Hackers, farmers, and doctors unite! Support for Right to Repair laws slowly grows

[Karlston]

Hackers, farmers, and doctors unite! Support for Right to Repair laws slowly grows

The right to repair battle trudges on despite a record amount of legislative proposals.

Enlarge / Manufacturers would prefer it if iFixit guides (like the one pictured on a Motorola Xoom from 2011) didn't exist.

iFixit

Kelsea Weber is apologetic for being hard to get ahold of. “We were all busy tearing down the iPhone XS,” she says.

 

A few minutes’ conversation with Kelsea is enough to convince you that she would be taking apart brand new Apple gear no matter what, but she does it professionally. Weber works for iFixit.com, a website you may have heard of once or twice. It provides repair videos, manuals, and tool kits to more than a hundred million visitors a year.

 

Or, to put it bluntly: iFixit.com is essentially a clearinghouse for information that some of the big names in consumer electronics would just as soon keep to themselves.

 

In the US, manufacturers in everything from consumer technology to farming and agriculture have long constructed systems that limit where customers can go for repairs—remember the old “warranty void if broken” stickers found on game consoles or TVs? Today if you have a broken iPhone screen, for instance, Apple runs Genius Bars across the country where users must go for permitted fixes. Other companies parcel work out to a network of authorized vendors. Manufacturers generally argue these constraints are necessary to protect proprietary information that gives their product a leg up in the overall marketplace.

 

Slowly but surely, though, consumers and third parties outside of vendor-sanctioned circles have been pushing to change this through so-called “right to repair” laws. These pieces of proposed legislation take different forms—19 states introduced some form of right to repair legislation in 2018, up from 12 in 2017—but generally they attempt to require companies, whether they are in the tech sector or not, to make their service manuals, diagnostic tools, and parts available to consumers and repair shops—not just select suppliers.

 

It’s difficult to imagine a more convincing case for the notion that politics make strange bedfellows. Farmers, doctors, hospital administrators, hackers, and cellphone and tablet repair shops are aligned on one side of the right to repair argument, and opposite them are the biggest names in consumer technology, ag equipment and medical equipment. And given its prominence in the consumer technology repair space, IFixit.com has found itself at the forefront of the modern right to repair movement.

Enlarge / Don't trust every sticker you read.

PROEirik Solheim

How the repair world became in need of repair

“The problem is that there are only two types of transaction in the United States: purchases and licenses,” says Gay Gordon-Byrne, the executive director of the Repair Association, a right to repair advocacy group partnering with iFixit to further the movement. “You don’t own something if it’s covered by an end-user license agreement. All you have is a right to use it according to the manufacturer’s terms.”

 

Initially part of the personal computer revolution, end-user license agreements came into their own in the 1980s. Copyright laws that had worked reasonably well when it came to books and movies didn’t work as well when it came to software. Copyright laws apply only to software code. They don’t apply to the features and functionality of a program. So before license agreements, a software purchaser could reverse-engineer software and create a program with substantially the same functionality, leaving it to the courts to determine if there had been any infringement—a costly and time-consuming process.

 

End user license agreements were seen as an effective way to solve those problems in a simple and straightforward manner. For almost all software users, the switch from owning software to just having a license to use it was quite painless. Nothing changed in practice: the software still came in a box with manuals and disks, and there was just this extra bit of legal fine print that set limits on what could be done with the program, limits that most users had no difficulty abiding by. Expressly forbidden actions often included things like reverse-engineering the software or adding features to it and reselling it. Some companies even sought to restrict the right to resell the license.

 

But in the 1980s and 1990s and well into the first decade of the 21th century, there was a pretty clear distinction between software, which was subject to end-user license agreements (EULAs), and hardware, which was simply sold the way most things always had been. This line started to get blurry as embedded software in electronic devices became more and more sophisticated.

 

From a certain standpoint, all modern electronic devices have software of some sort embedded in them. An electronic device is, after all, a device that uses electricity to execute a sequence of logical steps, and that sequence—even if it’s hardwired into the device—can be considered a program or a piece of software.

 

However, as electronic devices have become more sophisticated and more versatile, hardwired programs have been replaced by programs that are written in a programming language and then compiled and downloaded onto the device, often along with a simplified operating system, making these devices analogous to desktop PCs or laptops.

 

Today’s software is much more easily accessed and modified than the hardwired logic circuits of earlier devices, and with innovations in electronics increasingly due to the software preloaded on the device, manufacturers of all stripes suddenly found themselves looking for protections for this software.

 

Their solution was borrowed directly from the PC environment: the end-user license agreement. And buried in almost all end-user license agreements is a clause that gives a manufacturer the right to alter the terms of the agreement unilaterally, typically with minimal advance notice.

 

Enlarge / If this thing breaks down unexpectedly, whoa boy...

Jonathan Gitlin

How user agreements play out on the farm

John Deere included such a clause in the end-user license agreement that it imposed on owners of its equipment in October 2016, and it was this clause more than anything else that provoked an immediate angry response from farmers and right to repair advocates from coast to coast.

 

The tractors, combines, and other equipment used in farming come with hefty price tags. For about $500,000 you can buy a brand-new Rolls Royce Phantom with all the bells and whistles... or a base model John Deere combine. By imposing an end-user license agreement on their products, John Deere was implying that the only thing a farmer was buying with their half-a-million-dollar investment was permission to use the equipment, subject to terms that John Deere could alter with almost no advance notice.

 

The Economist called it “the death of ownership in America.” According to Kevin Kenney, a Nebraska engineer and an outspoken advocate for right to repair, “There’s no reason for a license agreement other than to maintain control.”

 

Guy Mills, a Nebraska farmer, says that the imposition of a license agreement stifles progress, and he sees these restrictions as a direct attack on free thought. “It stymies the on-farm innovation that’s been the backbone of growth in American agriculture,” adds Kenney.

 

John Deere has been quick to push back against this negative publicity. After Kyle Wiens, the founder of iFixit, published an op-ed piece in Wired magazine in April 2015 accusing Deere of trying to “destroy the very idea of ownership,” a Deere spokesman told ag news network DTN, “What Deere wants to be clear about is, number one, customers own the equipment they purchase from us.”

 

The problem, as Kenney is quick to point out, is that the software controls the equipment. “If you have a sensor go out, your combine goes into limp mode, and you’re basically sitting there. Your radio works and your air conditioner works—or maybe not.” With John Deere’s restrictions on access to the software, the equipment owner can’t use the equipment until it’s serviced by a licensed John Deere tech.

 

“Downtime is a thousand dollars an hour during harvest,” Kenney adds. “You’re not going to get that back. You’ve only got so much time to harvest your beans.” When the only available service is from the dealership, farmers end up waiting for dealership service techs, and better customers might get preferential treatment and priority service. “You’ll either get treated fairly or unfairly—it’s all up to the dealer and what he decides to do.”

 

But without Deere’s insistence on restricted access to their code, Kenney argues, a farmer could either diagnose the problem with the equipment on the spot or hire an independent mechanic.

 

On the other end, John Deere argues that access to the company’s proprietary software could be used to bypass emissions controls or safety measures. But some of the right to repair legal victories seem to contradict such logic—for instance, a Massachusetts law already guarantees the same sort of access to passenger vehicle software that right to repair advocates want from ag equipment manufacturers.

“There’s nothing about this industry that’s different than the automobile industry,” Kenney tells Ars. “There are more regulations in that industry and they have right to repair.”

 

On behalf of manufacturers, industry lobbyists have argued that right to repair legislation will make it easier for hackers to compromise electronic devices, but there is evidence that farmers have already turned to hackers to get around the access restrictions that manufacturers have put in place. Support for hacking devices to repair them came from an unexpected quarter in October, when the federal government published an updated interpretation of the DMCA that carved out an exception to the law expressly permitting equipment owners to hack their systems in order to repair them.

Enlarge / Farms aren't the only area where users are frustrated about repair access...

Getty | Mario Tama

How user agreements play out at the hospital

As noted at the start, the right to repair battle has brought together strange bedfellows—consumer tech and ag manufacturers aren’t the only ones rallying against such legislation. This has become an issue in healthcare as well.

 

Some medical equipment manufacturers have long been reluctant to make their diagnostic and servicing tools and software available to independent repair shops and hospitals. “It’s a battle we’ve been fighting for at least twenty-five years,” says Binseng Wang, an outspoken advocate for the right to repair in the healthcare field. Wang points out that outside the US, the European Union already requires medical equipment manufacturers to release the service and diagnostic information right to repair advocates here would like published.

 

For Steve Grimes, a veteran hospital administrator, right to repair is all about choice. “I need to be able to select the best options to support the equipment. I need to be able to choose from a variety of qualified resources. My best option is sometimes going to be the manufacturer, sometimes it’s going to be a third-party organization, sometimes it’s going to be my own inhouse staff and technicians.”

 

Peter Weems, senior director of policy and strategic operations for the Medical Imaging Technology Alliance (an advocacy group for the medical equipment industry), counters that third-party servicers are not subject to government regulation like the manufacturers themselves. “Service is only regulated if it’s done by the manufacturer,” he notes. “There’s no FDA oversight for other services. They’re not required to have quality management systems or register with the FDA, and they don’t have to report adverse events.

 

“We’re trying to achieve consistent quality and safety requirements,” Weems continued. “If you’re a servicer you should be required to register with the FDA and have a quality management system in place.”

 

The medical equipment industry is also concerned that third-party servicers might be crossing the line from repair into remanufacturing. “Seemingly minor actions which have not been given appropriate scrutiny can significantly change how a device operates, even if you’re trying to repair it in good faith,” observes Weems. Replacement parts that don’t meet original specs can significantly change a device’s performance or safety profile, according to a MITA white paper.

 

While Grimes doesn’t disagree with Weems on the need for quality management, he also sees this as an industry attempt to change the focus of the debate. “Although a growing number of third-party servicers have received certification for compliance with quality management systems, manufacturers still refuse to share service materials.”

 

The hospital administrator notes that manufacturers regularly charge more for service than third parties, and there is a perception in the industry that this focus on third-party quality control is an attempt to divert attention from monopolistic practices. “If they’re the only game in town, they don’t have to be competitive,” as Grimes puts it. “Manufacturers see repair as a revenue stream that they want to preserve.”

 

And though third-party service regulation hasn’t yet been formalized by the FDA, Wang observes that third-party servicers, including hospitals, are already under a significant amount of pressure to perform. “The whole field of health care is under very strong scrutiny, not only by the government, but because we live in a very litigious society—the liability exposure is huge,” he says. “If we want to survive and thrive in this field, we know that we have to do things right. We often do more than necessary because we don’t want to run the risk being sued, and above all, of hurting people.”

 

Wang points out that, as with agricultural equipment, access to manufacturer-licensed service can also be a challenge. “It’s an issue in remote areas,” he says. “There are hospitals in areas where UPS and other courier services won’t even deliver next-day. Large metropolitan areas also present challenges due to traffic congestion. Manufacturer reps cannot reach these areas in a reasonable amount of time. If a piece of equipment goes down, you have to have someone there that can take care of the equipment promptly, otherwise it can negatively impact patients whose wellbeing and lives are at stake.” Noting the high cost of some equipment, Wang adds, “Most hospitals cannot afford to have backups for this equipment.”

 

Backed by a bit more legal muscle than the farm community, hospitals and other health care organizations have taken the right to repair fight to the courts. In 2017, a Texas jury found that GE engaged in monopolistic practices by limiting access to parts required to repair and service anesthesia equipment. For Gay Gordon-Byrne of Repair.org, the verdict represents only a small victory. “No one else has changed their policy,” she says. “GE is still fighting against the right to repair other products, such as MRI machines, even though they lost this case.”

 

The jury awarded plaintiffs in the GE case an eye-popping total of $141 million in damages, but the case was not widely covered (perhaps due to its medical field niche). Instead, today’s most visible section of the right to repair fight takes us back to iFixit: it doesn’t involve tractors or medical equipment, it involves phones, tablets, and game consoles.

 

 

This is how you fix an iPad, right?

Nathan Mattise

How user agreements play out for the rest of us

The first exposure many individuals had to the issues at the heart of the right to repair movement came in December 2017, when Apple acknowledged that poor performance of older iPhones was due to the age of the batteries in the phones and not, as they had previously claimed, due to the limitations of the phone’s hardware. After acknowledging that many issues with older iPhones could be resolved with a replacement battery, Apple launched a program that offered a significant discount on new batteries installed by Apple technicians.

 

The response temporarily overwhelmed Apple’s network of repair centers, and iPhone owners had few alternatives. The company did not make the battery itself available at a discount, even though there were thousands of independent shops capable of installing the new battery according to Apple’s specifications.

 

“People were waiting weeks for a battery replacement, and the repair can take less than an hour,” according to iFixit’s Weber. “We don’t have time to wait for a manufacturer to fix things.” Many evidently agreed. Rather than get in line for the Apple subsidized battery replacement, more than 170,000 individuals purchased iFixit’s iPhone kit during the height of the repair backlog in winter 2017.

 

Building on recent instances like that, Weber sees the right to repair as part of a necessary culture change in consumer electronics. “When it comes to smartphones, people are investing as much in them as they are in laptops—or more—and manufacturers are treating them like they’re disposable,” she says.

 

“If you’re looking at a $200 repair out of warranty, the manufacturer is just going to try to sell you a new phone. We want to give people the choice to repair. People given that option will take it. We’re surpassing 50 million metric tons of e-waste annually. We need to start looking at these devices as a long-term investment.”

 

Statistics seem to bear out Weber’s argument. The year 2017 marked the first where global smartphone sales dipped, albeit by only 0.1%, according to IDC. In 2018, consumers in the US replaced their smartphones, on average, after 2.83 years of use. That’s a small but significant change from 2016’s 2.39-year replacement cycle, according to HYLA Mobile, a company specializing in device trade-in programs and reuse.

 

“We’re not seeing a whole lot of change in form factor,” says Weber. “We open these phones and we say, ‘What’s different here?’”

 

Manufacturers are quick to point out that, regardless of the replacement cycle, these devices are complicated. They maintain that only manufacturer-trained and supervised technicians are capable of delivering high-quality results. But Weber isn’t buying it. “Think about your car: we all like having options for repair—none of us wants to be forced to go to the dealership for everything.”

 

Brian Engelhard, the owner of Phone Love (a Portland, Oregon, repair shop), agrees. “The employees Apple hires are the exact same individuals we hire. They’re not flying in aliens,” he says. “If an individual can be trained to repair a device, it really doesn’t matter who’s signing the paycheck.”

 

Engelhard dismisses the claim that manufacturer technicians are better trained than those employed by independent vendors. Earlier this year, a pair of con artists were arrested after tricking Apple’s service department into replacing 1,500 counterfeit iPhones with new ones. “Not many independent repair shops are going to be fooled by these counterfeit devices,” Engelhard observes. “And that short-circuits this whole claim that only Apple techs are smart enough to work on Apple devices.”

 

In addition to phones, right to repair has impacted consumers in other areas as well. In 2016, Nest unilaterally disabled the Revolv Hub, a product that linked lights and appliances to a smartphone app it acquired in 2014. The product had been brought to market in 2013 with an asking price of $300 and a promise of ‘lifetime software upgrades.’ The ‘lifetime’ covered by the upgrades turned out to be around 18 months or so, after which purchasers were left with a non-functioning product. “In an ideal world,” wrote Electronic Frontier Foundation’s Kit Walsh in a blog post after Nest disabled the Revolv Hub, “Hub owners would be free to point their devices at a different central server, run by a third-party competitor or a trusted friend, or even run such a server on their own.” Instead Nest refused to allow users to modify the device so that it would still function, leaving them with a $300 brick.

 

Video games haven’t been spared from right to repair controversies, either. In 2000, Sony’s PlayStation 2 launched with the ability to run Linux. That ability was included in early PlayStation 3 models, but it was removed by an update in April 2010. Users soon discovered a way of working around this update, only to find out that much of the PlayStation’s functionality was limited, including the ability to play games online.

 

PlayStation owners soon took Sony to court, and while settlement details are still being sorted out today, it appears likely that Sony will be required to compensate owners for the loss of functionality caused by the update.

 

Lobbyists for the video game console industry cite the protection of consumer data as being one of their main reasons for opposing right to repair and right to modify legislation. Providing open access to the technical specifications of consumer electronics would enable criminals to “more easily circumvent security protections, harming not only the product owner but also everyone who shares their network,” according to a letter a coalition of trade associations published in opposition to right to repair legislation in Washington.

 

At the same time, there are strong economic incentives driving the console industry’s opposition to right to repair and right to modify. Although the bulk of the growth in the video game arena in recent years has come from in-app purchases in free-to-play games, video game consoles have proved to be a remarkably stable source of income over much of the past decade, accounting for about $30 billion in revenue per year, around the globe.

 

One of the keys to protecting that revenue stream is preventing content piracy, and the battle between hackers looking for exploits in rights management firmware and console and game developers is an ever-escalating one. Rights management schemes are now so complicated that console game piracy requires downloading altered firmware—often more than once, as vigilant console manufacturers ferret out exploits and loopholes and close them with mandatory updates.

 

When industry lobbyists speak of the chance that widespread access to technical documentation would make it easier to circumvent ‘security protections,’ it seems likely that their concern covers more ground than just limiting the industry’s exposure to liability in the event of identity theft. As an example, in 2017, Sony paid out $15 million to settle lawsuits connected to the 2011 breach of the PlayStation Network, a small amount compared to the nearly $6.3 billion in network and game revenue Sony recorded that year. Protecting that revenue stream obviously requires maintaining barriers to the discovery of exploits and loopholes in the console’s rights management firmware, and publishing otherwise confidential details of the engineering of these systems would seem to make it easier for individuals to find those exploits.

 

Amid all these contrasting forces and desires, iFixit’s Weber sees a middle ground that stops short of publishing proprietary information. “We can hold people accountable for stealing intellectual property,” she says. “But opening a phone to replace a screen or a battery isn’t stealing intellectual property.”

 

So far, although right to repair legislation has been introduced in many states, it has failed to pass in any of them. That means the most meaningful victory to date for the right to repair movement may still be the October 25, 2018 decision by the US Copyright Office that carved out a specific exemption to the DMCA allowing individuals to hack proprietary software in order to repair equipment and return it to good working order. But the growing number of settlements and court decisions in consumer electronics and medical imaging suggests that there’s a growing legal precedent supporting the existence of certain rights of ownership—even where there’s only a license agreement in place.

 

As of this spring, a record 20 states have right to repair bills to consider in 2019, according to iFixit. Most notably, Minnesota “became the first state in right to repair history to pass legislation through two state committees.” The state's House File 1138 did eventually make it to the state House floor, but it did so too late. No legislation passed as discussions about state budgets took over for the last bit of the Minnesota Legislative Session (which ended in late May). Authors of HF1138 tell Ars the issue is "still alive for next year," and they intend to pick up the legislative effort where it left out.

 

Maybe recent history will continue, and 2019 ultimately won’t become the year when right to repair legislation finally passes and tips the scales in this ongoing battle between manufacturers and consumers. But at the very least, if an April op-ed from the New York Times Editorial Board is any indication, sentiment has never been stronger.

 

“An open marketplace for repairs benefits consumers, independent retailers and the environment,” the paper wrote. “Modern devices are increasingly complicated; that concept is not.”

 

Richard Jensen is a writer and historic preservation specialist in Sioux Falls, SD. He has more library cards than credit cards, and no one is surprised by this.

 

 

 

Source: Hackers, farmers, and doctors unite! Support for Right to Repair laws slowly grows (Ars Technica)