyright is a right to exclude. Right? We
can exclude other people from making copies, from distributing
copies, from performing, and from displaying.
I understand what you are saying. If you are putting out
these software updates and people download them, the person who
created those things is not giving up their rights because you
have to distinguish between the copy, which the recipient gets,
and then the copyright, which the copyright owner has.
Mr. Issa. I understand. You don't, nobody gets ownership of
the original text, software, and the like. The fact is that if
you give free to many, do you give free to all?
Mr. Roberts, you were shaking your head perhaps a little
differently.
I would like to close this off by having people answer that
basic question of if you are a company, and we will leave
company names aside, but you make VOIP phones, and you push
through not only the original firmware, but all the updates for
months or years, and then a hypothetical, the transfer of that
product, they simply say, well, you no longer own that. Is that
really consistent with the existing law, recognizing that we
have the right to change law, but even under existing law?
Mr. Roberts. I think it is unclear. I am not a lawyer, so I
don't want to weigh in on that.
All I would say is that the cost to society of
manufacturers being able to reach beyond the point of sale and
exert that type of control on sale and reuse of their products
is very high for consumers. From a cybersecurity standpoint
presents many problems in terms of maintaining, again, a secure
ecosystem of deployed devices that are internet connected.
Mr. Issa. OK. My last closing statement was my opening
statement. We all understand that there is what we call a
standard patent, one which you do not have the right to exclude
but, rather, because it has been put into use as a standard
essential patent, it therefore is entitled to reasonable
royalties, but not to exclusion.
Who would like to make the case that an equally standard
essential copyright should not and does not effectively exist
when it becomes essential to the continued operation of a
product, or even when that copyright becomes part of the
standard? Who would like to argue against it?
Yes?
Mr. Perzanowski. So, I think this idea of a standard
essential copyright is getting at something really important.
Right? Access to firmware and other code is really essential to
the functioning and repair of lots of devices.
I think there are some important differences between the
standard essential patent context and what we are talking about
here is that the standard essential patent context we are
relying on standard-setting bodies to identify technologies,
and to require companies to license their patents under fair,
reasonable, and nondiscriminatory terms.
We don't quite have that infrastructure in place in the
copyright context. What we do have are compulsory licenses that
exist within the Copyright Act already, one of which you were
alluding to earlier, the mechanical license for musical works.
We also have compulsory licenses for retransmissions of
satellite and broadcast content that essentially say the
copyright owner is entitled to compensation of some form, but
they are not entitled to prevent people from using or accessing
that underlying work.
That could be a useful framework here for getting owners of
devices access to the firmware that they need.
Mr. Issa. Well, and that is to be continued, as you can
imagine.
This concludes today's hearing. I want to thank our
witnesses for not only being here but staying into overtime.
Without objections, all Members will have five legislative
days to submit additional written questions for the witnesses,
and additional materials for the record.
With that, we stand adjourned. Thank you.
[Whereupon, at 12:22 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on Courts, Intellectual Property, and the Internet
can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent
.aspx?EventID=116230.
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