Right to Buy, But Not Repair?

By: Joanna Mrsich

In an increasingly advanced and technological world, gadgets continue to improve people’s lives and make what was once thought impossible, possible. However, as the technology behind these products becomes more advanced, so does the difficulty in fixing them when they malfunction. While companies such as Apple, Tesla, and others all provide arguably accessible product service and repairs, do consumers have the actual ability to fix or repair these products themselves? More importantly, should consumers have the ability, or right, to repair products they own?

What is the Right to Repair?

The “right to repair” movement is based on the belief that the technology in modern equipment has enabled manufacturers to reduce access to repair by claiming that repairs could violate their proprietary rights. Moreover, the movement argues that although people generally have the “right” to repair their own goods, the actual ability to do so can be influenced—or completely controlled—by a product’s original equipment manufacturer (“OEM”). These entities—OEM’s—are often the exclusive source of replacement parts and other physical and electronic tools that make repairs feasible. OEM’s often bar consumers from using independent repair or service firms by claiming such acts risk voiding their products’ warranties. Manufacturers have often said that “strict repair guidelines protect trade secrets and ensure safety, security and reliability.”

Some people within the right to repair movement argue that, in addition to providing consumers with this necessary right, legislation supporting a right to repair would have a positive environmental impact because more consumers would likely fix, rather than dispose of, their own devices. A 2019 report by the Colorado Public Interest Research Group noted that by making repairs difficult, the consumer electronics industry is creating a culture of disposable electronics. According to a 2014 Consumer Report, consumers were advised not to spend more than fifty percent of the cost of a new product on repairing on existing one. The executive director of The Repair Association—advocates for right-to-repair legislation—noted that repairs are “roughly 50% or more of the cost to replace the device,” and that the “holy grail of all of it is to send you to the showroom to buy another product.” Therefore, when OEMs act as gatekeepers for repairs, consumers are more likely to replace damaged products than repair them.

Opposition to the Right to Repair:

It is not uncommon for companies to oppose consumers’ right the right to repair their own products. An example can be found in Apple’s Repair Terms and Conditions. In §1.11.6—Disclosure of Unauthorized Modifications—this contract states that: “During the service ordering process, you must notify Apple of any unauthorized modifications, or any repairs or replacements not performed by Apple or an Apple Authorized Service Provider (“AASP”).” The section goes on to imply that repairs done by non-AASP services will likely void the product’s warranty or result in additional costs for completing the service “even if the product is covered by warranty or an AppleCare service plan.”

Another pertinent example can be found in the video game industry. According to the Entertainment Software Association (“ESA”), video game consoles are “unique from other devices, appliances and consumer products” because they “rely upon a secure platform to protect users, the integrity of the gaming experience, and the intellectual property of game developers.” In fact, the ESA’s Right to Repair Policy explicitly bars unauthorized parties from bypassing a console’s specialized software that protects its security and piracy risks. Moreover, this policy explains that while repair shops likely do not use repairs for illegal purposes, the “publication of a console’s security roadmap would allow bad actors to use this knowledge to undermine the entire console ecosystem.” The policy acknowledges the harm right to repair could have on the industry and notes that major video game console makers—such as Microsoft, Nintendo, and Sony—all provide “easy, reliable, and affordable repair services…to ensure that their consoles remain in good working order.” Lastly, the ESA ends its repair policy by noting that the right to repair movement does not contribute to a positive environmental impact because video game companies and retailers—like Microsoft, Nintendo, Sony, and GameStop—have robust recycling programs for consumers looking to dispose of consoles.

Despite the existence of many more technology-based examples of industry opposition to consumers’ right to repair, the last example in this post involves the agricultural industry. The American Farm Bureau Federation, National Farmers Union, and the National Corn Growers all support the Right to Repair. The agricultural industry believes it is only fair to require manufactures to make equipment field serviceable. Industry manufacturers, on the other hand, oppose the right to repair. For example, John Deere claims that is dangerous to allow farmers to repair their equipment.

Current Discourse:

Over the years, important discourse on the issue has taken place but not enough has been done. In 2019, the Federal Trade Commission (“FTC”) hosted a discussion called Nixing the Fix: A Workshop on Repair Restrictions. The workshop discussed issues consumers or independent repair shops face when manufacturers restrict or make it impossible to conduct product repairs without voiding a product warranty. The FTC later made all empirical research collected in preparation of the workshop available for the public to view. Additionally, state legislatures and Attorneys General have launched legislative and litigation initiatives in an attempt to bar popular user restrictions. In the farming context, former presidential candidates Warren and Sanders both promoted the Right to Repair.

However, some existing laws could be applied to the right to repair issue without amendment. The Magnuson-Moss Warranty Act—passed by Congress in 1975—requires businesses to provide consumers with detailed information about warranty coverage. This Act protects consumers from unfair or misleading disclaimers, including claims that warranties can be voided if a consumer removes a seal. Furthermore, as of February 2021, right to repair legislation has been introduced in 14 states.

What now?

Consumers should have the opportunity to repair the property they purchase. Under the status quo, it is increasingly difficult for people to buy repairable products. The European Commission may provide a good template for legislative changes the United States could implement. In Europe, these right to repair rules are supposed to cover phones, tablets, and laptops by 2021. There has also been some progress during the COVID-19 pandemic with Senate Democrats introducing a Bill to block manufacturers’ limits on medical devices. However, the problem is also present in nearly every other industry, and comprehensive legislation is required. If technology truly is the future, repair rights need to be expanded to protect consumers.

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