Right to Repair at the FTC

by Dennis Crouch

In a unanimous vote among the five commissioners, the Federal Trade Commission (FTC) will move forward with a new policy regarding the right-to-repair.  This decision was foreshadowed by a 2019 workshop and 2021 report to Congress.

The Commission is taking four steps:

  • Stepping up enforcement of the Magnuson-Moss Warranty Act prohibitions on tie-in sales, inter alia.
  • Scrutinizing repair restrictions to determine whether they violate US antitrust laws.
  • Scrutinizing repair restrictions to determine whether they constitute unfair competition or deceptive trade practices.
  • Coordinating with state law enforcement and policymakers to “advance the goal of open repair markets.”

Read the Policy Statement.  FTC commissioners are nominated by the President and serve for Seven year terms, and no more than three Commissioners (out of Five) can be from the same political party.  FTC Chair Lina Khan is a recent law school graduate (2017), although she had already focused on antitrust and platform monopoly issues (such as Amazon) for more than a decade at the New America Foundation. The remaining four were all nominated by President Trump, although two are Democrats and two Republicans.

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A big next question is the extent we can encourage manufacturers to produce repairable products. To what extent can easy-to-repair fit into the marketing strategy? And, can Patent Law do something with this regard?

 

8 thoughts on “Right to Repair at the FTC

  1. 4

    How about starting with companies that make products with rechargeable batteries that the User cannot replace without sending it back to the factory?

  2. 3

    To: “… extent we can encourage manufacturers to produce reparable products.

    … can Patent Law do something with this regard?

    Sounds like an invitation to ALLOW “abstract ideas” (“reparable” being a fine example of a desired Abstract Idea).

    1. 3.1

      … leastwise, certainly an open invitation for Motivation to Combine (and blocking the use of patent protection as an encouragement of the desired Ends)

  3. 2

    Does this apply to vehicles as well? Car companies have engine designs that prevent the average person from making simple repairs, such as changing spark plugs.

  4. 1

    How about amending copyright law to allow third parties to copy the chips that now run most vehicles and appliances?

    1. 1.1

      Are you thinking a broader application of the merger doctrine and removing all copyright protection from items that deliver functionality?

    2. 1.2

      I’d tend to focus more on reverse engineering restrictions in the EULA, or maybe even an obligation to license your API / interface spec i.e., you can create a compatible design, but not use the OEM’s.

    3. 1.3

      Perhaps you are thinking of amplifying exhaustion principles?

      Or maybe eliminating the ‘sham’ of ‘lease or rent’ of software embedded in items otherwise fully purchased?

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