Devlin Hartline

California is poised to become the third state to enact a right to repair law aimed at making it easier for independent repair shops and consumers to repair electronic devices. This might sound well and good—until you think about what it actually means for IP owners. While repair advocates may not care about, or even acknowledge, the IP side of the equation, the not-so-hidden truth of the right to repair movement is that it expands repair opportunities for consumers by taking away the rights of copyright and patent owners. Indeed, the foundational premise of the repair movement is that there is something inherently wrong when an IP owner exercises its right to exclude and imposes a repair restriction. Of course, this lopsided view elevates access over incentives, and it ignores how IP law itself promotes the public good by rewarding creators and innovators for their individual efforts. But, more importantly, it’s not up to the states to second-guess Congress’s judgment.

In June 2020, a few months into the pandemic, a group of four large publishing houses—Hachette Book Group, HarperCollins Publishers, John Wiley & Sons, and Penguin Random House (collectively, the Publishers)—sued Internet Archive (IA) in the Southern District of New York for “willful mass copyright infringement.” The spat centers around IA’s Open Library project, which scans millions of physical books and delivers them digitally across the globe for free to anyone with an internet connection. IA proclaims that the “ultimate goal of the Open Library is to make all the published works of humankind available to everyone in the world,” but it conspicuously fails to mention that its utopian vision doesn’t include getting permission from copyright owners before offering their works on its virtual bookshelves. IA argues before the court that it doesn’t need permission because its actions qualify as fair use under the dubious new theory of controlled digital lending (CDL), which it claims to be “fundamentally the same as traditional library lending” since it “poses no new harm to authors or the publishing industry.”

The Constitution empowers Congress to enact federal copyright laws because the Founders recognized that the best way to advance the public interest is by enabling creators to pursue their own private interests. The copyright system secures uniform property rights to creators across the nation as a reward for their productive labors and as incentive for them to profit in the marketplace. The incredible selection of creative works available to consumers today, in terms of quantity and quality, shows that copyright law is working well. Of course, that doesn’t stop the detractors from throwing as many monkey wrenches as they can. However, looking back over this past year, there’s good reason to think that the naysayers are becoming less relevant. There’s cause to be hopeful that the plight of all creators, big and small, is improving and will continue to get better in the years to come.

The right-to-repair movement has been making strides in recent years, as many states are now contemplating bills that would require electronic device manufacturers to make their parts, tools and know-how available to device owners and independent repair shops. While the goal of expanding repair opportunities for consumers is certainly laudable, repair advocates are pulling a fast one when it comes to the federal copyright law implications of their preferred state legislative solutions. As Professor Adam Mossoff and I explain in a new Hudson Institute policy memo, these proposed state right-to-repair bills are unconstitutional on their face because they directly conflict with the rights secured to authors under the federal Copyright Act. They are also the wrong policy since they would upset the legal and policy foundations that have led to the unprecedented success of today’s thriving digital marketplace. States should not waste valuable time and resources on harmful right-to-repair bills that will be struck down when they are inevitably challenged.

The ability of copyright owners to experiment with different marketing strategies is fundamental to copyright law. Indeed, the U.S. Copyright Act promotes the public good by granting exclusive rights to copyright owners that incentivize the creation and dissemination of new works on their own terms. These exclusive rights are the reason why copyright owners invest time, energy, and money into creating new works, and why they have a chance to recoup expenses and perhaps make a profit. The Copyright Act has always celebrated the right and ability of copyright owners to choose whether, how, when, and where their works are distributed to the public. And under our dual system of government, where federal law reigns supreme, it is well-settled that the states are powerless to interfere in ways that conflict with the nationwide scheme established by Congress. Nevertheless, there is an alarming new trend of states pursuing laws that would force publishers, many of whom are also authors, to grant licenses to public libraries for access to their digital works, such as eBooks and audiobooks.