Ranking Member Johnson's Opening Statement in hearing: Hearing on “Is There A Right to Repair?”

I would like to begin by thanking my colleague, Chairman Issa, for bringing together experts from both sides of this important conversation. Thank you also to our witnesses for being willing to lend us your time and your considerable knowledge today. I feel privileged to serve as Ranking Member of a subcommittee that supports creators and keeps our American innovation system strong. Together, we on this subcommittee tackle complicated intellectual property policy issues that have no clear solutions in an often-bipartisan manner. I am looking forward to doing so again today.

“Right to Repair” is one such thorny policy issue, and the debate over an appropriate solution encompasses issues and individuals far outside the scope of this subcommittee. Environmentalists, economists, and antitrust experts, to name a few, have all weighed in on the problem and proposed solutions. But we are here today because the question of repairability incorporates intellectual property concerns as well, including but not limited to the design patent and copyright spaces. 

Repair shops, once a common feature of every small-town main street, have become largely a distant memory. We have all had the experience of having a home appliance break and discovering that it would cost more to fix than to simply replace. So we toss the toaster oven, or vacuum, or desk lamp, in the trash and head to our local store for a new one. Fault for the demise of repair has been leveled at changes in production, poorly made devices, and an absence of economic incentives. These charges are not for us to determine today. But I would note that the incorporation of software into everyday items, from coffeemakers to cars, has made an already challenging discussion even more complicated. 
Businesses who seek to repair these broken items argue that some of the laws protecting patent and copyright holders preempt them from doing so, and they say that these intellectual property provisions are being deployed outside their contemplated purpose when the laws were first enacted.

Others assert that this argument is what we’ve heard time and again from those who find innovation protections inconvenient to their industry. They remind us that intellectual property laws exist to encourage investment in new ideas. I am here today to listen and learn, and I’m looking forward to hearing from our witnesses how any legislative solutions that come before this committee can continue to protect our inventors and creators while increasing consumer choice.

Much of the conversation about copyright interference with the repair market is focused on Section 1201 of the Digital Millennium Copyright Act, or DMCA, which prevents digital piracy of online copyrighted works. When the DMCA was passed in 1998, those of us who had access to the internet at home used a dial-up connection, we went out and bought a CD if we wanted to listen to a new album, and phone calls were likely made on a device attached to the wall by a cord. Conversely, today even the most mundane devices are connected to the Internet of Things. 

The world has changed, and with it the number of items that fall under the auspices of 1201. In a 2017 report, the Copyright Office itself acknowledged that “Section 1201(a)’s protections for access controls have the potential to implicate activities far outside the traditional scope of copyright law.” Yet 1201 already contains a provision allowing for triennial exemptions that is designed to prevent non-copyright infringers from running afoul of the statute. I’m looking forward to hearing from the assembled witnesses about whether the DMCA, and 1201 in particular, is working as intended.

But the debate over right to repair is not limited to copyright issues. Design patents, particularly design patents for component parts of a vehicle, are often the target of considerable criticism by car repair experts. As we explore solutions to this and other areas of intellectual property concern voiced by the repair community, it is crucial that we keep in mind the importance of patent protections to innovation and seek to ensure we leave behind a healthy system for generations to come.

We should all agree that there is a problem with repair today. When the only option is to “just buy a new one,” we all lose. Finding a solution, however, is a weightier task, but it is one I look forward to seeking together. Thank you again to Chairman Issa for holding this important hearing and I look forward to hearing from our esteemed witnesses.