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How the Federal Trade Commission Can Use Section 5 To Strengthen the Right to Repair

By  |  August 29, 2022

By Michael A. Carrier (Rutgers Law School)

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    Consumers’ right to repair their products is under attack. Manufacturers have decimated this long-held right by making parts unavailable, preventing products from working, and imposing software restrictions. Farmers can no longer repair tractors, medical professionals can’t fix ventilators, and military officers are stuck with broken equipment.

    Although competition law would seem to be a natural fit to address this conduct, antitrust law has erected nearly impossible hurdles, especially on “Kodak” claims involving “aftermarket” service and parts.

    In this article, I offer a framework for the Federal Trade Commission (FTC) to challenge this behavior as an “unfair method of competition” under Section 5 of the FTC Act. While such an approach could be applied without limits, I propose modestly extending Kodak in a predictable manner consistent with the decision’s rationale.

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