Hi All,
I wanted to provide a follow-up to the story about the ‘right to repair’ iPhones that I highlighted at the start of our October 25th class. This will also serve as my post/ presentation component of the class.
Right to repair
Most people are familiar with the concept of ‘right to repair’ especially when it comes to repairing cars and appliances. When your car or appliance breaks, you have the option to get it fixed at the location where it was purchased or at an independent repair shop. However, over the past 40 years, there has become a growing concern that manufacturers are deliberately making it difficult (and even impossible) for independent repair shops to repair their products.
Background:
Consumers and advocate groups first recognized the need for ‘right to repair’ legislation in the 1980s and ’90s as auto manufacturers made it increasingly difficult for repair shops to get access to tools, parts and analytics needed to repair automobiles.
In 1990, the Federal government responded to this need by introducing amendments to the Clean Air Act. These amendments required all vehicles built after 1994 to include computer systems that monitor vehicle emissions and also required that automakers provide independent repairers with the same emissions service information which allowed them to perform repairs. At this time, California passed further legislation which required automobile companies to maintain websites, accessible by subscription, which contained all service information for repair shops owners. These two pieces of legislation are seen as the first steps toward ‘right to repair’ legislation in the U.S.
However, as the automotive industry continued to produce automobiles with computer systems as integral components, repair processes became more difficult for independent repairers. At this time, legislators noticed the growing connection between advancing technology and the need for ‘right to repair’ legislation. Between 2003 and 2012 several U.S. politicians attempted to address this issue by introducing the Motor Vehicle Owners’ Right to Repair Act in both the House and the Senate. Unfortunately, the Bills were never passed at the Federal level.
Modern Issue
As technology continues to be an essential part of everyday life, it is not only automobiles that are becoming more technologically advanced. Many products we interact with on a day-to-day basis require advanced technology to function and in turn, become more difficult to repair. At the same time, ‘right to repair’ advocates continue to push for legislation that gives independent repairs and individuals access to essential repair tools, components and documents that allow them to fix technologically sophisticated products.
The Apple iPhone issue
As most iPhone users are aware, Apple restricts where and how consumers can repair their devices. They do this predominately by voiding warranties when repairs are not performed by a verified Apple technician. At the same time, Apple also limits third-party repair shops’ ability to repair products by refusing to provide them with the documents, components and tools to fix Apple products. Instead, repair shops must rely on receiving essential components and documents known as “schematics and board views” (ie. maps of inside the systems), from individuals who leak them from the company to sites on the internet.
Apple’s website states that the reason they do not encourage outside repairs or give access to schematics and board views is to ensure that customers have “access to safe and reliable repair services”. However,many customers and advocates believe the reason has more to do with monopolistic practices than customer safety.
In 2019 and 2020, Apple released the iPhone 11 and 12, consecutively. The new phones came with the usual: new design, advanced display, and longer battery life. However, the phone also came with a number of software-based locks that prevented third-party repair. These locks caused an outcry from both Apple users and the ‘right to repair’ movement.
Naturally, when Apple released the iPhone 13 on September 24th, 2021, users hoped that these locks would be removed. Instead, they got more severe. Just four days after the release date, Hugh Jeffreys, a tech YouTuber and ‘right to repair’ advocate, with over 725k subscribers, posted a video testing the new software locks. In the video, Jeffreys purchased two brand new iPhone 13s and swapped the batteries between them. Despite the fact that the swapped batteries came from identical and authentic Apple products, immediately following the swap, the phone began to malfunction and display error messages. However, when Jeffreys switched the batteries back to the original phones, the error messages disappeared, and the phones worked as normal. Jeffreys ends his video by saying “I believe that this phone has been engineered not to be repaired by any third party.”
What does this have to do with IP Law?
Voiding warranties is just one of the ways that companies like Apple continue to suppress the ‘right to repair’. Manufacturers have also issued cease-and-desist letters when consumers or independent repairers have attempted to spread their knowledge of repair. As you might have imagined, these letters are sent under the guise of intellectual property protections. Tech companies like Apple who oppose ‘right to repair’ legislation insist that releasing tools, components and “schematics and board views” will impact product safety and data security, and put a company’s intellectual property at risk.
Meanwhile, ‘right to repair’ advocates insist that Apple’s current practices violate Section 4 of the Competition Act, 2002 as they “abuse a dominant position”. They also argue that these practices control prices by making repairs almost as expensive as a new device. Finally, they argue that ‘right to repair’ legislation will drastically reduce the 50 million tons of e-waste created in the world every year.
Update as of October 28, 2021
In early 2021, ‘Right to Repair’ Bills were introduced to most of the 50 U.S. states. However, only New York’s Senate voted in favour of the Bills and only Massachusetts has passed substantive ‘right to repair’ legislation. However, in July 2021, President Biden signed an Executive Order which finally combats some of these long-standing issues. In a fact sheet detailing the 72 initiatives in the Executive Order, the White House acknowledged that companies’ restrictions on “the distribution of parts, diagnostics, and repair tools” makes repairs more expensive and time-consuming for the end user. This Executive Order seems to be a response in support of right-to-repair groups who have alleged that “tech companies such as Apple and Microsoft, as well as farm equipment makers like John Deere, and large medical device makers, have made it intentionally difficult for consumers to seek independent repairs, often forcing consumers to go back to the original manufacturers for fixes.”
The most recent update, in regard to the ‘right to repair’ in the U.S. came on October 27, 2021 when The U.S. Copyright Office submitted recommendations approved by the Librarian of Congress, to add exemptions to the Digital Millennium Copyright Act’s rule which governs access to devices and software. Section 1201, specifically gives the right to get inside any consumer software-enabled device (cellphone, laptop, etc.) for the purposes of diagnostics, repair, and maintenance. As Whitney Kimball points out in her article “We Just Got the Right to Repair—in Theory”, this update is important for anyone who wants to cheaply replace a phone screen, or students and tinkerers who would like to learn how things work. This recommendation aligns well with the President’s July Executive Order. However Kimball also notes that “copyright law still can’t do much to fix the fact that Google, Amazon, Apple, and Microsoft have deadbolted their devices, shot down ‘right to repair’ Bills, and hoarded parts…”. While this is another step in the right direction for the ‘right to repair’ movement, and gives individuals and repair shops the right to perform or attempt repairs, it still does not force manufacturers have to “make it any easier on users to crack open the back panel or provide the parts”. As a result, U.S. legislation has further to go in order to support advocates, consumers and repair shops..
Canada and the ‘right to repair’:
While most of the top news in regard to the ‘right to repair’ comes from the U.S., Canada looks to be following suit and addressing this issue by implementing legislation.
In Ottawa, Liberal MP Bryan May has introduced a Private Members Bill – Right to Repair Private Member’s Bill (C-272) – “targeting the digital lock provisions in Canada’s Copyright Act.” Anthony Rosborough, a PhD researcher and faculty member at the Schulich School of Law at Dalhousie University and ‘right to repair’ advocate, describes digital locks as “technical restrictions that lock out users from accessing device firmware”. Rosborough notes that, “this access is often needed to carry out diagnostics and repair. In some cases, digital locks can completely disable or “brick” a device where the repair or replacement part is not condoned by the manufacturer.”
Canada’s Copyright Act currently imposes significant penalties for circumventing digital locks without authorization from the manufacturer. However, Rosborough is optimistic about May’s Bill (C-272) which he says, “looks to carve out an exception for the purposes of “diagnosing, maintaining, or repairing” products with embedded computer programs.”
Private Member’s Bill (C-272) passed it’s second reading in June 20201 and has been sent to the Standing Committee on Industry, Science and Technology.
U.S. Update as of Nov. 17:
Yesterday Apple announced that they plan to start selling parts and tools and offering instructions on how to repair Apple products at home. Read more at the link below.
https://www.theverge.com/2021/11/17/22787144/apple-home-repair-iphone-mac-parts-tools-instructions
Additional Resources:
- Right to repair summary – The Wall Street Journal:
https://youtu.be/0NCjoUx-KLI - See the battery swap experiment here:
https://youtu.be/8s7NmMl_-yg
Communications Law