Right-to-Repair Advocate Expects NY Legislation to Face Certain Court Fight

At least one prominent right-to-repair advocate thinks it’s a virtual certainty that tech companies will sue to block the Digital Fair Repair Act that cleared the New York Assembly Friday by a 145-1 vote (see 2206030034). The bill, which would take effect a year after Gov. Kathy Hochul (D) signs it into law, requires OEMs to provide parts, tools and repair documentation to consumers and independent repair shops.

“I look forward to seeing what the next challenge is going to be,” once the New York legislation is signed into law, said independent repair technician and YouTube personality Louis Rossmann, appearing on a video call Friday with other right-to-repair advocates, celebrating their victory in the New York Assembly. “It’s definitely nice, after seven years of losing nonstop, to finally get a chance for it to actually be voted on, much less to actually win,” he said. “The next steps are manufacturers fighting it in court, which is going to be fun.”

Repair.org Executive Director Gay Gordon-Byrne, who also was on the Friday call, emailed us Saturday that she was “surprised to hear Louis make those comments.” Right-to-repair advocates have “worked for many years” with attorneys at Consumer Reports, the Electronic Frontier Foundation and other nonprofits “to make sure that our bills are as legally solid as possible,” she said.

The right-to-repair movement’s legal preparedness “doesn't mean some OEM or other won't decide to litigate against the State of NY (at their expense) on some point of law, but that’s always a possibility,” said Gordon-Byrne. New York has “a very deep bench” in the state attorney general’s office, where lawyers “do not appear particularly worried about a fight,” she said. “Plus -- even a protracted court fight will only stall implementation in NY which could easily be superseded by actions in other states or federally. A game of ‘reverse wack-a-mole’ if you will.”

Gordon-Byrne said CTA “told us several times, ‘See you in court,’” during the run-up to the New York right-to-repair legislation. “But we've no special insight into which company or companies might actually commit public relations seppuku in order to avoid selling some parts,” she said, using the Japanese word for ritual suicide. “On the positive side -- we've already seen steps forward in compliance from Motorola, Microsoft, Samsung, Google and even Apple. Even with some of these steps being clumsy -- they show me that they intend to comply.”

CTA didn’t respond to requests for comment Monday about whether it plans to fight the New York right-to-repair legislation in court. There’s a somewhat recent precedent in the lawsuit that the then-Consumer Electronics Association filed in July 2009 in U.S. District Court in Manhattan to block implementation of New York City’s e-waste law that was set to take effect days later (see 0907280100). The complaint was to oppose mandates that manufacturers provide free, door-to-door e-waste collection to New York City residents, costing tech companies more than $200 million annually.

The suit alleged the city’s e-waste program violated the dormant commerce clause doctrine of constitutional law by imposing burdens on interstate commerce that “far outweigh the local benefits to city residents,” it said. CEA settled with the Natural Resources Defense Council nearly two years later when a New York state e-waste law took effect, superseding the city’s door-to-door collection mandates that tech companies found objectionable.

There was talk on Friday’s call about the interstate commerce implications of the New York right-to-repair law. Gordon-Byrne said on the call she expects New Yorkers to immediately benefit from the parts and tools that will become available once the law takes effect, but nothing will stop a consumer or independent repair shop from buying the parts and tools online and having them shipped to California, she said. “Some of the limitations that people think are going to happen won’t happen,” she said. “This bill should have an impact nationally, if not internationally, the moment it becomes implemented.”

Tech opposition to right-to-repair legislation has been “unprecedented,” said iFixit CEO Kyle Wiens on the call. “We had $2.5 trillion of market cap registered to lobby against us,” he said. “The amount of opposition and intransigence on this has been ridiculous.” Continuing to fight right-to-repair legislation after the New York victory “doesn’t make sense,” said Wiens. “If I were a manufacturer, I’d be focusing on how do I build the best possible repair experience into my products.”