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88 Fordham L. Rev. 63 (2019-2020)
Intellectual Property Law and the Right to Repair

handle is hein.journals/flr88 and id is 71 raw text is: INTELLECTUAL PROPERTY LAW AND THE RIGHT TO REPAIR By Leah Chan Grinvald* & Ofer Tur-Sinai** This Article posits that intellectual property law should accommodate consumers' right to repair their products. In recent years, there has been a growing push towards state legislation that would provide consumers with a right to repair their products. Currently, twenty states have pending legislation that would require product manufacturers to make available replacement parts and repair manuals. Unfortunately, though, this legislation has stalled in many of the states. Manufacturers have been lobbying the legislatures to stop the enactment of these repair laws based on different concerns, including how these laws may impinge on their intellectual property rights. Indeed, a right to repair may not be easily reconcilable with the United States'far-reaching intellectual property rights regime. For example, requiring manufacturers to release repair manuals could implicate a whole host of intellectual property laws, including trade secrets. Similarly, employing measures that undercut a manufacturer's control of the market for replacement parts might conflict with patent exclusivity. Nonetheless, this Article holds that intellectual property laws should not be used to prevent a right to repair from being fully implemented. In support of this claim, this Article develops a theoretical framework that justifies a right to repair in a manner that is consistent with intellectual property protection. Based on this theoretical foundation, this Article then explores, for the first time, the various intellectual property rules and doctrines that may be implicated in the context of the current repair movement. As part of this analysis, this Article identifies areas where intellectual property rights could prevent repair laws from being fully realized, even ifsome of the states * Associate Dean for Academic Affairs and Professor of Law at Suffolk University Law School. ** Associate Professor of Law, Ono Academic College (Israel). LL.B., Ph.D., Hebrew University of Jerusalem; LL.M., Columbia University. For helpful comments, suggestions, and discussions, the authors are grateful to Katya Assaf, Sarah Burstein, Dylan Gilbert, Eric Goldman, Lital Helman, Cynthia Ho, Steven Jamar, Mark Lemley, Peter Menell, Lateef Mtima, Kali Murray, Lisa Larrimore Ouellette, Aaron Perzanowski, Michael Risch, Sharon Sandeen, Joshua Sarnoff, Jessica Silbey, Michal Shur-Ofry, Ryan Vacca, and Peter Yu, as well as the participants of the 2018 IP Mosaic Roundtable Conference (New Hampshire), the Works-in-Progress Intellectual Property Colloquium (WIPIP) (Houston, 2019), and the Sha'arei Mishpat Law College Faculty Seminar (Israel, 2019). Finally, the authors thank the editors of the Fordham Law Review for their careful and thoughtful edits. 63

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