News

“Right to Repair” Is a No-Brainer

  • author Mark Nestmann
  • calendar August 3, 2021

Imagine you’re a Marine Corps logistics officer stationed in South Korea. An electrical generator your unit depends on has just broken down.

You order one of your subordinates to fix the generator. “I can’t, sir,” he replies. “Why not?” you ask.

His answer? “Because it will void the warranty.”

Next, imagine you’re a physician treating COVID-19 patients at the height of the outbreak last year, when ventilators were in short supply. The ventilators you rely on to keep patients breathing break down repeatedly due to broken valves.

You call the hospital maintenance department and ask the manager if someone can be sent to repair the ventilators. “I can’t, Doc,” he responds. “We don’t have any in stock and they’re on backorder at the manufacturer. I’ve heard of a research group that can 3-D print the valves and have them to us in a day or two. But we might be sued for bypassing the patent on the valves.”

These anecdotes aren’t apocryphal. Captain Elle Ekman described her experiences in South Korea in a 2019 article in The New York Times. And a 2020 story by Glyn Moody in Techdirt describes the lifesaving – albeit illegal – efforts by hospitals in Italy to replace broken ventilator valves with 3-D printed versions.

This background came to mind last month, when President Biden signed an executive order that, among other measures, would “make it easier and cheaper to repair items you own by limiting manufacturers from barring self-repairs or third-party repairs of their products.” [Emphasis added.]  Various right-to-repair laws have also been proposed that would require manufacturers to offer whatever parts, instructions, and tools needed for people to fix their computers, smartphones, and appliances, among other products.

But it turns out you don’t really “own” a lot of the things you might think you do. Look over the items in your home. You can probably say with relative confidence that you own the soap dish in your bathroom, your kitchen skillet, and the antique desk you inherited from your grandmother.

But when it comes to many other items, your ownership is a lot murkier. For instance, you don’t own the software you use on your PC. Instead, you have a license to use that software, which can be revoked if you violate the terms of service you agreed to when you installed it.

You don’t even own your own vehicle, or at least all of it. The vehicle’s emission control software, infotainment system, etc. are all licensed to you.

When I was a teenager in the 1970s, I spent a few days on my cousin’s farm in the mountains of West Virginia. My cousin – I’ll call him George – owned a 1936 John Deere tractor. It looked a lot like the one in this photo, except that it was painted red.

George told me the only way he could keep the tractor running after 40 years was with meticulous maintenance. “The tractor dealer keeps trying to sell me a new one,” he told me. “But since I can do all the maintenance myself, I’ll keep this one running as long as I can.”

Fast forward to our own era, and that’s no longer possible. It turns out that if you buy a new John Deere tractor, you don’t really own it. You only have the right to use it, analogous to your right to use licensed software on your PC.

Your new tractor comes equipped with something that didn’t exist in 1936: a central processing unit orchestrating the operation of a network of sensors and controllers, without which the tractor won’t function. And the software running this network is the intellectual property of John Deere.

If you truly want to “own” a vehicle, a tractor, or any other object and own it in the traditional sense, you’ll need to find one made before such controls came into widespread use. For instance, the first electronic control unit used in a production automobile was an electronic spark timing device installed in the 1977 General Motors Oldsmobile Toronado. Today, luxury cars contain 150 or more microprocessor-based electronic control units (ECUs). Lower-end vehicles might only have 100 or so ECUs.

The existence of ECUs makes modern vehicles safer and more efficient. But it also makes it virtually impossible for shade-tree mechanics like my cousin to do anything more than the most basic maintenance. This is part a function of complexity, but also due to the fact that you don’t own the software your vehicle uses.

In the case of John Deere, for instance, the only way you can repair your tractor without violating the licensing agreement is to take it to an approved service facility. If you can’t afford to pay the repair fee, too bad. That’s because if you try to fix any of the “licensed materials” yourself, John Deere can revoke your license.

Indeed, trying to fix your own stuff might actually be a criminal offense – a violation of the Digital Millennium Copyright Act (DMCA).  Penalties range up to a $500,000 fine or up to five years imprisonment for a first offense, and up to a $1,000,000 fine or up to t years imprisonment for subsequent offenses. (“Land vehicles” and other items, including computer programs that control smartphones and home appliances, are temporarily exempt from these provisions, so you can legally hack your own tractor and automobile.)

Changing this system, which one law professor equates to “digital serfdom,” won’t be easy. Biden’s executive order and “right to repair” legislation introduced in Congress and in dozens of states are well-meaning, but the forces aligned against these initiatives are deeply-entrenched.

But hopefully, good sense will prevail. After all, the next time America faces a war – or the world faces a pandemic – do we really want emergency repairs thwarted by licensing agreements?

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