State ‘right-to-repair’ laws can’t take away the rights of digital creators

Reports abound about farmers who can’t repair their tractors or iPhone owners who can’t replace their cracked screens have fueled a push in recent years for state “right-to-repair” legislation that would create more opportunities for consumers to repair their electronic devices. But what these narratives leave out is the important role that copyright law plays in bringing our electronic devices to life. Indeed, these right-to-repair laws could have profound implications for copyright owners, though their proponents say otherwise.

Right-to-repair supporters are selling a bill of goods to state legislators. As I explain in a recent Hudson Institute policy memo with George Mason University law professor Adam Mossoff, the proposed state right-to-repair laws are unconstitutional on their face because they directly conflict with the rights secured to creators under the federal Copyright Act. States should not waste precious time and resources passing overly broad repair laws that will not pass constitutional muster when they inevitably are challenged. Moreover, these laws are the wrong policy because they would detrimentally rebalance the legal foundation upon which the successful digital marketplace rests.

The Constitution empowers Congress to enact federal copyright laws because the Founders understood that the best way to advance the public interest is by granting creators the ability to pursue their own private interests. The Copyright Act secures property rights to creators as a reward for their productive labors and as an incentive for them to profit from the dissemination of their original works in the marketplace. Since 1790, federal copyright law has benefited us all by enabling creators to determine for themselves whether, when and how their copyrighted works are distributed to the public.

Federal copyright law protects not only the computer programs — firmware, operating systems, applications — that make our electronic devices useful, but also the content — movies, songs, video games — that makes them enjoyable. And to prevent infringement from happening in the first place, copyright secures the digital locks that creators use to prevent unauthorized access to and copying of their works. These safeguards undergird the entire digital marketplace; they are the reason that digital creators can earn a living while benefiting consumers with exciting new services, such as online gaming worlds and streaming platforms.

Dozens of states have taken up legislation patterned on the model language put forth by the Repair Association, a lobbying group that boasts “the backing of some of the world’s most powerful activists.” The problem with state laws that follow this template is that they directly conflict with federal copyright law because they require device manufacturers to turn over their copyrighted computer programs and the keys to the digital locks that protect their copyrighted works. The federal Copyright Act empowers digital creators to decide for themselves whether they want to share either of these things with others, and conflicting state laws are simply unenforceable and unconstitutional — they are, in lawyer-speak, “preempted.”

New York became the first state to enact sweeping right-to-repair legislation based on this template when Gov. Kathy Hochul signed its version into law on Dec. 28, 2022. Thankfully, after significant pushback by rights owners and Hochul herself, the copyright preemption troubles were excised from the original bill and it no longer forces digital creators to surrender their federally protected rights. Nevertheless, some repair advocates lament these changes, even though they were necessary to make the law constitutional, and they likely are hoping that other states won’t make the same modifications. While Hochul is no stranger to copyright preemption — in fact, she vetoed a similarly defective bill in 2021 — the concern is that other states will follow the model legislation without meaningful amendment.

If right-to-repair advocates want to change federal copyright law, they will have to make their case to the federal government. That task will not be easy. The Federal Trade Commission concluded in 2021 that copyright protections “do not appear to present an insurmountable obstacle to repair.” This is because the Copyright Act accommodates the right to repair through its internal doctrines, exceptions and exemptions that were carefully crafted to avoid opening the piracy floodgates. One wonders if repair supporters are asking the states to pass unconstitutional right-to-repair laws precisely because they know that Congress would never agree to break the rights of digital creators so incautiously.

Devlin Hartline is a legal fellow at the Hudson Institute’s Forum for Intellectual Property in Washington. His research agenda spans a broad spectrum of doctrinal and political issues in intellectual property law, with particular focus on advancing and protecting the rights of creators and innovators.