Right to Repair: Getting a Grip on Ownership

By Austin Wade-Vicente

A decades long war between big tech companies and concerned consumers reached a new milestone on July 9th, 2021, as President Joe Biden signed the “Executive Order on Promoting Competition in the American Economy.”[1] Among other important initiatives, the Executive Order gives significant deference to the Free Trade Commission (FTC) to investigate “[c]ell phone manufacturers and others blocking out independent repair shops.”[2] Many companies intentionally make repairs unjustly more time consuming and costly by  “impos[ing] restrictions on self and third-party repairs,” through “restricting the distribution of parts, diagnostics, and repair tools.”[3] To better understand the significant impact of this Order, and what it means for a variety of American consumers, we first need to briefly explore the source of the controversy.

Right to Repair concerns first began in the late 1990s, but only further exponentially increased in the digital age with more products relying on computer chips year after year.[4] “You bought it, you should own it” is the short and sweet argument from Right to Repair advocates.[5] Essentially, Right to Repair is the assertion that consumers should have the right to fix the product they own without pressure to solely rely on the manufacturer for repairs or resort to purchasing a brand new device. On the flip side, corporations argue that allowing third-party repair is an attack on quality control, protection of intellectual property rights, prevention of injuries, and the company’s reputation.

However, these entities have gone to the extreme to keep customers from entertaining alternative sources of repair. A surprising number of big tech companies have exerted monopoly power by forcing consumers to either pay for the company’s expensive repairs or buy a new machine.[6] A solution that further contributes to the 2.5 million tons of electronic waste generated by the globe each year.[7] Moreover, multinational tech company Apple has gone so far as to hide schematics from the public, threaten third-party repair companies with DMCA suits, and even invent their own “pentalobe screw” in efforts to maintain control from sale to landfill.[8]

The illusion of having this “benevolent monopoly,” valiantly protecting customers from conniving hackers and incompetent repairmen, shatters when a growing number of consumers accuse the company itself of being the single source of harm in the repair industry.[9] CBC news even caught Apple in an undercover investigation quoting repair prices comparable to a brand-new laptop to avoid even the simplest of repairs.[10] This behavior begged an important question. Who owns the purchased product when the manufacturer can unilaterally decide the consumer is done using it?

Again, prior to President Biden’s Executive Order, the status quo of repair was free reign to nearly exhaust of all of the public’s options to fix their property, avoid transparency, and force customers to pay artificially high prices for basic maintenance—­­­if done at all. After the Order, the FTC found that monopolizing repair services, the associated repair information, parts, and their necessary tools is plainly anticompetitive.[11]

Just after the release of President Biden’s Executive Order, the FTC unanimously voted to agree to investigate if tech company repairs are “breaking antitrust or consumer protection laws, and to step up enforcement of the laws against violators.”[12] The goal of this investigation, if successful, is “to push harder for the right of consumers to repair devices like smartphones, home appliances, cars and even farm equipment.”[13] Yes, you read that right. The Executive Order’s mention of “others blocking out independent repair shops” includes those providing farm equipment, going well beyond consumer electronics.[14]

Farmers have an immensely time sensitive job, and therefore, need to be able to get under the hood to fix their machines when in the field.[15] Many farmers already work 80 hours a week during harvest, and some have already faced legal repercussions from John Deere for trying to fix their own machines.[16] While waiting upwards of weeks for certified John Deere repairman to fix their fancy internet-connected tractors, some farmers have actually turned to using 40-year-old models to reliably complete harvest seasons.[17] As a result, Right to Repair not only impacts prices of consumer electronics and maintenance, but, more importantly, our food supply chain as well.

Farmers are not the only professionals that would benefit from robust Right to Repair enforcement either, as service members have run into many of the same issues. United States Marine Corps. Captain Elle Ekman was stunned when one of her Marines gave a warranty excuse for refusing to fix a generator in the field.[18] She had no idea a civilian concept like Right to Repair could affect her military career, but it became abundantly clear every time Marines sent equipment back home that they were “los[ing] the opportunity to practice the skills they might need one day on the battlefield.”[19] “Vendor control over warranty repairs is a completely unworkable scheme in wartime” as prompt maintenance could mean the difference between life and death for service men and women.[20] In response, President Biden gave the Secretary of defense 180 days to make a plan to avoid terms that impede service members from repairing their own equipment, “particularly in the field.”[21]

Despite the numerous reasons why Right to Repair should be adopted, it remains to be seen if measures taken by the FTC will pass into law.[22] If no one takes action on the federal level, 27 states have passed Right to Repair legislation that helps combat many of the previously explored problems.[23] However, much like other state regulations, these Right to Repair laws are not uniform. For example, the state of Washington only enforces Right to Repair laws on consumer devices, while South Carolina only focuses on ag equipment.[24]

“‘It isn’t like we’re asking for something that’s impossible,” remarked Special Assistant to the President for Tech and Competition Policy Tim Wu.[25] “Provide parts, provide information and let people really feel like they own their own devices.”[26] If the FTC finds ample evidence of violation of antitrust or consumer protection laws there may be top-down enforcement from the federal government. Until then, only time will tell if farmers, service members, and the everyday consumer will be free to claim ownership of their respective devices.

[1] Exec. Order No. 14,036, 86 Fed. Reg. 36987 (2021); Emily Matchar, The Fight for the “Right to Repair,” Smithsonian (July 13, 2016), https://www.smithsonianmag.com/innovation/fight-right-repair-180959764/.

[2] Id.

[3] Id.

[4] See Matchar, supra note 1; Thorin Klosowski, What You Should Know About Right to Repair, N.Y. Times (July 15, 2021), https://www.nytimes.com/wirecutter/blog/what-is-right-to-repair/.

[5] The Repair Association, Repair, https://www.repair.org/.

[6] See Andrew Thompson, The Fix Is Out: Product Repairs Get Tougher in New Age of Obsolescence, NBC News (July 31, 2016, 2:30 PM), https://www.nbcnews.com/news/us-news/fix-out-product-repairs-get-tougher-new-age-obsolescence-n614916.

[7] See Vanessa Forti, Global Electronic Waste Up 21% in Five Years, and Recycling isn’t Keeping Up, The Conversation (July 10, 2020, 10:38 AM), https://theconversation.com/global-electronic-waste-up-21-in-five-years-and-recycling-isnt-keeping-up-141997.

[8] Kyle Wiens, Apple Is Bullying a Security Company with a Dangerous DMCA Lawsuit, iFixit (Jan. 2, 2020), https://www.ifixit.com/News/34892/apple-is-bullying-a-security-company-with-a-dangerous-dmca-lawsuit; Kyle Wiens, Apple’s Diabolical Plan to Screw Your iPhone, iFixit (Jan. 20, 2011), https://www.ifixit.com/News/14279/apples-diabolical-plan-to-screw-your-iphone.

[9] Nathan Protor, Here’s How Manufacturers Argue Against Repair, U.S. PIRG (July 1, 2019), https://uspirg.org/blogs/blog/usp/here%E2%80%99s-how-manufacturers-argue-against-repair.

[10] See CBC News: The International, Apple Under Fire for Allegations of Controversial Business Practices, YouTube, at 1:48–6:00, (Oct. 18, 2018), https://www.youtube.com/watch?v=_XneTBhRPYk.

[11] Michael Kan, FTC Calls Out Tech Companies for Onerous Right-to-Repair Restrictions, PCMag (May 7, 2021), https://www.pcmag.com/news/ftc-calls-out-tech-companies-for-onerous-right-to-repair-restrictions.

[12] Aishvarya Kavi, The F.T.C. Votes to Use Its Leverage to Make it Easier for Consumers to Repair Their Phones, N.Y. Times (July 21, 2021), https://www.nytimes.com/2021/07/21/us/politics/phones-right-to-repair-FTC.html.

[13] Id.

[14] Exec. Order No. 14,036, supra note 1.

[15] Jonathan Ahl, Right to Repair Mandate From Biden Might Help Farmers Fix Their Own Equipment, Harvest Public Media (Aug. 5, 2021), https://www.harvestpublicmedia.org/post/right-repair-mandate-biden-might-help-farmers-fix-their-own-equipment.

[16] Nicky Ellis, How Many Hours Do Farmers Work?, Farm & Animals (Nov. 25, 2020) https://farmandanimals.com/how-many-hours-do-farmers-work/#:~:text=During%20the%20harvest%2C%20a%20farmer,about%2060%20hours%20a%20week; Jordan Almond, Farmers Across America Are Suing for the Right to Repair Their John Deere Tractors, Motor Biscuit (July 15, 2021), https://www.motorbiscuit.com/farmers-america-right-to-repair-john-deere-tractors/.

[17] Kari Paul, Why Right to Repair Matters – According to a Farmer, a Medical Worker, a Computer Store Owner, The Guardian (Aug. 2, 2021, 6:00 AM), https://www.theguardian.com/technology/2021/aug/02/why-right-to-repair-matters-according-to-a-farmer-a-medical-worker-a-computer-store-owner.

[18] Elle Ekman, Here’s One Reason the U.S. Military Can’t Fix Its Own Equipment, N.Y. Times (Nov. 20, 2019) https://www.nytimes.com/2019/11/20/opinion/military-right-to-repair.html.

[19] Id.

[20] Kyle Mizokami, The U.S. Military Has a ‘Right to Repair’ Problem, Popular Mechanics (Feb. 11, 2020), https://www.popularmechanics.com/military/weapons/a30859791/us-military-right-to-repair/.

[21] Exec. Order No. 14,036, supra note 1.

[22] Nadeem Sarwar, What Biden’s Right-To-Repair Executive Order Means For You, ScreenRant (July 12, 2021), https://screenrant.com/right-to-repair-executive-order-explainer-and-details/.

[23] Nathan Proctor, Half of U.S. states looking to give Americans the Right to Repair, U.S. PIRG (Mar. 10, 2021), https://uspirg.org/blogs/blog/usp/half-us-states-looking-give-americans-right-repair.

[24] Id.

[25] Joanna Stern, How the ‘Right to Repair’ Might Save Your Gadgets—and Save You Money, Wall Street Journal (Aug. 30, 2021), https://www.wsj.com/articles/how-the-right-to-repair-might-save-your-gadgetsand-save-you-money-11630324800.

[26] Id.

Image Source: https://www.cleanwateraction.org/2021/02/01/sb0412hb0084-right-repair-and-why-matters-environment