Last week the Washington Post reported on a bill, Sen. No. 2268, that is making its way through the Massachusetts legislature (included below). The Bill would make car companies provide independent owners and repair shops with the same information and tools that they make available to their authorized dealers, on the same terms.
The Post portrays the Bills as a conflict between “mom-and-pop repair shops” and manufacturers such as Honda who have “vigorously opposed the right-to-repair bill on the federal level and in other states, such as New Jersey and Arizona.” A spokesman from a car trade group, in opposition, claimed the Bill would enable aftermarket parts companies to make “inexpensive parts in foreign countries without incurring research and development costs.”
The Bill would grant car owners and repair shops the right to bring an M.G.L. 93(a) (consumer protection and unfair trade practices) claim against an auto manufacturer for treble damages and attorneys’ fees if they do not make the following available on a “reasonable and nondiscriminatory basis and cost as compared to the terms and costs charged to an authorized dealer:
- The same information for the diagnosis, service, or repair of any motor vehicle that the manufacturer makes available to its authorized dealers and authorized motor vehicle repair facilities.
- The same tools and software capabilities, including wireless capabilities, related to the diagnosis, service, and repair of a motor vehicle that the manufacturer makes available to an authorized dealership or an authorized motor vehicle repair facilities of the motor vehicle.
Car companies would also have to provide aftermarket tool companies with information that would allow them to manufacture tools with the same functional characteristics as those tools made available by the manufacturers to authorized dealers or to an authorized motor vehicle repair facility — I assume this means schematics.
Comments:
I find the mechanics of this bill fascinating, though I’m not sure what type of affect it will have, if any. The Supreme Court has found that offering only a collection of movies to theaters violates antitrust laws. Loews, Inc. v. U.S., 334 U.S. 131 (1948) (“The antitrust laws do not permit a compounding of the statutorily conferred monopoly.”) That is, an intellectual property rightsholder is not insulated from claims targeting anticompetitive behavior just because they Copyright or Patent Acts grant owners exclusive rights. So, there does not appear to be an immediate preemption issue.
The requirement that car companies make information available to aftermarket tool companies is also interesting. One wonders if there will be many copyright suits brought targeting potentially infringing goods that were manufactured from car company specs. We may end up seeing a lot of cases on whether a specific part is a useful article that does not merit copyright protection.
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