Right to repair: serious solutions for an unserious age

The Right to Repair: Reclaiming the Things We Own by Aaron Perzanowski. Cambridge University Press, December 2021, $19.95.

“Techlash,” the term given to renewed interest in antitrust action or generally punitive regulatory treatment against the tech giants, is in the news. There is growing support for measures like breaking up firms, enforcing criminal antitrust liability that would result in executives being frog-marched away in handcuffs, and, of course, reforming Section 230 — a law that needs no introduction but a great deal of explanation.

These proposals are varied in their particulars and even more varied in their merits, but they have one common denominator: Big Tech is too big, and must be cut down to size.

Of particular note is the political right’s interest in this fight. Long gone are the halcyon days of a limited government, pro-business conservative movement. A pivot from the so-called “market fundamentalism” of yesteryear is a welcome change of pace. But the focus on woke capital and anti-conservative bias in content moderation — something that, to the extent it exists, affects a relatively small number of Americans — means more practical, technical solutions are taking a back seat.

If the conservative wing of the movement against corporate power wants to assume the mantle of Teddy Roosevelt and stand up for Real Americans by protecting them from the ravages of Big Tech, they need to reorient and dedicate their energy to more serious problems with far-reaching implications. This is hard, wonky, technical work that requires getting off Twitter and hitting the books.  

And there is no better place for a policymaker with aspirations of seriousness to start than with Aaron Perzanowski’s The Right to Repair: Reclaiming the Things We Own.

Repair and how we lost it

For those serious about advancing an agenda to restrain corporate power in a way that advances the common good, there are few areas more ripe for reform than right-to-repair (R2R). It’s a movement with a broad agenda that seeks to restore the balance between the consumers and users of durable goods and their manufacturers by sweeping away artificial barriers to fixing broken products. Its targets include names familiar to the belligerents in Techlash (Apple, Amazon, and Microsoft) as well as other firms that have slipped under the radar, like John Deere, Samsung, and LG.   

In The Right to Repair, there is no shortage of detailed explanations of the intricacies of the R2R policy landscape, the legal and economic developments that brought us to our present moment, and what needs to change for things to get better. What sets it apart from the myriad white papers, op-eds, and law review articles about the issue is its approach. Perzanowski contextualizes the entangled relationships among the broad topics of manufacture, ownership, repair, and maintenance rather than simply laying out the problem and proposing solutions. Indeed, his framing of the problem literally spans the history of homo sapiens as he describes discoveries of ancient tools with signs of reuse after repair, the maintenance of icons and cathedrals over half a millennium old, and the centuries-old Japanese practice of fixing broken pottery with gold-laced lacquer called Kintsugi.

These tidbits aren’t offered just to help the medicine go down. They’re part of a larger thesis Perzanowski advances: We should value repair itself, not just the benefits of a repair-friendly legal regime. There is something empowering about the ability to fix something one owns; a virtuous cycle of sentimental attachment and personal accomplishment can arise when the things we own become more than mere things, but extensions of ourselves. Developing the skills required to actually practice repair frees the individual from the whims (or incompetence) of those who originally manufacture devices. As Perzanowski writes, “Repair can change the way we relate to the world around us. It empowers us to exert control over technology…Repair cultivates a sense of self-sufficiency and autonomy that is increasingly rare in a world shaped by networked technology…When we can’t understand or control our devices, we cede authority to external forces.”

Unlike some other areas of law that will seldom directly touch the lives of most ordinary people, the right to repair — and its erosion — affects all of us every day. Perzanowski capitalizes on the relevance of the issue and makes it as accessible as possible by including countless real-world examples, some from his personal experience. Perhaps you will never participate in the Copyright Office’s triennial review process, but the helplessness and inconvenience associated with leaving a cracked iPhone screen unattended for longer than you should, only to realize it’s time for an upgrade and toss the old model is universal.

The United States started out as a nation of tinkerers, and while a robust pro-repair policy landscape won’t cure all that ails us, it would do more than just letting us save money and hone a craft in our personal lives. Repair-friendly policies create the opportunity for self-improvement by learning how to fix our own devices, bringing back the self-reliance and can-do attitude that characterized the United States for so long. The passage quoted above could just as easily be found in one of the many, many books put out by conservative pundits lamenting the loss of what made America great. But unlike much of what is in those books, the history of repair Perzanowski describes is not imagined.

While repair is as old as the use of tools by humanity, things took a turn with the age of industrialization and mass production. The wide accessibility of automobiles, home appliances, and other pre-digital gadgets didn’t only create widespread prosperity for consumers and manufacturers alike. It also provided ordinary people with no shortage of things to fix. For those with a little bit of time, technical savvy, and elbow grease, fixing a toaster or car was within reach. Apple co-founder Steve Wozniak’s video on the need for right-to-repair, which discusses the assembly required to operate a ham radio and the ease with which one could fix a vacuum tube on a television set, is a quaint reminder of what once was (and an ironic one, considering Apple’s record on repair). And for those in need of more complicated fixes, there was once a thriving repair market. In 1966, there were over 200,000 people employed in home appliance repair. Today there are only 40,000.

With mass production came programmed obsolescence. In Arthur Miller’s Death of a Salesman, the protagonist Willy Loman bemoans the designed death of his refrigerator. The deliberate strategy of designing products to stop working before the end of their useful life dates back to at least the early 20th century, when comically Keynesian calumnies against repair as a threat to economic stimulus were promoted and a cartel of lightbulb manufacturers colluded to reduce the effective lifespan of light bulbs. But before software ate everything, programmed obsolescence could be kept at bay by the fact that once someone purchased something, they had full control over it and could do with it as they wished, self- or third-party-repair included.

After everything under the sun had some bit of embedded software and a restrictive end-user license agreement, things turned pear-shaped. Perzanowski’s book documents 21st century programmed obsolescence in the form of “hostile design” (manufacturing decisions that make repair artificially more difficult) or software that outright prevents any unauthorized repair. Examples abound of snap-off cases replaced by ones held together by exotic screws or glue, washing machines with essential parts that easily corrode, and devices with software that “bricks” them if third-party repair is detected. Original Equipment Manufacturers (OEMs) create an additional barrier to repair by having a monopoly on the proprietary equipment needed to fix your devices (if they have them in stock or their maintenance team’s schedule is free). And woe to those who attempt a repair that voids the warranty. Today’s restrictions are beyond Arthur Miller’s wildest dreams, but the game is the same.

A big tent for tinkering

The most popular criticisms leveled against Big Tech, particularly (though by no means exclusively) on the right, relate to content moderation and censorship. Yet the scope of these exclusively “online” issues is relatively small. Around 80 percent of Americans use YouTube, 70 percent use Facebook, and 23 percent use Twitter. Among those who use them at all, the number who log in daily is about 70 percent for Facebook and around 50 percent for YouTube and Twitter. These figures aren’t miniscule, but when one considers the fact that many users aren’t directly implicated by content moderation decisions that may be biased against conservatives, they call into question the scope of the problem. By comparison, in 2021 about 85 percent of American adults owned smartphones. A further 53 percent and 77 percent of Americans own tablets and laptop/desktop computers, respectively.

This merely scratches the surface. Over 90 percent of American households have at least one vehicle. The rate of washing machine ownership is just below that, and the number of households with a “smart” TV overtook those with just a basic set in the past two years. It would be easier to list widely available products that aren’t implicated by right-to-repair. But despite the combination of practical costs to limiting repair and growing concerns about large tech companies’ size and power, right-to-repair has yet to receive the top billing it deserves.

This isn’t to say right-to-repair hasn’t gotten any airtime. Joe Biden not only included right-to-repair in his executive order “Promoting Competition in the American Economy” but even tweeted about it specifically. Right-to-repair is not, on its own, enough to help Democrats keep Congress in the 2022 midterms. But it’s a solid issue an upstart politician can capitalize on. Imagine a campaign advertisement that declared: “Big Tech and other corporations charge you $330 a year with legislation to stop you from fixing your own stuff. We’ve had enough pain at the pump — there’s no need for pain fixing your PlayStation. Vote for me this November, and I’ll protect your right to repair.” This idea speaks to all consumers, and more targeted appeals can be made to farmers or independent repair shops that have to compete with original equipment manufacturers.

Despite the relevance and accessibility of the issues in the book, The Right to Repair is still an academic text. Up to a point, there is no way to simplify the subject and still give it the thorough treatment it deserves. Several pages are spent discussing the perversion of design patent law, from a tool to protect designs that are “ornamental” to a means of excluding competitors from imitating designs for internal components that, by definition, aren’t meant to be seen most of the time. California’s Song-Beverly Consumer Warranty Act, the intricacies of European Union manufacturing regulations, and their impacts on markets worldwide are explored in great detail. The particulars of software copyright and the minutiae of the anti-circumvention provisions of the Digital Millennium Copyright Act receive a full explanation, and over a dozen pages are dedicated to laying out the antitrust theories for repair markets. Still, the care given to even the densest subject matter is balanced with succinct, easy-to-understand explanation. If the reader can muscle through the technical details of the balkanized and overlapping legal doctrines and business practices that restrict the right to repair, they will be given a few clear paragraphs to preface or sum up the issue.

The synthesis of the legal, historical, economic, and legislative issues surrounding R2R makes this book an invaluable guide for those interested in public policy. A generalist can get a few choice anecdotes and policy solutions to crib for their next Substack post. A Senate staffer can take detailed notes on the history of the issue and the particular laws and practices that need to be altered or abolished to allow a thriving repair ecosystem. And legal advocates can leverage the research contained within The Right to Repair to challenge bad DMCA takedown notices for repair manuals or legal challenges to the statutes that most restrict the right to repair.

Even those laser-focused on other issues can find something to use in their work. Are you an environmentalist? Just look at the costs from e-waste and carbon emissions that are incurred when the things we own aren’t used to their fullest. Do you care about conflicts in the developing world? The mining of rare-earth metals used to manufacture new devices has played such a significant role in the conflict in the Congo that it is sometimes called “The PlayStation War.” There are cases aplenty of corporations nickel-and-diming consumers, farmers waiting days for repairs, and hard barriers to entry for market competition that appeal to pro-business and antitrust voices alike. In listing examples waiting to be seized upon by those interested in virtually every issue, The Right to Repair throws in everything but the kitchen sink (perhaps because doing so would void the warranty).

The arguments for repair can be easily tied into the rethinking of the United States’ strategic relationship with China. Tech-skeptical conservatives are rightly fond of taking Apple to task for its dependence on Chinese labor for manufacturing, with all the troubling implications of such a business relationship. Even if that specific arrangement didn’t change, an iPhone that lasts a year or two longer would dramatically reduce dependence on China. It may even make manufacturing in the U.S. or a non-dictatorship comparatively affordable: People will be willing to pay more for something that’s going to last longer, with the “Made in the USA” sticker as a bonus. The book touches on the national security implications in describing how repair restrictions hamper troops on the ground, but there are far-reaching benefits for repair on domestic manufacturing and reduced dependence on China that can serve as red meat for the China hawks on the right.

Right-to-repair would also do wonders for America’s manufacturing capabilities and “know-how” more broadly. Perzanowski discusses the learned helplessness device owners feel when they are not one of those anointed by OEMs to repair their devices. Not only does this throttle the once-robust secondary market for repair in the U.S., but it also makes us less technically inclined as a society. Will the capability for an ordinary person to fix their own iPhone be a substitute for the technical education a reindustrialized United States needs? No, but it’s a start. And even if a return to manufacturing prominence isn’t in the cards for the U.S., it’s not too much of a stretch to view repair as akin to the manufacturing employment so longed for by those who want to return to the days of widely available blue-collar jobs.

Restoring a repair-friendly landscape will require the use of every tool in the toolbox, but a comprehensive review of intellectual property laws would be, pound-for-pound, the most effective way to comprehensively address the issue. There is a reason (beyond the need for an unavoidably lengthy explanation) that the longest chapter in the book is about repair and intellectual property.

There is a necessary balance to be struck when changing intellectual property laws to improve economic competition. The ability of IP owners to block competitors is a feature, not a bug, of intellectual property protections. But there is a whole universe of intellectual property laws that could be changed to improve repair. Imagine a world where mom-and-pop repair shops that 3D print replacement parts not provided by the OEM are exempt from patent infringement. What about one where repair manuals are excluded from copyright protection? Perhaps a future administration will aggressively use its powers to issue compulsory licenses on subject inventions needed for repair, or even exercise eminent domain and buy out patents for strategic industries. 

These specific proposals may be overly ambitious with costs that outweigh the benefits. If not, they’re still unlikely to happen in our fallen world. But they’re not so crazy that they can’t be used as a jumping-off point to ensure fair, reasonable, and non-discriminatory licensing practices by OEMs or a chance to revisit the standard for “ornamental” in design patent issuance. Section 1201 of the Copyright Act, which prevents the circumvention of technical protection measures that “effectively control[] access to a [copyright-protected] work” and those who traffic in software designed to get around those digital locks, has been in the crosshairs of the right-to-repair movement for a while. The role of intellectual property in preventing repair is reflected by the fact that several bipartisan bills recently introduced in Congress address the intellectual property implications of repairability to some extent.

Intellectual property reform can’t be the only basket in which right-to-repair puts its eggs. Business practices like tying or refusal-to-deal are more traditionally recognized as antitrust — rather than intellectual property — issues. These problems exist in areas where intellectual property plays little to no role in the underlying anti-competitive practices.

Similarly, consumer choice and consumer protection play a key role in the debate. As a criminally under-acknowledged issue in general, repairability as a feature has yet to fully penetrate the market and become a relevant factor in consumers’ preferences. There are some products, like the Framework Laptop, that tout their repairability in marketing pitches. And groups like iFixit do a commendable job producing repairability scores for conscious consumers. France has led the way in attaching a “repairability score” to its products, and considering the alarming disparity between consumers’ expectations of repairability and the reality, it is not wholly unreasonable to expect future regulation in this vein.

Prudence will dictate the best approach for any given circumstance. But the advantage of intellectual property reform — specifically reform that limits the scope or enforceability of exclusive rights — is that it is self-enforcing. The Federal Trade Commission has been re-energized in recent years, but there are only so many hours in the day and the agency is still severely underfunded relative to the work it has cut out for it. But even if that is ignored, success in enforcement against anti-competitive behavior is far from guaranteed. This is especially true when intellectual property is at the core of the issue. By contrast, reducing the scope of the exclusive rights provided by intellectual property would remove a legal barrier to competitors, and tone down  overzealous enforcement by institutions like Customs and Border Patrol or the U.S. International Trade Commission. Hostile design in hardware and software can be a tough nut to crack and regulation may be necessary to provide a “positive” right to repair, but it is not a leap of faith to believe that a competent independent repair shop can get around technical barriers if they can be assured the legal ones won’t stand in their way.

A fixable problem — if the right will pitch in

The one substantive critique that can be made against The Right to Repair is its tendency to veer into anti-corporate cynicism. To be sure, there is a great deal to be cynical about. There is nothing stopping OEMs from making their products more repair-friendly, and there is certainly nothing stopping them from not “wield[ing] IP to discourage repair” or shifting away from business models that “tend to focus their efforts on rolling out a reliable stream of minor updates and aesthetic tweaks.” But at times Perzanowski’s critiques of consumerism can be overstated, as when he argues that a “notion of progress that gives us Wi-Fi enabled coffee-makers and an endless supply of Snapchat filters, all while sea levels rise, potable water grows scarce, and extreme weather endangers communities, is a fundamentally hollow one.” 

I am not quite so cynical. First, the momentum for policy change is on the side of the right-to-repair movement. Progress is being made both at the state and federal level. Some of these bills have failed to gain traction or died in committee, but there is no sign that this momentum is going away. The FTC and the European Commission’s interest in the issue is also a bright spot. 

Second, the reason we are in this place is that firms respond to the incentives presented to them, and a steady stream of new products with short lives that incrementally improve on their predecessors is what the current system incentivizes. Policy changes that reward leaps and bounds rather than minor inches forward will not only change what firms produce, but what consumers become accustomed to. When repair is a widely available option, consumers will lean towards purchasing new devices when they represent a significant improvement in the previous model instead of a minor tweak.

Perzanowski is right to close his book with the following line: “Fixing our culture of repair will demand lasting changes to our behavior as consumers and citizens.” Culture is even harder to fix than legislation, but policies that give consumers better choices will inform cultural change. Those with parents or grandparents who lived through the lean times of the 1930s and ‘40s likely remember their money-stretching behaviors learned out of necessity. In times of high inflation, the demand for products that last longer so consumers’ dollars go further will increase.

These trends are promising, but what could really supercharge the right-to-repair movement is a productive channeling of the populist energy that has gripped the nation. This brings us back to the failure of the Trumpist right to successfully mobilize around winning kitchen-table issues, making what should be a fight against crony capitalism and regressive regulations into one focused on Extremely Online issues about “woke” tech companies and content moderation. They are as willing to critique corporate behavior as Perzanowski is, but their motivations and proposed fixes are far less promising as vehicles to improve national well-being.

There are a handful of articles on right-to-repair in The American Conservative or National Review, but they are dwarfed by the number discussing Section 230, anti-conservative bias in content moderation, and other Extremely Online issues. American Compass, the self-styled future of the political right, hasn’t made any mention of it in the works it has produced, nor has The Internet Accountability Project, in its mission to “promote competition and innovation in the technology center,” made a notable (or perhaps any) contribution to the right-to-repair movement.

If I have missed any work put out by such institutions opining on these issues, mea culpa. But it’s almost worse if right-to-repair has been mentioned by the Techlash vanguard only to fade into the background. Whether or not they are feigning outrage at the rapacity of tech companies and using anti-corporate language as a stalking horse to pursue an agenda focused on cultural issues is irrelevant. Nor is it particularly relevant to say that they (or anyone else) shouldn’t care about content moderation to some degree or the other. It takes all kinds; highly motivated interest groups with specific grievances are a value-neutral phenomenon. 

What is relevant is that a once-ascendent and now-established movement, allegedly eager to speak for the forgotten man against power structures that don’t give a damn about him, is disappointingly uninterested in concrete proposals that would help a far wider set of Americans.

It’s clear that the anti-Big Tech right is out for blood. But if they are sincerely interested in putting a dent in the bottom line of their political enemies in a way that benefits a broader swath of Americans, they would bone up on the technical details of the right-to-repair and similar issues. This would require appreciating that John Deere and Whirlpool need to be humbled as much or more than YouTube and Twitter. I have faith that the new populists have the capacity to shift from performative complaining to actually advancing the public interest, but whether or not they have the inclination is up to them.

Photo credit: iStock

Right to repair: serious solutions for an unserious age

Nigarai M Grusio

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