How the Federal Trade Commission Can Use Section 5 To Strengthen the Right to Repair

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Consumers’ right to repair their products is under attack. Manufacturers have decimated this long-held right by making parts unavailable, preventing products from working, and imposing software restrictions. Farmers can no longer repair tractors, medical professionals can’t fix ventilators, and military officers are stuck with broken equipment.

Although competition law would seem to be a natural fit to address this conduct, antitrust law has erected nearly impossible hurdles, especially on “Kodak” claims involving “aftermarket” service and parts.

In this article, I offer a framework for the Federal Trade Commission (FTC) to challenge this behavior as an “unfair method of competition” under Section 5 of the FTC Act. While such an approach could be applied without limits, I propose modestly extending Kodak in a predictable manner consistent with the decision’s rationale.

In particular, my application builds on the “gap filler” rationale introduced by Susan Creighton and Thomas Krattenmaker that applies when an element of an antitrust claim is not satisfied. I argue that courts’ unwillingness to find market power is addressed by practical indicators like multiple manufacturers’ restrictive terms, users’ lack of knowledge, and time-sensitive uses, each of which has dramatically increased in the 30 years since Kodak.

A competition cause of action is needed because the harms suffered are as severe as any that have appeared in antitrust cases: a loss of lives in hospitals and on battlefields, and a loss of livelihoods for farmers unable to harvest crops.

Such a case is buttressed by a lack of procompetitive justifications. Comprehensive FTC and FDA inquiries have cast doubt on manufacturers’ safety-based rationale. And Section 5’s consideration of policy shows how their other primary justification—IP—is not convincing. In particular, an analysis of design patents, trade secrets, trademarks, and copyrights (including the DMCA) reveals how the incentives/access tradeoff strongly supports the latter.

Finally, my framework promises to bridge the divide between “neo-Brandeisians” and other antitrust scholars, as consumer interests overlap with those of workers, user innovators, and independent repair shops.

Given repair restrictions’ questionable justifications and severe effects on lives and livelihoods, a competition-based tool promises real benefits.