Reports abound of farmers being unable to fix their tractors or iPhone users being unable to replace cracked screens, fueling a push in recent years for state “right to repair” legislation that would create more opportunities for consumers to repair their electronic devices equipment. But these narratives miss the important role copyright law plays in bringing our electronic devices to life. In fact, these right-to-repair laws could have far-reaching consequences for copyright owners, despite what their proponents say otherwise.
Right-to-repair supporters are selling bills to state lawmakers. As I explained in a recent Hudson Institute policy memo with George Mason University law professor Adam Mosoff, proposed state right-to-repair laws are ostensibly unconstitutional because they directly conflict with what federal copyright law grants creators. Rights conflict. States should not waste precious time and resources passing overly broad fixes that will not pass constitutional scrutiny when inevitably challenged. Moreover, these laws are the wrong policy because they adversely rebalance the legal foundations upon which successful digital marketplaces depend.
The Constitution empowered Congress to enact federal copyright law because the founders understood that the best way to advance the public interest was to empower creators to pursue their own private interests. The Copyright Act protects the property rights of creators as a reward for their productive labor and incentivizes them to profit from the dissemination of their original works in the market. Since 1790, federal copyright law has benefited us all by empowering creators to decide if, when, and how their copyrighted works should be distributed to the public.
Federal copyright law protects not only the computer programs that make our electronic devices useful—firmware, operating systems, applications—but also the content that makes them fun—movies, songs, video games. To prevent infringement in the first place, copyright protects the digital lock that creators use to prevent unauthorized access and copying of their works. These safeguards underpin the entire digital marketplace; they are what digital creators can earn a living while benefiting consumers through exciting new services such as online gaming worlds and streaming platforms.
Dozens of states have adopted legislation modeled on the model language proposed by the Maintenance Association, a lobbying group that says it has “the support of some of the most powerful activists in the world.” The problem with state laws that follow this template is that they are in direct conflict with federal copyright law because they require device makers to surrender the keys to their copyrighted computer programs and the digital locks that protect their copyrighted works. Federal copyright law empowers digital creators to decide for themselves whether they want to share these things with others, and conflicting state laws are simply unenforceable and unconstitutional — in the words of lawyers, they are “preempted.”
When Governor Kathy Hochul signs her version into law on December 28, 2022, New York becomes the first state to enact comprehensive right-to-repair legislation based on this template. Thankfully, after vigorous opposition from rights holders and Hochul himself, the priority issue was removed from the original Copyright Act, which no longer compels digital creators to relinquish their federally protected rights. Still, some maintenance advocates lament the changes, and while they were necessary to make the law constitutional, they probably hope other states don’t make the same changes. While Hochul is no stranger to copyright preemption — in fact, she vetoed a similarly flawed bill in 2021 — the concern is that other states will follow without meaningful changes. model legislation.
If right-to-repair advocates want to change federal copyright law, they’ll have to make their case to the federal government. The task is not easy. The FTC concluded in 2021 that copyright protection “does not appear to pose an insurmountable barrier to restoration.” That’s because the Copyright Act establishes a right of restoration through its carefully crafted internal principles, exceptions, and exemptions to avoid opening Piracy gate. One wonders if proponents of repair are asking states to pass unconstitutional right-to-repair laws knowing that Congress would never agree to such a frivolous violation of the rights of digital creators.
Devlin Hartling Is a Legal Fellow at the Intellectual Property Forum at the Hudson Institute in Washington. His research agenda covers a wide range of theoretical and political issues in intellectual property law, with a particular focus on promoting and protecting the rights of creators and innovators.