On March 9th, 2017, Nebraska LB67: Adopt the Fair Repair Act was heard by the Judiciary Committee in Room 1113 at the Capitol. LB67 includes statutory language allowing independent repair shops and owners to obtain diagnostic manuals and purchase diagnostic tools and equipment at a reasonable price. Opponents of Right to Repair bills in the past have included John Deere and other Original Equipment Manufacturers (OEMs), as well as electronics manufacturers and associations. The history of Right to Repair bills, including LB67, is discussed in further detail here.

As LB67 was the first bill heard during the day, proponents and opponents of the bill were only allotted one hour to testify, three minutes per testifier, after which the Judiciary Committee could ask questions in response to each testimony. Senator Lydia Brasch of the 16th Legislative District of Nebraska, proposer of LB67 to the Unicameral, also gave opening and closing statements.

In her opening statement, Senator Brasch focused on the idea of ownership being the heart of LB67. Senator Brasch indicated that an individual should not be required to re-buy the same device again and again, which would come to pass should an owner be required to return to OEM-authorized repairers (or the OEMs themselves) for repairs.

Following Senator Brasch’s opening statement, proponents of LB67 were first to testify. The proponents included individuals from electronics recycle/repair associations and repair training centers, business owners from Nebraska and around the nation (including Kansas and New York, where the state legislation docket also includes a proposed Right to Repair Bill), and farm owners. Proponents of LB67 focused on the idea of ownership, and the ease with which products can be repaired safely. Proponents also discussed the issue of electronic waste in landfills, and that an increase in the number of people allowed to repair electronics would decrease the amount of electronics landfill waste being generated. Proponents of LB67 also touched on the issues of contracts associated with technology, tying in with Senator Brasch’s opening statements about ownership rights.

Questions from the Judiciary Committee to the proponents of LB67 included concerns of subsequent federal preemption of state law (i.e. preemption by federal copyright law), why the out-of-state proponents are testifying in Nebraska instead of their home state, and whether OEM-provided warranties should be considered when determining what period of time can elapse before diagnostic material must be made available to independent repair shops and third-parties.

Once the proponents of LB67 concluded their testimony, the opponents of LB67 were permitted to testify against the bill. The opponents of LB67 included manufacturers associations (such as appliances, HVAC, and electronics). Opponents focused on safety concerns in allowing potentially untrained independent repair shops and owners to fix owned products. This includes damage that might occur from inadequate repairs and security concerns associated with untrained individuals having access to sensitive locations (e.g. server rooms, residential homes, and the like). Opponents also expanded the safety argument to the possibility of OEMs being held liable for any damage that might occur from a repair gone wrong, either to a third-party who used the unauthorized repair shop, or to a subsequent purchaser of the improperly-repaired good. Opponents also discussed the benefits of leaving this type of legislation to the federal government, including prevention of bypassing federal requirements on the devices, protection from the hacking of devices, protection from copyright infringement of the proprietary code within the devices, and protection from an adverse effect on intra- and interstate commerce that might occur should LB67 be allowed to pass. Opponents further discussed contractual obligations that LB67 could potentially affect, including OEM contracts with authorized repair shops, OEM contracts with retailers, and authorized repair shop contracts (e.g. extended warranties) with consumers.

Questions from the Judiciary Committee to the opponents of LB67 included whether the Unicameral should be allowed to protect their constituents from price gouging by OEMs and potential invasions of privacy, and whether all industries should be required to provide the diagnostic components and training (given that select industries already do so).

Senator Brasch’s closing statements focused on points made during the proponents’ and opponents’ testimonies. Senator Brasch explained the 2015 Copyright Office triennial ruling that a Right to Repair bill would implicate state contract issues rather than federal copyright issues.  Senator Brasch also referenced the notable lack of judicial action taken in response to the passage of the Massachusetts automobile Right to Repair bills in 2011 and 2012 – bills from which the Senator used as a reference point for the language in LB67. Senator Brasch reiterated the comparison between the low costs for independent repairs shops and owners to fix electronics versus the increased usage of landfill space for electronics waste. Senator Brasch also discussed her belief that lack of privacy and concerns of security and safety were misplaced, given the previous history of independent repair shops and owners being able to provide repairs largely without issue.

Senator Brasch closed by noting that the handling of LB67 is being closely watched by many throughout the country, not because other states believe Nebraskans to be fools fools, as suggested by the Judiciary Committee, but because Nebraska’s unique Unicameral legislature provides a hope to those having a vested interest in the outcome. The Judiciary Committee countered this point by noting, at the time of the hearing, LB67 had not received enough priority bid support to ensure LB67 would be heard on the floor of the Unicameral.

Whether LB67 is passed this year or not, there is little doubt this issue will be revisited in the coming session. 2018 will be an especially important year for those renewed efforts, as it will include the triennial ruling phase by the Copyright Office, meaning that the fight for the Right to Repair will likely be continued at both the state and federal levels.

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