“I just don’t see how anyone could oppose letting the owner of a wheelchair decide how to get their chair fixed,” said Gay Gordon-Byrne, executive director of the Repair Association. I’m happy to explain. The basic answer is that there is no such thing as a “right to repair,” at least not as the legislators behind the bipartisan bill in question, HB22-1031 (“Consumer Right to Repair Powered Wheelchairs”) put it. What people do have is a right to property and a right to freedom of association—rights that this bill violates.
If people are interested in a strike-through amendment to fix the bill, I have an idea for that. But first I’ll criticize the bill as it is now written.
Getting ‘rights’ wrong
Upon reading the summary of the bill, we quickly learn that the issue at stake is force, not rights: “The bill requires a manufacturer to provide parts, embedded software, firmware, tools, or documentation, such as diagnostic, maintenance, or repair manuals, diagrams, or similar information, to independent repair providers and owners of the manufacturer’s powered wheelchairs to allow an independent repair provider or owner to conduct diagnostic, maintenance, or repair services on the owner’s powered wheelchair.”
No one has a “right” to “require” other people to use their property in some particular way. Rights properly conceived are boundaries that prevent people from initiating force against others. HB 1031 initiates force and seeks to compel others to act contrary to their independent judgment. The bill thus constitutes a violation of individual rights, not a protection of them.
People do have a right, of course, to ask companies to provide repair parts. Public activism along those lines is perfectly appropriate. In other contexts, politicians are perfectly capable of understanding the difference between asking and requiring, between consent and force. Why are so many politicians unable to see the difference here?
I think it’s perfectly reasonable for people to request that wheel chair manufacturers make repair parts more widely available. And it might be sensible from the standpoint of manufacturers to grant that request. But, unlike the majority of Colorado’s House members (the bill passed third reading on March 29 by a vote of 44 to 21), I do not presume a Godlike perspective of determining what is good for people and making them do it.
Offhand I can think of three reasons why a manufacturer might not want to provide repair parts and materials to third parties. They may be worried about others performing shoddy repairs, stealing their intellectual property, or costing them money that would then have to be made up in higher up-front product costs. Notice that I am not claiming that these are definitely valid concerns across the board; I am saying that they are plausible concerns, and it should be up to manufacturers to decide how to handle such things. That’s how a free society works.
Firms have an interest both in maintaining a good reputation and in avoiding liability. HB 1031 may interfere with firms’ ability achieve these values. If a wheelchair malfunctions due to shoddy third-party repairs, observers might blame the manufacturer rather than the shop or person who made the repair. If a manufacturer does the repairs through authorized parties, it knows what’s going on and is prepared to take responsibility for the outcome.
In terms of liability, the bill (looking at the March 29 version) says that nothing within it “renders a manufacturer or authorized repair provider liable for any faulty, negligent, or otherwise improper repair that an independent repair provider or owner conducts on the manufacturer’s equipment or part,” except as “otherwise authorized in law.” This is not going to stop a predatory lawyer from suing a deep-pocket manufacturer when a small repair shop or an owner screws up a wheelchair, if there is even the faintest whiff of a pretext for blaming the manufacturer. Ultimately consumers pay the resulting legal costs.
What about intellectual property and trade secrets? The bill offers no serious protections. The bill says it does not apply to “conduct that would require the manufacturer to divulge a trade secret; except that a manufacturer shall not refuse to make available to an independent repair provider or owner any documentation, part, embedded software, firmware, or tool necessary to provide services on grounds that the documentation, part, embedded software, firmware, or tool itself is a trade secret.” That’s an exception big enough to drive a trial attorney’s Porsche through.
In terms of costs, manufacturers may reasonably worry that some given repair shop, or repair shops in general (or individual owners), will henpeck them to death with unreasonable and costly requests. Under the bill, a manufacturer could not simply tell an abusive or incompetent repair shop to buzz off, as it has every right to do. Instead, a repair shop or owner would be legally empowered to make almost whatever inept, costly, or bad-faith requests it wanted. True, the bill says a party may ask only for “fair and reasonable terms and costs”—but as interpreted by whom? There is no objective angel sitting in judgment. There are only financially or politically motivated attorneys waiting to pounce.
How is this rights-violating bill enforced? If a manufacturer explained in perfect honesty why complying with the bill in some case (or in general) would put at risk the company’s reputation, legal standing, intellectual property, or budget, and dragged its feet, the honest company could be held legally guilty of “a deceptive trade practice,” meaning the company could be hounded relentlessly by the attorney general and by litigators. The bill’s drafting in this respect is shamefully bad.
Making a better bill
I promised an idea on how to pass a better bill. Part of the problem is that manufacturers do not wish to get sued for releasing parts and supplies to unauthorized and unvetted third parties. To help solve that problem, the legislature could say that anyone who obtains a third-party repair not explicitly sanctioned as “authorized” by the manufacturer may not sue the manufacturer, at least for any problem directly or indirectly related to the unauthorized repair. Similarly, the legislature could say that any “unauthorized” third party who obtains parts and supplies from a manufacturer may not sue the manufacturer. If legislators can convince manufacturers they won’t get sued by releasing repair materials, they’ll be a lot more likely to do it voluntarily.
Another detail: Insofar as the bureaucracy of Medicaid and Medicare holds up repairs, perhaps the legislature could do something to streamline the process. One Colorado wheelchair user cited “weeks of delays from Medicaid to approve the repairs,” as CPR summarizes.
Regardless, the bill as passed by the House is a mess. Rights means something. They aren’t just privileges or perks to be dispensed and redefined by legislative fiat. Legislators should reject the so-called “right to repair” bill as advanced by the House in favor of protecting people’s actual rights.
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