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Massachusetts Right to Repair Fight Continues

A threat to intellectual property rights?

3 min read
Massachusetts Right to Repair Fight Continues

Early last week, a hearing was held before the Massachusetts Joint Committee on Consumer Protection and Professional Licensure over the proposed vehicle Right to Repair Act of 2011, which I blogged about a few weeks ago. Both opponents and supporters of the bill were in full voice.

Supporters argued that the bill is required in order to guarantee independent repair shops access to all the vehicle information required for making a repair, something that they claim is not possible today. A State House News Service article on the hearing reported that bill sponsor Rep. Garrett Bradley

testifying behind 6 stacks of 28 000 letters of support piled high on the table before him, said supporters had no interest in accessing the intellectual property of vehicle manufacturers, one of the main arguments against the bill. Bradley said small garages and repair shops only want the same repair and diagnostic information available to dealerships and are willing to pay for it to service their customers.

Opponents of the bill say that information to repair vehicles is already sufficiently available through the National Automotive Service Task Force (NASTF), which was set up in 2000 so that independent repair shops and aftermarket tool vendors can use it to facilitate their access to repair-related information and tools. The legislation, they argue, is a solution looking for a problem.

In addition, regardless of what Rep. Bradley and other bill supporters say, opponents argue that many intellectual property rights would indeed be put at risk.

One group that has come out against the bill is the Associated Industries of Massachusetts.  AIM, says its website, was established in 1915 and  "is the largest nonprofit, nonpartisan association of Massachusetts employers. AIM's mission is to promote the well-being of its members and their employees and the prosperity of the Commonwealth of Massachusetts."

I spoke with Bradley MacDougall, AIM's VP of government affairs, last week after the hearing to try to better understand its opposition to the bill.

According to MacDougall, "The biggest issue is that it is a direct threat on intellectual property." He argues that the bill, if passed, might become the precursor to similar legislation that would cover other Massachusetts industries,

...insofar as this legislation would specifically set apart a very different legal framework for manufacturers, specifically in the auto industry, but could very, very quickly and easily be set towards our bio technology, our software industry, [and] our service industry— anybody who produces anything that has something to do with intellectual property.

This is too great risk to take, argues MacDougall. Companies make investments based on not only the current Massachusetts business environment but their beliefs about its future. If they think their intellectual property faces a risk of exposure, companies may think very hard before investing in Massachusetts, he says.

Mr. MacDougall supports his argument by saying, "The language in there really makes people extremely nervous because it talks about all types of information. It’s not just calling for information relating to the repair."

The wording of the bill is a bit open-ended, especially when it says that the information provided "must include but is not limited to..." Figuring out the true limits defined in the phrase "not limited to" may take several court battles.

This brings up another point of MacDougall's, which is that suppliers to the automotive manufacturers would also be covered by the bill. The legal issues surrounding the rights of manufacturers to disclose third-party information that may be protected by contract could be rather sticky.

I don't know whether the proposed Right to Repair legislation has enough support to pass in the Massachusetts legislature or whether AIM’s  argument will sway members one way or another.

As I have said before, I haven't had trouble repairing my vehicles at independent repair shops, but as vehicles become increasingly complex (and profitable) to diagnose and repair, I can envision a day when auto manufacturers may be tempted once again to put up barriers to obtaining repair-related information. The widespread use of remote, real-time diagnostics of vehicles poses such a temptation.

The problems I am still having with the entire debate are whether there really is a widespread problem getting vehicles repaired because the information is not being made available by automotive manufacturers and whether legislation is the proper remedy, if there is a problem. There are anecdotes, but anecdotes are not data. Without that information, I am having difficulty figuring out the cost/benefit ratio of the legislation both today and into the future.

Also, I am surprised that alternatives to solving this "problem" have not been articulated: It seems that you are either for or against the idea of a "right" to repair.

If Massachusetts does pass the Right to Repair legislation, I suspect things will not be as worrisome as MacDougall believes. But I also suspect the unintended consequences will not be as benign as those portrayed by the bill’s supporters.  Once a new "right" has been legislated, it can lead to places no one has completely contemplated.

I'll let you know what happens in Massachusetts and on the national front, where a similar bill has been introduced.

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