Oregonians Deserve the Right to Repair

The goal of this blog is to lay out the importance of “Right to Repair” or “Fair Repair” consumer protections under both state and federal law. What this means is that when a consumer purchases a product, they own the product, and are therefore entitled to the same information as the manufacturer of that product, or any authorized product manufacturer affiliate.

First, however, some needed context.

More than 75 percent of Americans today own and operate a smartphone. This number roughly doubled from 35 percent to 77 percent during a seven-year period between 2011 and 2018. And incredibly, an off-the-shelf Apple or Samsung smartphone today has more pure computing power than the most advanced super computers on the market in 1984 (Hint: CUB’s founding year).

For an increasing number of Americans, across a multitude of demographic identifiers – age, gender, race, education level, location, and income – their smartphone represents so much more than just a phone. It’s both their “work” and “home” computing device; their primary or even sole vehicle for meaningful social and civic engagement; access to the news; chief entertainment source; and even their best opportunity to receive essential employment, medical, housing, emergency, or other social services.

The point is: Smartphones, or other Internet-enabled digital devices, of which there are now several billion worldwide, play an increasingly outsized role in our daily lives. This is neither a ringing endorsement nor condemnation of technological progress. It’s simply the world in which we live today, and all indications are that use of Internet-enabled digital devices will only increase for many years to come.

The rub of course is that smartphones, smart watches, TVs, personal assistants, tablets, e-readers, laptops, PCs, and the like are expensive and have surprisingly short lifespans for their relative expense.

Take Apple products: The newest iPhone X (10) model costs a whopping $999, and even their “introductory” SE model starts at $349. Apple lists their barest-bones MacBook Pro laptop for $1,399. In full transparency, I’m a card-carrying iPhone owner, and I use a 2016 MacBook Pro at home. The truth is that I have a genuine affinity for Apple products. Yet at the same time, I’m on my fourth iPhone since 2010, and that alone should say something, right? What I believe it says is that I’m conditioned to believe owning four expensive phones in well under a decade is in some way a good deal. But how can this be? And why is it that I purchase a brand new phone roughly every two years?

Notwithstanding the all-too-common “early adopter” syndrome, I am in no way different from many other consumers in that I purchase a new phone about every two years because the “old” phone persistently seems to hit a functional cliff after, you guessed it, about two years. There’s even a name for this condition: “forced obsolescence”. Though, to be clear, Apple is most certainly not the only culprit. Consumer electronics, even John Deer tractors – nearly everything nowadays with a computer processor, embedded software, firmware, or microcode (which as it happens is just about everything nowadays) – seems to have an encoded lifespan.

Of course, this shelf life wouldn’t otherwise pose a problem if repairing or recycling consumer products that rely on proprietary software were at all easy or straightforward – if either consumers or independent repair and recycling shops enjoyed equal access to the same manuals, schematics, diagnostic tools, and service parts as authorized or manufacturer-affiliated repair shops and dealerships. This is the underlying principle of Fair Repair or Right to Repair.

Setting aside the actual products, what truly needs repair is the broken relationships between product manufacturers, their customers, and the array of small, non-affiliated businesses that would otherwise happily extend the lives of our various phones, computers, televisions, tractors, and – yes – even “smart” refrigerators and other appliances.

What exactly is so broken? Federal and state action needed.

Existing antirust, trade, and copyright law dictates what product manufacturers can and cannot do legally, especially as their behavior relates to their customers. However, and this is certainly true in a variety of other settings, both federal and state-level statute, as well as the supporting case law, has not adequately stood the test of time by keeping pace with technological innovation.

Congress, for instance, passed the Digital Millennium Copyright Act (DMCA) in 1998, at the dawn of the Internet age. Some twenty years later, consumer advocates agree that section 1201 of the DMCA, which at the time intended only to thwart criminal piracy, now stands in the way of consumers and independent repair and recycling shops from accessing necessary repair and diagnostic information. Such information would only extend the useful life of various products, create secondary markets largely for the benefit of low-income families, prevent unnecessary and harmful landfill waste, and reduce energy use – both in lessening the creation of new products in the first place and the safe disposal of old ones.

CUB agrees with advocates, such as the Electronic Frontier Foundation, arguing that the DMCA needs fixing.  However, there are significant challenges to changing federal policy. State level action is therefore appropriate, and CUB lauds those efforts that have already taken root in more than a dozen states around the country. With this in mind, CUB is working with legislative and organizational allies, particularly the Oregon Public Interest Research Group, on preparing a bill for the 2019 Oregon legislative session. Stay tuned for forthcoming blog updates on this important consumer protection topic.

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