duration thresholds for repair requirements, and the coexistence of repair rights and manufacturers’ intellectual property rights.
Any action taken by industry or policymakers will need to define what types of products will be included and whether any products should be explicitly excluded. For example, should any action only apply to consumer products or products with a computer chip? Or, should industrial equipment be excluded?
Some industries, such as the video gaming and medical device industries, argue that they are unique and should be excluded from any action. According to the ESA, “video game consoles are unique in the repair context” in part because console makers “use [technological protection measures] in order to enhance the safety and integrity of their consoles.”[1] Similarly, medical device manufacturers argue that their products are “categorically different than consumer goods in that they are heavily regulated products which have direct impact on patient care and safety.”[2] As discussed at the Workshop, there is no consensus about whether such exclusions are appropriate. For instance, Minnesota Senator Osmek has safety concerns about including medical equipment in his state’s right to repair legislation, although he also expressed an interest in discussing whether such an exclusion should be absolute.[3] Vermont Senator Pearson, on the other hand, noted that he has not been persuaded by the arguments made by the medical device and video gaming industries that they should be excluded from right to repair efforts.[4]
When deciding the scope of expanded repair rights, policymakers should think about whether the rights should be limited to consumer goods or include capital items.[5] Given the complexity and variation among products, it seems unlikely that there is a one-size fits all approach that will adequately address this issue.
- ↑ Entertainment Software Association comment, at 5. See Section V.(A), above for our analysis of this repair restriction used by video game console manufacturers.
- ↑ Medical Imaging & Technology Alliance empirical research, at 1.
- ↑ Senator Osmek stated, “Maybe there’s some things in a hospital that should be fixable by the custodial staff, and there probably—I don’t know. But let’s talk through those. Up until this point in time, I haven’t gotten that far.” Transcript, at 194.
- ↑ Id. at 193. Senator Pearson stated, “The hospital up the street from me is a level one trauma center, a teaching hospital. The techs there sent me a letter and said, I’m so glad you’re doing this. We are barred from repairing so much of the equipment in the hospital. It costs us tons of money. We have the ability to do it, but we’re not allowed to. It cost us money. It takes more time because we’ve got to wait for the authorized repair dealer to get there.” Id. at 192–93. In 2018, the Food and Drug Administration concluded that, “the objective evidence indicates that many OEMs and third party entities provide high quality, safe, and effective servicing of medical devices.” FDA Report on the Quality, Safety and Effectiveness of Servicing of Medical Devices (May 2018), https://www.fda.gov/media/113431/download.
- ↑ Policymakers could specify whether repair rights apply to, for example, farming equipment such as tractors, medical devices, or other classes of products that may have characteristics both of consumer goods and of capital items.
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