N.Y. Right-to-Repair Law Bears Watching for Litigation to Block It
With the first statewide digital right-to-repair bill (SB 4104-A) in the U.S. now bearing the signature of New York Gov. Kathy Hochul (D), attention turns to whether tech groups like CTA and CTIA will litigate to block the statute from taking effect July 1. Neither group responded to our queries seeking comment about the bill’s signing or the prospects of taking the statute to the courts.
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Right-to-repair advocacy groups like The Repair Association have “been told for years by no less than CTA, ‘see you in court,’” emailed the group’s executive director, Gay Gordon-Byrne. But the changes made in the legislation to make it more palatable to tech companies “are being praised by TechNet, so I wonder just which entity would litigate, and for what?” she said Friday.
Gordon-Byrne thinks the “big hidden win” in the New York right-to-repair law is that the OEMs “are planning to make this a voluntary standard and try to forestall tougher laws in other states,” she said. “It's a floor and not a ceiling, so each of our next bills will be stronger.”
While TechNet thinks SB 4104-A and similar legislation “remains a serious threat to intellectual property rights,” TechNet's members “greatly appreciate the significant strides” made by the Hochul administration “to address the most critical consumer protection and operational issues in the legislation as passed,” said Chris Gilrein, TechNet’s executive director-Massachusetts and the Northeast, in an emailed statement. “The agreement reached with the legislature enhances public safety, data security, and transparency in this new repair regime.”
A Hochul spokesperson declined comment Thursday about whether the governor's office perceives a litigation threat awaiting SB 4104-A’s enactment, referring us only to the governor’s approval statement attesting to the modifications made to make the statute easier for tech interests to swallow. The agreement that Hochul struck with the legislature eliminated the bill's original requirement calling for OEMs to provide the public with any passwords, security codes or materials “to override security features,” said Hochul.
The bill as enacted and signed also allows OEMs to provide consumers with “assemblies of parts rather than individual components when the risk of improper installation heightens the risk of injury,” said the governor. Her administration also agreed to “clarify” that OEMs that contract with authorized third-party repair shops, or offer repair services themselves, are required to provide parts, tools and documents “at reasonable costs to device owners and independent repair shops to facilitate repair,” she said.
Digital devices that change hands through business-to-business or business-to-government sales are exempt from the new law, said Hochul. “We have agreed to changes” to ensure OEMs “will not be required to license any intellectual property” to consumers or independent repair shops, she said. “The new law's requirements will apply to digital electronic equipment that is both manufactured for the first time as well as sold or used in New York for the first time on or after July 1.”
Advocates in the right-to-repair movement have said they think litigation to block the legislation would become a virtual certainty in the months after Hochul signed it into law. There’s a somewhat recent precedent in the lawsuit that CTA -- then called the Consumer Electronics Association -- filed in July 2009 in U.S. District Court for Southern New York to block implementation of New York City’s e-waste law that was set to take effect within days, mandating that tech manufacturers provide free, door-to-door e-waste collection to the city’s residents.
CTA’s suit, which was settled two years later, alleged the city’s e-waste program violated the dormant commerce clause doctrine of constitutional law. The doctrine refers to the prohibition against states passing legislation that discriminates against or excessively burdens interstate commerce.
Lawyers we canvassed said the doctrine could have unique implications for New York’s new right-to-repair law, considering nothing in the statute appears to prevent a consumer or independent repair shop in California from buying the parts and tools online from a vendor in New York and having them shipped to California via interstate commerce.