Earlier this month, Sen Lujan (D,NM) introduced S 3830, the Fair Repair Act. The bill would establish a requirement for original equipment manufacturers to make available “documentation, parts, and tools, inclusive of any updates to information or embedded software” for the purpose of diagnosis, maintenance or repair of equipment sold or used in the United States. It would also make the Federal Trade Commission the agency responsible for enforcement of the requirement. The bill is very similar to HR 4006 that was introduced in June. No action has been taken on that bill.
Definitions
This bill uses a slightly different format for definitions in §5 of the bill. That results in some minor wording changes in the definitions that the two bills have in common. The Senate bill also adds definitions for:
The Senate bill does not include the below listed terms used in HR 4006. Neither term was used in the text of that legislation.
General Requirements
Section 2 of the bill has been rewritten with many of the provisions found in the House version removed. The Senate version breaks the requirement down to a single paragraph:
“In the case of digital electronic equipment manufactured by or on behalf of, sold, or otherwise supplied by an original equipment manufacturer, the original equipment manufacturer shall make available, for the purposes of diagnosis, maintenance, or repair of such equipment, to independent repair providers and owners of such equipment on fair and reasonable terms, documentation, parts, and tools, inclusive of any updates.”
Limitations
The limitations set forth in §4 of the House bill remain in this version with one curious exception. In §4(a), the Senate version does not include the end sentence found in the House bill:
“Such documentation, tools, and parts may be made available to owners and independent repair facilities through appropriate secure data release systems.”
Motor vehicles and medical devices are still exempt from the provisions of this bill. The inclusion of a definition for the term ‘motor vehicle’ does become important in this section, however, as it limits the applicability of this exemption.
Moving Forward
Lujan is an influential member, as is one of his two cosponsors {Sen Lummis (R,WY)} of the Senate Commerce, Science, and Transportation Committee to which this bill was assigned for consideration. This means that there should be sufficient influence to see this bill considered in Committee. There will be some opposition to this bill from many manufacturers, but I suspect that there will be sufficient bipartisan support for this bill to be adopted in Committee.
The bill is unlikely to make it to the floor of the Senate under regular order, it is just not important enough. The bill would draw sufficient opposition to ensure that the bill would not be considered under the unanimous consent process. The only way this bill would make it to the floor is as an amendment to some more important bill.
Commentary
The comments that I made about the ‘security-related function’ provisions of the House bill apply equally well to this version of the bill.
While this bill (and the House version) does make an effort to provide support for repairs of digital equipment by owners and independent repair providers, the lack of definition of the terms ‘diagnosis, maintenance, or repair’ means that making changes to software not approved by the OEM will still be able to be restricted as copywrite infringement.