Two New More Right To Repair Bills Introduced
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Earlier this month, legislation was unveiled on an issue that has gotten more notice in the United States (U.S.) over the last year or so: the so-called right to repair.
You may have encountered this issue like I did when the battery on my one of my current phones started dying very quickly. Back when I had my BlackBerry Z10, I could buy a new battery myself, could open the device, and swap out the battery. However, with this new phone (the brand will not be mentioned to protect the identity of the manufacturer), I can no longer open the phone easily. Moreover, the best case scenario for replacing the failing battery was that a repair store would have the battery and could do it for a small fee. This turned out to be the case, but had it been some more significant problem, I would have had to contact the manufacturer or find some of the few authorized dealers and pay whatever price they charged. We ran into this situation when my son cracked his iPad screen. The only option was going to an Apple store and paying their top dollar prices.
This is a trend that is occurring more and more in a number of the consumer economy as devices get more and more computerized. The software used to operate such devices, in whole or part, is protected by copyright in the United States (U.S.), meaning it is sometimes a violation of law for the owner of a device or a third party authorized by the owner to try to repair the item. Of course, this is assuming they even have the specialized tools and knowledge manufacturers are increasingly deploying. Generally, the companies employing these techniques claim these steps are being taken to protect consumers’ safety and privacy and the company’s intellectual property.
In response, consumer rights advocates, third-party repair entities, and others have made the case that denying people the right to repair things they own imposes financial costs on people, is anti-consumer, and has environmental costs. Over the last few years, there has been some movement on right to repair in the U.S. and elsewhere, including the aforementioned bills introduced in Congress. But, despite considerable popular support for a right to repair, bills in state legislatures have routinely died as companies have lobbied very effectively against them.
However, advocates found a new angle on the issue using the leverage that stockholders sometimes have. Consequently, two of the biggest U.S. firms, Apple and Microsoft, bowed to shareholder efforts to sway the companies on right to repair. Apple announced that starting with iPhones 12 and 13 the company will commence with “Self Service Repair, which will allow customers who are comfortable with completing their own repairs access to Apple genuine parts and tools.” As mentioned, the immediate impetus for Apple and Microsoft were shareholder fights that could have forced the companies to embrace right to repair more broadly across its products. And this was all due to a change the Securities and Exchange Commission (SEC) in how it would adjudicate shareholder resolutions to now deny company requests to shut down these resolutions if they address “significant social policy issues.” Reportedly, Apple was concerned the SEC would rule against it and so it capitulated to a degree. Nonetheless, before Apple and Microsoft agreed to allow some right to repair, governments around the world had turned their attention to the issue.
The United States (U.S.) Federal Trade Commission (FTC) discussed the role of copyright in the right to repair issue in its May 2021 report:
Software locks, digital rights management (“DRM”) tools or technological protection measures (“TPMs”) are access control technologies implemented by OEMs. While manufacturers argue that these measures are necessary to protect proprietary hardware and copyrighted technologies, repair advocates argue such tactics lock independent service organizations (ISOs) and consumers out of basic repairs.
Nonetheless, not long after its report, and an executive order on competition that called for the agency to address right to repair, the FTC turned to the issue in a policy statement. In relevant part, the agency explained it would use its powers to combat “unlawful repair restrictions,” which “have generally not been an enforcement priority for the Commission for a number of years.”