By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Readers may have seen the crosspost I uploaded by Gaius Publius on Friday, linking the plastic crisis to America’s money-driven political system,
Gaius Publius: Which Would Be Harder to Ban, Single-Use Plastic or Money-Bought Government?
The plastic problem is only part– albeit a huge part– of the worldwide waste calamity. The lack of any meaningful federal action leaves the onus on states, localities (if allowed under state law), and individuals to do what we can to mitigate waste.
Such efforts include participation in initiatives such as Plastic Free July— which I first discovered last year (and wrote about in Plastic Free July: What YOU Can Do to Reduce Plastics Waste). I took the pledge, and during July 2017, I first reduced my use of plastic significantly. While I still admit I use far too much plastic, I use much less than I formerly did– particularly single use plastic.
The familiar mantra, Reduce, Reuse, Recycle, provides simple guidance on how to reduce waste. I’ve written several posts on what I believe to be the misguided emphasis by governments on recycling, rather than a focus on the first two elements of the triad (of the many posts I’ve written on plastic, see these two in particular on the recycling fallacy, Plastics Pollution Policies– “Bold” or Pathetic? and EU Makes Limited Move on Plastics: Too Little, Too Late?)
The Fourth R: Repair
But, I suggest, that a fourth R should be added to the other three: repair. I’ve written previously about right to repair legislation– an issue that has surfaced largely at the state level in the United States (see Apple Battery Debacle: Yet Another Reason to Support a Right to Repair; US Copyright Office Wimps Out on Right to Repair; Apple Spends Big to Thwart Right to Repair in New York and Elsewhere; and Waste Not, Want Not: Right to Repair Laws on Agenda in Some States).
US PIRG reports that eighteen US states have proposed such legislation in COUNTRIES ARE TAKING APPLE TO COURT OVER RIGHT TO REPAIR — AND SOMETIMES, THEY’RE WINNING Other organizations– such as the Electronic Frontier Federation– have embraced this project, particularly for software, Defend Your Right to Repair!
Some companies– e.g., Apple– have been staunch opponents, and have not only opposed legislation, but construct products in a dastardly fashion to thwart independent efforts to repair (see this Motherboard account discussing how Apple has made what should be the simple process of replacing a keyboard to maximize rather than reduce e-waste, The Keyboard Is the Only Thing That Matters About the New MacBook Pros).
The issue isn’t limited to high-tech products, either: farm equipment is another right to repair battleground, as reported by Fox 25 News in “Right to Repair” pits farmers versus their machines:
For the uninitiated, life on a modern farm is less mechanical and more technical. The machines are bigger and more complex than ever before. The computers and technology is intended to improve farming with a goal of improving all aspects of farm production.
However, when one of the new tractors or other pieces of farm equipment breaks down it is not that easy to get it back into the field.
“It is not like just get it done within an hour or so, now you may wait days,” [Richie]Ingram said. “If it is an electronic part you have to order or they have to get with the dealer has to get with the main manufacturer to find out what’s going on.”
Something as simple as a blown fuse can sideline a tractor. Even if the fuse is replaced it can still require the dealer or manufacturer to plug in a computer to reset the system. That can mean waiting until your dealer or the company that made the machine can come out to your location because the computers needed to perform the reset is not available to purchase by farmers or even independent repair shops.
The Fox article discusses the situation in Oklahoma– where the state legislature has considered but failed to enact right to repair legislation leaving some to think a national solution is warranted:
There was right to repair legislation filed this past year in the Oklahoma House, but it never made it past committee. The representative who sponsored the bill said he now thinks it may be an issue the United States’ Congress will ultimately have to get involved with in order to find a solution that protects both farmers and manufacturers.
Unsurprisingly, the Trump administration hasn’t made the right to repair a national priority— yet neither, for that matter did his predecessor during the eight years he sat in the oval office. (Dare I venture that the close relationship between Democrats and tech titans may have had something to do with that oversight?)
Tw Right to Repair Victories
Yet the US is only one field of operations, and on the issue of right to repair, other countries have not been similarly derelict– as the US Air piece mentioned above has highlighted.
Let’s look at two recent right to repair victories.
As MarketWatch reported in June in Apple fined as Australian customers win right-to-repair court fight:
Apple Inc. was fined in Australia for refusing to offer free fixes for iPhones and iPads that were previously serviced by non-Apple stores, the latest episode in a global dispute between companies and consumers about the right to repair.
A court ordered Apple AAPL, +0.16% to pay a penalty of 9 million Australian dollars ($6.7 million), after it told consumers it wouldn’t offer free repairs for devices that had become inoperable due to a glitch known as “Error 53.” The fault had occurred after consumers downloaded an update to Apple’s operating system.
Apple told at least 275 Australian customers affected by Error 53 that they weren’t entitled to a remedy because their devices had been previously serviced at non-Apple stores, effectively voiding guarantees. The customers were told this between February 2015 and February 2016 and the information was provided on Apple’s website, by Apple’s Australia in-store staff and on customer-service phone calls.
Under Australian law, customers are entitled to a repair or replacement, and sometimes a refund, if a product is faulty, according to the Australian Competition and Consumer Commission, which sued Apple. Some Apple customers saw Error 53 as part of a general effort to prevent users from going to non-Apple stores for repairs.
Commissioner Sarah Court said Tuesday the Federal Court of Australia ruled Apple couldn’t cease consumer guarantees because an iPhone or iPad had been repaired by someone other than Apple. Apple didn’t immediately respond to a request for comment.
Not much to add to that, is there?
And on the other side of the globe, in another case involving Apple, Motherboard reports earlier this year in Apple Sued an Independent iPhone Repair Shop Owner and Lost:
Last year, Apple’s lawyers sent Henrik Huseby, the owner of a small electronics repair shop in Norway, a letter demanding that he immediately stop using aftermarket iPhone screens at his repair business and that he pay the company a settlement.
Norway’s customs officials had seized a shipment of 63 iPhone 6 and 6S replacement screens on their way to Henrik’s shop from Asia and alerted Apple; the company said they were counterfeit.
Following that notice, Apple requested more information from Huseby, and then sued. The Norwegian court found in favour of Huseby, according to Motherboard:
The court decided that Norwegian law “does not prohibit a Norwegian mobile repair person from importing mobile screens from Asian manufacturers that are 100 percent compatible and completely identical to Apple’s own iPhone screens, so long as Apple’s trademark is not applied to the product.”
The court noted that importing refurbished parts with visible Apple logos on them would be in violation of European Union trademark law (it would be legal, the court said, if the refurbishment of these screens had happened in the EU rather than Asia), but, crucially, decided that because the Apple logo would not be visible to customers while the product was in use, Huseby had not actually used Apple’s trademark.
As Motherboard notes:
The specifics of Huseby’s legal case apply only in Norway, of course, but his case speaks to a problem faced by independent iPhone repair shops around the world. Apple’s use of the legal system and trademark law turns average repair professionals into criminals and helps the company corner the repair market for Apple products.
In the United States, Apple has worked with the Department of Homeland Security and ICE to seize counterfeit parts in the United States and to raid the shops of independent iPhone repair professionals. ICE’s National Intellectual Property Rights Coordination Center rejected a Freedom of Information Act request I filed in 2016 regarding Apple’s involvement in its “Operation Chain Reaction” anti counterfeiting team, citing that doing so “could reasonably be expected to interfere with enforcement proceedings.” Apple declined to comment for this article.
“In this case, Apple indirectly proves what they really want,” Per Harald Gjerstad, Huseby’s lawyer, told me in an email. “They want monopoly on repairs so they can keep high prices. And they therefore do not want to sell spare parts to anyone other than ‘to themselves.’”
What Is to Be Done?
High time, I think, for a stateside right to repair. I know, I know, pigs are more likely to fly before such a right might be established. Yet just because I can list many reasons this is unlikely to happen anytime soon, it doesn’t make it any less important to insist on the importance of enshrining four Rs into public policy, and personal practice.