By: Paul Barnes
Basic Information
A bill has recently been introduced in Oregon that would give consumers a right to repair electronic devices. The bill is HB2698 and at the time of writing this is currently in Committee. The right to repair is intended to give consumers the right to repair (some) electronic products.
What Are And What Are Not Consumer Electronics?
According to the bill consumer electronics are products that are made or supplied by a manufacturer or made or supplied by someone on behalf of a manufacturer and that includes all of the following:
- Uses digital electronics embedded within or attached to the product to function
- Is personal property
- Is distributed in commerce
- Generally, is used for personal, family or household purposes
- Might but does not need to be capable of installation onto a real estate property.
The bill also notes some things that do not count as consumer electronics. These include the following:
- Has an internal combustion engine of 25 or more horsepower
- Has never been available for retail sale
- Is a device approved by the Food and Drug Administration for sale
- Provides heat, ventilation or air conditioning or recharges refrigerant gases
What Does the Bill do?
Definitions
- Independent Repair Provider – A group NOT authorized to repair devices by the original manufacturer or a group that is authorized to repair but also repairs non originated equipment
- Authorized Repair Provider – Are groups that ARE authorized by the original manufacturer by agreement or arrangement to diagnose, maintain or repair equipment. This definition also includes the original manufacturer if they do the repairs instead
The bill states that the original manufacturer of a product must make available to an owner or independent repair provider anything that is provided to authorized repair providers to diagnose, maintain or repair the equipment. Additionally, this must be done on fair and reasonable terms which is stated as being the same as the best terms given to authorized repair providers. It must also be given the same discounts, rebates, convenient delivery, full restoration capability, rights of use and anything else that would be provided to authorized repair providers. Also, it cannot require the owner or independent provider to have a serious condition, obligation or restrict imposed on them unless reasonably necessary. Lastly, the terms cannot require one to become an authorized repair provider or enter into an agreement.
The bill also states that documentation is available in electronic form for free only if the provider does not charge authorized providers for it or if an individual wants it printed then they can charge a reasonable fee (which is defined as the actual cost of printing and delivery) for printing and delivery. The bill states effectively the same for any needed software tools. Additionally, the bill requires that any tools/information needed to disable security locks as part of the repair process must be provided by the manufacturer.
What is Not Required of Manufacturers?
The bill states that the section does not force the disclosing of a trade secret (The bill itself does not go into detail about what counts as a trade secret) to an owner or independent service provider except as needed to provide parts, tools, documentation, or other devices needed to diagnose, maintain, or repair the item.
It also states that agreements between the original manufacturer and authorized service providers are not void, except for any section that attempts to waive, restrict or limit the original manufacturers compliance with this bill. Any sections that attempt to do so are void and unenforceable.
What Happens if the Company Does Not Comply?
If an original manufacturer does not comply with this bill, then an individual who suffered property loss, real or personal, because of this failure to comply, can bring action against them for $1000 or the actual property damages, whichever is higher.
Additionally, the bill states that the court may award reasonable lawyer fees and costs to the plaintiff if they win the case. They may only provide it to the defendant if it can be proven that there was no ground for the case.
Class action lawsuits are allowed as well but it must be done within one year of the incidents occurring.
Is There Similar Legislation in Other States?
VT S0180 – This bill is very similar to HB2698 and is another great example of a right to repair bill. This blog will not go into it in great detail as it much the same as HB2698. They both make it so that repair information, parts, and so on, for certain devices (but not automobiles) are available to the public or independent repair providers. If an original manufacturer does not comply has committed a unfair and deceptive trade practice.
Hence, this bill is a good example of what right to repair legislation is all about.
The following like will take you to many other examples of bills on the right to repair. These bills are all examples if you are interested in further reading. Please note that this is not a complete list and is merely some of the bills that relate to this topic. Additionally, some of these bills relate to other right to repair topics, such as the right to repair farm equipment, which will be covered briefly below. Link.
The main difference between these bills (specifically the ones related to consumer electronics) is in how they define fair and reasonable terms. Some go into more detail about things like shipping while others do not. Otherwise, the majority of the differences are quite small and the bills are fairly similar otherwise. Essentially, it appears that state governments have mostly agreed on what these bills should look like.
Is There Legislation Related to the Right to Repair?
There is actually some other right to repair legislation that has not been mentioned so far. These bills primarily deal with two topics, those being the right to repair farm equipment, the right to repair medical devices. A few also deal with motor vehicles.
Example of a Farm Equipment Repair Bill
AR SB450 is one such bill that allows for farmers to have some rights to repair their farm equipment. It passed on 4/1/2019. The bill provides people with greater rights in regards to farm equipment and requires sellers of farm equipment to inform buyers of their rights under this law. The bill also allows for manufacturers, distributors or authorized dealers to repair nonconforming farm machinery (which is defined as not conforming to the terms of the warranty or something that impairs the use, value or safety of the farm machinery but is not caused by neglect). The buyer can demand that they repair it, if the object is still under warranty or the 12 month quality assurance period (this period ends after 600 hours of use or 12 months after purchase, whichever is sooner). The farm machinery is then repaired under a number of conditions. The bill makes it quite confusing, so to put it simply, the conditions require that it be repaired in a certain number of attempts, cost and a certain amount of time. For a single issue it is 3 attempts, 30% of the total cost of the machinery, and 30 days, while for multiple issues it is 5 attempts total, 50% of the total cost of the machinery and 60 days. If it cannot be repaired under these circumstances then the company in question must provide the owner with a replacement that is acceptable to the owner or repurchase/refund the buyer for the full price of the farm equipment. The buyer can always choose a refund over a replacement under this section. Civil action can be brought against sellers who do not comply with this bill.
Example of a Medical Equipment Repair Bill
CA SB605 is one such medical repair bill. It functions very similarly to bills like HB2698 in that it requires that the original manufacturer provides independent repair providers with the tools, documents, parts and anything else that is needed to repair a powered medical device. The document mentions similar topics like fair and reasonable terms and more specifics as to what exactly has to be provided to independent repair providers. It also mentions the consequences of refusing to provide this information which is a fine of $1000 per day for the first instance, $2000 for the second and $5000 for the third. Essentially, this bill is the same as most consumer electronic repair bills with the exception that it is about medical equipment and not consumer electronics.
Example of a Motor Vehicle Repair Bill
This bill MA H3757, requires that motor vehicle manufacturers make available to independent repair providers and owners, the same diagnostic and repair information that is provided to dealerships, for any vehicle made in 2002 or later. This should be done in the same form as what is provided to dealerships. The price of the information can be daily, monthly or yearly but must be fair and reasonable terms. If the terms are more favorable to independent providers/owners then the dealers would not need to continue to purchase the information. The same rules also apply for the tools and parts needed to repair the vehicles. For any vehicles made in 2018 or later, the vehicle must have on board repair information built in, thought the allowed form varies. This required information does not include info needed to reset security systems, which instead must be obtained in the standard method from above. If the manufacturer fails to comply then a complaint can be filed in court.
Main Differences And Similarities
In short all of these bills deal with a variety of topics but still remain quite similar. They all require that information be provided to independent repair providers and in some cases owners. They all set out definitions, what is required to be given and at what terms. Additionally, they naturally all help owners and independent repair providers get the tools and information they need to repair devices which should cut down on waste and of course cost to the owner of the device. The main differences between them are what goods they cover, the exact terms that are considered fair and what happens if the company does not comply. There are certainly other differences but these are the major ones.
Why Are These Bills Needed?
Supporters of the “right to repair” argue these bills are needed because they protect the consumer from unfair practices. If a device breaks, it allows the consumer to fix the device themselves or have it fixed by whomever they choose, which will usually be much cheaper than simply buying a new device or having a device repaired by an authorized technician. Additionally, repair tends to be quite good for the environment, since fewer devices need to be thrown out, as they can more easily be repaired instead. Opponents of these bills argue that allowing only authorized technicians to repair devices is a matter of consumer safety. Also such services are not required for other products, so why should they be for electronics?
Ultimately it is up to the voters to decide. If you have strong opinions about this then feel free to reach out to your respective legislatures and inform them of your opinions on right to repair bills.