The Congressional ‘right to repair’ solution needs some repairs itself

When the post-midterm-election session of Congress convenes in November, one of its many priority tasks will be completion of the annual defense authorization bill. As House and Senate conferees negotiate a final version of the measure, there is a crucial set of provisions that require modification to solve the problem they identify.

The “Right to Repair” issue, on paper, seems like a simple fix: to incentivize accurate identification, acquisition and management of required intellectual property (IP) and ensure availability of usable data to military maintainers. But the legislation as written would bypass root issues with a one size fits all approach that could delay development and procurement, pull money from readiness accounts and drive innovative companies out of the defense industrial base when the nation needs them most. 

Put simply, the legislation under consideration could cause more harm than good to the military’s ability to get the equipment it needs and keep it running. Congress needs to make sure that in seeking to fix one problem, it does not create others.

A long history that includes a diminishing role of federal funding as a share of overall research investments, complicated contracting mechanics that did not keep pace with the changing federal role and revolving readiness challenges churn into two core problems for right to repair: negotiating with industry to get government license rights to the needed IP,  and once that is obtained, to manage and deliver that technical data for maintainers to use. 

Let’s break each point down.

IP Ownership: The Pentagon does not appear to have a clear sense of the IP rights it has or needs in order to repair its own equipment. It also lacks the modern contracting expertise to structure agreements correctly to get the required IP rights. The result is distributed ownership of IP the military cannot effectively access or use, and gaps in access to the IP it still requires to repair its equipment

House (Section 861) and Senate (Section 804) provisions on this issue are very similar and would set the default rights on any Pentagon contract to government purpose rights (GPR), which allow the US to use data generated by a combination of government and private funds and share that data as needed for federal purposes. But this proposed fix may lead to serious unintended consequences in readiness, cost and diversity of the supplier base while failing to fix the root causes of the problem.

First, defaulting ownership of all IP to GPR could grind defense contracting to a halt and raise prices by requiring any contractor asserting less-than-government purpose rights to prove there was no government investment in their IP prior to contract award. Complicating the issue further: At a time when the department wants to use more commercial firms and suppliers, new firms will not have the business model to easily give up IP, while traditional defense primes may not possess the rights to disclose IP developed and owned by their subcontractors or supply chains.

This requirement, therefore, would result in time delays to provide rights the government may not even need and may be impossible, especially for smaller and midsized companies, to meet. In addition, companies will have to price loss of IP into sales to the Pentagon, which means the taxpayer will be buying this IP, whether the military needs it or not. Since these costs are not included in the budget, diverting resources to cover them could make the readiness problem worse. At the same time, the new proposed rules will do nothing to fix the problem of repairing equipment that is in the inventory now.

Licensing rights: Solving disagreements on the distinction between operation, maintenance, installation and training (OMIT) data, which law already requires be provided to the government with unlimited rights, and detailed manufacturing and process data (DMPD) for which rights vary by level of government development investment, would go a long way in making available the data military maintainers need for repairs on the equipment they are using now. 

As a recent paper by the Center for Strategic and International Studies (CSIS) explains, “DOD guidelines acknowledge that some OMIT data also qualifies as DMPD” but that the data does not automatically fall under unlimited rights like the rest of OMIT.

A Solution 

To address the overall data rights problem and data distinction friction within it, the legislation must be modified to use existing GPR authorities updated to further delineate data definitions. Put in simpler terms: It should treat software and source code needed for repairs with a different policy as it already does for procurement of such technology.  

The government should work with industry as part of the contract negotiation process to determine what data it actually needs for different categories of equipment to improve repair rights in the future. Consistent with Pentagon approaches in other areas, this should be viewed as a business decision. If the Pentagon understandably has trouble defining the future need, it should consider employing a form of special negotiated license similar to the commercial sector. In fact, Congress stated a preference for this approach in the 2018 defense policy bill (Section 835), authority the Pentagon should apply to fix data rights gaps.

Second, current data challenges will become another huge barrier to meeting the stated intent of the legislation, which is fundamentally to make sure forward theater units have what they need – manuals, specialty tools and technical training – to fix their equipment. An influx of unneeded data the Pentagon must secure and manage will further hinder that ultimate goal – maintainer access. The government will be responsible for protecting IP from adversary access, cataloging it and making those pieces the military unit really needs available when and where they need it.

To solve this problem, rather than creating an unusable data albatross or repository that poses security risks, Congress should direct the Pentagon to demonstrate implementation of the data management section of its November 2025 Acquisition and Management of Contractor-Prepared Data (DOD Manual 5010.12) and then update the requirements of the 2026 policy bill (Section 805) to require a secure digital catalog for management and access that maintainers can really use to make repairs to their equipment.  

Fixing these data problems – management of and access to IP on current contracts – is key to solving maintenance and repair problems for units in the field today.

As currently written, the basket of provisions designed to help military competitiveness and readiness would hurt work already done by previous defense policy bills and Pentagon acquisition transformation efforts to expand the defense industrial base, accelerate acquisition of innovative new solutions and increase modular open systems. In many cases, the worst impacts of this legislation will be experienced by small innovative businesses. It is companies in the subcontractor and supply chain sectors that are unlikely to be able to survive the loss of IP to a competitor and will instead exit the defense market.

The military’s needs can be very complex and, in some cases, assets remain in inventory for decades. Therefore, the research, development, manufacturing, maintenance and sustainment of those capabilities are equally complicated. Defaulting to GPR is not the answer. The solution is to fix what is actually broken – accurate identification, acquisition and management of required IP – and availability of that data to military maintainers.

Elaine McCusker is a senior fellow at the American Enterprise Institute. She previously served as the Pentagon’s acting undersecretary of defense (comptroller).