Right to Repair & The Delusional Narrative of Microsoft, Sony, Nintendo, et al.

By Published March 27, 2017 at 8:30 am
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The right-to-repair bills (otherwise known as “Fair Repair”) that are making their way across a few different states are facing staunch opposition from The Entertainment Software Association, a trade organization including Sony, Microsoft, Nintendo as well as many video game developers and publishers. The proposed legislation would not only make it easier for consumers to fix consoles, but electronics in general, including cell phones. Bills have been introduced in Nebraska, Minnesota, New York, Massachusetts, and Kansas. Currently, the bill is the furthest along in Nebraska where the ESA have concentrated lobbying efforts.

Console makers have been a notable enemy of aftermarket repair, but they are far from alone; both Apple and John Deere have vehemently opposed this kind of legislation. In a letter to the Copyright Office, John Deere asserted—among other spectacular delusions, like owners only have an implied license to operate the tractor—that allowing owners to repair, tinker with, or modify their tractors would “make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software.”

Apple has lobbied against these kinds of bills in the past, and cites consumer safety, “cyber security,” and the divulgence of proprietary information as causes. Recently, Apple told lawmakers in Nebraska that right-to-repair bills will turn Nebraska into a “Mecca” for hackers.  Apple has become well known for the measures in which they employ to dictate control over devices, ranging from secretly using pentalobe screws to using built in failures, like the deliberate bricking if the home button is repaired by a third-party. Sony and Microsoft both use stickers over screws on their respective consoles—a move that is illegal under the Magnuson-Moss Warranty Act—as does MSI on their laptops.

Often, these monopolistic practices are thinly veiled as security features in place to either protect the consumer, the proprietary software underpinning the device, or both. To that end, companies have invoked the Digital Millennium Copyright Act and EULAs (End User License Agreements) to obfuscate ownership of devices and constrict repair options to “authorized” dealers, responsible for paying an exorbitant licensing fee to the manufacturer. The lease programs in place by Apple and phone carriers are an overt declaration of intent to displace ownership and keep consumers cycling through devices, ensuring they do not actually own anything.

These practices have allowed the likes of Apple, Sony, Microsoft, Nintendo, John Deere, and others to maintain a stranglehold on out-of-warranty/aftermarket repairs, control consumer devices, perpetuate high device turnover and propagate a throw-away culture—which has contributed to the growing e-waste problem. Right to repair aims to rectify these transgressions.

The right to repair movement is modeled after The Motor Vehicle Owners’ Right to Repair Act; its derivations are analogous to that of the consumer electronics repair market being dominated by manufacturers. In similar fashion, the new legislation would mandate that manufacturers make public repair and diagnostic documentation. Moreover, they would be required to offer software tools or firmware to revert a device to a functioning state. This is in the event the device contains software locks preventing third-party repair. Additionally, right to repair will require companies to sell OEM parts and tools to independent repair shops and consumers alike, at the same price an “authorized” repair center would pay.

This type of lawmaking perceptibly dilutes a revenue stream for companies affected; however, carmakers’ compliance with the Motor Vehicle Owners’ Right to Repair Act illustrates that manufacturers can work with independent repair establishments without going out of business. There is no indication the consumer electronic industry will be any different. And yet, companies will speak in vague terms about consumer safety, cyber security, and intellectual property theft while failing to elucidate the matter or explicate how fair repair will harm their business.

Furthermore, the right to repair bills have provisions forbidding divulgence of proprietary information and trade secrets. The bills note that manufacturers are not liable for the safety risks or damages incurred through independent repair. Parts that are no longer available or discontinued are not required to be offered, nor are manufacturers to provide software unlocking tools more advanced or exclusive than what is already used by authorized service providers. This makes the opposition to the aftermarket seem more malicious and pecuniary.

Outside of the ESA, other groups included in the lobbying efforts against right to repair legislation include:

  • CompTIA
  • CTIA
  • NetChoice
  • Information Technology Industry Council
  • Satellite and Broadcast Communications Association
  • TechNet
  • Consumer Technology Association (puts on the annual CES show)
  • Toy Industry Association
  • State Privacy and Security Coalition

The right to repair is not an entitlement or an attack on the profitability of innovative companies—it’s an integral part of a free market. Taking an iPhone to an Apple store for repair only to have the screws changed to effectively lock its owner out is tantamount to having a mechanic at an automotive shop weld your hood shut and slap “warranty voided if removed” stickers along the seams. How many consumers would find this acceptable?

These are electronics that have been bought and paid for. They’re not leases, nor are they being rented. No one wants to be strong-armed into an expensive repair or replacement with no other option. When you buy a home, you are not bound to consulting the builder for an authorized repair; the local power company and municipality doesn’t legally mandate you use an electrician or plumber to repair electrical or plumbing issues—they might suggest it, but homeowners and DIYers are welcome to tackle a leaky drain or faulty switch just the same.

To quote Nebraska state Senator Lydia Brasch, who is sponsoring the right to repair bill in Nebraska:

“The story they're telling is that we need to be afraid of technology. You don't have to be afraid of technology—you have to be afraid of the people who are trying to prevent you from knowing the things they know. Are these companies in it for the greater good, or the greater dollar?"

Editorial: Eric Hamilton

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