NOTE: This article was written by Jim Seifert – Shareholder and Head of the Manufacturing Practice Group at Fafinski Mark & Johnson, P.A. Olsen Thielen has republished the content here with permission from the author.
Minnesota’s new Digital Fair Repair Act (“DFRA”) takes effect on July 1, 2024. This new law will require manufacturers of any products that are sold in Minnesota, and that function using electronic elements, to provide parts, information, and tools to allow for diagnosis, maintenance, and repair of that product on “fair and reasonable” terms. There is a great deal to unpack here, and the new law raises a number of obvious questions, which the statute fails to answer. Here are a few examples:
- In what language does the repair information need to be provided?
- If English only, what level of comprehension of the English language on the part of the consumer can be assumed by the original equipment manufacturer (OEM)?
- Does the information provided need to anticipate misuse?
- Does the information have to be suitable for all ages?
- Does the information have to comply with the ADA?
Although the statute attempts to provide some liability safe harbor, it does not provide a “good faith” defense for OEMs in the event their materials are found to be incomplete or inadequate for the foreseeable target audience. As such, manufacturers should start considering whether they will become subject to this new Right to Repair law and begin preparing to comply with the law now.
A note before we get too far in, as of the publication of this article, Minnesota’s Right to Repair law is being called the broadest in the Country. The potential liability exposure flowing from Minnesota’s Right to Repair is significant for OEMs. At the end of this article, we will suggest some strategies for dealing with the open-ended risk embedded in Minnesota’s Right to Repair statute.
The Basics
Statutory Name
- Digital Fair Repair Act
- Minn. Stat. § 325E.72
Effective Date
- July 1, 2024
Intent
- To allow purchasers of non-exempted digital equipment and devices access to the necessary tools and information to repair and maintain that equipment.
- Used products are included.
Application
- Products made after July 1, 2021.
- Yes 2021 – meaning that the law will apply to some products and items that are a few years old.
How Does the Digital Fair Repair Act Function?
Minn. Stat. § 325E.72, subd. 3(a) states that, within 60 days of the first sale of a product in Minnesota:
“an original equipment manufacturer must make available to any independent repair provider or to the owner of digital electronic equipment manufactured by or on behalf of, or sold by, the original equipment manufacturer, on fair and reasonable terms, documentation, parts, and tools, inclusive of any updates to information or embedded software, for diagnostic, maintenance, or repair purposes.“
In other words, if a product is covered by Minnesota’s new right to repair law, the manufacturer must provide enough information and/or the parts which allow their consumer to repair that product. There are a number of exceptions and limitations, which will be discussed in detail below.
What Products are Covered by the Digital Fair Repair Act?
This new law is intended to apply to a broad range of products, new and used. The DFRA is applicable to “digital electronic equipment” or “equipment,” which is defined as:
“Any hardware product that depends, in whole or in part, on digital electronics embedded in or attached to the product in order for the product to function, for which the original equipment manufacturer makes available tools, parts, or documentation to authorized repair providers.“
Minn. Stat. § 325E.72, subd. 2(e).
NOTE: although not defined in the statue, the common understanding of “digital electronics” relates to a circuit that uses at least two discrete voltages whereas an analog circuit uses continuously varying voltages. Basic examples of products that use digital electronics are computers, information appliances, digital cameras, digital televisions, flash memory, mobile phones, and hard disks.
So, if a product utilizes digital electronic elements in order to function, that product will likely be subject to the DFRA. Beyond the obvious products within the scope of the law (cell phones, home appliances, and computers) there are implications for providers of factory equipment. For example, most factory production equipment includes a Programable Logic Controller (PLC). PLCs orchestrate the machine’s operations according to how it was programmed. While PLCs allow for central control and coordination, they also create a single point of failure. The Minnesota right to repair law is intended to allow for access to tools and information for assessing the entire range of machine parameters (including the input/output logic) controlled by the PLC.
Right to Repair laws are starting to emerge in other states (see Massachusetts, Colorado, California and New York), but Minnesota’s law has been described as the “the broadest one yet” and “groundbreaking” because of its potential impact on the manufacturers of consumer electronics sold in the United States. Ultimately, if a product depends on some type of digital electronics in order to function, there is a high likelihood that the manufacturer will need to provide enough information to allow Minnesota consumers to repair that product.
What Products are not Covered by the Digital Fair Repair Act?
Due to intense lobbying, the DFRA does carve out a number of exclusions. See Minn. Stat. § 325E.72, subd. 6. These exclusions include the following:
- Motor Vehicles
- Video Game Consoles
- Medical Equipment and Devices
- Off-Road Vehicles, Marine Vehicles, Recreational Vehicles, and Similar Products
- Farm Implements
- Turf and Yard Equipment
- Portable Generators and Fuel Cell Power
- Cybersecurity Tools and Equipment
The DFRA also includes a number of limitations. For example, OEMs are not required to make available a part, tool, or documentation if it is no longer available to the OEM. Minn. Stat. § 325E.72, subd. 5 lists a number of specific limitations as well. Here are a few of the more relevant limitations:
- OEMs are not required to divulge trade secrets or license any intellectual property, “except as necessary to provide documentation, parts and tools on fair and reasonable terms.” This is very ambiguous and seems to require divulging IP if it is necessary to repair the product.
- The new law does not alter the terms of any warranty or change the terms of recall services (but note that an OEM cannot contract around compliance with the DFRA).
- An OEM is not required to make information available if it would override antitheft or security measures for the equipment.
- An OEM is not required to provide repair information “for work that is required to be done or supervised by an individual or contractor licensed under chapter 326B or with any individual or contractor who does not possess the relevant license required for that work” (this would apply to work/services such as plumbing, construction, and boilers).
If a Product is Covered by the Digital Fair Repair Act, What Does an OEM Need to do?
OEMs should start analyzing what information and tools may be needed to allow owners (defined as purchasers or lessors) to repair the digital/electronic elements of the product. The key consideration here will be what is necessary to comply with “fair and reasonable terms.” This is likely going to be a fluid analysis, and it will vary from product to product.
Minn. Stat. § 325E.72, subd. 2(h) attempts to define “fair and reasonable terms.” This is a lengthy section that focuses on costs involved and what needs to be made available. The Act allows a minimal charge for parts and/or tools and software. Parts for digital electronic equipment must be provided at a cost that is “fair to both parties” and must not be conditioned upon registration or requiring repair by certain providers. Software and tools need to be provided at costs that are the lowest actual cost for the OEM and under the most favorable terms of use (essentially meaning that the tool or software will not restrict the use of the product). Stated differently, the cost for parts and tools cannot exceed the most favored pricing offered to authorized dealers.
This section also requires “documentation” to be made available at no charge, except for reasonable costs of preparing and sending a physical copy. Documentation is defined to include a manual, diagram, reporting output, service code description, schematic diagram, or similar information.
OEMs should be ready to make repair instructions, diagrams, and other documentation available electronically wherever possible. This will need to be done carefully to avoid revealing any trade secrets. In addition, OEMs will need to be ready to help identify parts, software patches and updates, or tools that will need to be replaced and repaired. While the costs of these replacements can be passed along to consumers to some extent, any costs or charges imposed must be kept as low as possible.
Enforcement
The Minnesota Attorney General has the authority to investigate and enforce violations of the DFRA. In addition, a private claim for an unlawful practice may be brought under Minnesota’s Deceptive Trade Practices Act. Ultimately, if a manufacturer sells a product in Minnesota, that manufacturer must be able to provide the parts, equipment, and/or information needed to repair the product on “fair and reasonable” terms within 60 days.
Partial Safe Harbor for Potential Liability Claims Associated with Repairs
Minn. Stat. § 325E.72, subd. 7 provides some defenses to potential liability claims. That subdivision states:
“No original equipment manufacturer or authorized repair provider shall be liable for any damage or injury caused to any digital electronic equipment, person, or property that occurs as a result of repair, diagnosis, maintenance, or modification performed by an independent repair provider or owner, including but not limited to any indirect, incidental, special, or consequential damages; any loss of data, privacy, or profits; or an inability to use, or reduced functionality of, the digital electronic equipment.“
In other words, if an independent repair provider or an owner attempts to make a repair that results in an injury or some other type of damage, the DFRA purports to absolve the OEM of any liability. As such, the OEM needs to make sure that it has taken appropriate steps to comply with the DFRA to secure this limited liability protection. In addition, the Act may not be enough to prevent the cost of litigation or some other legal action in the event of injuries or damage following repair, even if there is no liability imposed in the end.
Practical, Unresolved Issues and Suggested Approaches
In what language does the repair information need to be provided?
The Right to Repair statue does not specify. The general recommendation would usually be to use at least English and Spanish, plus any additional language you know your owners/customers predominantly use. In Minnesota, more than 150 languages and dialects are spoken regularly. Thus, if the OEM provides English only materials, and it knows that owners speak another language frequently or predominantly, English only materials may not be in compliance with the statute.
What form should the materials take?
The DFRA requires access to information, which can be in either digital or print format. The best practice is probably over informing so that if there is a claim based on incomplete information, an OEM can point to the specific information provided, ideally in various forms. In other words, the best practice is most likely providing print materials to the extent possible, along with electronic resources in various forms. For example, repair instructions could be available in print and on a website. For efficiency purposes, an OEM could consider creating its own YouTube channel that provides consumers access to educational information, FAQs, or repair instructions. Nothing prevents an OEM from leveraging this platform to share marketing messaging as well, so long as the marketing materials do not confuse consumers or take away from the repair information provided.
What level of comprehension of the English language on the part of the consumer can be assumed by the OEM?
Unspecified. So, OEMs should make the material as simple and visual as possible. An OEM may want to test the materials in front of a focus group or test audience to establish some evidence of comprehensibility and related efficacy.
Do the materials have to anticipate misuse?
Unspecified, but in order for the materials to be effective, they have to anticipate mistakes on the part of the owner and should include warnings about the consequences of incorrect repairs. Even though the liability limitation is fairly broad, a potential argument always lurks: “the OEM didn’t give me the correct information or not enough information or such information was not in the right form.” The basic legal duty on the part of OEMs is to provide ALL the information necessary to repair a digital product. As a former Minnesota legislator, I can reasonably speculate that many of the lawmakers who passed this law have very little experience repairing digital products.
Do the materials have to be suitable for all ages?
Unspecified, but the answer is probably yes. This is not an insignificant issue. The Right to Repair law applies to items such as toys and appliances. Communicating with a 12-year-old fixing a cell phone is fundamentally different than communicating with a 65-year-old fixing a cell phone. What about other items such as washing machines, cameras, or anything else with digital elements? The OEM will need to take into account the overall effectiveness of its materials in deciding whether its duty is being met. Common sense should drive legal compliance.
Do the materials have to comply with the ADA?
Although this issue was not addressed in the Minnesota Right to Repair law, consideration by OEMs should be given to whether target owners of affected products are deemed disabled under the ADA and, therefore, would require adapted materials to be effective.
Conclusion
Right to Repair is an emerging area. There are a number of questions that remain unanswered in the statute, and once the law becomes effective, there are likely to be several cases filed to test the application and limits of the DFRA in Minnesota. For now, OEMs should start taking action to comply as best they can, and they should begin organizing, revising, and preparing relevant and effective information for print and/or electronic distribution to consumers. In addition, it is a good idea to begin analyzing the parts, software, and tools that may be needed for repairs. OEMs need to consider increasing their inventory in those areas.
Finally, in whatever form OEMs provide their repair materials, it is a good idea to include a required and customized digital notice surrounding the language, comprehension, skill level, and technical requirements for performing a repair properly and safely. This will not function as an insurance policy, but it should help serve as powerful evidence in the event a critical repair goes wrong.
Please reach out to Jim Seifert and the FMJ Manufacturing Practice Group for more information on the Right to Repair law.