Right to Repair Redux: The Economist Gets with the Program, While Alas, Apple Continues to Lag

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

As my high school English teacher, Gordon Muir – RIP – used to say, “Strike me pink and call me Rosy!”

Last week, The Economist endorsed the idea of the right to repair – albeit obliquely, in Repair is as important as innovation. The article discussed a recent Festival of Maintenance, described as “a conference dedicated to keeping things in good nick.”

Over to The Economist:

Events about making new things are ten a penny. Less common are events about keeping things as good as new. Maintenance lacks the glamour of innovation. It is mostly noticed in its absence—the tear in a shirt, the mould on a ceiling, the spluttering of an engine. Not long ago David Edgerton of King’s College London, who also spoke at the festival, drove across the bridge in Genoa that collapsed in August, killing 43 people (pictured). “We’re encouraged to pride ourselves on all being innovators and entrepreneurs,” he said. Maintenance is often dismissed as mere drudgery. But in fact, as he pointed out, repairing things is often trickier than making them.

The article didn’t discuss the sustainability element of a right to repair, but instead focused on measuring the economic importance of maintenance – a topic I won’t consider here. Instead, I will focus on the right to repair movement, the importance of which The Economist acknowledged:

In March California became the 18th state in America to introduce a bill supporting the “right to repair”, by obliging manufacturers to make manuals more widely available to customers and independent repair shops. The European Commission has proposed something similar for dishwashers, washing machines and the like. Some think they have the right to repair public property, too. One speaker at the festival, who called himself the “guerrilla groundsman” and masked his identity with a helmet, described his surreptitious efforts to clean bridges and repaint signs in Cambridge without authorisation. In a disposable society, to repair is to rebel.

US DHS Not Yet Hip to the Right to Repair Program

Motherboard ran an article last week, DHS Seized Aftermarket Apple Laptop Batteries From Independent Repair Expert Louis Rossman, that discusses the latest attempt to stifle a right to repair for Apple products – which is part of an ongoing series of similar abominations I have analyzed in several previous posts, including Apple Battery Debacle: Yet Another Reason to Support a Right to Repair and Apple Spends Big to Thwart Right to Repair in New York and Elsewhere.

According to Motherboard:

Earlier this year, Louis Rossmann, the highest-profile iPhone and Mac repair professional in the United States, told Motherboard that determining “the difference between counterfeiting and refurbishing is going to be the next big battle” between the independent repair profession and Apple. At the time, his friend and fellow independent repair pro, Jessa Jones, had just had a shipment of iPhone screens seized by Customs and Border Patrol.

Rossmann was right: His repair parts were also just seized by the US government.

Last month, US Customs and Border Protection (CBP) seized a package containing 20 Apple laptop batteries en route to Rossman’s store in New York City. The laptop batteries were en route from China to Rossmann Repair Group—a NYC based repair store that specializes in Apple products. “Apple and customs seized batteries to a computer that, at [the Apple Store], they no longer service because they claim it’s vintage,” Rossmann, the owner and operator of Rossmann Repair Group, said in a YouTube video. “They will not allow me to replace batteries, because when I import batteries that are original they’ll tell me the they’re counterfeit and have them stolen from by [CBP].”

What set off CPB’s watchdogs? According to Motherboard:

A CBP spokesperson told Motherboard in an email: “CBP officers and trade specialists detained the shipment and submitted samples to CBP’s Consumer Products and Mass Merchandising Centers for Excellence and Expertise (CEE), the agency’s trade experts, who determined the batteries to be counterfeit.”

According to the phrasing of the complaint, it was the use of the Apple logo on the batteries and not the batteries themselves that CBP took issue with. “It is assumed that if something has that Apple logo on it, it must be counterfeit,” Rossmann said. “It couldn’t be that someone who has these batteries sold them to me. It couldn’t be that someone took these batteries out of machines that were on demo in stores….machines that they owned, packaged them up and sent them to me,” Rossmann said. “No, they must be counterfeit. There’s no other explanation for it.”

As I’ve previously discussed, Apple has fought right to repair initiatives tooth and nail.  With respect to the latest CPB seizure, Motherboard reports:

…this isn’t the first time the Department of Homeland Security has seized the property of third party repair stores. In May, CBP seized iPhone LCD screens worth a total of $1,727 from prominent right to repair advocate Jessa Jones. In 2013, ICE agents raided independent repair stores in South Florida and seized between around $300,000 in parts apple claimed were counterfeit. In Norway, customs officials seized repair parts headed for an independent repair shop there. Apple ultimately lost a lawsuit against a Norwegian repair shop after it claimed the owner violated Apple’s trademark by using unauthorized parts; the court ruled that he was free to import and use them.

Jerri-Lynn here: for further details on the lawsuit against the Norwegian repair shop, see my previous post, Four Rs: Reduce, Reuse, Recycle, and…Repair.

How Might This Shake Out?

Well, Motherboard previously analyzed such a scenario:

Legal experts told us that importing genuine parts for the purpose of repair is not illegal. From our earlier article:

The US Department of Justice, for its part, has said that gray market goods are legal to import as long as they are not substantially different from the original
product; this is called “parallel importation.”

“Congress did not intend the criminal provisions to apply to [company logos] on so called ‘parallel imports’ or ‘gray market’ goods, in which both the goods and the marks are genuine, but which are sold outside of the trademarks owners authorized distribution channels,” the DOJ’s criminal resources manual states. Similarly, the “ first sale doctrine” protects the ability of people to resell goods that have trademarked logos on them; even if the parts are refurbished or repaired, the trademark holder has still gotten money from the “first sale” of that good.

Aaron Perzanowski, a trademark, copyright, and intellectual property law professor at Case Western Reserve University’s School of Law, told me that Jones’s parts likely can’t be considered “counterfeit.”

“Assuming that: (1) the cable bearing the Apple mark is a genuine Apple product, (2) the cable used on these screens is the same as the one Apple uses in the U.S., and (3) the importer/seller clearly communicates that the screens are a non-Apple aftermarket product, then Apple’s case for treating these as ‘counterfeit’ goods is very weak,” Perzanowski said in an email. “Refurbished or repaired products are generally permissible under trademark law’s first sale doctrine, so long as they are clearly labeled as such.”

“This strikes me as an abuse of trademark law by Apple,” he added, “one clearly designed to maintain its stranglehold over the repair market and, ultimately, to force customers to buy new hardware

What’s Next?

Just because advocates promote a right to repair doesn’t mean such a right will be recognized  and widely available, practically speaking,  And just being right, from a legal perspective, doesn’t mean the 900 pound Apple guerrilla is going to surrender, and allow those who wish to avail themselves of third-party repair services- or fix their devices themselves– to proceed unchallenged. Apple remains committed to thwarting such initiatives.

Absent widespread adoption of a right to repair, consumers are likely to discard  their malfunctioning electronic devices even though these devices might – with the benefit of a small,  low-cost repair – continue to provide further years of useful service.

Without the necessary repair, a consumer is likely to throw the device away, and replace it with another. And that behavior will only exacerbate the planet’s waste problem.

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  1. JEHR

    I have an old clothes dryer that has been repaired with new heating elements. The knobs that control the amount of heat and the automatic shut-off stopped working. The repairman just suggested we use the heat as is (full on) and to forget about the other button because the cost of repair would not be worth pursuing. As a result, the dryer has been working well for years now and we didn’t have to buy a new one. I very much respect that repairman.

  2. Watt4Bob

    We should be fighting for right-not-to-update as well, Apple updates often deprecate functions users wish to keep using.

    I have one of the last ‘good’ Mac Book Pros, I’m deathly afraid of updates if only for the fact it will destroy Garage Band as I prefer to use it.

    Any update will embed iTunes in Garage Band, a move I would detest.

    Even though I have never allowed an update, my iPhone 5S has been gradually morphing towards uselessness.

    I’m convinced they can ‘update’ my phone without my consent.

    1. norm de plume

      Yeah, updates.

      After one earlier this year my new iPhone 8 decided to drop volume levels to the point where I struggle to make out song lyrics while travelling on the bus. I googled it and found loads of others with the same issue. I tried everything others suggested, no luck. Last night the noise of the treadmill drowned out my History of the 20th C podcast.

      My wife updated a while ago and ever since when she plays music the songs go haywire, stopping halfway thru, jumping to something else.

      I couldn’t repair a phone ‘in a pink fit’ but I defend to the death the right of tinkers to do so, if they paid for the item. That’s the nub, if you pay for it – it’s yours.

      1. Chris

        After an automatic software update (neither requested nor approved) my SO’s iPad Mini 3 decided that one particular set of third party earbuds would play random iTunes content, rather than the audio track of what she was currently watching.

        I’m now looking for a halfway decent Linux tablet as an alternative. Any suggestions?

  3. David H.

    As companies have learned, “Long lasting, repairable products are bad for business (repeat orders).”

    1. a different chris

      Yeah and what did economists expect? “Build a better mousetrap” — no, all you need is a passably functional mousetrap:

      1) leverage a purchase of most all other half-decent mousetrap makers
      2) “economize” (cough, offshore, cough) to one or two models
      3) undersell, at a loss if necessary, the remaining mousetrap makers
      4) once they are bankrupt, cheapen your mousetrap so it only lasts for a few years. The “passably functional” criteria is now non-operative

      And even this is over-doing it, just be Walmart and order a manufacturer who is big enough to pull off #1 and too small to fight back (and who isn’t?) to push thru the 4 steps, whether they wanted to or not.

    2. John

      At their last pubic event Apple made a point of how they are making their phones last longer and they are supporting older devices. Their software updates support phones that are as much as five years old. Yes, they’d like to sell you a new phone, but they know that if you buy a new phone the previous iPhone gets handed off / sold to someone else who still buys services from Apple.

  4. Jeremy Grimm

    In the early days of personal computers the Apple products — both the operating system and hardware — were far superior to the Microsoft DOS operating system, and to it later generations. The various hardware platforms hosting DOS had none of the elegance or reliability of the Apple hardware. But Microsoft very nearly put Apple out of business. How and why did a markedly inferior pairing of products so nearly destroy Apple? I believe that besides some price point differences the crucial difference was the amount of third-party software and hardware available for Microsoft based personal computers compared with the well-designed but limited Apple software and hardware created under its stifling proprietary hold over third-parties. Although Microsoft wasn’t an entirely open platform to work with it’s controls over third-parties were more deftly exercised to grow outside products and companies — which Microsoft could later prey upon and consolidate. It seems from their right-to-repair stance that Apple learned little from its earlier near-death experience.

    If I’m correct that DHS in this post stands for the Department of Homeland Security, then their aid and service to the Apple cause fits all my best estimates of their value to the actual security of our country. [I do not live in a homeland! Is this really the best government money can buy? Can’t they afford a decent PR firm?]

    1. HotFlash

      I believe that besides some price point differences the crucial difference was the amount of third-party software and hardware available for Microsoft based personal computers compared with the well-designed but limited Apple software and hardware created under its stifling proprietary hold over third-parties.

      Indeed! That was it for me, also the limited amount of good business software that Apple had. I was in the business biz, so access to good accounting, data, word processing, etc software was essential to me and to my clients. My musician and artist friends and clients were 100% Apple, though. Then MS went all Apple and now I am with Linux and advising all my clients to ditto. But that is reasons for hardware purchases, the software

    2. cnchal

      Makes one wonder if Apple ever receives a bill from DHS for being their border muscle, or is that paid for by the peasants that can’t get their phones fixed? Oh the irony.

  5. MichaelSF

    One thing to consider is that goods need to be designed to let them be repaired. If you’ve got an electronic device that is completely potted in epoxy, you are unlikely to want to dig all the potting material out to try and find the one bad capacitor etc to replace it. If your washer is largely riveted together at the factory how many people are going to drill out the rivets to access internal components to replace them?

    I have a 5 year old Honda motorcycle project. The plastic bodywork on it is very light compared to the steel parts of yore and the color is in the plastic eliminating paint, but it is obvious to me that everything (including the various push-fit fasteners) is designed for ease of assembly at the factory. The OEM service manual has pages of flow chart for the order in which body panels are removed and reinstalled, and a 10 minute routine maintenance task (like changing an air filter) may require an hour or two of removing the rest of the vehicle to get access. Small/hidden molded-in clips and hooks are prone to snap off because you can’t see them and while they are strong enough to hold the panel together they won’t stand up to a “will it come off if I tug it this direction?” experiment.

    I’ve got friends with vintage audio equipment hobbies, and I can remember my dad going to the hardware store and testing tubes out of the TV when it went dark. But solid-state electronics are often not going to be owner-repairable like the old stuff.

    On the other hand, modern stuff often doesn’t need to be repaired. Many newish cars will go 125K miles without more than filters and oil changes. No more replacing starters/alternators/radiators/water pumps every 20-25K miles as on the stuff I started out with. But that’s good, because if you look under the hood of many modern cars it seems clear they are not designed with future maintenance in mind.

  6. Jean

    A few days ago our 26 year old Whirlpool dryer stopped working heating. I called an independent repairman who showed up and within 45 minutes had replaced the thermostat. A couple years ago he replaced the heating element. This machine does at least three loads of laundry per day. Knobs and a pushbutton-Simple, solid and made in the U.S. If you have simple old appliances, look to repair and keep it instead of buying new low quality Chinese, Mexican and even U.S. made complicated computer chip touch screen crap.
    If you are considering buying new out of need or necessity, look to Craigslist “free” or “for sale” section and get a solid old appliance for little money.

  7. marku52

    I run a side business repairing, mostly, old tube guitar amps. When a customer calls me to ask about a repair on a more modern device, I ask “How old is it? The newer it is, the less likely it will be repairable. A 50 year old blackface Fender amp? I can keep that running till the sun goes black”.

    1. Carolinian

      With Russian vacuum tubes? Supposedly they are the only ones who still make them.

      Many current electronic devices are so cheap it doesn’t make any sense to repair them and the tiny surface mount parts are barely replaceable anyway. TVs in particular are now very inexpensive compared to past sets of the same size. But there doesn’t seem any reason for companies like Apple to cling to the funny business with batteries which could easily be made replaceable as they are in cellphones. Lithium batteries only have a limited lifespan so it’s not like Apple doesn’t know the repair issue is going to come up in a couple of years.

      1. Watt4Bob

        Better to purchase NOS vacuum tubes off ebay.

        My tube guy told me I needed a 5AR4 tube for the power supply in my old Ampeg bass amp, he said not to buy Russian or Chinese tubes, said I should buy “New Old Stock off ebay, it’ll cost $60-75, and don’t be surprised if the seller is in the far east.”

        Sure enough, I got a NOS Mullard (made in England) from a guy in Hong Kong, and it worked perfectly.

        1. marku52

          NOS prices can be absurd. JJs from Slovakia, EH and Sovtek from Russia, and some of the Chinese are OK. You do have to test them when they come in, because quality is not 100%

          1. Octopii

            Guitar amps are a different animal that really do need NOS tubes. The power supply rail voltages are higher and the tubes are pushed harder. I once had to repair a great sounding Mesa Boogie but couldn’t find tubes that would take the ~475v high voltage rail without blowing up. Mesa sold us a new transformer with a lower voltage and the from then forth the amp no longer boogied.

    2. Watt4Bob

      I took my last Fender amp apart when an input jack got sketchy, it was one of those newer DeVille models. I was disappointed to find the jack was modular, and encased in plastic, I couldn’t just bend the contact to restore function, I would have to replace the part, and not with a nice old-fashioned switchcraft part, I’d have to by a new Fender plastic jack unit.

      BTW, playing through a Quilter now, tired of coddling temperamental, and heavy equipment.

      1. marku52

        Yes, Fender has done a few good things (like the pemstuds for the chassis mounts), and screws to help hold it in, and a few bad ones, like the plastic jacks. It’s pretty easy to replace those with metal ones.

        Those IEC caps don’t last very long either….

        Quilter does have a lot of fans.

      2. howseth

        Speaking of Fender amps: Splurged two years ago and bought a ’57 Fender Tweed Deluxe reissue. It is factory made – but hand wired. Seems to be made very well made indeed. (But cost a lot more more than a DeVille, I believe.)

        Should I worry (marku52) that the tube manufacturers will disappear? RCA where have you gone?

        But there are various small shop boutique tube amp makers – these micro-micro companies (sometimes just one guy operations) that are doing great quality work – stuff made right now – to last and be repaired for the long run.. Along with the craftsman guitar makers, and there are the analog recording equipment makers – expensive and great repairable machines… the rub is you really got to lay out the cash for this stuff- so mostly one sticks to the consumer grade…

        1. Phil

          What the heck, is there a previously unknown nexus between NC readers and vacuum tube enthusiasts? I’m currently building up Tweed Deluxe clone from a small Canadian company and also enjoy my Dynaco ST-70 amp clone – to call that amp a clone is not really correct, though. I absolutely support the right to repair. Big tech has already succeeded with the software liscencing canard so you can’t monkey with code in the event the mfg breaks it. Unrepairability seems like the physical equivalent to software licensing and the natural course for big tech. Everything now has become so miniaturized that it’s mostly incomprehensible to look at, anyway, but I still reserve the right to be able to replace the batteries.

  8. Carla

    Over 20 years ago, I bought a used Kenmore gas clothes dryer for $100. It came with a 90-day guarantee. It’s a faded avocado green, and it ain’t pretty, but it still works just fine. My washing machine repair guy said “Don’t ever get rid of that dryer. I’ll always be able to fix it, and I can’t repair the new ones — they’re junk. But I have the same model dryer myself, and I’ll never let it go.” Reduce, reuse, recycle, REPAIR!

  9. jfleni

    If it’s electronic, make sure it runs under LINUX; otherwise just inhale slowly and take the loss from APPLE JACK, BILLY BOY, and the other yahoos.

  10. HotFlash

    It ain’t all that new. Fifty-five years ago my parents were looking to replace their sofa/chesterfield/davenport and the furniture store owners, who were their friends, told them no. “Have that one re-upholstered, they don’t make them that well anymore.” And so they did, it is still working well, and has even been reupholstered a couple of times since (updating the look!). It still folds out juuuust fiiiine, thank you, for guests when required. I have had opportunity to look into (heh) some ‘modern’ furniture, similar units have corrugated cardboard in them. I work in a craft where the historical standard for durability is *at least* 300 years. Wood, stone, metal, straw, leather, cloth, wax, bone, pottery, even glass — these all endure or can be replaced.

    Plastic? Epoxy? We consider it a mortality curse. One of our local piano gurus, Alex Hahn, referred to modern pianos as ‘one-generation pianos” (sorry, can’t find link). The hammers are plastic, and epoxied in, they cannot be repaired. I have come to believe that this is a result of cheap and abundant oil which has given us plastics (and fuels) produced from petroleum that took billions of years to make. Hey yeah, we are burning through our energy inheritance like — like, I dunno. Seventh generation aristocrats on crack?

    Maybe we should plant trees?

    1. Catullus

      Don’t diss on epoxy. It’s wonderful stuff. But I’ll diss on it if it covers something electronic or wires or the like, tho.

      Boats are built or repaired with epoxy. Greatest stuff out there, really. Magical. Just keep it away from electronics cuz with boats you just grind away the old and put in the new epoxy. Can’t grind away at electronics!

  11. The Rev Kev

    “Repair is as important as innovation”? Seriously, some of these economists need to read up on some history more. In the past it was always a matter of ‘Use it up, wear it out, make it do or do without’ and the present time of non-repairable gear is a merely a minor abberation in the past coupla thousand years of history. Call it a historical blip.
    Pretty soon, whether we like it or not, we will be going to be going to go back to how we used to do things. The present approach only works if you have a few spare planets worth of resources to keep it up and to take the accumulated garbage of broken gear. Going back to the way that things use to be will create whole industries of repair and recycle companies as well as increase local employment but Apple will fight this to the last iPhone.

  12. Countdown

    What criteria would DHS use to determine that Apple warranted protection of the type provided?
    – Is Apple an “American company,” or some multi-national that employs a lot of USA residents?
    – How would anyone define “American company” ? Would a regulation reference corporate HQ location, or tax filings, or some other item? Maybe DHS should be granting protection only to parts substantially manufactured in USA?
    – Just what made Apple’s claim for protection superior to Louis Rossman’s claim to practice a legitimate business?

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