On June 3, 2022, the New York state legislature passed the nation’s first right-to-repair bill (S.B. S4104A) that broadly covers electronic products. Known as the Digital Fair Repair Act, the legislation would require any original equipment manufacturer (OEM) that sells digital electronic products, including parts for such products, within state borders to make tools, parts, and diagnostic, maintenance, and repair information available, on fair and reasonable terms, for both consumers and third-party repairers. The tools, parts, and information must be available either directly by the OEM or via an authorized repair provider acting on behalf of the OEM. The legislation authorizes the Attorney General to bring an action to enjoin any violator. A potential violator may be subject to a $500 civil penalty for each violation but must be given notice and an opportunity to show that a potential proceeding should not be instituted against them.
While the legislation broadly cover electronic products, including but not limited to cellphones and laptops, there are notable carveouts from the legislation, including (i) motor vehicles; (ii) home appliances (e.g., refrigerators, ovens, microwaves, etc.) with an embedded digital electronic product; (iii) medical devices; (iv) off-road equipment; (v) farming equipment; and (vi) public safety communications equipment. The legislation also does not require OEMs to make available any tools, parts, and/or information for purposes of modifying or making modifications to any digital electronic equipment. Furthermore, the legislation precludes OEMs from being liable for any damage or injury caused to any digital electronic equipment by a third-party repairer or the consumer that occurs during the course of repair, diagnosis, maintenance, or modification, including but not limited to any (i) any indirect, incidental, special, or consequential damages; (ii) any loss of data, privacy, or profits; or (iii) any inability to use, or reduced functionality of, the product.
The legislation is expected to be signed by Gov. Kathy Hochul, and the legislation will take effect one year after becoming law. At that time, any company selling technological products in New York covered by the legislation will be obligated to provide information, software, tools, and parts to individual owners and independent repair businesses upon request.
Although advocates of the right-to-repair movement support the legislation in its efforts to increase competition, boost the economy, and lower electronic repair prices in New York, the legislation has some potential setbacks that may adversely affect companies. First, any repair information, such as a repair manual, made available to consumers and repair shops in New York could be made available on the internet, lessening the need for consumers in other states to seek repair information directly from the companies. Furthermore, while the legislation does not require companies to make tools, parts, or information available if the intended purpose is to modify the products, it remains silent on how companies can effectively determine whether the consumer or repair stop is, in fact, using the tools, parts, or information for repair and maintenance rather than for modification. Thus, additional guidance or regulations would be needed to prevent consumers and repair shops from taking advantage of the legislation. Finally, companies may need to rethink whether making their products more repairable and long-lasting for consumers is a viable long-term business strategy, which may stifle technological innovation and research and development.
Although New York will officially be the first state to pass comprehensive right-to-repair legislation, similar right-to-repair bills have been filed in other states with varying levels of success. Recently, California’s right-to-repair bill, known as SB 983, failed to pass in the California Senate Appropriations committee, where seven legislators voted to suspend the bill. The bill would have required manufacturers of any electronic or appliance product to make available any information, at no charge, and functional parts and tools for consumers, service and repair facilities, and service dealers to assist in the diagnosis, maintenance, and repair of a product.
As we expect New York to lead the nation in pushing for an expansive right to repair, we continue to monitor new developments in this space as other states are weighing right-to-repair bills, and both the U.S. Senate and House of Representatives have introduced right-to-repair bills known as the Fair Repair Act. (See S. 3830, 117th Cong. (2022); H.R. 4006, 117th Cong. (2022).)
