By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Bloomberg today published an article, Microsoft and Apple Wage War on Gadget Right-to-Repair Laws, which delved into the details of how big Tech – Microsoft, Google, Apple – thwart right to repair initiatives.
There’s considerable support among the public for right to repair initiatives. Not only could such measures save consumers considerable sums of money, they might also alleviate shortages – of laptops for schools, as just one example (see Waste Watch: Right to Repair as Remedy for School Computer Shortage?)
Enacting a right to repair nationwide could also reduce waste -especially e-waste – and slow climate change. According to Bloomberg:
America’s smartphone habit alone eats up some 23.7 million tons of raw material, according to a report from U.S. PIRG. The consumer group estimated that people holding onto their smartphones for an extra year would be the emissions equivalent of taking 636,000 cars off the road.
The pandemic has exacerbated repair problems, as many big box stores have stopped offering on-site repair services. Such shutdowns further tether consumers to manufacturers’ repair options – some of which suffer considerable backlogs. Allowing independent, third party repair shops to compete on an equal playing field could also bolster local employment, rather than global supply chains (see Right to Repair: Saves Consumers Money, Promotes Local Jobs Rather than Global Supply Chains).
FTC Weighs In
Earlier this month, the Federal Trade Commission (FTC) released a comprehensive report, Nixing the Fix: an FTC Report to Congress on Repair Initiatives. The report endorsed the right to repair and debunked opposing arguments, concluding “there is scant evidence to support manufacturers’ justifications for repair restrictions.”
The report also examined measures the FTC could take to enact a right to repair. These include expanding the anti-tying provisions of the 1975 Magnuson-Moss Warranty Act (MMWA). This measure “prohibits a warrantor of a consumer product from conditioning its warranty on the consumer’s using any article or service which is identified by brand name unless the article or service is provided for free or the warrantor obtains a waiver from the [FTC}.” [Report, p. 5.] MMWA bars a printer manufacturer from conditioning its warranty on a purchaser’s use of the manufacturer’s branded ink and prohibits a smartphone maker from voiding a warranty if a consumer has a third-party repair service install a new battery
The FTC noted that technological developments have occurred in the years since MMWA was enacted during the Ford administration that warrant reconsideration of the anti-tying provision as it applies to repair. From the Report:
Even when a warranty does not explicitly require that repairs be performed by the original equipment manufacturer (OEM) using OEM parts, many manufacturers restrict independent repair and repair by consumers through:
- Product designs that complicate or prevent repair;
- Unavailability of parts and repair information;
- Designs that make independent repairs less safe;
- Policies or statements that steer consumers to manufacturer repair networks;
- Application of patent rights and enforcement of trademarks;
- Disparagement of non-OEM parts and independent repair;
- Software locks and firmware updates; or
- End User License Agreements. [Report, p. 6.]
The FTC laid out a future agenda in the Report:
Finally … we conclude by explaining that, based on the record before us, it
is clear that repair restrictions have diluted the effectiveness of [the MMWA] and steered consumers into manufacturers’ repair networks or to replace products before the end of their useful lives. Based on a review of comments submitted and materials presented during the Workshop, there is scant evidence to support manufacturers’ justifications for repair restrictions. Moreover, the specific changes that repair advocates seek to address manufacturer repair restrictions (e.g., access to information, manuals, spare parts, and tools) are well supported by comments submitted for the record and testimony provided at the Workshop. While the car manufacturing industry has taken important steps to expand consumer choice, other industries that impose restrictions on repairs have not followed suit. The Commission will consider reinvigorated regulatory and law enforcement options, as well as consumer education. In addition to the FTC’s pursuit of efforts under its authority, the Commission stands ready to work with legislators, either at the state or federal level, to ensure that consumers and independent repair shops have appropriate access to replacement parts, instructions, and diagnostic software. [Jerri-Lynn here: my emphasis, Report p. 6; citations omitted.]
Focus Shifts to States
Meanwhile, while the FTC mulls its options and Congresscritters digest its report, more than two dozen states are considering legislation to enact their own state right to repair legislation. What are their prospects?
Alas, not as promising as you might think. According to Bloomberg:
Twenty-seven states considered such bills in 2021. More than half have already been voted down or dismissed, according to consumer groups tracking the proposals.
One reason these legislative efforts have failed is the opposition, which happens to sell boatloads of new devices every year. Microsoft’s top lawyer advocated against a repair bill in its home state. Lobbyists for Google and Amazon.com Inc. swooped into Colorado this year to help quash a proposal. Trade groups representing Apple Inc. successfully buried a version in Nevada. Telecoms, home appliance firms and medical companies also opposed the measures, but few have the lobbying muscle and cash of these technology giants. While tech companies face high-profile scrutiny in Washington, they quietly wield power in statehouses to shape public policy and stamp out unwelcome laws. Tech companies argue that right-to-repair laws would let pirates rip off intellectual property and expose consumers to security risks. In several statehouses, lobbyists told lawmakers that unauthorized repair shops could damage batteries on devices, posing a threat of spontaneous combustion.
Consumer groups don’t buy these claims. They say tech firms are holding fast to a status quo that forces consumers to pay more for repairs or simply buy new devices. “These companies have monopoly power,” said Brianna Titone, a Colorado legislator who sponsored a repair bill. “They’re not looking for a compromise. They’re looking for, ‘Leave us alone. Stop this. Go away.’”
The Bloomberg article further explores the gory details of some Big Tech lobbying efforts and I encourage interested readers to read it in full. Now I’d just like to point out that it’s not necessary for a majority or even many states to pass legislation for a right to repair be widely enacted. Once one state domino falls, others are likely to follow. That might trigger a response akin to what occurred after Massachusetts voters approved a right to repair for cars and other passenger vehicles. From the FTC Report:
For any manufacturing sector interested in creating a self-regulatory mechanism for expanding repair options, the experience of the automobile industry provides some guidance. In January 2014, two car manufacturer trade groups and two trade groups representing independent repair shops and manufacturers of aftermarket parts entered into a Memorandum of Understanding (“MOU”) that had the effect of creating a broad, if not complete, right to repair in the automotive industry across the United States.
The MOU came about after Massachusetts passed its own automotive right to repair law. In an effort to prevent the passage of state bills around the country that all contained differing requirements, manufacturers agreed to sell the diagnostic and repair information that manufacturers make available to their dealers to car owners and independent repair shops. in exchange, the repair-side trade groups agreed to not fund or otherwise support any new state right to repair legislation.
The MOU has been raised as a model of self-regulation that could apply in the broader right to repair context. Kyle Wiens of iFixit stated at the Workshop, for example, the the
MOU is “the direction that we need to go in. And it’s a question of. . .do you need the regulatory framework? Can you do it in a voluntary fashion? [Report pp. 45-46; citations omitted.]
I don’t know the answer to that question – although I’m inherently suspicious of such “voluntary” self-regulatory schemes, particularly considering all the shenanigans Big Tech companies have engaged in to try to scuttle enacting any right to repair. Yet if one state were to enact legislation, a nationwide de facto right might follow soon thereafter, as companies seek to avoid complying with a plethora of inconsistent state statutes.
“the [FTC}[Report, p. 5.]”
Looks like a typo. Should it be just “the FTC”?
No. not a typo, but two sets of square brackets, the first for the substitution of FTC, the second for the citation. I moved the quotation marks, which were in the wrong place and hope it’s now clearer.
Tech companies argue that right-to-repair laws would let pirates rip off intellectual property and expose consumers to security risks.
Big tech’s anti-repair arguments are clearly disingenuous. It’s nonsense. Denying right to repair laws practically guarantees piracy on the one hand and higher prices and greater tech monopoly power on the other hand. Both are bad outcomes for US citizens and product purchasers. (It’s created a thriving business for used tractors, trucks, and older repairable equipment of all kinds.)
I wouldn’t be surprised if this is the lever that eventually ends up getting the DMCA revised (likely into an even worse form, as the TPP proposal demonstrated with the removal of fair use). The anti-circumvention provision is so broad that literally anything that runs copyrighted software can be permanently and legally locked with a simple access restriction.
Never enough profit, despite having nowhere to put it. It’s astounding to me who my iphone hasn’t progressed since the iPhone 3G I bought so long ago. I have the 12 now and it’s just barely better. Probably better at suctioning my data?
Semi-related – a few years ago I remember seeing some post something about Buffett and profitability – if I remember right even he was saying that above 8 or 9% it’s just theft. Am I remembering wrong? Anybody remember seeing that, hearing it.
There is no trusting these guys. I bought an iPhone from AT&T on payment, my wife insisted payments. After I got the phone I received a $100 one-time charge on my AT&T phone bill. These guys would cheat a grandmother. It’s all part of acquiring wealth in the US; acquiring wealth is glorified.
Folks interested in right-to-repair should go to Youtube and watch some of the videos by Louis Rossman. He runs a repair shop in Manhattan specializing in (trying to) repair of Apple products. The pettiness of Apple’s efforts to frustrate independent repair shops is unbelievable. I sometimes watch him just to listen to him vent in Rabelaisian fury against the evil lords of Cupertino. As a long-time resident of Silicon Valley and worker in tech, it’s music to my ears to hear someone catalog the sins of Apple. What a predatory company. It says a lot about Facebook that Apple is a ‘white hat’ in their battle over tracking on the web. I can’t wait for the next tech crash.
Get involved. Call your representative and have your opinion known.
Big tech sociopaths are showing us who they are. We should listen.
Thank Allah for citizens’ initiatives; I think that every State’s constitution should mandate them.
I am credited with collecting around 2,200 signatures for Initiative 59 in the late ’90s in the Imperial Capital to end Prohibition of marijuana – but only for medicinal purposes (honestly). That showed the world how much Congress cherishes democracy: Congress tried like hell to even stop the counting of the votes on the ballots (and the vote on Initiative 59 was held during a general election – when there were lots of candidates running for City Council and ANC Commissioners).
Seems to me that other States might have to use a citizens’ initiative to do what their legislatures won’t. But if only a few States follow Massachusetts’ lead, that could break the whole thing wide open.
Resident of MA here. I recall in the run up to the right to repair ballot question, the pro side got organized and ran decent ads that cut through the BS lying of the auto manufacturers who made outlandish and non-sensical claims about how hackers were going to hack your car and steal your personal data.
Which is ironic considering what happens at DEFCON every year. Someone always hacks into a car and takes complete control. Look on YouTube for videos.
Big companies in automotive, tech, defense, healthcare and everywhere else see right to repair as a violation of corporate rights to maintain control of customers and the products those customers bought.
It’s a sociopathic point of view, although I’m sure company execs and their lawyers just see it as an easy cash grab. If it wasn’t for their obvious, parasitic greed, most people would likely not be paying any attention.
How does the saying go? Bulls make money, bears make money and pigs get slaughtered.
They just cannot tolerate even the tiniest, flimsiest bit of progress.
Ya pays yer monies butt we kepe R propurtee onership. Dis is da nue capitalism: No propurtee fer yu!
Amusing typo: “lo” -> “;p” – shifted one key right.
I appreciate this piece, though not good for blood pressure! (But that’s why I support NC.)
It’s everything, it seems. From crappy to limited to no warranties and adhesion contracts, we have pretty much zero consumer protections Imho. I found a YouTube how to repair and protect a digital display on a freaking pool pump. Too little, too late. I was told I had to chuck the whole thing, which sits in my garage as a backup, and buy a new one.
Many, if not most, refuse to abide by the California privacy statute and have carved out egregious loopholes. As someone said, tech and big biz will never have enough money and power. Ever. Grrr.