THE RIGHT TO REPAIR – OWNERSHIP AT ITS STRONGEST

JURISPRUDENTIAL UNDERPINNINGS OF THE RIGHT TO REPAIR

ROOTS OF THE RIGHT TO REPAIR: THE THEORY IN FAVOUR

The Right to Repair has gained traction in recent times, more so due to the COVID 19 linked lock-downs across the globe, and resultant collapse of small and medium businesses. We hear a lot of noise and ‘discussion’ as to its underpinnings in US legislation, and ecology friendly, and consumer welfare stance that governments are taking across the globe. Citizens, and interest groups all over are demanding its grant1 by their governments, and this goes on to show that no one really knows the right’s origins, or its foundation.

In order to understand the jurisprudence of the Right to Repair we need to take a step back and look at the concept of Ownership. As we all know, Ownership denotes the relation between a person and an object (the “Property”) forming the subject-matter of ownership.2 It consists in a complex of rights, all of which are rights inrem, being good against all the world and not merely against specific persons. Rights range from the possessory right, to the usufructory right (the right to use and enjoy the object), to the right to consume, destroy, or alienate / transfer / sell the object. The Right to Preserve Property is also one such right. The right entails maintenance, upkeep, keeping safe, in good working condition / in good arability, etc., prevention from theft or encroachment, prevention from wasting of the Property, and the like. The Right to Repair is a right that facilitates preservation of Property, that is owned, in order to enjoy ownership over such Property. Thus the Right to Repair is an essential right forming part of Ownership.

Ownership can be transferred, conditionally or absolutely. A conditional transfer would entail restrictive covenants upon ownership. An absolute transfer means transfer of full ownership from a seller to a buyer. In case of transfer of ownership of goods, a sale of goods is more often than not3 an absolute sale of the goods that effects a transfer of the general property in the goods from the seller to the buyer.4 Thus it is safe to say that all sales we witness in daily routine are absolute and complete transfers of ownership from a seller to the buyer.

Therefore from the above it is clear that like ownership, the right to repair too is a common law right and it isn’t granted by statute but merely recognized. Its enforcement runs with ownership rights and it can not be fettered so long as the owner expressly gives up the same by contract. Ownership is at its strongest when it comes to a Right to Repair, as it flexes its muscles in order to preserve the Property and its value, and in doing so, it does so, inrem. We see this at play when as part of Right to Repair one seeks non-destructive device disassembly guides and information. This information is for owner use, and procurement and/or manufacture / 3D printing of parts of say a device that has either gone out of production long time ago, such as say a Bose Speaker system, and the same needs to be repaired or restored, or is very expensive to repair, and is thus cost prohibitive to repair. This would not only entail revealing of proprietary hardware information by the manufacturer but also software information, and in this age of IoT, much more.

It is pertinent to realize that the recognition of a Right to Repair5challenges the current understanding of consumer law, competition law, intellectual property law, product design law, labeling standards, environmental and resource management law, and the like, and also compels a re-look at the policies of these areas. It would also affect politics in a way like never before with competing interest groups vying for supremacy. Even though the basic tenets of the Right to Repair movement are sound, as we shall see below, defining the Right to Repair clearly, unambiguously, and consistently is essential before ill-informed public officials start deliberating on how the fix the issue. These definitions range on Capitol Hill and the Internet from requiring manufacturers to stop using special screws and a user-replaceable battery mandate, to the very light-touch repair on an unrelated component not voiding a device’s entire warranty6 to be able to take a car or washing machine apart and repair or upgrade the same at home while still having to keep the warranty intact. The Right to Repair and Tinker makes competition and ongoing innovation more possible; it enables freedom of thought, study, inquiry, self-expression, diffusion of knowledge, and building a community of highly skilled tinkerers. In addition, freedom to tinker fosters privacy, autonomy, human flourishing, and skills-building interests of tinkerers. Freedom to tinker and repair is an essential component of the innovation wetlands.7

THE ECONOMIC ANTI-THESIS

The counter theory to the Right to Repair stems from the so-called Coase Conjecture8, that held that in the case of monopolies providing durable consumer goods, assuming the value of the consumer goods does not decline (due to repairs, for example), the company’s own products will end up in competition with ones bought at a different point in time, making it impossible to maintain monopolistic pricing. Taking a hint from this notion, a series of studies emerged on the topic of planned obsolescence and material obsolescence in particular.9 In concrete terms, material obsolescence functions in the following manner:

1. Making items difficult to repair (by raising the cost of repair, requiring special tools, etc.)

2. Failing to provide information (for instance, manuals are not provided)

3. Systematic obsolescence (making parts among models incompatible or making it impossible to fix newer models with parts from the older models)

4. Numbering (frequently changing the model numbers to make it psychologically less attractive to use old models)

5. Legal approaches (prohibiting access and modification to the internal structure of products by means of copyrights and patents)

Material obsolescence employs these kinds of approaches as a marketing technique for encouraging the consumer to replace an old model with a new one.10

BASIC TENETS OF THE RIGHT TO REPAIR

As we have seen hereinabove from the arguments against the Right to Repair, and we shall also see from the comparative law discussion that follows, that the Right to Repair has the following Tenets that need to be fulfilled for the enjoyment of ownership rights by a consumer / owner of goods:

1. Provide end consumers / owners with full and fair access to documentation (manuals, schematics), and software updates.

2. Make spare parts and tools (manual tools, diagnostic tools, etc.) available to third party repair centres, and also to the end consumer / owner.

3. Allow the end consumer / owner to unlock and modify the device, vehicle, goods, etc.. This would allow the owner to install their preferred software, if necessary.

4. Design devices, vehicles, goods, etc. so that repairs can be made easily.

5. Do not deter repair with high cost of spares or lower than original part warranties. Essentially, the spares, in monetary terms should add up to the whole in cost, if not less. Similarly spares should carry a minimum warranty equal to or more than the original part in the new product.

6. Planned obsolescence to end at all costs. This will enable product upgradability, extension of product life cycles, reduction of waste creation, and an end to the use and throw economy.

7. Creation and facilitation of choice of consumers to either carry out repair themselves, or seek the same at an official repair centre, or at any third party repair centre that has the knowledge and access to parts to carry out the repairs.

THE STORY OF THE RIGHT TO REPAIR IN THE UNITED STATES

Planned obsolescence11 has been the capitalistic imperative since the 1920s and has garnered fresh traction of late with IoT and Software Defined Silicon (SDSi)12. The notion was first introduced by General Motors executive Alfred P. Sloan and stated that continuous changes to products creates continuous demand for substitution of a product’s older generation and was implemented on a large scale by GM by continuous changes to their models on a year on year basis that fueled demand for their cars.13 While GM and Ford initially differed significantly on their approach of interchangeability of components and ease of repair, the car industry as a whole was at the forefront of establishing the concept of certified repair. Starting from the 1910s and 1920s Ford made significant effort to establish certified dealerships and service networks to drive customers towards Ford produced parts instead of selecting independent repair shops and often non-genuine after sales parts to repair cars. Ford also aggressively pushed for standardised pricing among the certified repair shops making flat fees mandatory even for different repairs. The combination of annual updates to the cars itself and the components made it much more difficult for independent repair shops to maintain a stock of parts and clearly favoured authorised dealerships. This approach undermined independent repair from different angels. Given continuous model upgrades consumers were psychologically pushed towards the purchase of new cars while the maintenance of old cars and needed repairs were made less attractive by pushing consumers into authorised repair networks that were often more costly than independent repairs given that a less globalised economy of the 19th century spare parts were much harder to produce and / or acquire for independent repair shops. In time the legal precedent establishing the Right to Repair was effectively undermined. This constituted a significant change over the period of the great depression in which consumers grew accustomed to self repair given economic constraints. In fact, not only did manufacturers undermine the possibility of repair by technical means, they also frequently attacked companies in courts that tried to refurbish components. In 1938, Champion Spark Plug14, sued the company Reich. Reich was a refurbisher of spark plugs and sold them as reconditioned. While it was already established by legal precedent in the 19th century that the owner of a good has the right to repair even patented goods15, the subsequent court ruling made clear that, neither implicit nor explicit, the good could be sold as identical to the new original good establishing clear boundaries between used (or repaired) goods and new goods.16By 1956 manufacturers across industries adopted planned obsolescence. However, IBM that was the leading manufacturer of information technology equipment and also the sole supplier of the same to the US government, they enjoyed a monopoly. IBM’s uncompetitive behaviour resulted from undermining the second hand market by not allowing clients to own, but only to lease their products. Given that all equipment had to be returned to IBM after expiration of leasing agreements IBM was technically the sole owner of the machines. Access to IBM software and hardware was always bundled effectively keeping other “software” companies away from their hardware and not allowing customers to run IBM logic on non-IBM machines. U.S. Department of Justice successfully pursued a consent decree forcing IBM not only to sell all products at conditions that would not disadvantage purchasing over leasing them, but also to spin off the service division and provide parts, maintenance instructions and tools at identical commercial conditions to independent repair companies as to their own service division assuring that a second hand market and after sales market could be created.17 While this is construed to be the first real right to repair decision, the grounds for the decision were based on anti-trust motives and not applicable on future electronics manufacturers as the entrance of domestic competitors such as HP and Asian manufacturers by introducing the so-called IBM compatible devices established a wide quantity of different players in the market. As a consequence the consent decree was abolished by the courts in 1997.18

In the meantime, while the IBM consent decree was in force, lower and higher courts continued to reinforce the perspective that the ownership of a product came together with clear rights of the repair and modification of such product. In 1961 the U.S. Supreme Court clearly ruled in the case of Aro Manufacturing Co. v. Convertible Top Replacement Co.19 that even patented products can be repaired without infringing the rights of the patent owner. The US Supreme Court stated that, as long as a product can be recognised as a repaired item, and not as a new product, repair was admissible. However, companies like Apple took a technological approach to restrict repairs. Use of circuit boards turned the tables for Apple. Thus the increase of percentage of electronic components in computers, cars, lawnmowers, etc., also increased the complexity of repairs, and thus tipped the scales back in favour of manufacturers, who provided specialised tools for repairs only to their authorised workshops and service centres. Repairs were no longer about swapping out mechanical parts only.

1975 ushered in the Magnuson–Moss Warranty Act, but it did nothing for the Right to Repair even though it defined terms such as repair within warranty, it did not obligate manufacturers to open up their products to easy repair. Meanwhile copyright law became the next front for manufacturers to restrict the Right to Repair. The lawsuit of MAI Systems Corp. v. Peak Computer, Inc.20 in which Peak Computer, Inc. was sued for making unauthorised copies of the MAI operating system to repair MAI produced computer systems. While MAI did win the lawsuit, the legislative chambers implemented exceptions to the Digital Millennium Copyright Act in 1998 explicitly allowing such copies for the scope of repairing a machine. But manufacturers then took to software locks and the exception created by the legislature was rendered useless.21

With the beginning of the 2000s the automotive industry once again came under scrutiny. The first proposal of a right to repair bill for the automotive sector was introduced by Joe Barton and Edolphus Towns to end the ‘unfair monopoly’ of car manufacturers maintaining control over repair information that could result in independent shops turning away car owners due to lack of information. The proposal was struck down by significant lobbying efforts by the automotive industry but nevertheless introduced progress in form of a voluntary agreement obligating manufacturers to provide spare parts and diagnostics to independent repair companies. While the voluntary agreement surely was an improvement, studies later found that access to spare parts and car diagnostics continued to remain problematic for independent repair services. In fact, a study conducted by the Terrance Group found that more than 59% of independent repair services continued to struggle to get access to diagnostic tools and parts from manufacturers.22 Besides the set backs a continuous trend towards right to repair in automotive as well as other industries started to get traction in the legislative branch with an increasing amount of legal proposals and court decisions.23

However it was only in 2012 that the first successful implementation of a Right to Repair came when Massachusetts passed the United States’ first Right to Repair Law for the automotive. It required automobile manufacturers to sell the same service materials and diagnostics directly to consumers or to independent mechanics as they used to provide exclusively to their dealerships. Facing the potential of a variety of slightly different requirements, major automobile trade organizations signed a Memorandum of Understanding in January 201424 using the Massachusetts’ law as the basis of their agreement for all 50 states starting in the 2018 automotive year. A similar agreement was reached by the Commercial Vehicle Solutions Network to apply to over-the-road trucks.25 In 2014, South Dakota passed the Digital Right to Repair Bill, the first successful electronic Right to Repair legislation.26 Thereafter in 2015, the Library of Congress ruled in favor of repair-related exemption in DMCA.27

Ink cartridges became the new frontier of consumer bane. Chip locking enabled printer manufacturers to dissuade consumers from purchasing refilled cartridges or refilling used cartridges. However in 2017 the US Supreme Court in Impression Products, Inc. v. Lexmark International, Inc.28, was called upon to decide a case that concerned a patent infringement lawsuit brought by Lexmark against Impression Products, Inc.. The latter bought used ink cartridges, including those of Lexmark, refilled them, replaced a microchip on the cartridge to circumvent a digital rights management scheme, and then resold them. Lexmark argued that as they own several patents related to the ink cartridges, and thus Impression Products was violating their patent rights. The Supreme Court observed that “[p]atent exhaustion reflects the principle that, when an item passes into commerce, it should not be shaded by a legal cloud on title as it moves through the marketplace.” The Court noted that the exhaustion doctrine has a long history and that any change to aid doctrine would have significant effects on commerce in the modern world. It noted that “extending the patent rights beyond the first sale would clog the channels of commerce, with little benefit from the extra control that the patentees retain, since complex modern supply chains can involve large numbers of patents. Chief Justice Roberts, in his opinion, compared the situation to automobile repair shops where “the business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale.”

In 2019, 20 states of the United States begin to consider the Right to Repair Bill.29 In 2020, a failed attempt at a Medical Right to Repair bill was initiated in order to increase availability of ventilators during the COVID-19 pandemic.30

In May 2021, the Federal Trade Commission (FTC) issued a report “Nixing the Fix”31 to Congress, outlining issues around corporations’ policies that limit repairs on consumer goods that it considered in violation of trade laws, and outlined steps that could be done to better enforce this. This included self-regulation by the industries involved, as well as expansion of existing laws such as the Magnuson-Moss Warranty Act or new laws to give the FTC better enforcement to protect consumers from overzealous repair restrictions.32 On July 9, 2021, President Joe Biden signed Executive Order 14036, “Promoting Competition in the American Economy”, that included instructions to the FTC to craft rules to prevent manufacturers from preventing repairs performed by owners or independent repair shops.33 About two weeks after the EO was issued, the FTC voted unanimously to enforce the right to repair as policy and will look to take action against companies that limit the type of repair work that can be done at independent repair shops.34

THE RIGHT TO REPAIR IN THE UNITED KINGDOM & EUROPEAN UNION

There have been recent developments in the Right to Repair movement in the EU and in the UK. In March, 2021 the EU Parliament approved establishment of a ‘Right to Repair’.35 This ties into the EU Circular Economy Action Plan36 designed to reduce waste and lead global efforts on the circular economy, and the Ecodesign Directive37 designed to improve energy efficiency. However, detailed legislation is still pending in this regard.

In July, 2021, the UK Right to Repair rules were introduced. There is much improvement to be made however, as this only addresses white goods with only simple repair parts being made available. This was in response to the Environmental Audit Committee (the “EAC”) enquiry into electronic waste. This EAC enquiry investigated how the UK might reduce its environmental impact, create economic opportunities, and maintain access to critical materials by better managing and reducing its electronic waste. The UK could see significant benefits with a full right to repair movement including economic value retention and job creation. It is predicted that 450,000 jobs in the UK in the next 15 years will be created as a result of the right to repair. A second hand iPhone is worth 50% of its new equivalent on the secondary market. If you recycle that iPhone it would only be worth 0.23% of its economic value.38 The UK Right to Repair legislation is limited by the following39:

1. It only covers white goods.

2. It only covers white goods from the date of the legislation.

3. It does not require the design of more repairable products.

4. It does not put a cap on cost of spares to make repair affordable vis-à-vis replacement of the product.

5. It does not reduce VAT or abolish it to make repairs more lucrative.

6. It allows bundling of spare parts, thus increasing the cost of spares that can be purchased at a time.

7. It does not extend to a consumer right to repair. This means that as an owner, one can not legally claim provision of spares. One would still have to go to a repair shop for repairs. It thus does not provide availability of repair manuals to end consumers.

THE RIGHT TO REPAIR IN AUSTRALIA

Currently there is no official stand / law / regulations regarding the Right to Repair in Australia. However, under the Productivity Commission Act 199840, there is an ongoing Reference41 as to the Right to Repair. However, the said Reference also makes the mistake to consider the right as something to be granted. The Terms of Reference define the Right to Repair as “a consumer’s ability of consumers to have their products repaired at a competitive price using a repairer of their choice.”42 The Reference states that in Australia the Competition and Consumer Act, 2010 (CCA) prohibits anti-competitive behaviour such as exclusive dealing43; however, many right to repair issues are the result of conduct that is not being captured by the prohibition. In many cases, suppliers do not impose any such restrictions on consumers with respect to the repair of products they supply. Instead, consumers or third parties are prevented from being able to repair the products due to a lack of access to necessary tools, parts or diagnostic software. For these reasons, existing provisions amount to some limited rights or protections in relation to repair facilities in Australia, but do not amount to a full ‘right to repair’. As such, premature product obsolescence and a lack of competition in repair markets remain. The expense of repair and product design accelerate the transfer of consumer goods into waste. The inquiry would undertake the following:

1. The legislative arrangements that govern repairs of goods and services, and whether regulatory barriers exist that prevent consumers from sourcing competitive repairs;

2. The barriers and enablers to competition in repair markets, including analysing any manufacturer-imposed barriers, and the costs and benefits associated with broader application of regulated approaches to right of repair and facilitating legal access to embedded software in consumer and other goods;

3. The impact of digital rights management on third-party repairers and consumers, and how intellectual property rights or commercially-sensitive knowledge would interact with a right to repair;

4. The effectiveness of current arrangements for preventing premature or planned product obsolescence and the proliferation of e-waste, and further means of reducing e-waste through improved access to repairs and increased competition in repair markets; and

5. The impact on market offerings, should firms have their control over repair removed.

The Draft Report on the Right to Repair44 deals with enhancement of access to consumer rights. It seeks to enhance access to repair supplies by evaluating motor vehicle mandatory information sharing, including software updates in consumer guarantees, requiring manufacturers to provide access to repair supplies in particular product markets, introduction of ‘fair use’ or ‘fair dealing’ in the IPR Laws to allow use of copyright repair information (e.g. manuals and schematics), amend the IPR Laws to allow repairers to legally circumvent digital locks to access repair information (e.g. diagnostic data). It further seeks to investigate and ensure warranties do not impede independent repair by requiring warranties to inform consumers that consumer guarantees do not require use of authorised repair, increase product durability with repairability, and by improving e-waste management. However, what shape the final law would take is yet to be seen. The rigour of the Draft Report only suggests a hopeful future of the Right to Repair in Australia.

NON-LEGAL JUSTIFICATIONS OF THE RIGHT TO REPAIR

Ending planned obsolescence and recognition of the Right to Repair as a supreme driver of economies would have the following effects:

ENVIRONMENTAL IMPACT:

Linear economies of extract, make, and dispose have rapidly increased waste since the industrial revolution. The Circular Economy argument advocates for keeping made products in use for as long as possible to reduce both extraction, and disposal, and designing products so that resources can be extracted from them at their end of life.45

RESOURCE AVAILABILITY & DEVELOPING ECONOMIES:

The reduction in resource consumption as a result of Right to Repair led redesign of a linear economy would increase global as well as local resource availability and enable developing economies to better compete and create products using principles of a Circular Economy.

ECONOMIC INDEPENDENCE & INTERNATIONAL TRADE:

A Right to Repair led end of the linear economy would mean better local allocation of resources, and economic independence from rare earth metal producers, and the like. Alternate use of abundant metals would also lead to ample availability of resources, but that is not a discussion point relevant here. The nature of international trade would also change from being resource competitive to resource frugal and would then concentrate on technology competitiveness, and innovation trade.

A NEW DIRECTION FOR INNOVATION:

A Right to Repair paradigm would re-purpose innovation that currently serves the linear economy and the Coase Conjecture driven industry towards sustainability in true sense. A circular economy seeks to advocate for sustainability, and as we have seen hereinabove, it is not far from the truth. For instance, the recent trend towards SoC (System on a Chip)46 with the Apple A4 SoC in 2010 began the race towards SoCs. Apple’s claim that SoCs in iPhones and iPads have enabled them to make them more power frugal is a questionable claim at best as we all know how long a brand new iPhone lasts from full charge to empty! Claims like these and R&D towards such integration only increases waste, reduces product life, enables planned obsolescence when combined with the well known fact that iSystems are deliberately slowed down with each iOS version. Moreover, on their own, a SoC is neither upgradable, nor repairable but only replaceable. Replacement costs of a SoCs is far higher than say replacing merely RAM or GPU and not the CPU Processor, and is also not selectively replaceable by the manufacturer, let alone being user replaceable.

In the next post we shall analyse the Right to Repair and the Impending Indian Experiment.

1The term grant is being wrongly used as will be seen from the discussion that follows.

2P. J. Fitzgerald, Salmond on Jurisprudence (Wellington, New Zealand: Universal Law Publishing Co. Pvt. Ltd., 2002, 12th Edn.) at 246.

399% of the time in e-commerce transactions, over-the-counter sales, and the like.

4See Section 4(1), the Sale of Goods Act, 1930.

5And also the Right to Tinker. See Pamela Samuelson, “Freedom to Tinker”, Theoretical Inquiries in Law, 17(2), 562–600 (2016) wherein she lays down the the 8 aspects of the Right to Tinker that are as follows:

1. Intellectual freedom to study existing artifacts in depth and conceive what can be done with them.

2. Freedom to intellectual privacy and autonomy to investigate and experiment with artifacts one owns or has a legitimate interest in within the confines of one’s own space.

3. Freedom to improve one’s skills by testing, analyzing, and interoperating existing artifacts.

4. Freedom of individual self-expression by means of tinkering.

5. Freedom to learn from tinkering and convey the research results to others.

6. The right to fix broken things and the freedom to use artifacts for purposes other than originally envisioned to the extent that this aspect does not impinge on others’ rights.

7. Freedom to innovate on the basis of the learnings from tinkering.

8. Freedom to optionally share innovations arising as a result of tinkering with others and build communities with such innovations at their core.

The abovementioned factors express the freedom to tinker as the right to do as one wishes with things one owns; this aspect is nearly identical to the textbook definition of modern ownership rights, that is, the right of complete control over things and to use them, make profits from them, and dispose them.

6Seehttps://appleinsider.com/articles/21/07/22/right-to-repair-will-never-be-effectively-legislated-until-it-is-fully-defined

7Pamela Samuelson, “Freedom to Tinker”, Theoretical Inquiries in Law, 17(2), 562–600, at 598 (2016).

8Masayuki Hatta, “The Right to Repair, the Right to Tinker, and the Right to Innovate”, Annals of Business Administrative Science, 19 (4): 143–157 (August 15, 2020), available athttps://doi.org/10.7880/abas.0200604a(https://www.researchgate.net/publication/343611667_The_Right_to_Repair_the_Right_to_Tinker_and_the_Right_to_Innovate/link/5f564c9d92851c250b9a6371/download) (hereinafter refereed to as “Hatta, 2020”) citing R. H. Coase, “Durability and Monopoly”, The Journal of Law and Economics, 15(1), 143–149 (1972).

9Hatta, 2020, citing J. Bulow, “An Economic Theory of Planned Obsolescence”, The Quarterly Journal of Economics, 101(4), 729–749 (1986); T. Iizuka, “An Empirical Analysis of Planned Obsolescence”, Journal of Economics & Management Strategy, 16(1), 191–226 (2007); V. G. Kuppelwieser, P. Klaus, A. Manthiou, & O. Boujena, “Consumer Responses to Planned Obsolescence”, Journal of Retailing and Consumer Services, 47, 157–165 (2019); P.L. Swan, “Optimum Durability, Second-hand Markets, and Planned Obsolescence”, Journal of Political Economy, 80(3), 575–585 (1972); M. Waldman, “A New Perspective on Planned Obsolescence”, The Quarterly Journal of Economics, 108(1), 273–283 (1993); and H. Wieser, “Beyond Planned Obsolescence: Product Lifespans and the Challenges to a Circular Economy”, GAIA – Ecological Perspectives for Science and Society, 25(3), 156–160 (2016).

10See Hatta, 2020.

11There are many obsolescence management companies out there to manage and mitigate obsolescence enabling economical operations. Eg.: Radwell, see at https://blog.radwell.co.uk/8-steps-towards-eliminating-obsolete-industrial-automation-equipment

12That would lock or unlock a chip’s capabilities depending upon licensing by the chip maker. This would redefine the ownership paradigm. Mere purchase of a chip would not grant ownership of its full potential, but would have to be further unlocked by additional annual license fee. Planned obsolescence, which encompasses material obsolescence, had a particularly large impact on the American IT industry of the 1980s and 1990s; the reason was the notion that in addition to the physical hardware, which is durable in nature, to recover investments in software, which in principle does not deteriorate, assertions of legal rights and planned obsolescence is indispensable. The 1980s also saw the beginning of a pro-patent and pro-copyright wave as an industrial policy in the U.S., which was being battered by the technological competition with Japan, reinforcing the idea of protecting technology by legal means. It was a distinguishing characteristic of this era that the American justice system limited the application of anti-monopoly statutes, such as not deeming technology consortia to be cartels. See Hatta, 2020, citing D. V. Gibson, & E. M. Rogers, R & D collaboration on trial: The microelectronics and computer technology corporation. Boston, MA: Harvard Business School Press (1994).

13See Javier Yanes, “The Origin and Myths of Planned Obsolescence”, September 11, 2020 at https://www.bbvaopenmind.com/en/technology/innovation/origin-and-myths-of-planned-obsolescence/ and Ilana Strauss, “How GM Invented Planned Obsolescence”, December 7, 2018 at https://www.treehugger.com/how-planned-obsolescence-began-4856701. While the main competitor Ford, based on the principles of its founder Henry Ford, preferred simple and easy to replace parts, often interchangeable across models, GM felt not limited by considerations regarding the customer’s ability to repair vehicles and even favored designs of lower quality to adjust rapidly to annual changes in consumer demands in the hope of selling more cars. Eventually this strategy allowed GM to overtake Ford as biggest American automaker. As a result of the success of GM, the concept of purposely changing designs and as a consequence also parts within the annual variants of a product became a widely adopted strategy among many different industries in the American economy and was also adopted by Ford. See also Daniel A. Hanley, Claire Kelloway, Sandeep Vaheesan, Fixing America: Breaking Manufacturers’ Aftermarket Monopoly and Restoring Consumers’ Right to Repair, April 2020 Report, available at https://static1.squarespace.com/static/5e449c8c3ef68d752f3e70dc/t/5ea8a6d93b485d0feb9b5d6b/1588111098207/Report_RightToRepair_HanleyKellowayVaheesan-1.pdfand Giles Slade, Made to Break: Technology and Obsolescence in America, Harvard University Press, 2009.

14A company that itself built it’s success on copying foreign spark plug designs to be manufactured and subsequently sold to Buick.

15SeeEly Norris Safe Co. v. Mosler Safe Co., (C. C. A. 2, 1933) 62 F. (2d) 524.

16Champion Spark Plug Co. v. Reich, (D. C. W. D. Mo. 1938) 24 F. Supp. 945. See also Unfair Competition—Reconditioning Used Goods—Permissible Limits of Resale of Patented or Trademarked Articles, 24 WASH. U. L. Q. 283 (1939), available at https://core.ac.uk/download/pdf/233177352.pdf

17United States of America v. International Business Machines Corporations, available at http://www.cptech.org/at/ibm/ibm1956cd.html

18David Lazarus, “Judge to IBM: It’s Not 1956 Anymore”, WIRED, February, 05, 1997 available at https://www.wired.com/1997/05/judge-to-ibm-its-not-1956-anymore/

19365 U.S. 336 (1961).

20991 F.2d 511 (9th Cir. 1993).

21Matthew Gault, “It Is Time, Yet Again, to Beg for the Right to Repair”, available at https://www.vice.com/en/article/m7ape4/it-is-time-yet-again-to-beg-for-the-right-to-repair

22 https://en.wikipedia.org/wiki/Motor_Vehicle_Owners%27_Right_to_Repair_Act

23See Hatta, 2020.

24Kyle Wiens, “You Gotta Fight For Your Right to Repair Your Car”, The Atlantic, February 13, 2014 available at https://www.theatlantic.com/technology/archive/2014/02/you-gotta-fight-for-your-right-to-repair-your-car/283791/

25Marc Karon, “Right to Repair Coalition”, available at https://cvsn.org/truck-parts-aftermarket-right-to-repair-coalition/

26Corynne McSherry, “Support the Right to Repair in South Dakota (and Everywhere Else)”, February 18, 2014, available athttps://www.eff.org/deeplinks/2014/02/support-right-repair-south-dakota

27Mitch Stoltz, “New Exemptions to DMCA Section 1201 Are Welcome, But Don’t Go Far Enough”, October 26, 2018, available at https://www.eff.org/deeplinks/2018/10/new-exemptions-dmca-section-1201-are-welcome-dont-go-far-enough

28581 U.S. ___ (2017), available at https://www.supremecourt.gov/opinions/16pdf/15-1189_ebfj.pdf

29California, Georgia, Hawaii, Illinois, Indiana, Massachusetts, Minnesota, Missouri, Montana, North Dakota, Nevada, New Hampshire, New Jersey, New York, Oregon, South Dakota, Vermont, Virginia, Washington, West Virginia.

30Opinion: “Lessons learned from failure of medical ‘right to repair’ bill”, available at https://capitolweekly.net/lessons-learned-from-failure-of-medical-right-to-repair-bill/

31Available at https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf

32Jon Porter, “FTC report blasts manufacturers for restricting product repairs”, available at https://www.theverge.com/2021/5/7/22424363/ftc-repair-restrictions-report-nixing-the-fix-smartphones-automakers

33Kevin Breuninger and Lauren Feiner, “Biden signs order to crack down on Big Tech, boost competition ‘across the board’”, available at https://www.cnbc.com/2021/07/09/biden-to-sign-executive-order-aimed-at-cracking-down-on-big-tech-business-practices.html and Kate Sullivan, Brian Fung, Betsy Klein and Jeff Zeleny, “Biden signs sweeping executive order that targets Big Tech and aims to push competition in US economy”, available at https://edition.cnn.com/2021/07/09/politics/biden-big-tech-executive-order/index.html

34Makena Kelly, “FTC pledges to fight unlawful right to repair restrictions”, available at https://www.theverge.com /2021/7/21/22587331/right-to-repair-apple-iphone-ftc-lina-khan-open-meeting

35See https://www.europarl.europa.eu/doceo/document/A-9-2020-0209_EN.html#

36See https://ec.europa.eu/environment/strategy/circular-economy-action-plan_en

37See https://www.eceee.org/ecodesign/

38See https://www.techbuyer.com/uk/blog/what-is-the-right-to-repair

39See https://greenallianceblog.org.uk/2021/07/06/the-uks-new-right-to-repair-is-not-a-right-to-repair/

40An enactment that establishes the Productivity Commission “to hold inquiries and report to the Minister about matters relating to industry, industry development and productivity that are referred to it by the Minister”. See the Act at: https://www.legislation.gov.au/Details/C2018C00120

41Available at https://www.pc.gov.au/inquiries/current/repair/terms-of-reference

42This can relate to a range of product faults, including those for which the consumer is responsible. It may include a repair by a manufacturer, a third-party, or a self-repair option through available replacement parts and repair information.

43See Section 47, CCA at https://www.australiancompetitionlaw.org/legislation/provisions/2010cca47.html

44Available at https://www.pc.gov.au/inquiries/current/repair/draft

45A Circular Economy would be based upon the following principles:

1. Minimise consumption of finite resources: Replacing raw materials with recovered and recycled products, which will reduce demand for finite natural resources, and minimise environmental impacts from the extraction and processing of these raw materials.

2. Decouple economic growth from resource consumption: Maximising the value of resources by keeping materials in use for as long as possible, which will decouple economic growth from resource use.

3. Design out waste and pollution: (1) Innovating product design for longevity, re-use, remanufacture and resource recovery to make it easier for customers to share, repair or upgrade goods; (2) Extending the lifespan of existing landfills and reducing demand for new landfills, which will reduce emissions of greenhouse gases and other pollutants; and (3) Increasing service offerings, as well as increased remanufacture and repair activities, to minimise the amount of resources used and avoid the generation of waste.

4. Keep products and materials in use: (1) Developing local markets for high quality post-consumer recycled materials, which keeps materials in use for longer, reduces dependency on international markets and reduces the impacts of commodity price fluctuations; (2) Improving quality of collected materials and improving sorting of these materials so they are available for re-use; (3) Increasing access to goods for the populace through a focus on sharing, re-use and repair, with benefits for low-income households.

5. Innovate in resource efficiency, give preference to higher order re-use and repair opportunities: (1) Capturing value from cycling resources in new ways, including innovative business models and services across different sectors; (2) Innovating technologies that increase resource efficiency and preference higher value re-use opportunities, leading to a range of benefits compared to the take, make and dispose status quo.

6. Create new circular economy jobs: (1) Creating jobs in new manufacturing, service and resource recovery sectors associated with recycling, re-use, remanufacturing and increased service offerings; (2) Encouraging repair and refurbishment, re-use and recycling and creating new skills and employment opportunities in these industries.

See Too Good To Waste – Discussion paper on a circular economy approach for NSW, October 2018, at Page 16. Available at: https://www.epa.nsw.gov.au/-/media/epa/corporate-site/resources/recycling/18p1061-too-good-to-waste-circular-economy-discussion-paper.pdf

46Benj Edwards, “What Is a System on a Chip (SoC)?”, November 22, 2021: Tracing the historical evolution of miniaturization, and integration leading up to SoCs. Available at: https://www.howtogeek.com/769198/what-is-a-system-on-a-chip-soc/

Originally posted here.