UNFAIR TRADE PRACTICE, CORPORATE STRATEGY, & THE ECONOMY OF WASTE

AN INTRODUCTION TO OUR HANDS BEING TIED

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Ever wondered why do spares cost more than the sum of the whole product? Why does the replaced new spare magnetron of a microwave oven not carry the same warranty duration as the original part that came with the product? Especially in instances wherein availability of spares is restricted to manufacturer channels rather than open market, on the ground of protection of IPRs and trade secrets! Same goes for parts of a water RO system that could carry warranties as low as 1 month. Are spares inferior to the original part? These are questions no one asks. A Samsung TV display panel costs so much that purchasing a brand new TV would seem a plausible option. If spares carried the same warranty as the original, the lifecycle of a product would increase and e-waste (and overall waste generation) would reduce.

Ever used a Hawkins pressure cooker, Futura or otherwise? Hawkins website provides detailed schematics of their products and how to repair them, and what spare part numbers go into which model of pressure cooker. They also provide a repair tool to do it yourself at home! Their spares are inexpensive and readily available from stores that stock and sell their products as well as those of their competitors. We do not see such availability of spares even at multi-brand electronics stores. Would it not be easier, and repairs more accessible if this were so? But we are destined to hunt down electronics repair centres, and authorised repairers at the most obscure of locations, sometimes out of town! There are no multi-brand repair centres of repute or quality, let alone at places we often frequent to purchase the goods sought to be repaired.

Ever wondered why your old TV display panel can not be upgraded to a new panel? Or why your vehicle that came out 2 years earlier and has now been replaced by the “All New” vehicle without change in exterior look but change in the size of the infotainment display only. 5 inch display now has become 7 inch, and then 10 inch, with only bezels becoming thinner, or the mount accommodating a larger tablet like device, yet the manufacturer says that the new system is not backward compatible due to software issues. Who designs the software, or hardware for that matter. Couldn’t thought have gone into its design so that consumers with the older model could upgrade merely the infotainment system rather than replace the whole vehicle. What is the direction of R&D, creation of waste or minimising it by providing upgrade options? Reduction of life-cycles seems to be the hallmark of a good researcher in these times.

Ever wondered what happens to Electric Vehicles (hereinafter referred to as “EVs”) after their Li-ion battery runs its lifespan? A huge cost is incurred to replace the fixed battery in an EV. Yet manufacturers conduct R&D towards fixed Li-ion batteries in EVs, and insist upon fast charging at fast charging stations, for which expensive infrastructure is developed by infrastructure companies. Why not have hot-swapable batteries in EVs. Go to a “refueling station” and swap out the discharged batteries for fully charged ones. The software in the EV will detect the charge capacity of the replaced battery and accordingly calibrate the cost of the new battery charge payable by the customer. Security for batteries would thus be ruled out. Of course that would require standardisation of battery technology, and in the least, would also require compatibility of batteries between vehicles (just like AA & AAA batteries in devices). However, no one interested in IP Exclusivity and Proprietary Secrecy would support such research or standardisation. There is no international body insisting on such standardisation like the EU viz USB-C for Charging Ports for all devices. It is currently simply not economically justifiable viz. corporate profiteering.

Gone are the days when we could ourselves repair our freely purchased and owned goods, devices, and electronics, by referring to the user manual. These days user manuals have more about the service centers than they have about the product they are supposed to be about. With embedded computer chips, software, and other technology, specialized knowledge and tools are now needed to make simple repairs. Unfortunately for consumers, manufacturers have been taking advantage of this product complexity to stymie the do-it-yourself enthusiast, and independent repair shop from making repairs in a variety of different ways. Many manufacturers maintain an “authorized” network of repair shops, which consumers are required to use for repairs during a product’s warranty period. Joining the network is typically difficult and expensive. While this practice in itself may be viewed as based on a legitimate concern for quality control, it becomes more troubling when manufacturers couple it with obscure repair information and a refusal to supply replacement parts in the open market. IPRs, esp. Trademarks are sometimes used to curtail repairs. A company logo may be placed that is microscopic in size to control imports, or repairs by non-authorised repairers1. A warranty will be voided if such parts in a previously repaired product is brought to the manufacturer for an unrelated repair. This exceeds the traditionally accepted purpose for Trademarks, which is to promote competition and assist consumers in identifying the source of goods.2

From the above it is very clear that our hands are being tied at many levels. Firstly, our personal right as owners to repair our goods that we own. Secondly, our freedom to engage in obtaining information, and disseminating information, and services that facilitate repairs, including advertising of repair businesses. Thirdly, our freedom to manufacture, import, sell, and use replacement parts viz. the OEM. Fourthly, mandate OEMs to disclose repair information and manuals, and supply replacement parts (especially out of authorised service centres, and also of old discontinued models of goods).

To be able to freely repair what we own, or get the same repaired from the person of our own choice is an innate right of ownership. The Right to Repair movement across the globe might either want a grant of this right, or is attempting a reclamation of it. Justifications of the Right to Repair have been forwarded in each movement and they commonly are based upon consumer autonomy, environmental resource management, and fair competition.

Right to Repair Legislation, proposed or de jure have a few common fundamentals that may be considered their basic tenets. They are as follows:

1. mandating disclosure of information that will allow repairs;

2. mandating the availability of parts and tools to facilitate repairs;

3. mandating disclosure of information to allow security protections to be reset; and

4. forbidding contracting around such provisions in terms between authorized repair providers and the original equipment manufacturers.

As we shall see below, corporate strategy does in fact attempt to stifle the Right to Repair by various justifications and tactics. However, we also need to understand the Right to Repair in the context of a new impending paradigm, that of the Circular Economy.

PRODUCT UPGRADABILITY & RESOURCE FRUGALITY: A Case for a Circular Economy

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It is not unheard of that consumers, both individual as well as corporate, spend large sums of money on technology that becomes obsolete within a few years. Additionally, either unreasonably expensive or impossible to repair defects in these products force consumers to discard their devices and purchase new ones that they would not ordinarily require. This is known as a product life-cycle, that may be long or short depending upon upgradability of the product.

System 76 Laptops, Framework, and Panasonic ToughBooks are proof that product upgradability is a very real and present possibility, and the affordability is also unquestionable, except of course in the case of the ToughBook. Framework makes modular laptops and its raison d’etre is that it is intentionally upgradable, repairable, and customisable by end users. Thanks to bespoke engineering owners can swap out parts, even the CPU, with no soldering or scraping off years-old thermal paste required. It has recently announced possibility of upgrading their Intel 11th Gen Laptops to Intel 12th Gen chipsets via upgrade kits.3

Such smart and sustainable engineering can also help create upgradable cars. Today we have cars that come in various models, and each model in different variants. One is stuck with a variant and to upgrade to the higher variant’s features, one has to purchase a new car. What if the car was engineered such that all features that differentiated each variant were nothing but modules, and those could be upgraded after purchase at any time (such as infotainment screen, or more complex features such as the look and feel, upholstery, as well as the drive train). This would drastically reduce automotive waste, increase automotive life-cycles, as well as reduce the need for launch of newer versions each year, (or every couple of years) to keep up customer demand of the whole vehicle or model. In such a scenario, the race would now be towards newer upgrades, and updates to an existing vehicle by the OEM, and other after-market modifiers / modification providers. Such a market would become a kaleidoscope of innovation and endless possibilities, much like varied apps on any given smartphone operating system.

The Circular Economy Argument addresses the aforesaid concerns in to a large extent, if not in totality. It’s three pillars are:

1. Design out waste and pollution to reduce green house gas emissions across the product value chain;

2. Keep products and materials in use and at their highest value; and

3. Regenerate natural systems to sequester carbon in products, materials, and soil.

Consumption of finite resources in production and value creation in a linear economy is thus transformed to a recycling economy that is distributed, diverse, and inclusive. Frugal innovators strive to create products and services that score high on three, seemingly contradictory, attributes that are increasingly valued by customers: affordability, quality, and sustainability. A high-quality product (say, an over-engineered, beautifully designed, gas-guzzling car) is generally expensive and not always sustainable. Rather than seeking a trade-off or dealing with each of the three attributes independently, frugal innovation seeks to integrate them. For example, over 70% of a product’s life-cycle costs and environmental footprint is determined during its design phase. Hence, rather than tackling quality and sustainability later in the manufacturing or distribution process, when doing so becomes more costly, frugal innovation factors in these aspects earlier in the R&D phase.4

As a result frugal innovation yields products that are not necessarily cheap or of the highest quality. Rather, they are well-designed, good-quality products that are developed cost effectively and sold at affordable prices to deliver best customer value.5

CORPORATE STRATEGIES THAT STIFLE THE REPAIR / CIRCULAR ECONOMY ARGUMENT

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I. Unfair Trade Practices

All UTPs may not always be defined in law. However, one may define UTPs simply as those practices that stifle consumer choice. There are many corporate strategies that stifle repair / circular economy initiatives, such as:

1. Making items difficult to repair is the first step towards RTR suppression.

   1. Physical Restrictions play an important part of restricting repairs. Highly specialised nuts, screws, and bolts requiring unique screw-heads to open is one such method.6 Additionally, the use of specialised glues to close device cases and chassis, or to secure component parts within a device,7 soldering of RAM, storage, etc. on motherboards8 prevents consumers from themselves upgrading their devices. Further, the welding or closing of the exterior of devices also prevents self-repair.9

   2. Restricting Supply Chain of Spares as well as Tools of Repair.

   3. By Raising the Cost of Repair – that includes service cost as well as cost of spares.

   4. Diagnostic Tools & Software availability being controlled by manufacturers.

2. Additional strategies to subdue RTR are as follows:

1. Failing to provide information as to design of a product and that of its repair (no manuals for repair being provided, no design figured being provided in the owners manual, etc.)

2. Discouraging Repair by falsely telling users that certain repairs can’t be done, even when independent shops are perfectly capable of performing them.10

3. Systematic obsolescence by way of design – at the design board itself (making parts among models incompatible or making it impossible to fix newer models with parts from the older models). A newer approach by making parts incompatible using IoT, thus preventing compatible parts from working in older models.

4. Numbering / The New & Improved Façade (frequently changing the model numbers to make it psychologically less attractive to use old models). This works best in emerging markets with higher disposable income and/or aspirational consumers.

5. Designing to make independent repairs less safe: Case in point is replacing Lithium Ion batteries in devices. Their form factor, shape, structural specificity to deployment, etc. make them difficult to handle by independent repair especially when a manufacturer is hush-hush about the specifics of the structure of a device or the power schematics and software tie-ins of these batteries and their charging modules, and parameters. Further, the use of glue to fasten polymer cells into mobile phones and other devices also increases the risk that the cells will be punctured when they are removed by individuals and independent repair shops that do not have access to specialized solvents or tools. These practices reduce the ability of individuals and independent repair shops to remove and install appropriate replacement lithium ion cells in consumer devices. However, recently the EU has begun mulling legislation that can bring back user replaceable lithium ion batteries in mobile phones, and possibly industrial batteries, batteries used in electric cars, and light-mode transportation (LMT) batteries for electric bikes or scooters. It also covers SLI batteries that have a variety of automotive applications, including the ignition of cars.11 This is part of EU’s next generation initiative transitioning towards a circular economy. This would require standardisation at many levels so re-enable ease of battery deployment, handling, and replacement.

6. TELEMATICS SYSTEMS: These systems are generally used to enable manufacturers to provide beneficial services to consumers such as, parking assist, vehicle maintenance warnings, and navigation and emergency support. These may be used in household appliances as well such a refrigerators, washing machines, etc. These systems steer consumers towards a manufacturer’s repair network. Additionally, every manufacturer creates a unique system for accessing telematics vehicle repair data, thus making independent diagnosis cumbersome12, and repair very difficult, if not impossible, thus making it difficult for independent repair providers to cost effectively provide service to their customers.

7. DISPARAGEMENT OF NON-OEM PARTS AND INDEPENDENT REPAIR SERVICES: Original Equipment Equivalent parts are cast as being unsafe for consumers that are vilified in advertising campaigns. Many manufacturers enlist disparaging literature as part of their service, repair, and support section on their websites, and others post videos on social media, or cascade such information through their service providers.13 There might be some truth to such statements issued by manufacturers in markets such as India, however it might not be true in the US or Australia.

8. Software Locks, Digital Rights Management, and Technological Protection Measures: Recent trend of car manufacturers resorting to subscriptions for services such as front heated seats, steering wheel heating, Apple Car Play subscription, full car performance locks for EVs, etc. is one such example of Software Locked Features already provided but not available to a product purchasing consumer.14 Another example of not owning the hardware you already paid for is Software Defined Silicon (SDSi) where Intel is offering upon additional payment features that are already hardwired into future Xeon server processors such as Intel Software Guard Extensions15, Intel Quick Assist Technology16, Intel Dynamic Load Balancer17, Intel In-Memory Analytics Accelerator18, and Intel Data Streaming Accelerator19. 20 SDSi threatens to increase costs for corporations that are starting up or are bootstrapped. Cost prohibitive nature of such products and tactics leaves very little to consumer choice and autonomy over purchase of hardware that they aim to use as their own without back-end thwarting. John Deere has been resorting to such tactics to control their market for years now.21 What makes this worse is that these measures are also not Hardware as a Service, as you are disadvantaged into purchasing depreciating hardware that can not be upgraded like in HaaS. EmbeddedSoftware forces consumers to opt for manufacturers’ authorised service networks, or else synchronised spares to the device’s logic board will not function, or would have a limited functionality.22 Yet another example of such restrictive trade practice is VINBurning. This a practice of limiting a control module to function with a single vehicle identification number. This can enable a manufacturer to constrain a spare part to function with only a single car. Using the part on another vehicle would be blocked by the vehicle’s embedded software. This is done in the name of reducing the marketability of stolen airbags, and other components, but this majorly restricts legitimate third party independent repair. In the refurbished device market it is very common for manufacturers to limit third party repairs through Firmware Updates. Thus even in refurbished devices, the consumer or the refurbished equipment provider has to enter into a contract with the original manufacturer for Firmware Updates without which the devices do not function as intended.

9. EULA Restrictions – The Legal Contract Restriction: Most EULAs or End User License Agreements have restrictions as to repairs placed upon the purchaser of the device or goods. EULAs restrict repairs by prohibiting modifications of software for any purpose, prohibiting de-compiling or reverse engineering of software, inter alia other restrictions.

10. Making Self-Repair so cumbersome, thus driving customers to authorised repairers. Apple with its iPhone repair toolkit lending programme has done just that. Apple revealed in November 2021 that it would launch a ‘Self Service Repair’ program in early 2022, providing repair instructions and official parts to anyone who wants to fix their iPhone, iPad, or Mac at home. Sean Hollister at The Verge tried a simple battery replacement on his iPhone Mini, which involved purchasing a new battery for $69 (the same price the Apple Store charges for the whole repair process), $49 to rent Apple’s tools for a week, and a $1,200 credit card hold for the toolkit that would be forfeited if the tools weren’t returned within a week. The instructions are designed with these proprietary tools in mind, and the entire toolkit reportedly weighs 79 pounds. Finally, the replacement battery was still registered as an “Unknown Part” until the final step: calling a third-party logistics company and giving them remote access to verify the hardware. Brian X. Chen at The New York Times had an even more difficult time with a battery replacement on an iPhone 12, even after successfully replacing the battery in an older iPhone XS with a $45 iFixit kit. He didn’t remove the phone’s security screws before initially removing the screen, causing the original display to shut down after the repair. After also replacing the screen with a spare from an independent repair, he had to contact customer support to get the battery recognized as a genuine Apple part.23 This is surely like, to use a car analogy, if Toyota sent you an industrial car lift to fix a flat tire, and charged you market price for renting the car lift. Companies like iFixit have proven that you don’t need hundreds of dollars of equipment to repair iPhones, but an iFixit kit will leave you with popups on your iPhone about unauthorized repairs, which is why Apple’s own option was highly anticipated.24

II. The Proprietary Argument

Manufacturers resort to legal approaches prohibiting access and modification to the internal structure of products by means of copyrights, patents, and trade secrets. For instance, the misuse of design patents on repair parts to block competition from producing equivalent parts is creating an environment with less competition and a significant pricing increase in the marketplace.25

Thus we see that primary argument against the Right to Repair and a Circular Economy is IPRs and the protection of innovation by providing an incentive for the development of technological inventions and the creation of original works of authorship.26 This is purportedly done to ensure progress of science and arts.27However, looked at differently, innovation in the right direction could not only offer reduction of waste, by remedying the issue of short life cycles of goods, but also offer increased competition to achieve the sustainability and circular economy objective sooner, and better. This utilitarian argument being a double edged sword is quite generous in its capacity to justify the Right to Repair and the Circular Economy agenda. One might argue that the traditional IPR regime is not unfettered, and thus not absolute. Social interests have always been the exception to the grant and exercise of IPRs, since IPRs are granted to further social interest at large, for the progress of all humanity. Progress if looked at from the aforestated different standpoint, then an absolute assertion of IPRs would not be required, since they would now be promoting progress in a different direction that is not wasteful, nor linear. This change in the understanding of Progress is necessary to implement an egalitarian repair / circular economy culture that envisions profit both monetary and intrinsically sustainable.

III. Compliance Cost Argument:

High cost of compliance to the Right to Repair Regime by implementing change to the now established economy of waste is the most cited argument by corporations on the other side of the fence. However, making mobile phone batteries user replaceable, making batteries interchangeable between models of the same mobile phone company, or between EVs (for hot-swapability of batteries), standardisation of batteries across segments, and manufacturers, standardisation of charging ports across devices, and EVs, is certainly a financially uphill task, but not as uphill as first deciding the standard, and then going ahead with innovation and implementation such as in case of the WiFi or Bluetooth Standards, or for that matter 4G, 5G or 6G Standards. Corporate spending to close off repairs from third parties is as much a cost as it is to open up the playing field. In the long run it creates sustainability by not compelling manufacturers to provide spares for older / outdated models, when / where after-market manufacturers are well capable of shouldering the workload of providing spares / repairs. Simply put, the cost of unlearning and then relearning is far higher than proper learning to begin with. Who told corporations to target R&D towards closing off third-party independent repairs? No one, but their zeal to control manufacturing as well as exclusively control servicing of the goods so manufactured. Compliance with a new Right to Repair Regime would certainly create corporate costs of unsettling proportions, but the flipside of benefits from sustainability, circular economy benefits, as well as socio-economic benefits such as employment through SME business opportunities are endless.

IV. Outdated Corporate Social Responsibility (CSR) understanding:

Corporate social responsibility (CSR) is a form of international private business self-regulation which aims to contribute to societal goals of a philanthropic, activist, or charitable nature by engaging in or supporting volunteering or ethically oriented practices. Well this is the standardised understanding of CSR as per Wikipedia and most jurisdictions. India defines CSR Activities under Schedule VII of the Companies Act, 2013 as follows:

1. Eradicating hunger, poverty, and malnutrition, promoting health care including preventive health care and sanitation including contributing to the Swach Bharat Kosh set up by the Central Government for the promotion of sanitation and making available safe drinking water.

2. Promoting education, including special education and employment enhancing vocational skills, especially among children, women, the elderly, and the differently abled, and livelihood enhancement projects.

3. Promoting gender equality, empowering women, setting up homes and hostels for women and orphans; setting up old age homes, daycare centers, and such other facilities for senior citizens, and measures for reducing inequalities faced by socially and economically backward groups.

4. Ensuring environmental sustainability, ecological balance, protection of flora and fauna, animal welfare, agroforestry, conservation of natural resources, and maintaining the quality of soil, air, and water including contribution to the Clean Ganga Fund set up by the Central Government for rejuvenation of river Ganga.

5. Protection of national heritage, art, and culture including restoration of buildings and sites of historical importance and works of art; setting up public libraries; promotion and development of traditional art and handicrafts.

6. Measures for the benefit of armed forces veterans, war widows and their dependents, Central Armed Police Forces (CAPF) and Central Para Military Forces (CPMF) veterans, and their dependents including widows.

7. Training to promote rural sports, nationally recognized sports, paralympic sports, and Olympic sports.

8. Contribution to the prime minister’s national relief fund or Prime Minister’s Citizen Assistance and Relief in Emergency Situations Fund (PM CARES Fund)] or any other fund set up by the central govt. for socio-economic development and relief and welfare of the scheduled caste, tribes, other backward classes, minorities, and women.

9. Contribution to incubators or research and development projects in the field of science, technology, engineering and medicine, funded by the Central Government or State Government or Public Sector Undertaking or any agency of the Central Government or State Government and

10. Contributions to public funded Universities; Indian Institute of Technology (IITs); National Laboratories and autonomous bodies established under Department of Atomic Energy (DAE); Department of Biotechnology (DBT); Department of Science and Technology (DST); Department of Pharmaceuticals; Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (AYUSH); Ministry of Electronics and Information Technology and other bodies, namely Defence Research and Development Organisation (DRDO); Indian Council of Agricultural Research (ICAR); Indian Council of Medical Research (ICMR) and Council of Scientific and Industrial Research (CSIR), engaged in conducting research in science, technology, engineering and medicine aimed at promoting Sustainable Development Goals (SDGs).

11. Rural development projects.

12. Slum area development.

13. Disaster management, including relief, rehabilitation, and reconstruction activities.

Oh well, its all hunky-dory when a corporate makes the CSR ends meet. Essentially, charity work is CSR. Contribution to R&D is largely towards things that do not change the status quo of functioning of a company that funds as such. Environmental protection is also a mere lip-service so long as it does not question a company’s operations that support an economy of waste. CSR needs to be re-defined to include business strategy and direction that is sustainable, promotes a circular economy, and discourages an economy of waste. It is the redesign of business models at large that would ensure respect of the Right to Repair of consumers. It is after all consumers that are the sole attention of businesses.

V. Exceptions within the Right to Repair legislation:

This is a new threat on the horizon even before RTR Legislation becomes a reality in many jurisdictions. For instance, New York’s, The Fair Repair Act, 202128 is marred by exceptions and limits to the reach of Right to Repair, a result of corporate lobbying from every nook and corner. It carves out a number of exceptions, including, motor vehicles, and off-road equipment like construction and mining equipment, as well as farm and utility equipment. It also excludes public safety communications equipment and “home appliances with digital electronics embedded within them” from the act. Given the way companies have been trending towards making smart fridges, washing machines and more, this could potentially be an enormous loophole or at the very least exclude a large number of products. The Act also states that the proposed requirements will apply to “products with a value over hundred dollars” and that OEMs or authorized repair providers don’t have to make available any parts, tools or documentation if the intended use is for modification of the products. How will this determination be made is unclear.29 One of the most controversial adjustments in the signed law is that it allows OEMs to sell assemblies of parts instead of individual components if they choose to. The bill also won’t require OEMs to provide “passwords, security codes or materials” to bypass security features, which is sometimes necessary to do to save a locked, but otherwise functionally fine device.30 Additionally, July 1st, 2023 is the date when devices “manufactured for the first time as well as sold or used in New York for the first time” become eligible for coverage, implying that right to repair protections won’t apply to anything made before the bill’s effective date. Such exceptions seem to be cropping up in every RTR Legislation as a result of lobbying. It is the power being given back to the manufacturers that is very disconcerting. RTR Policy needs to address such trappings before any jurisdiction wide implementation and enforcement.

Originally posted here.

_________________________________ Notes:

1 Jason Koebler, “DHS Seizes iPhone Screens from Prominent Right-to-Repair Advocate”, VICE: MOTHERBOARD, (May 12, 2018) at https://www.vice.com/en/article/evk4wk/dhs-seizes-iphone-screens-jessa-jones.

2 See Stacey L. Dogan & Mark A. Lemley, “The Merchandising Right: Fragile Theory or Fait Accompli?”, 54 EMORY L.J. 461, 466–67 (2005); William M. Landes & Richard A. Posner, “The Economics of Trademark Law”, 78 TRADEMARK REP. 267, 271 (1988) (“[A] trademark conveys information that allows the consumer to say to himself, ‘I need not investigate the attributes of the brand I am about to purchase because the trademark is a shorthand way of telling me that the attributes are the same as that of the brand I enjoyed earlier.’”); Mark A. Lemley, “The Modern Lanham Act and the Death of Common Sense”, 108 YALE L.J. 1687, 1690 (1999); Glynn S. Lunney, Jr., “Trademark Monopolies”, 48 EMORY L.J. 367, 421, 432 (1999); I. P. L. Png & David Reitman, “Why Are Some Products Branded and Others Not?”, 38 J. L. & ECON. 207, 208–11 (1995).

3 See at: https://www.omgubuntu.co.uk/2022/05/framwork-laptop-12th-gen-intel-cpu-upgrade-kit/amp

4 See Navi Radjou and Jaideep Prabhu, Frugal Innovation, (London: The Economist & Profile Books Ltd., 2015) at 12.

5 See Radjou-Prabhu at 11-12. They discuss the case of Renault when it developed its $6,000 Logan car, its R&D team incorporated elegant design, reliability, safety, comfort and fuel efficiency early on in the development phase. The result was a best-selling, attractive, dependable, energy-efficient and affordable vehicle. This was not easy to achieve: one engineer described it as like trying to change the car tyres while driving at full speed on a road that is still being built.

6 iFixit Empirical Research, at 11 at https://www.regulations.gov/document/FTC-2019-0013-0027 (hereinafter referred to as iFixit Emperical Research). Seealso Transcript of Workshop (hereinafter referred to as the “Transcript”), at 38, https://www.ftc.gov/news-events/events-calendar/nixing-fix-workshop-repair-restrictions

7 Transcript, at 22; iFixit Empirical Research, at 12, 21.

8 Transcript, at 48; iFixit Empirical Research, at 13-14.

9 Transcript, at 22.

10 “People go to the Genius Bar with very common problems that our repair community knows how to fix, but Apple tells them it can’t be done,” says Suovanen. For example, Apple won’t help you recover data on a water-damaged iPhone, and they won’t refer you to third-party repair shops who can. In other cases, they may quote a repair price that’s high enough that most customers will just throw up their hands and buy a new device. See iFixit Empirical Research, at 16.

11 See Justinas Vainilavičius, “New EU rules could see the return of “easily” replaceable phone batteries”, at https://cybernews.com/tech/new-eu-rules-could-see-return-of-easily-replaceable-phone-batteries/

12 By making it difficult for aftermarket tools to navigate the system.

13 For instance: IMI Critical Engineering at https://www.imi-critical.com/aftermarket/parts-spares-and-service/the-dangers-of-non-oem-parts/ , Honda at https://www.youtube.com/watch?v=BOp4yoEtBic , and Toyota sometimes through its dealers / service providers at https://www.mariontoyota.com/oem-or-non-oem-parts.htm.

14 See Carwow, “The 10 worst car trends that must DIE!”, at https://www.youtube.com/watch?v=rqsBWuXmW5A (at 2:14 to 3:32).

15 A security feature that is meant to protect data in encryption portions of the CPU’s memory.

16 Which can accelerate data encryption and compression workloads by offloading through an offload mechanism.

17 A hardware-managed load balancing system in the processor that is designed for telecom applications.

18 This is meant to speed up compression and decompression for big data applications and in-memory analytic databases.

19 This aims to eliminate bottlenecks in data movements between the CPU cores, memory, caches, attached storage, and networked storage devices.

20 See “Intel reveals pay-to-play Xeon features with software-defined silicon”, at https://www.theregister.com/2022/11/22/intel_reveals_paid_xeon_features/

21 See Lauren Goode, “Right-to-Repair Advocates Question John Deere’s New Promises” athttps://www.wired.com/story/right-to-repair-advocates-question-john-deeres-new-promises/

22 For instance, according to iFixit, “if you replace the screen on your iPhone, even if it’s with a brand new OEM screen off of another identical iPhone, certain features like TrueTone won’t work correctly.” This is on account of Apple synchronising some iPhone parts to the device’s logic board, making the part repairable only by Apple. See iFixit empirical research, at 15.

23 See Corbin Davenport, “Apple’s Self Service Repair Program Seems Like a Mess”, at https://www.howtogeek.com/807696/apples-self-service-repair-program-seems-like-a-mess/

24 Id.

25 Automotive Body Parts Association empirical research, (“ABPA empirical research”) at 1.

26 Maureen A. O’Rourke, “Toward a Doctrine of Fair Use in Patent Law”, 100 COLUM. L. REV. 1177, 1181–82 (2000); Lisa Larrimore Ouellette, “Do Patents Disclose Useful Information?”, 25 HARV. J.L. & TECH. 545, 554 (2012); Jeanne C. Fromer, “An Information Theory of Copyright Law”, 64 EMORY L.J. 71, 73 (2014); William M. Landes & Richard A. Posner, “The Economics of Trademark Law”, 78 TRADEMARK REP. 267, 271 (1988).

27 U.S. CONST. art. I, § 8, cl. 8 Intellectual Property: To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

28 See text at https://www.congress.gov/bill/117th-congress/house-bill/4006/text

29 Cherlynn Low, “New York State passes a right-to-repair bill”, June 03, 2022 https://www.yahoo.com/entertainment/new-york-passes-digital-fair-repair-act-bill-185302417.html

30 See Cameron Faulkner, “New York breaks the right to repair bill as it’s signed into law”, at https://www.theverge.com/2022/12/29/23530733/right-to-repair-law-new-york-tech-hochul-oems-parts