- The Washington Times - Sunday, May 3, 2009

ANALYSIS/OPINION:

COMMENTARY:

The automakers who came to Congress hat in hand in December and received more than $17.4 billion in taxpayer bailout money continue to ask for billions more. They also want to soak American consumers by forcing car owners to have all their service and repair work done at authorized dealerships.

H.R. 2057, the Right to Repair Act, was just introduced by Rep. Edolphus Towns, New York Democrat. It will guarantee consumers the right to continue using independent repair shops, which often are cheaper, more conveniently located, and provide service just as reliable that at as dealerships. Automakers oppose the bill, claiming the Right to Repair Act will infringe on their intellectual property rights. Now they have the attention of some in the pro-property-rights community.

The Right to Repair Act breaks the stranglehold that auto manufacturers increasingly have over auto repairs by requiring that automakers disclose to independent repair shops the same information necessary to service a car that they provide to their dealers. The bill also requires that the auto manufacturers offer for sale - on a nondiscriminatory and reasonable basis - the same specialized diagnostic tools, training and equipment that are made available to their dealers.

Finally, the bill requires that automakers allow car owners to choose where diagnostic data generated by their cars are transmitted.

The automakers who assert that their intellectual property rights will be jeopardized if this bill passes point to nothing specific in the bill in support of this assertion. Nor do they identify what property rights are at stake.

In fact, there is nothing in the Right to Repair Act that even implicates, much less infringes on, the automakers’ intellectual property rights. The bill explicitly exempts trade secrets from its coverage. Furthermore, nothing in the Right to Repair Act authorizes anyone to reproduce or distribute any patented product or creative work, and all remedies for violations of patents and copyrights remain in force under the bill.

Generally, a patent protects an inventor against another’s manufacture and distribution of the invention, and in most (if not all) cases, the unique qualities of the invention must be disclosed for a patent to issue.

The Right to Repair Act reflects a well-established exception to these patent protections. The doctrine is set forth in a number of Supreme Court decisions, including one authored by Justice Oliver Wendell Holmes. Put simply, the manufacturer’s patent on automobile systems does not prohibit the manufacture of replacement parts or the owner’s right to repair the patented system when it breaks down.

Most car owners would be surprised to learn that they are increasingly losing control over who can diagnose and service their car. By using computerized components in virtually every aspect of the car, auto manufacturers are systematically acquiring a far greater say in who repairs your car than you have.

It’s only going to get worse. The newer hybrid vehicles are virtual computers on wheels. Take the Prius, for instance. It has 14 computer systems in it. And just wait until your car starts wirelessly transmitting diagnostic information to the dealer (while you sleep), setting up a time for you to take the car to the dealer to have the tire pressure checked.

Automatic reporting and analytic communication devices over which the car owner has no control are the latest tools by which manufacturers lock car owners into a service-and-repair relationship with their dealers.

Ask any auto technician, and he or she will tell you that the first step in diagnosing a problem with a car today is not to open the hood and take a look. The starting point is to plug the car into a specialized computer that reads and interprets information generated by all the computer chips in the vehicle, such as those in the braking, steering and heating and cooling systems. If an auto technician lacks the ability to “talk” to the car’s computers (even after investing in specialized tools and training) because the technician can’t access the repair codes for that computer system, the technician can’t “tell” the car that a new replacement part has been properly installed or even turn off an onboard diagnostic light.

By controlling who can access the computer codes and who has the specialized and most up-to-date diagnostic tools and training, automakers are ensuring that only their authorized dealers can diagnose and repair your car. They refuse to disclose the same information to the independent repair shops, effectively shutting the independents out of the auto-repair market. It’s no wonder some experts predict that a significant number of independent repair shops in this country will be out of business in 10 years. This means that shopping for the best prices and the most convenient service locations may become a thing of the past for the car owner.

The day is fast approaching when the independent repair shop will no longer be able to access the sophisticated onboard computers, and automobile owners will have no choice but to use an authorized dealership to service and repair a vehicle. The Right to Repair bill is a much-needed last chance to put car owners back in driver’s seat.

Nancie G. Marzulla is a car owner and attorney. She is an adviser to the Coalition for Auto Repair Equality (CARE). For more information, visit www.RightToRepair.org.

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