BEYOND MAGNUSON-MOSS AND KODAK—"RIGHT TO REPAIR" AS AN ANTITRUST ISSUE

By Ryan Sandrock¹

The "right to repair"—a product purchaser’s right to use parts or get service from someone besides the original product seller—is both an old and new antitrust concept. Old because the anti-tying provision of the Magnuson-Moss Warranty Act of 1975 barred conditioning a warranty on use of authorized parts or service and because the Supreme Court’s 1992 decision in Eastman Kodak Co. v. Image Technical Servs., Inc.² discussed when aftermarket parts restrictions could harm competition in an aftermarket. New because until recently neither the agencies nor private plaintiffs showed much interest in these theories and Kodak frequently served as a checklist for dismissal. But now there is antitrust energy behind the right to repair—advocacy groups talk of a "right to repair movement,"³the FTC is dusting off Magnuson-Moss,⁴ and plaintiffs have filed and withstood motions to dismiss in single- brand aftermarket cases against Tesla and John Deere.

This article discusses the past, present, and future of right to repair claims, closing with a discussion of the uncertain future for manufacturers now that some courts may not be following the old understanding that single-brand aftermarket claims should rarely pass muster.

First some terminology: a "primary market" or a "foremarket" refers to competition for the initial sale of a product (say the sale of a tractor or an electric vehicle); an "aftermarket" refers to competition for a subsequent sale related to the product (say the sale of tools to repair the tractor or the electric vehicle); a "single-brand market" is a market (almost always an aftermarket) limited to a single-brand (say tools to repair one brand of tractor or electric vehicle); an "ISO" is an "independent service organization," a term sometimes used to describe a company who seeks to provide service in an aftermarket and is independent of the seller in the foremarket; and, finally,"R2R" is the new shorthand for right to repair used in social media and elsewhere.