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den Dulk, Arie --- ""Can we fix it? No we can't" The right-to-repair and emerging legislative responses to electronics repair the United States and the European Union" [2023] UOtaLawTD 9

Last Updated: 11 April 2024

“Can we fix it? No we can’t”

The right-to-repair and emerging legislative responses to electronics repair the United States and the European Union.

Arie den Dulk

A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) University of Otago – Te Whare Wananga o Otago

October 2023

Acknowledgements

To my supervisors, Moshood Adusalam and Dr Simon Connell, thank you for all of your time, enthusiasm and guidance through this long and intimidating year.

To my partner Yasmin, thank you for your unwavering support, especially during this year while you were also working on your own, much more impressive, dissertation; I could not have done it without you.

To my flatmates and friends in Dunedin, thank you all for of the good times and memories we’ve shared over the years, it has made the time fly by. Here’s to many more.

Finally to my family, thank you for your unending love and support over the years.

Table of Contents
Introduction

The right-to-repair movement highlights a concerning trend in consumer electronics: As we as a society become more and more reliant on electronic devices in our everyday lives, our devices are becoming harder and more complex to fix; that it is being made harder than necessary for the consumer to repair their electronic devices. In response to these growing concerns, and the right-to-repair movement's calls for change, specific legislation has begun emerging in the United States and European Union which aim at making it easier for consumers to repair their devices. As significant key markets for the production and consumption of electronic devices, the approaches taken by the United States and European Union will significantly influence electronics manufacturers operating in those markets, and influence and inform the approaches taken by other nations, such as New Zealand, to solving the same issues.

Given the potential scale of the impact these approaches will have this dissertation is concerned with determining whether the approaches taken by the United States and European Union are an appropriate and effective response to the issue of electronic product repairability.

It will begin by defining what the right-to-repair movement is and the harms it alleges are being committed before covering some prevalent arguments for and against a legal response to these issues. It finds that current manufacturer strategies are resulting in real harm to the consumer, environment and society that the law is justified in responding to. It then covers alternative options to specific legislation on right-to-repair and why they are likely to be less suitable as less effective in solving the harm being done and too difficult for consumers to understand or access. Finally, it considers the approaches emerging in the United States and the European Union and discusses how they operate to solve repair issues with some discussion on the pros and cons of each approach. This is done in four chapters.

Chapter I explains the right-to-repair movement for electronic devices and its concerns with manufacturer strategies that amount to barriers to consumer repair. It then discusses three key repair barriers in more depth to understand the strategies that are being regulated.

Chapter II considers whether or not these three key repair barriers warrant a legal response, considering arguments both for and against a legal response. It finds that there are several strong arguments in favour of a legal response and that most arguments against a legal response have little substance. The balance of these arguments justifies a legal response to the issues.

Chapter III sets out the potential alternative avenues of legal response to right-to-repair issues and considers whether they are more appropriate than creating new specific legislation. It finds that these alternative approaches are less desirable than specific legislation, for being more complex and less effective.

Chapter IV discusses the specific legislation emerging in the United States and the European Union and how they differ. It first explains the emerging legislation and the mechanisms they use to solve product repairability issues. It then considers the strengths and weaknesses of each approach in their contexts and in light of the arguments in Chapter III, as well as giving some possible options for improving the response before concluding.

Chapter I The Right to Repair

To understand and discuss a legal response to repair barriers and determine what is required for a legitimate and effective response to electronic product repairability, we first need to understand the problem it is attempting to fix. Only then can we move on to discuss whether this problem is warranting of a legal response, and if so, which response is going to be most appropriate.

A. The Right to Repair Movement

Elizabeth Chamberlain of iFixit, an American company dedicated to the right-to-repair movement and giving consumers access to the tools and information they need for repair, defines the right-to-repair a “a broad international effort to secure our repair options and prevent repair limitations”.¹ At its core, right-to-repair is focused on protecting consumers and society from the harms caused by an inability to repair the things they own, seeking to give products longer lifespans. It argues that consumers have, or should have, a right-to-repair the things that they own and that manufacturer strategies that unjustifiably limit this right cause harm to the consumer, society and the environment by decreasing product lifespans and increasing e-waste. Organisations such as the Repair Association argue that this right should be recognised and protected through effective legislation. ² Many individuals and manufacturers disagree, instead expressing concerns that the right-to-repair would harm consumers and manufacturers by reducing product safety and diminishing intellectual property protections for the manufacturer.³

The right-to-repair movement itself is broad and is generally attributed to originating with the Massachusetts Right to Repair Act, which gave vehicle owners better access to the repair of their cars by giving them access to key inputs on the same terms as authorised dealers.⁴ It has recently focused significantly on the consumer electronics market due to the prevalence of repair restrictions, and the significant reliance of consumers on electronic devices. The ability of consumers to repair their electronic devices, which are becoming increasingly integrated

¹ Elizabeth Chamberlain “What is Right to Repair?” (9 June 2022) IFixit

<https://www.iFixit.com/News/61140/what-is-right-to-repair>.

² “Our Mission and History" Repair.org <https://www.repair.org/history>.

³ Leah Chan Grinvald, Ofer Tur-Sinai “Intellectual property Law and the Right to Repair” (2019) 88 FLR 63.

⁴ Massachusetts Right to Repair Act Ch 368 (2012).

into every facet of modern living, is being significantly diminished through various manufacturer strategies. Manufacturers design their devices to make repair more difficult or impossible, and therefore more time-consuming and expensive, and refuse to supply the parts and information that consumers and independent repairers need to fix their devices.⁵ They place software on their devices designed to recognise non-genuine parts and third-party repair to lock down the device and make it functionally useless.⁶ The list goes on. These manufacturer strategies that unjustifiably limit product repairability are known as repair barriers, explained shortly. Recently the right-to-repair movement has had success in the consumer electronics space with legislation emerging in the United States and European Union aimed at making repair-restricting strategies in the context of electronics unlawful, in an attempt to respond to growing frustration. So far over forty states in the United States have considered adopting some form of the Repair Association's model legislation, and the European Commission has begun adopting repair-friendly legislation in line with its circular economy action plan for the European Union.⁷

B. Repair Barriers

The term “repair barrier” or “barrier to repair” refers to something, usually manufacturer strategies, that artificially increases the complexity or difficulty of having a product repaired without providing a corresponding benefit to the consumer to justify its existence. Their effect is to make it harder for consumers to access the repair of their products without providing them some form of utility. The scope of these terms is incredibly broad and encompasses a long list of different practices. For example, repair barriers can be physical conduct that prevents repairing the device, such as sealing it together to prevent its opening. It can also be non- physical conduct, such as refusing to supply and preventing the dissemination of the information that is needed to repair a device or to diagnose faults in it. Importantly, the term is not intended to cover strategies, trends or techniques that increase the difficulty of product repair but provide consumers with a corresponding benefit. This includes the gradual increase in product complexity over time with innovation resulting in a corresponding decrease in

⁵ Nixing the Fix: An FTC Report to Congress on Repair Restrictions (Federal Trade Commission of the United States, May 2021) at 17.

⁶ Daniel Moore “You Gotta Fight for your Right to Repair: The Digital Millenium Copyright Act’s Effect on Right- to-Repair Legislation” (2019) 6 Tex A&M L. Rev 509 at 509.

⁷ “Legislation" Repair.org <https://www.repair.org/legislation>; European Commission “Right to repair: Making repair easier for consumers” (press release, 22 March 2023).

product repairability. Newer devices are harder to fix than older devices, but this is because they are more compact, complex and powerful. That is, the increased complexity comes with increased functionality that is demanded by the user, and the complexity is necessary to deliver said functionality. This conduct only harms repairability as far as necessary to provide a legitimate benefit to the consumer and therefore cannot be said, without further context, to be a repair barrier.

In practice defining what is or is not a repair barrier can be a complex process and varies widely depending on the type of product and type of repair barrier. Certain strategies and practices that are considered unnecessary and harmful to repairability in one context may be considered to be legitimate in another. This is especially true of product design decisions. A good example of this difficulty is provided by the choice to seal modern cell phones shut with glue and how this interferes with battery replacement. Changing the battery of a cell phone has two steps; opening the device to access the battery, and removing the battery. On older phones this is as fast and easy as conceivable, requiring no extra tools or expertise. Simply open the back panel of the phone, and then the battery can be removed by hand. This process is not as simple on modern phones, which are more complex and often require special tools to open, as well as to remove the battery. One significant increase in repair time comes from the fact that modern phones are sealed shut with adhesives, generally to provide a water and dust-resistant seal, a genuine benefit to the consumer, though one which is still disputed as potentially ineffective and unnecessary.⁸ Whether or not this increased difficulty amounts to a repair barrier depends on whether the increased difficulty and the harm it causes is offset by a corresponding benefit to the consumer. Two modern smartphones can be used to illustrate this.

The Apple iPhone 14 provides a good example of a modern smartphone that is glued together, but no more than is necessary to provide a benefit to the consumer. According to iFixit’s battery replacement guide for the device, the iPhone 14 is held together with screws and adhesive, requiring a screwdriver, heat guns and glue picks to open.⁹ To open the phone a lightly glued back panel must be removed using the heat and glue picks. Once opened, the iPhone 14’s battery is held in place with screws and not adhesive. While the glue that holds the back panel on does increase repair complexity, the panel is glued no more than necessary to provide the

⁸ Lauren Greenlee “Why Electronics Rely on Glue – And Why They Shouldn’t” (10 August 2022) IFixit

<https://www.iFixit.com/News/63249/why-electronics-rely-on-glue>.

⁹ Tobias Isakeit “iPhone 14 Battery Replacement” (25 September 2023) IFixit

<https://www.iFixit.com/Guide/iPhone+14+Battery+Replacement/152966>.

consumer with a water and dust-resistant device. This design strategy is unlikely to be considered a barrier to repair. This can be contrasted with the Samsung S21 which is a good example of a device glued in excess of any water or dust resistant standards. According to IFixit’s battery replacement guide for this device, to access the battery the repairer must remove a heavily glued and exceedingly brittle back panel.¹⁰ This requires extended time and care compared to removing the iPhone 14’s back panel, requiring more extensive application of heat and use of picks, and risks breaking the phone's back panel. Once the device is open, the battery itself is held in with more glue, which requires large amounts of solvent and extreme care to ensure the battery cell is not punctured or bent, which risks causing a fire.¹¹ The extra glue in the S21 significantly increases the difficulty of replacing its battery, as well as the risk of the battery being mishandled and causing a fire. Given the significant increase in repair difficulty and further increased danger to the repairer, this design strategy is likely to be considered a barrier to repair.

C. Three Key Repair Barriers

As mentioned above, there are many different types of repair barriers beyond gluing phones together. For example, the Federal Trade Commission (FTC) in their report to Congress on product repairability titled Nixing the Fix reported at least 8 different significant repair- restricting strategies being used by manufacturers in the United States to limit the consumers' ability to repair electronics.¹² Given the scale and scope of repair barriers, covering all repair restrictions in the electronics industry is far outside of the scope of this dissertation. It will instead focus on what I have determined to be three key categories of repair barrier in the electronics industry which the emerging legal responses should be concerned with to be considered effective in addressing electronic product repairability. They do not cover all repair barriers and do not fully address the right-to-repair movements concerns in the area but would go a long way towards doing so.

¹⁰ Alex Diaz-Kokaisl “Samsung Galaxy S21 Battery Replacement” (5 March 2023) IFixit

<https://www.iFixit.com/Guide/Samsung+Galaxy+S21+Battery+Replacement/148741>.

¹¹ “Preventing Fire and/or Explosion Injury from Small and Wearable Lithium Battery Powered Devices” (20 June 2019) Occupational Safety and Health Administration

<https://www.osha.gov/sites/default/files/publications/shib011819.pdf> at 2.

¹² Above at n 5, at 17.

The key categories identified are the following: Product design, key inputs, and consumer awareness. Each of these three barriers is capable of significantly hindering consumer repair. Each will be discussed in turn with the manufacturer strategies they entail before turning in the next chapter to discuss whether or not these strategies warrant a legal response.

1. Product design

This category refers to manufacturers producing products that are designed in a way that makes them more difficult to repair than necessary with no reasonable justification such as a corresponding benefit to the consumer. In its worst forms this type of strategy is referred to as planned obsolescence, the practice of designing products to fail early and require repeated replacement.¹³ Many products on the market are being designed in ways that make them more difficult to repair, in favour of their replacement, such as the S21 mentioned above. Increasing the complexity of device repair increases the time and skill required to perform the repair, and the risks involved in performing them, such as in the case of glued or soldered batteries which risk starting fires.¹⁴ This increase in required time and skill drives up the cost of repair for the consumer. Further, products may also be designed in ways that cause early failure, either through the use of a low-quality part or through excessive wear on a single component. A famous example of this is the Phoebus Cartel, which deliberately lowered the lifespan of incandescent lightbulbs to increase their repeated sales. ¹⁵ This costs the consumer further money by forcing them to replace an otherwise good product that has had its lifespan reduced. These harms are increased when a device is designed to be not just difficult, but impossible to repair, like the Apple Air Pods, which feature functionally unreplaceable batteries.¹⁶ Users of this and similar devices are forced to discard otherwise fully functional devices when a single component wears out or fails. In the case of Air Pods, this is the battery, which stops holding an adequate charge for use after around two years of regular use. After two years all other components are likely to be completely operational and would continue to be if the batteries could be replaced, increasing the lifespan of the device.

¹³ Jeremy Bulow “An Economic Theory of Planned Obsolescence” (1989) 101 Q. J. Econ 729 at 729.

¹⁴ Above at n 5, at 29.

¹⁵ Markus Krajewski “The great lightbulb conspiracy” (2014) 51 IEEE Spectrum 56.

¹⁶ Sam Goldheart “Apple’s New AirPods Are Telling Users to Replace the Batteries Already. Too Bad That’s

Impossible” (5 October 2022) IFixit <https://www.iFixit.com/News/66194/apples-new-airpods-are-telling- users-to-replace-the-batteries-already-too-bad-thats-impossible>.

This kind of manufacturing strategy is enabled by the manufacturer's ability to design products as they like so long as they fit certain requirements of safety and fitness for purpose. Challenges to this sort of conduct in the United States courts have been unsuccessful.¹⁷

2. Key inputs

The next category of barrier to repair is the withholding of key inputs. This barrier refers to the original equipment manufacturer (OEM) withholding the tools, parts and information required to diagnose faults in devices and repair them. This comes in the form of OEMs refusing to supply the key inputs to independent repairers or consumers, and OEMs exercising their intellectual property rights to prevent others from manufacturing key inputs. A lack of key inputs is regarded by many as the most significant barrier to electronics repair and as such is the main focus of the Repair Associations model legislation.¹⁸

Many OEMs refuse to supply the key inputs for the repair of their products outside of their authorised service networks, preventing consumers and independent repairers from accessing them. Without access to key inputs, repair is impossible. This forces consumers to rely on the OEM for the repair and service of their products, which gives the OEM a monopoly over the repair of their own consumers' products.¹⁹ OEMs further support this monopoly by exercising various intellectual property rights against independent repairers and consumers to prevent the manufacture or import of key inputs, mainly spare parts, by third parties to supplement the repair market.²⁰ One common strategy is to patent individual parts to prevent their third-party manufacture. ²¹ This works because third-party parts have to be similar to OEM parts to function in the device or to look appealing to the consumer, which breaches patent rights.²² Another practice is to copyright materials such as repair manuals to prevent their

¹⁷ Tatum v Chrysler Group Civil Action 10-4269 (ES)(CLW) (D.N.J 2011).

¹⁸ Above at n 7.

¹⁹ Above at n 5, at 39

²⁰ At 22; Leah Chan Grinvald, Ofer Tur-Sinai “The Right to Repair: Perspectives from the United States” (2020) 31 AIPJ 98 at 104.

²¹ Above at n 5, at 25.

²² “An EU Repair Clause – A Missing Piece Of The Rights To Repair” (September 2023) BEUC

<https://www.beuc.eu/sites/default/files/publications/BEUC-X-2023- 077_POSITION_PAPER_design_directive_2023.pdf> at 3.

dissemination.²³ These strategies can even prevent the production or dissemination of key inputs where the OEM no longer produces them themselves or even sells the product.

OEMs who employ these strategies force consumers to rely on OEM-offered repair, which gives them a monopoly over the repair of their products.²⁴ This enables the OEM to offer their repair services on less favourable terms than would otherwise have been possible in a competitive repair aftermarket, such as higher prices or longer waiting times. Consumer reliance on the OEM for services decreases repair availability and increases repair time.²⁵ Where the OEM does not offer repair locally, as is common in smaller towns, consumers must send their devices away for repair. This increases the time repair takes and adds shipping to the cost of repairing the device. Many consumers rely on their devices too much to go without them for the extended time that it takes to send them away and are forced to replace them. This is especially true where the device is a source of revenue that cannot be forgone for extended periods, such as a work phone. Also, consumer's reliance on OEMs offering repair of their own devices places the repairability of devices solely in the OEMs hands. When the OEM decides not to offer repair services or stops offering repair services, perfectly fixable devices suddenly become e-waste. A great example of this is the Google Pixel Watch, which google has no official repair program for, meaning that any damage requires the device to be replaced.²⁶ This device is not unrepairable, IFixit provides guides on how to replace certain Pixel Watch components, it is simply unsupported.²⁷

3. Consumer Awareness

The final category of key barrier to repair is consumer awareness, or a lack of it, as influenced by manufacturers. It is concerned with manufacturers who disparage independent repair, or repair in general, to steer consumers towards replacement rather than repair.

²³ Kyle Wiens “Using copyright to keep repair manuals secret undermines circular economy” The Guardian

(online ed, England, 20 December 2013); Above at 20, at 104.

²⁴ Above at n 5, at 40.

²⁵ At 39.

²⁶ Ron Amadeo “Google says it can’t fix Pixel Watches, please just buy a new one” (16 September 2023)

ArsTechnica <https://arstechnica.com/gadgets/2023/09/11-months-after-launch-googles-pixel-watch-still-has- no-path-to-repair/>.

²⁷ Manuel Haeussermann “Google Pixel Watch Repair” (13 October 2022) IFixit

<https://www.iFixit.com/Device/Google_Pixel_Watch>.

OEMs routinely express to consumers that independent repair of their devices is unsafe, of a lower quality than OEM repair, and puts their data at risk.²⁸ Representations like these scare consumers away from independent repair and towards OEM repair services. OEMs sometimes go further and exploit consumer's existing biases towards repaired goods and their preferences for new goods by stating that repaired goods are inherently worse and less durable than new products. These different strategies influence consumers, taking advantage of the consumer's trust in OEMs and their lack of expertise when it comes to electronics and device repair.

The lack of consumer awareness of repair rights, and a lack of understanding of repairability are fundamental obstacles to the supply and demand of repair for consumer electronics.²⁹

4. Summary

These three categories of manufacturer strategy cause clear harm to the repairability of consumer electronic products. They physically prevent the repair of products through design or accessibility, and steer consumers away from wanting to repair devices in the first place. This causes consumers harm by forcing them to pay more for less available repair and providing them devices with lower lifespans which require more frequent replacement. They inflate the costs of device ownership without a justification through some sort of benefit to the consumer, like increased performance.

In the next chapter, this dissertation will move to discuss arguments for and against manufacturer's use of these repair-blocking strategies and determine whether or not they are something the law ought to respond to.

²⁸ Above at n 5, at 22.

²⁹ Michael Saidani, Alicia Kim, Madeline Kim “The Right-to-Repair Movement and Sustainable Design Implications: A Focus on Three Industrial Sectors” (2023) 3 ICED23 3464 at 3466.

Chapter II Whether the Law Should Respond to Repair Barriers

Not every harm warrants a legal response. It is important to determine when the law should and should not intervene, especially when dealing with an intervention in an issue as large and complex as right-to-repair. Legal interventions must be legitimate and founded on strong arguments which justify their existence.

Whether manufacturer strategies discussed above in chapter I are an issue warranting the sort of legal response we see emerging in the United States and European Union is contested. Supporters of a legal response highlight the harms caused by repair barriers and the potential benefits of regulation. Conversely, manufacturers and non-supporters argue that the right-to- repair sounds great on paper but that in reality, it will cause more harm than it solves.

This chapter will begin by covering some prevalent arguments against the right-to-repair and some counterarguments to these concerns. It will then consider arguments for a legal response to right-to-repair, finding that the balance of these arguments favours and justifies a legal response to the issue.

A. Against a Legal Response

Manufacturers argue that their current strategies do inhibit repair, but that they are not taking advantage of the consumer in any illegitimate way and are instead protecting their best interests and are the result of the operation of legitimate market forces. They highlight ways in which regulating the right-to-repair would cause harm, not solve it. The FTC noted 8 common arguments made against the right-to-repair and some counterarguments to them in its report on the right-to-repair.³⁰ The three most prevalent grounds of challenge there were that the right- to-repair would undermine intellectual property rights and therefore harm innovation, that it would endanger consumers and repairers, and that the market is functioning competitively and responding properly to consumer demand. Further concerns exist that a response to right-to- repair will encourage manufacturers to adjust their strategies in unfavourable ways, such as by flooding the market with goods or raising their prices, erasing any potential benefits gained by

³⁰ Above at n 5, at 24.

a legal response. ³¹ Each of these arguments will be discussed in turn with some counterarguments.

1. Intellectual property and innovation

Manufacturers argue that forcing OEMs to share key inputs with repairers would endanger and undermine their intellectual property rights and therefore their incentive to innovate, harming the consumer.³² They explain that forcing OEMs to provide key inputs to independent repairers and consumers will endanger their proprietary information and force them to reveal sensitive technical information, mainly trade secrets.³³ Without adequate protection of their intellectual property, OEMs would be unable to guarantee that the expensive research and development of new technologies and products could be profitable, removing their incentive to do so and even incentivising the OEM to remove product features.³⁴

Counterarguments exist to these concerns. Firstly, model right-to-repair legislation in the United States already exempts intellectual property, such as trade secrets, from mandatory disclosure.³⁵ The same exceptions can be made in European Union eco-design regulations. Further, information that manufacturers already share with authorised repairers may not qualify for protection as trade secrets. ³⁶ Next, longer product lifetimes have been argued to spur innovation in more durable and repairable products.³⁷ These products would be more desirable and competitive than non-repairable products, providing incentive and benefit to the manufacturer. ³⁸ Further, stifling consumer's ability to tinker with and repair their devices

³¹ Chen Jin, Luyi Yang, Cungen Zhu “Right to Repair: Pricing, Welfare, and Environmental Implications” (2022) 69 Management Science 1017.

³² Above at n 5, at 24; Marissa MacAneney “If it is broken, you should not fix it: The Threat Fair Repair

Legislation Poses to the Manufacturer and the Consumer” (2018) 92 St. John’s L. Rev. 331 at 349; Alex Reinauer “Two Wrongs Don’t Make a Right to Repair” (1 March 2023) Competitive Enterprise Institute

<https://cei.org/studies/two-wrongs-dont-make-a-right-to-repair/>.

³³ Above at n 5, at 25.

³⁴ Software-Enabled Consumer Products (United States Copyright Office, December 2016) at 11.

³⁵ Above at n 5, at 26.

³⁶ At 26.

³⁷ Carlos Montalvo, David Peck, Elmer Rietveld A longer lifetime for Products: Benefits for consumers and companies (European Parliament, IP/A/IMCO/2015-11, June 2016) at 10.

³⁸ M Moeslinger, K Almasy, M Jamard, H De Maupeou Towards an Effective Right to Repair for Electronics

(Publications Office of the European Union, EUR 31167 EN, 5 August 2022) at 38.

prevents consumers ability to innovate with electronics, which in the past has produced some of the most transformative inventions.³⁹

2. Safety

Manufacturers argue that beyond intellectual property and innovation concerns, the right-to- repair will directly endanger consumers and third-party repairers.⁴⁰ They argue that removing barriers to repair would encourage unqualified individuals to attempt dangerous repairs, exposing them or the device owner to physical injury. They highlight various dangers of product repair as a justification for limiting access to key inputs and for designing devices that are difficult to open. One common risk cited is the potential for cell phone batteries, which are lithium-ion cells, to cause fires, either when directly mishandled during repair or sometime afterward due to negligence. ⁴¹ Manufacturers hold that, unlike independent repairers, authorised repairers “have the necessary skills to safely and reliably repair products to OEM specifications and standards with OEM-Quality parts.”⁴² In response to these arguments, the FTC noted in its report that manufacturers were unable to provide virtually any evidence that injuries were more common with independent repair or independently repaired devices over OEM repair or repaired devices.⁴³ They also noted that this problem is relatively self-made, given that manufacturers could simply choose to make their products safer by designing them safer, such as by using sturdier battery cells and making them easier to remove, lowering the risk of fires.⁴⁴

Manufacturers advance further similar arguments that independent repair places consumers' data and device security at risk and is of lower quality than OEM repair.⁴⁵ The claims were similarly unsubstantiated to the FTC.⁴⁶ This lack of substantiation indicates that while initially confronting, this argument has no basis in evidence to prevent the right-to-repair.

³⁹ Daniel A. Hanley, Claire Kelloway, Sandeep Vaheesan Fixing America: Breaking Manufacturers’ Aftermarket Monopoly and Restoring Consumers’ Right to Repair (Open Markets, April 2020) at 18; Above at n 3, at 89.

⁴⁰ Above at n 5, at 26.

⁴¹ At 27.

⁴² At 26.

⁴³ At 28.

⁴⁴ At 29.

⁴⁵ At 24-36; Jared A. Mark “Realizing a New Right: The Right to Repair at the Federal Stage” (2021) 23 N.C. J.L. & Tech. 382 at 394.

⁴⁶ Above at n 5, at 18–20, and 22–23.

3. Repairability not desired by consumers

The next argument is that low product repairability is simply manufacturers responding to consumer demand.⁴⁷ Consumers prefer smaller and sleeker devices which are inherently less repairable than simpler bulkier devices. Requiring manufacturers to provide more repairable devices would prevent them from giving devices the features that consumers demand and prevent some products from being made at all. The effect of this would be to slow the development of new products and prevent the production of a range of small goods that consumers prefer. Manufacturers further argue that the market is currently responding appropriately to consumer demand and that legal intervention is an overreaction to an issue already being solved. As some consumers call for more repairable products, the market is appropriately responding by providing more and more repairable electronics. For example, the iPhone 14 mentioned above was redesigned entirely to provide for its ease of repair, highlightin0g a tend towards repairability in the electronics market. ⁴⁸ Further, even if consumers do desire a more durable or repairable product, they could have simply bought one. Their regrets do not warrant legal change.

In response to consumer desires, the FTC noted in its report that while consumers do appreciate smaller and sleeker devices, they are also strongly interested in repairability, and it is far from decided that consumers would trade repairability for style or weight considerations.⁴⁹ The fact that almost 80% of European Union citizens think that manufactures should be required to make electronic devices easier to repair, and would strongly prefer to repair them than replace them, heavily indicates a preference leaning towards repairability over style. ⁵⁰ The same support is seen in the United States, with 86% of consumers there supporting access to key inputs for repair at reasonable prices.⁵¹ It should also be noted that voluntarily making some more products to avoid a legal response to product repairability is a common manufacturer tactic to stifle effective legal change.⁵² Further, while some changes are being made, even these

⁴⁷ At 50.

⁴⁸ Above at n 9.

⁴⁹ At 36.

⁵⁰ European Parliament “Right to repair: MEPs want more durable and more easily repairable products” (press release, 7 April 2022).

⁵¹ Aaron Perzanowski “Consumer Perceptions of the Right to Repair” (2021) 69 Ind. L.J. 361 at 387.

⁵² Above at n 38, at 37.

so-called repairable products are still largely unrepairable, with even the redesigned iPhone 14 being software-locked to prevent independent repair.⁵³

On consumers having the option to purchase other more repairable brands or products, the complexity and cost of electronic devices make this assertion unrealistic. Electronic devices are immensely complex, more and more so as time goes on. Consumers are unable to assess the quality and suitability of such complex electronic devices.⁵⁴ It is unfair and unrealistic to expect them to do so. They instead trust that the products being sold by big brands for high prices are of a quality to warrant their status and price.⁵⁵ Given this, when it turns out this is not the case it is unfair to tell consumers they should have known better. Further, it is unrealistic to assert that they ought to simply replace the device with something more suitable. Electronic devices, especially computers and smartphones, are high in price which prohibits simply replacing them when you are unhappy with the purchase you made. This lack of pre-purchase knowledge and high costs for replacement lead to the consumer being locked into their purchase, a theory supported by the United States Supreme Court.⁵⁶ Even where prices are not prohibitive of replacement, consumers having to prematurely replace their goods is still economically wasteful and a clear harm to the consumer.

4. Undesirable economic response

Concerns exist that the right-to-repair movement will cause manufacturers to adjust to undesirable strategies to recoup lost profits, strategies that will harm the consumer and environment and offset any benefit gained by the right-to-repair. Research by Yang, Jin and Zhu caution that a one-size legal response to right-to-repair would cause this harm.⁵⁷ Their research indicates that manufacturers will respond to profit losses caused by right-to-repair legislation in one of two ways depending on the manufacturing cost of their product. Where the manufacturing cost is high, manufacturers will increase the cost of their goods to recover lost revenue, directly harming consumers and removing the benefits of any savings in the repair

⁵³ Kyle Wiens “We Are Retroactively Dropping the IPhone’s Repairability Score” (19 September 2023) IFixit

<https://www.iFixit.com/News/82493/we-are-retroactively-dropping-the-iphones-repairability-score-en>. ⁵⁴ Maciej Bukowski, Tomasz Kaczor Contribution to Growth: Consumer Protection (European Parliament, PE 638.396, May 2019) at 15.

⁵⁵ Larry A. DiMatteo, Stefan Wrbka “Planned Obsolescence and Consumer Protection: The Unregulated Extended Warranty and Service Contract Industry” (2019) 38 JLPP 483 at 535.

⁵⁶ Eastman Kodak Co v Image Technical Services [1992] USSC 73; 504 US 451 (1992).

⁵⁷ Above at n 31.

market. Where the manufacturing cost is low, manufacturers will recoup their losses by reducing goods quality and cost, flooding the market to incentivise replacement over repair, harming the consumer by again preventing the repair of goods, and the environment through large increases in e-waste and resource consumption. Importantly, the authors advised that these issues are not unavoidable so long as lawmakers are aware of the risks posed and focus on regulating products by category, instead of using a one size fits all approach.

5. Summary of arguments against

Manufacturers and individuals against the right-to-repair provide many different reasons for why enabling consumer repair is dangerous and will have negative impacts on the consumer and the market. These claims have gone unsubstantiated, however, with evidence existing to support counterclaims that giving consumers a right-to-repair would result in a more efficient and cheaper market for consumers.

B. For a Legal Response

There are many arguments in favour of the right-to-repair movement and a legal response to the three key categories of repair barriers. This section will cover some arguments in favour of legal response, starting with the strong justifications provided by the principles of consumer protection law before moving to other normative justifications and the success of similar styles of response.

1. Consumer protection

The right-to-repair is inherently a consumer protection movement. It aims to protect consumers from what it argues are unfair manufacturer strategies that take advantage of their position of dominance and consumer's low awareness to their benefit and the consumer's detriment. There is a compelling argument that the principles underlying consumer protection law and the justifications for a consumer protection law response align with regulating the right-to-repair. This will be highlighted below as justification for a consumer protection law response.

Consumer protection law exists to protect consumers against producers exploiting imbalances in the market to their advantage, and the consumer's detriment.⁵⁸ It exists to “reduce the power of businesses to act to the detriment of the consumer”.⁵⁹ It recognises that commercial law evolved in a historically different time and context and that modern consumers no longer have equal bargaining power and knowledge to the producer, meaning they cannot protect themselves from exploitation in the market. ⁶⁰ The intervention of the law to protect the consumer is justified on the basis that manufacturer exploitation of this uneven playing field leads to market failure, a market severely diverged from effective competition, which directly harms the consumer and causes wider economic harms, such as reduced consumer welfare, reduced innovation and productivity, lower growth and fewer jobs.⁶¹ Protecting consumers from market failure provides trust in the market and protects consumers from losing excess time and money to exploitation.⁶² It plays a significant role in supporting economic growth and development.⁶³ It exists to indirectly protect competition and promote the efficient allocation of resources in the market through protecting the consumer.

There are several drivers of market failure. Consumer protection is closely linked with two, the exploitation of asymmetric information, and the exploitation of uncompetitive markets.⁶⁴ The following sections will explain these drivers of market failure and how manufacturer's current strategies amount to taking advantage of the consumer and driving market failure.

(a) Information asymmetry

Information asymmetry refers to manufacturers of goods having more information about the product than consumers. This knowledge gap can be exploited by the manufacturer for their gain. In the context of electronics repair consumers struggle to determine electronic goods characteristics and quality due to their complexity. This makes it difficult for consumers to compare electronic products to other available choices and to understand whether the product

⁵⁸ Above at n 54, at 15.

⁵⁹ Goldring, Maher, McKeough, Pearson Consumer Protection Law (5^th Ed, The Federation Press, Australia, 1998).

⁶⁰ At 1.

⁶¹ Above at n 54, at 15–17.

⁶² Above at n 59, at 4.

⁶³ Above at n 54, at 15.

⁶⁴ At 15–16.

is appropriate for them or is of good quality or price.⁶⁵ This confusing complexity is common in electronic devices. Consumers cannot realistically possess the knowledge required to assess every aspect of modern electronic devices.⁶⁶ Information asymmetry also refers to consumers' unawareness of alternative products and services due to the manufacturer's intentional obscuring of their existence and the manufacturer exploiting consumers' existing biases and prejudices to encourage them to make irrational purchasing decisions.⁶⁷ Manufacturers can exploit this asymmetry to sell consumers goods that are unfit for their purposes, at higher prices than they otherwise would have paid in a competitive market. In the context of repair barriers, this looks like manufacturers selling consumers overpriced products of low quality and repairability. The following are some examples of OEMs taking advantage of information asymmetry in the electronics market.

The manufacturer’s use of repair-blocking strategies highlights an abuse of information asymmetry that does harm to the consumer. OEMS use of repair barriers exploits the consumer's low knowledge about electronic repair to sell them goods that are less repairable than they demand. Again, consumers cannot be expected to possess information on electronics repairability and instead have to trust that their devices are repairable and that this repairability is not being limited. Consumers often do this by associating higher prices with higher quality.⁶⁸ Given OEM's usage of repair barriers, this strategy is ineffective, and their trust is misplaced. We can see that consumers are unhappy with this conduct; their preferences indicate that if they had more knowledge about these practices, they would avoid products with limited repairability. Consumers significantly value repairability and prefer repair to replacement.⁶⁹ Features like device appearance are only moderately important to consumers, but repairability is of extreme importance.⁷⁰ Purchasing a less repairable good because of a lack of knowledge about its repairability often leads to dissatisfaction with purchased goods,⁷¹ and the sentiment they never would have bought the product if they knew it would not be repairable.⁷² 92% of European consumers want more information on product lifespan than they already have, highlighting a

⁶⁵ At 15–16.

⁶⁶ Brian W. Harvey, Deborah L. Parry, The Law of Consumer Protection and Fair Trading (4^th ed, Butterworths, London, 1992) at 21.

⁶⁷ Above at n54, at 15–16.

⁶⁸ Above at n 55, at 535.

⁶⁹Above at n 50, at; Above at n 38, at 41.

⁷⁰ Above at n 5, at 35.

⁷¹ Above at n 54, at 19.

⁷² Above at n 5, at 34.

lack of knowledge. This all serves to show that OEMs are taking advantage of consumer's unawareness of device repairability and repair restrictions to sell them devices that are less repairable than they would demand if they possessed equal knowledge. This directly harms the consumer by providing them with ill-suited goods of a lesser quality than demanded, costing them more than they expect to and ought to pay for repair or replacement.

Another way that OEMs exploit information asymmetry is by disparaging independent repair. As shown above, the manufacturer's safety and quality concerns with independent repairers are unfounded. Their disparagement takes advantage of consumers existing biases against independent repair, their lack of knowledge about the relative safety of independent repair and their inherent trust in the OEM, to steer them away from competitive independent repair. Consumers trust manufacturer's warnings, which pushes them to make irrational purchasing decisions based on an unfounded prejudice against independent repair. This harms the consumer by limiting their options and steering them away from what may have been the most efficient and cost-effective option for them, as is common when manufacturers steer consumers away from local repair to sending their device away for repair.

(b) Uncompetitive markets

The other relevant driver of market failure is uncompetitive markets. Uncompetitive markets refer to the ability of the manufacturer to impose unfavourable conditions on the consumer due to a lack of competition.⁷³ This can refer to the market as a whole, but also to the ability to impose unfavourable conditions against a group of vulnerable customers, such as the owners of one brand of a device as we see in right-to-repair scenarios. In the context of right-to-repair, this issue arises in aftermarkets for repair, which OEMs have a monopoly over. Another way this can arise is in the case of concentrated market power. Where there are no appealing substitutes to a product the seller of the preferred device has little incentive to cater to the consumer's demand and can provide poor quality goods at higher prices.⁷⁴As discussed above, by refusing to supply the key inputs required for repair and preventing their third-party manufacture and supply, OEMs obtain a monopoly over the repair of their products. This monopoly allows the OEM to drive up the price of their product's repair services and require

⁷³ Above at n 54, at 16.

⁷⁴ Martin Lueken “Defining Market Failure (with Examples)” (24 May 2018) Edchoice

<https://www.edchoice.org/engage/defining-market-failure-with-examples/>.

consumers to send their devices far away for repair, directly harming the consumer by wasting their resources and time, creating inefficiency. If independent repairers were able to access key inputs, competition would drive down prices and time delays, which consumers would benefit more from than a monopoly.⁷⁵ There is little rebuttal from OEMs that a more competitive repair marketplace would serve to lower repair costs and provide timelier and more available repairs.⁷⁶ The implementation of the right-to-repair would also significantly reduce the lifetime cost of digital devices for consumers and enable them to spread their costs over a long period.⁷⁷ These benefits clearly show that denying access to key inputs inflates the cost and delay of having products repaired in a way that would not be possible were there competition in the market. This highlights the market diverging from competition and efficiency and towards market failure.

OEM's monopolization of their product repair markets can also contribute to information asymmetry by obscuring the true price of goods.⁷⁸ Some manufacturers choose to lower the price of their primary goods to incentivise purchases and recover this lost value in the highly profitable repair market. This practice is known as rent-seeking, or the printer-ink model, named for the low initial prices of printers but the inflated ongoing price of ink to operate them. This practice obscures the true price of a good as its initial price tag does not reflect its ongoing repair and maintenance costs which have been inflated to recover profit. Unlike the market for printers and ink electronic repair costs are much harder for the consumer to account for and effectively price.

These harms of OEM monopolisation are also recognised by the principles of Antitrust law. Antitrust law’s basic objective is to protect competition for the benefit of the consumer.⁷⁹ It recognises that monopolisation is not in the best interests of the consumer and prohibits firms from monopolising markets. In the case of right-to-repair claims that OEMs have breached antitrust laws by monopolising their repair aftermarkets are possible but difficult and often unsuccessful. This is discussed in more depth in chapter III of this dissertation when discussing court cases on access to key inputs.

⁷⁵ John J. Voortman “Curbing Aftermarket Monopolization” (1993) 19 J. Leg 155 at 190.

⁷⁶ Above n 5, at 18.

⁷⁷ Above at 38, at 36.

⁷⁸ Above at n 76, at 164.

⁷⁹ “The Antitrust Laws” Federal Trade Commission <https://www.ftc.gov/advice-guidance/competition- guidance/guide-antitrust-laws/antitrust-laws>.

(c) Conclusion

OEM's current strategies exploit consumers' low knowledge about electronic devices and their repair, information asymmetry, and the OEM's monopoly over aftermarket repair, uncompetitive markets, to their own benefit and consumers detriment. This directly harms the consumer by providing them with less efficient, more costly and more time-consuming repair than would otherwise be possible absent these factors. This serves to push the market away from effective and competitive operation and towards failure. This justifies the intervention of consumer protection law to provide a solution to right-to-repair and protect consumers from exploitation.⁸⁰

2. Environmental impact

Another argument in favour of right-to-repair legislation is the reduction of harm to the environment. This argument is popular in the European Union and functions as the underlying justification for their transition to a circular economy and thusly their regulation of repair barriers.⁸¹ Repair barriers directly increase the amount of repairable devices being thrown out and replaced instead of repaired, increasing e-waste. Reducing repair barriers would increase product lifetime, offsetting devices becoming e-waste.⁸² Given the scale of current electronics consumption, the impact of a right-to-repair on the environment would be significant.⁸³ In the case of cell phones, a one-year increase in the lifespan of all phones in the European Union would be equivalent to removing more than 1 million cars from the road each year.⁸⁴ Further, repairing devices and expanding their lifetime is more resource-efficient than recycling older devices and replacing them with new ones.⁸⁵ This is especially true given that most e-waste is improperly recycled if recycled at all.⁸⁶ Reducing e-waste and our environmental impact is an important factor in reducing climate change.

3. Success in other areas

⁸⁰ Above n 54, at 15—16.

⁸¹ “A European Green Deal” European Commission <https://commission.europa.eu/strategy-and-

policy/priorities-2019-2024/european-green-deal_en>.; European Commission A new Circular Economy Action Plan (11 March 2020) Com(2020) 98 final.

⁸² Above at n 5, at 42.

⁸³ Above at n 38, at 35.

⁸⁴ At 7.

⁸⁵ At 34.

⁸⁶ At 10.

Another strong argument in favour of right-to-repair laws for the electronics market is that materially similar laws have been introduced in other markets to great success highlighting the effectiveness of this type of legislation. In 2012 a right-to-repair law for cars was passed in the state of Massachusetts.⁸⁷ It provided that OEMs of automobiles had to make available to authorised repairers and owners of vehicles all key inputs that they supply to their authorised repair providers.⁸⁸ This law has been regarded as very successful in giving Massachusetts auto consumers access to the repair of their vehicles, as well as flowing on to the auto industry across the entire nation.⁸⁹ The effectiveness of this approach influenced the Repair Association to base its model electronics right-to-repair legislation on the Massachusetts legislation.⁹⁰ This shows that right-to-repair legislation, at least of the kind being considered in the United States, is effective in delivering increased repairability to the consumer. It also highlights that many of the concerns surrounding right-to-repair causing more harm than good may be overstated. Another example of this success can be seen in France's voluntary electronics repairability labelling scheme, which is being adopted by the European Union as part of their emerging response. This scheme has seen companies supporting consumer repair in France to increase their score, such as Samsung providing repair documentation for their products in French and free of charge.⁹¹

4. Further Arguments

There are many further policy and normative arguments made in support of right-to-repair, far too many to cover. The following are some of these arguments briefly. Both the United States and the European Union have highlighted the significant macro benefits of a right-to-repair for electronics, including significant potential increases in jobs. One study estimated that the European right-to-repair would create 1.2 million jobs alone by increasing demand for low and medium-skilled repair work, which would in turn also provide greater technological literacy.⁹² The benefits of these new jobs would be felt in all communities since non-OEM repair work is usually done locally.⁹³ Similar impacts are expected in the United States given that the repair

⁸⁷ Above at n 4.

⁸⁸ At § 3.

⁸⁹ Above at n 3, at 72.

⁹⁰ At 72.

⁹¹Kevin Purdy “Apple Is Using France’s New Repairability Scoring – Here’s How It Works” (1 March 2021) IFixit

<https://www.iFixit.com/News/49158/france-gave-apple-some-repairability-homework-lets-grade-it>.

⁹² Above at n 38, at 38–39.

⁹³ At 39.

industry is estimated at up to 3% of US business.⁹⁴ Further, the right-to-repair is more utilitarian than simply promoting intellectual property rights to exclude repair.⁹⁵ Grinvald and Tur-Sinai argue that an effective right-to-repair would more effectively promote innovation and the diffusion of innovation into society by providing more people access to technology and encouraging upskilling into electronics repair, maximising the utility technology provides to society in line with the existing justifications for intellectual property protection.⁹⁶

C. Summary

While there are many concerns surrounding responding to right-to-repair issues, many of these arguments are unfounded, especially when we consider the success of existing right-to-repair laws such as the Massachusetts auto repair law discussed above. On the other hand, there are many strong arguments in favour of a response, including consumer protection and the environment, but also general macro-economic benefits and normative justifications. The balance of these arguments serves to highlight the clear and unjustified harms being done by electronics manufacturers, and the significant benefits of preventing repair barriers. These arguments strongly justify a consumer law intervention in this area to prevent harm directly to the consumer, and indirectly to the wider economy.⁹⁷ That is to say that a response to right-to- repair issues in the electronics market is legitimate and desirable.

⁹⁴ Above at n 3, at 66.

⁹⁵ At 85.

⁹⁶ At 85.

⁹⁷ Above at n 54, at 15–17.

Chapter III Potential Legal Responses to Repair Barriers

Once it is decided that the law ought to respond to an issue it is important to consider which form of legal response will be the most appropriate in the context. This depends on, among other things, which response will be the most efficient, effective, cost-effective and accessible. Both the United States and the European Union have chosen to respond to electronic product repairability by creating specific legislation to regulate the issue. This is not the only possible approach. Given the cost and complexity involved in creating new legislation and the impact that these laws will have on not just their markets, but other nations, it is valuable to understand why this approach has been chosen.

To this end, this chapter will consider two proposed alternative responses to electronic product repairability and consider their strengths and weaknesses to explain why specific legislation is likely to be the most appropriate response to the issue. These options are to go through the courts and to amend existing statutes.

A. Going to Court

One potential solution for most legal problems is to go to the courts and argue that the conduct complained about is or should be illegal under existing principles. This option is great for individual issues and non-policy-heavy issues. It can provide an effective remedy for disputes and does not risk creating duplicative or unnecessary legislation. In the case of right-to-repair however, this is unlikely to be an effective and accessible remedy to the issue at hand for several reasons. First, the courts have historically been unresponsive to right-to-repair arguments made before them, such as monopolization of the aftermarket or planned obsolescence, and judgements that do support the right-to-repair have been ineffective. Next, a court-based response to right-to-repair would be inaccessible to the consumer, and risks varying between states or nations. Further concerns exist that judges are not well equipped to deal with right-to- repair issues and that such complex and technical issues are best left to a body with more expertise on the matter, such as the proposed eco-design forum discussed in chapter IV.

1. Key inputs and product design cases

Cases have been brought before the courts arguing that OEM's current strategies which amount to repair barriers are or should be illegal but have been of little practical success. The courts in the United States and European Union have been unreceptive of most right-to-repair arguments made to them in the cases and have read down cases that would have provided a wide and workable remedy. While technically possible, the courts have set the bar for finding an OEM liable for misconduct prohibitively high, too high to render this a reasonable avenue of redress. This section will cover two examples, the court's treatment of the refusal to supply key inputs to independent repairers and the design of products to fail early.

Several cases have been brought in the United States and European Union alleging that manufacturer's refusal to supply key inputs to independent repairers or consumers is in breach of antitrust law.⁹⁸ Cases brought have focused on, for example, the refusal to supply diagnostic software to customers who had their devices serviced by independent repairers,⁹⁹ and the refusal to supply parts to independent watch repairers,¹⁰⁰ The most famous and important of these cases is the United States case of Eastman Kodak Co v Image Technical Services, which set the precedent that an OEM can in some circumstances have a monopoly in the aftermarket for its own products repair or servicing.¹⁰¹ It is still considered to be the leading case for addressing aftermarket issues in the United States.¹⁰² This case was however read down in subsequent cases until largely ineffective as a remedy for consumers.¹⁰³ In that case, Kodak refused to supply parts for their electronic copiers to independent service operators (ISO) and refused to service any copiers that had previously been serviced with non-Kodak parts. This effectively meant that ISOs were unable to offer services to Kodak customers for a lack of parts combined with customer's fear of Kodak refusing to service their devices. Kodak’s customers were forced to work with Kodak for repair and service. Image Technical Services, an independent repairer of Kodak products, brought a claim alleging that Kodak was breaching the law by, among other claims, unlawfully monopolizing their service and repair aftermarket

⁹⁸ Eastman Kodak Co v Image Technical Services [1992] USSC 73; 504 US 451 (1992); Digital Equipment Corporation v Unique Digital Tech [1996] USCA7 45; 73 F.3d 756 (7th Cir. 1996); Alcatel USA v DGI Technologies [1999] USCA5 155; 166 F.3d 772 (1999); Synstar Computer Service (UK) Ltd v ICL (Sorbus) Limited and International Computers Limited [2001] UKCLR 585; Pelikan/Kyocera, Case No IV/34.330 (1995); Info-Lab/Ricoh Case No IV/E 2/36.431 (1999) COMP/C-3/39.391 EFIM.

⁹⁹ Synstar, above at n 99.

¹⁰⁰ CEAHR v Commission Case T-712/14 (2017) ECLI:EU:T:2017:748.

¹⁰¹ Kodak, above at n 56.

¹⁰² Above at n 5, at 12.

¹⁰³ David A.J, Goldfine, Kenneth M. Vorrasi “The fall of the kodak aftermarket doctrine: dying a slow death in the lower courts” (2004) 72 Antitrust L.J. 209 at 209.

in breach of the Sherman Act.¹⁰⁴ The court agreed and held that an OEM could be a monopolist in the aftermarket relating to its product even without a monopoly in the primary market, so long as the consumer was considered to be locked-in.¹⁰⁵ Lock-in refers to consumers having a high switching cost, the price of switching to another brand's product, coupled with pre- purchase informational asymmetry effectively precluding their knowing the lifecycle price of the good.¹⁰⁶ If manufacturers take advantage of the fact that their consumers are locked-in through some form of exploitative conduct, there will be a breach of antitrust law.¹⁰⁷ This outcome was favourable to the right-to-repair as it recognised that an OEM can have an aftermarket monopoly that is unlawful to exploit. Interpreted broadly this case had the potential to allow effective key inputs claims against OEMs. Unfortunately, its use to plaintiffs has been eroded in subsequent cases which have narrowed the scope of the lock-in principle to the point that Kodak is no longer an effective claim for plaintiffs, resulting in more summary judgements for manufacturers than relief.¹⁰⁸ Kodak has resulted in a summary judgement for the defendant OEM in almost every lock-in case in the United States.¹⁰⁹ Unlike the Supreme Court in the original case, lower courts are now largely unwilling to find that the aftermarket is separate from the primary market, and even when they do will not find manufacturers are taking advantage unless they change their policy post lock-in, meaning uncompetitive prices and conduct are legal so long as they were not changed maliciously and surprisingly post-sale.¹¹⁰ This precludes a complaint against the exceptionally high prices of OEM repair so long as they never changed, even where the consumer was not able to know them pre-purchase. While it is still possible to make a claim of aftermarket monopolization under Kodak, it is extremely difficult. The effect of this narrowing has been likened to overruling Kodak.¹¹¹ Absent very specific circumstances the courts are unwilling to recognise that OEM's refusal to supply key inputs is unlawful. The principles in Kodak have also been widely accepted in European cases on aftermarket monopolization, where many claims have been of similar avail.¹¹² Courts in Europe have also pointed to factors such as the existence of any level of competition, and the availability of an authorised repair network to join as indicative of no wrongdoing, further

¹⁰⁴ Sherman Act 15 U.S.C, § 2

¹⁰⁵ Kodak above n 56, at 472–80.

¹⁰⁶ Above n 104, at 213.

¹⁰⁷ At 213.

¹⁰⁸ At 209.

¹⁰⁹ At 220.

¹¹⁰ At 220–222.

¹¹¹ At 231.

¹¹² Bryan Cave, Leighton Paisner “Competition/antitrust challenges in technology aftermarkets” (5 March 2015) Bryan Cave <https://www.lexology.com/library/detail.aspx?g=d4728967-31cc-497c-a426-d6f089cc4ffe> at 4.

increasing the difficulty of a successful claim.¹¹³ Before the case of Kodak, it was relatively easy to show dominance in the aftermarket in Europe.¹¹⁴

The effect of Kodak and the case's subsequent reading down on the United States and European Union has been to significantly limit the ability of the consumer to claim against OEMs refusing to supply key inputs on antitrust grounds.

Other right-to-repair cases have been brought challenging not key inputs but product design, though these claims are less common. This is possibly because the courts are quick to accept manufacturer's justifications for designs.¹¹⁵ Tatum v Chrysler Group is the only significant United States case on planned obsolescence.¹¹⁶ In that case, a consumer alleged that a Chrysler vehicle's brakes were of low quality and high price, requiring frequent replacement over the lifetime of the vehicle. In other words, alleged that the product was designed with failure and replacement in mind and priced accordingly. There the court held that the failure of a single component in a product was not indicative of the entire product quality, which absent the brakes the vehicle may be of good and high quality.¹¹⁷ This reasoning is questionable when applied to a low-quality component that is not replaceable. Many electronic devices cease to function absent a single component, which if not durable, and unreplaceable, would render the entire device useless upon breaking. The court further dismissed the idea of a claim of planned obsolescence, noting that even deliberately engineered failure is not actionable if it occurs outside of the product's warranty.¹¹⁸ They rejected the claim that the purchaser’s reasonable expectations could sustain a claim and that the consumer is only entitled to the warranty duration. The effect of this reasoning is to bar claims for planned obsolescence in the United States, even when deliberate and solely for profit. The approach to solving this same issue in Europe has been legislative and varies by state, such as in France where planned obsolescence is a crime.¹¹⁹ This may be because of a recognition that a court-based response is less desirable.

The cases of Tatum and Kodak highlight the difficulty that has faced historical right-to-repair claims made in court. Arguments that manufacturers are improperly designing products and

¹¹³ Annette Mutschler-Siebert, M. Jur (Oxon), Francesco Carloni “EU general court upholds luxury-brand

restrictions on supply of spare parts” (27 October 2017) K&L Gates <https://www.klgates.com/EU-General- Court-Upholds-Luxury-brand-Restrictions-on-Supply-of-Spare-Parts-10-26-2017>.

¹¹⁴ Above at n 113, at 3.

¹¹⁵ Above n 51, at 391.

¹¹⁶ Above at n 55, at 526.

¹¹⁷ At 527.

¹¹⁸ At 527.

¹¹⁹ Article 99 - LOI n° 2015-992 du 17 août 2015 relative à la transition énergétique pour la croissance verte (1).

harming the consumer or withholding key inputs to maintain a monopoly have been made with little success. They would likely share a similar fate today. This indicates that the courts are likely to not be an effective or easy avenue for enacting solutions to the key categories of repair barriers. The courts have been reluctant to use existing constructs to curb excesses in other parts of the industry as well.¹²⁰

2. Complexity and accessibility

Even if the courts were likely to grant relief to claims made on right-to-repair issues, they would not provide a desirable remedy for the consumer. Court judgements are notoriously complex and inaccessible and provide a poor medium for consumer rights.

The response to right-to-repair must be accessible to consumers. This is because the rule of law requires that the law must be accessible and clear for all those who need to rely on it.¹²¹ A consumer protection response must then be accessible to consumers, not being overly complex or difficult to locate, otherwise, consumers will be unable to know or rely on their rights. Accessibility is one of the key reasons consumer protection is set out in clear statutes, like New Zealand’s Consumer Guarantees Act 1993. Problematically, court judgements are notoriously inaccessible for laypersons. They are intimidating, difficult to find and complicated to read and understand. It is entirely undesirable to place anything we want laypersons like consumers to access into legal judgements. Further, different repair barriers touch on different areas of the law. Extending each of these areas of the law in some form of harmony would be an extremely time-consuming and complex task evolving over several cases. Consumers would have to navigate a web of legal concepts and cases to determine their rights. A court-based approach to right-to-repair would be complex and undesirable, tying up consumer's rights in an inaccessible format between several cases with questionable certainty of application. This would further risk consumers being effectively unable to ascertain their rights regarding repair, harming the accessibility of the law and the usefulness of this style of response.

3. Judges not well equipped to deal with right-to-repair issues

¹²⁰ Above at n 55, at 526.

¹²¹ William Lucy “Access to Justice and the Rule of Law” (2020) 40 OJLS 377 at 377.

Determining what is or is not a repair barrier can be a complex task, requiring extensive technical knowledge about electronic products and their manufacture. Courts having to determine matters of product design and repairability would require considerable time and expert evidence to grapple with this complexity, driving up the time and economic costs of a resolution. Whether or not Judges are well equipped to draw the line between legitimate conduct and repair barriers is uncertain given their struggle to draw the line between similar principles, like the difference between conduct amounting to repair and amounting to reconstruction.¹²² Faced with this complexity the courts are quick to accept manufacturers justifications for designs.¹²³ It would be more desirable to leave the issue to an expert regulator who is better equipped to determine the matter.

4. Non-universal approach

One final risk of a court-based approach to electronics repairability is that different courts will take different approaches to the same issues. It is conceivable that different states or nations will differ in their interpretation and application of arguments and cases before them. This risks leaving the law, and manufacturer's obligations fragmented and confusing. This lack of harmony in consumer rights and OEM obligations creates an unnecessary and avoidable headache for all involved, especially where OEM obligations across different states or nations are heavily varied or even incompatible. It further harms accessibility where consumer's rights in one area may be different to another, which would make it more difficult again for consumers to understand what their rights are. This should not be encouraged, especially within the context of a single market like the United States or the European Union.

5. Conclusion

The points above highlight the risk that a court-based approach to solving the three key categories of repair barriers risks being ineffective and inaccessible to consumers. Significant cases like Kodak and Tatum show an unwillingness of the courts to engage with right-to-repair claims, precluding the court as an effective option for consumers. Further, even if the courts were open to right-to-repair and supported a solution to the problem, this would take a lot of

time and money to argue, and consumer rights would end up existing within complex legal judgements, which are notoriously inaccessible to laypersons. This all strongly indicates that a court-based approach to right-to-repair would not provide an effective response to right-to- repair issues. This aligns with the experience and direction of groups like the Repair Association which advocates for a legislative response to electronics repairability.¹²⁴

B. Amending Existing Legislation

The second potential solution for right-to-repair issues would be to use existing legislation that touches on similar issues, expanding it to cover manufacturer's strategies as much as possible. This is often a desirable and effective response as legal problems rarely evolve in a total vacuum, meaning some existing law touches on the problem in some way. Where some existing law touches on a new problem, amending the existing legislation allows for a simple and low- cost solution to the problem and avoids a completely new and complex specific legislative response. An added benefit of amending existing legislation is that citizens are often familiar with existing laws so said amendments are more accessible and intuitive. A good example of this is expanding existing non-smoking laws to cover vapes as New Zealand did with the Smokefree Environments and Regulated Products (Vaping) Amendments Act 2020. This amendment was simpler than making new legislation as cigarettes and vapes are materially similar and easily regulated under the same existing framework. Citizens who know the law surrounding cigarettes are then largely aware of the law surrounding vapes. This approach loses appeal when the problem being solved does not align well with existing laws, such that an amendment may not fully connect with the issue being regulated, or where the issue being regulated is more complex than existing frameworks allow for and would require several different amendments to be made to more than one piece of legislation. In such circumstances amending existing legislation quickly becomes a more costly and complex solution than creating a single piece of new specific legislation. For the reasons that follow, the right-to- repair is one of these circumstances justifying specific legislation over amending existing legislation.

1. Effectiveness

The first and most severe argument against using the existing law to cover right-to-repair issues is that, unlike a new specific law response, the existing law was not designed with right-to- repair in mind. This risks leading to a blunter, one-size response to right-to-repair that is not particularly effective in addressing all the issues at play. Repair barriers are complex issues that touch on several different areas of the law and do not always align well with existing laws. Simply amending existing legislation risks not properly connecting with the causes and harms that underly right-to-repair, leaving gaps or overregulating the issue. A good example of this is the argument that warranty laws could be expanded to cover manufacturers designing products to be less repairable. It highlights the disconnect between existing laws expansion and the true issues at play in the right-to-repair.

An expansion to warranty law is proposed as the simplest response to OEMs designing products to have lower-than-desired lifespans.¹²⁵ Expanding warranty laws to increase the minimum duration that OEMs must guarantee their electronic devices is a cheap and simple way to force manufacturers to ensure that their products last longer without the creation of complex new legislation. This would aid the consumer by delivering them products that are legally guaranteed to last longer than they currently are, but beyond this would do little more to solve the real root of product design repair barriers and may place too high of a burden on the manufacturer. Simply expanding warranty laws would not prevent the main manufacturer strategy that causes harm, the design of products to be more difficult or impossible to repair. It would be of limited use in solving the underlying issue. Product repair is being made more difficult than necessary which drives up the cost of repair. A significant number of consumer electronics repair is done out of warranty, upwards of half of all repairs for some product categories.¹²⁶ For these consumers, those who accidentally dropped their device or have no longer got warranty coverage, there will be no benefit. Even consumers who can access warranty repair will suffer increased delays due to the devices still inflated repair difficulty. AS well as this, simply expanding product warranties may hold manufacturers to inappropriate and unrealistic standards. Electronic products have a natural end of life. ¹²⁷ Not all device components can be guaranteed forever. Certain parts, such as lithium-ion battery cells are only good for a few years of regular use before needing to be replaced. While warranties can increase, manufacturers may not be able to guarantee that all the components in their devices are capable

¹²⁵ Above at n 55, at 534.

¹²⁶ “Share of appliances under warranty that were brought to a professional in France in 2019” (2019) Statistica

<https://www.statista.com/statistics/1293578/warranty-rate-appliances-repair-france/>.

of lasting as long as these warranties may require them to. Batteries for example can only last a certain number of charge cycles.¹²⁸ Forcing the manufacturer to increase the lifetime of a battery would require them to minimize the amount of times it needs to be charged. If electronic device warranties were to increase beyond current battery lifespans, manufacturers would have to find a way to increase their product battery lifespan. This could prevent manufacturers from using components that trade power consumption, and therefore battery lifespan, for performance, like brighter and higher resolution screens. This would directly harm consumer's interest in devices that have these features. It would make more sense not to guarantee that the components will last longer than is natural but to ensure that they are easy to replace when they inevitably and expectably fail. This would allow manufacturers to provide consumers with features that they demand while also delivering longer device lifetimes by allowing for easy battery replacements, benefitting all consumers, in and out of warranty. These issues highlight the lack of connection between simply expanding existing warranty laws and the issue of product design. An effective solution to this problem would be better achieved by legislation that was designed with this issue in mind, and not through warranty law expansion. Given this, it is unsurprising that specific legislation has been the preferable solution to the issue of product design.¹²⁹ One proposed solution is to enact a specific regulatory scheme that requires more disclosure about product lifespan and durability to consumers, giving them the information they need to stay protected from devices of low durability without forcing manufacturers to increase their device's durability.¹³⁰

2. Non-universal and complex

As discussed above in the context of a court-based approach, harmony in the right-to-repair response is desirable to prevent unnecessary complexity for consumers and manufacturers. Amending existing legislation to cover right-to-repair issues will require different amendments to be made to many different statutes across different states or nations. This is a considerable undertaking and risks the same undesirable complex and non-universal application seen in the court-based solution.

¹²⁸ “How to Prolong Lithium-based Batteries” Battery University <https://batteryuniversity.com/article/bu-808- how-to-prolong-lithium-based-batteries>.

¹²⁹ Above at n 55, at 534.

¹³⁰ At 534–535.

Different states and nations have different laws on the same issues, such as warranties and consumer protection. These different pieces of legislation all have different structures and means of achieving similar purposes or outcomes. To amend all of these different legislations to allow for the right-to-repair would be a monumental undertaking. Each bill would require a slightly different amendment to produce the same or similar results, which would inevitably still have some degree of differences, ultimately risking differences between consumers' rights and OEM's obligations. Carrying on with the example of expanding warranty laws, United States warranty law is governed by both the federal Magnusson-Moss Warranty Act, and states own individual warranty laws.¹³¹ To achieve a somewhat consistent approach to right-to-repair here, consistent amendments would need to be made to all different state legislations, as well as any required changes to federal law. This would be a significant undertaking and risks OEMs right-to-repair obligations varying by state. Amending a large amount of varied legislation consistently would be an incredibly complex task, especially when we consider just how many amendments may need to be made across different legislation to enable the right-to-repair to exist within existing legislation. Given the size and complexity involved in this response, specific legislation at the federal or union level would be a simpler and more desirable approach to the issue.

3. Conclusion

While amending existing legislation is a great and cost-effective solution for smaller issues, it is unlikely to be an appropriate solution for a complex and wide-reaching issue like right-to- repair. Expansions to existing legislation are unlikely to appropriately respond to repair barriers the original legislation was not designed to address. Further, amending the law across all different states or nations in the United States and European Union to allow for right-to-repair would require a significant undertaking that is much better suited to new specific legislation at the federal or union level.

C. Specific Legislative Response

Creating specific legislation to respond to product repairability is an expensive and time- consuming option, but if done well can be effective in solving any product repairability issues

¹³¹ Magnusson Moss Warranty Act 15 U.S.C. §§ 2301–2312.

without the problems of the previous two solutions. It has been highlighted as a more preferable approach than its alternatives to solving issues such as product design.¹³² Unlike expanding current legislation or going to the courts, new specific legislation can be designed with the issues of right-to-repair in mind, rather than trying to expand to cover it. Done right it can appropriately take into account all relevant considerations, such as the differences between products and the complexity of determining what a repair barrier is or is not. We see this in the success of the Massachusetts auto right-to-repair law, an effective and easy-to-amend piece of legislation that effectively dealt with the issue at hand.¹³³ Specific legislation if implemented at the federal or union level, and not the state or national level, can provide a single and effective piece of legislation that is easy for the consumer to access when they need to find their rights regarding repair, avoiding the risks of a complex and inaccessible solution posed by the alternatives. It is clear that a specific legislative response if enacted properly, is a more desirable avenue for regulating the three key barriers to repair. It is both a more accessible and effective solution than its alternatives. Given this, it is unsurprising that specific legislation has been the preferred emerging response.

¹³² Above at n 55, at 534.

¹³³ Above at n 4.

Chapter IV Emerging Legislative Responses in the United States and European Union

The previous three chapters have discussed three key categories of repair barriers and the arguments for and against their regulation. They have established that the law would be justified in responding to these issues and established that specific legislation is likely to be the most desirable response to them. The United States and the European Union have followed this approach, and each has taken different approaches to its implementation. Given the impact these responses will have on their corresponding markets and their potential influence over other nations, it is important to consider the strengths and weaknesses of these differing approaches. To that end, this chapter will discuss the emerging specific legislation and highlight the pros and cons of each as well as the differences between the two approaches with some notes on how they might be improved.

A. United States Emerging Legislation

The United States' response to right-to-repair is simpler than the European Union’s approach. It is a series of emerging state-level right-to-repair bills that use the Repair Association's model legislation as a template.¹³⁴ As most state legislatures have kept consistent with this template's core provisions it will be the main focus of this section rather than individual state bills.¹³⁵ The model legislation is a simple framework for a state-level right-to-repair law focused on access to key inputs, but not the other two key barriers. Its purpose is to restore competition to the repair aftermarket, and unlike the European Union approach, it is focused solely on the right- to-repair. The legislation provides that the manufacturer of digital electronic equipment must make key inputs available to independent repairers and device owners on fair and reasonable terms.¹³⁶ The legislation also expressly states that the legislation does not require the OEM to divulge trade secrets.¹³⁷

¹³⁴ Above at n 2.

¹³⁵ Above at n 3, at 76.

¹³⁶ Massachusetts Right to Repair Act (2012) § 3(a).

¹³⁷ § 5(a).

1. Simplicity

The simple model legislative approach has several benefits over a more complex solution. First, the legislation is incredibly simple. Adopting the template legislation into law is cheap and easy and carries little risk of conflicting with existing legislation given its narrow scope. This is true for both the states seeking to implement this kind of law, but also other nations who seek to follow the same approach, which enables easy international uptake and therefore harmony between nation's laws on key inputs accessibility. This sort of harmony is valuable in the globalised economy as it simplifies manufacturer's obligations between markets, allowing for easier flow of products between nations. This simplicity is also valuable in the context of nations like the United States which are unlikely to view a more intrusive solution as legitimate, preferring a market with minimal regulation.

2. Focused only on key inputs

Next, while this approach only focuses on one of the three key categories of repair barrier, key inputs is the most significant. Giving consumers and independent repairers access to key inputs less onerous on manufacturers than design requirements and will significantly increase competition in the repair aftermarket for electronics, to the direct benefits of consumers and independent repair. Access to key inputs would provide more available, time-efficient and cost- effective repair.¹³⁸ Not placing further burdens on OEMs by regulating other repair barriers may also lower the risk that manufacturers switch to undesirable strategies to offset their increased costs or recoup lost profits. This also has its downsides. The model legislation does not provide solutions to the issue of product design or consumer awareness. This omits several important right-to-repair issues which are still able to significantly hinder the consumer repair of electronics even though key inputs are available. Such an intrusive response may again not be possible in the United States.

3. Ineffective

¹³⁸ Above at n 5, at 38–40; Above at n 76, at 157.

a state-level response to right-to-repair risks being ineffective in the United States where it conflicts with federal law.¹³⁹ The model state legislation, by providing access to key inputs, implicates both copyright law and patent law, both of which are exclusively in the federal jurisdiction.¹⁴⁰ This means that insofar as the model legislation conflicts with these laws, it will be ineffective as state law cannot trump federal law. This creates a real risk that these laws will not be effectively implemented.¹⁴¹ Counterarguments exist to these concerns, however, holding that federal copyright laws will not pre-empt right-to-repair laws if they are considered to be consumer protection bills, which is often the case.¹⁴²

Further concerns exist that the terms used in the legislation, such as fair and reasonable, are unclear and will be difficult to apply in practice.¹⁴³ It may be difficult for manufacturers to determine what constitutes fair and reasonable terms for the supply of key inputs to third parties and consumers given that there is not currently an open market for them. Without an open market to rely on the gauge or set prices, the manufacturer is left with wide discretion to decide what these terms mean.¹⁴⁴ This presents a risk that OEMs will use this discretion to set high prices for key inputs, though this could be challenged where thought abusive.

4. State-by-state implementation

The model legislation is being implemented in a state-by-state fashion which risks differences between different states' laws. While most proposed bills are consistent with the model legislation core provisions this is not true for all bills and risks resulting in different rights and obligations in different states. ¹⁴⁵ This again risks creating uncertainty for consumers and OEMs through varying rights and obligations across different areas. This also increases the cost of implementing the right-to-repair in the United States as it requires the passing of fifty individual state bills. To address these issues the United States could implement a federal level bill on similar terms to the existing template legislation which would apply to all states equally.

B. European Union Emerging Legislation

¹³⁹ Above at n 3, at 81–83.

¹⁴⁰ Above at n 3, at 81–82.

¹⁴¹ At 81.

¹⁴² Above n 6, at 518 and 540.

¹⁴³ Above at n 32, at 339.

¹⁴⁴ At 339.

¹⁴⁵ Above n 3, at 76.

The European Union’s response to right-to-repair forms a part of its Circular Economy Action Plan (CEAP), which itself is based on the Union's Green Deal and focuses on transitioning the European Union to a greener and more circular economy.¹⁴⁶ The CEAP intends in part to empower consumers with information and rights surrounding product lifespan and repairability.¹⁴⁷ Following these goals, the European Union has planned to adopt a new specific legislative response to the sustainability and repairability of products on its internal market, including electronic goods, through a total revision of the effective and existing eco-design framework with an expanded scope and further provisions.¹⁴⁸ This revision is known as the Eco-design for Sustainable Products Regulation (ESPR). The ESPR is a Union-level piece of legislation that will apply universally to all nations in the European Union and provides for the European Union’s emerging solutions to the three key repair barriers. Unlike the United States approach, it is not solely focused on giving consumers a right-to-repair; instead, it is more focused on environmental protection. Given this, only some of the provisions of the ESPR are relevant to this dissertation as being related to product repair issues, with the rest falling outside of its scope. It intends to reduce the negative environmental impacts of products and ensure a level playing field on the internal market, among other things.¹⁴⁹ It also protects the rights to environmental protection and consumer protection, which are fundamental rights under the European Union Charter of Fundamental Rights.¹⁵⁰

This section will first explain the key articles and mechanisms of the ESPR that relate to the three key repair barriers. It will discuss how these mechanisms work to solve these barriers before discussing some pros and cons of the European Union’s approach.

1. Eco-design for Sustainable Products Regulation

The ESPR provides a framework for the creation of delegated legislation (regulations) known as eco-design requirements. Eco-design requirements can be made for specific products, or groups of products that are materially similar, such as smartphones or tablets. They can provide product design requirements, performance requirements, or information requirements.¹⁵¹ They

¹⁴⁶ Above at n 82.

¹⁴⁷ Circular Economy Action Plan, s 2.2.

¹⁴⁸ European Commission Proposal for Ecodesign Requirements for Sustainable Products and repealing Directive 2009/125/EC, at 6. (ESPR).

¹⁴⁹ At 1.

will be made by a newly established expert group, the Ecodesign Forum, who will meet with representatives of all interested parties.¹⁵² They are intended to apply only to products that are not yet regulated by other legislation. ¹⁵³ Eco-design requirements must also not cause significant negative impacts on the consumer or the producer, such as less functional devices, increased device costs, or harm to the competitiveness of economic actors.¹⁵⁴ Only product design and information requirements are relevant for this dissertation, with performance requirements not going to product repairability. Together, these two requirements and the three mechanisms set out for them in the ESPR provide solutions for many of the three key categories of repair barriers.

First, eco-design regulations may provide for product resign requirements for, among other things, product durability, reliability, repairability and the possibility of device maintenance and refurbishment.¹⁵⁵ These regulations can be of broad scope, including rules about what techniques can and cannot be used when making products, the standardization of components, and the availability of spare parts as necessary. These requirements may take many forms, such as provisions that cell phones must be held together by screws and not excessive glue, or that manufacturers make certain spare parts available to consumers and for a certain duration after their sale.¹⁵⁶ This allows for the creation of product-specific rules that apply to the entire EU to prevent current manufacturer strategies that create repair barriers through product design and the withholding of spare parts.

Next, eco-design regulations may provide information requirements for products, such as details on how to maintain and repair the product, or information for the consumer on its overall ease of repairability. This information can be required to be displayed in many ways, on the product or its packaging, in a user manual, or contained in the newly created product passports or product labels.¹⁵⁷ Information requirements will vary by product or product group. Product passports are provided for in Chapter III of the ESPR and will take different forms depending on context.¹⁵⁸ They are intended to be a physical marker on products that consumers and repairers can use to get easy access to information about the product, such as its repairability, how to recycle the device and where to get spare parts. The information on these passports is

¹⁵² ESPR art 17.

¹⁵³ ESPR page 2.

¹⁵⁴ ESPR art 5.

¹⁵⁵ ESPR art 5.

¹⁵⁶ Right to Repair (European Parliamentary Research Service, PE 698.869, January 2022) at 4.

¹⁵⁷ ESPR art 7.

¹⁵⁸ ESPR ch III.

to be stored on a commission-maintained registry rather than by producers.¹⁵⁹ Product labels are provided for in Chapter IV of the ESPR, being labels on product packaging that will contain some of the information requirements in a manner that makes them clear to consumers before purchasing the product. ¹⁶⁰ Providing information in this simplified and accessible way decreases the risks that it will be ignored by the consumer.¹⁶¹ These informational requirements can provide the consumer and independent repairers with information about product design and repairability, as well as give them access to repair documentation. This directly aids consumer's awareness about product durability, making them harder to take advantage of, and provides them with further key repair inputs in the form of repair manuals and diagnostic information.

Together, design requirements and informational requirements can give consumers access to better-designed products, more awareness, and all the key inputs they require to fix their devices. This accounts for all three of the key categories of repair barriers.

2. Pros and cons of the European Union approach

The European Union’s approach to right-to-repair has several strong benefits. First, the ESPR design and informational requirements can address all three key repair barriers directly. They can regulate OEM's ability to design products to be less repairable or durable and give consumers and independent repairers access to key inputs and the information they need to make more informed purchasing decisions. This could significantly and effectively address the harms being caused by the manufacturer's current strategies. Next, ESPR regulations are made on a product-by-product basis, taking into account the differences between various product groups and ensuring that regulations are tailored to suit them. This avoids concerns that the response will be one-size-fits-all and unrealistic and ensures that the regulations for each different product group can be effective by having clear and specific rules intended for that exact product.¹⁶² Next, the regulations will be made by an expert body through consultation with interested parties such as OEMs. These parties are much more likely to understand the complexities of product manufacture and what conduct truly amounts to a repair barrier, better ensuring the regulations will only apply to conduct that is truly harmful. Further, unlike the

¹⁵⁹ ESPR art 12.

¹⁶⁰ ESPR ch IV.

¹⁶¹ Above at n 55, at 539.

¹⁶² Above at n 31.

United States approach, the ESPR regulations are made at the Union level. This means they apply to all nations in the Union, ensuring a universal application of the rules and standards and therefore consistent rights and obligations for OEMs and consumers alike. The creation of positive regulations is also likely to be accessible to all who need to rely on them. Consumers or OEMs seeking their rights or obligations concerning a certain type of product simply have to look to its designated bill to determine the rules specified.

This complex approach also presents some significant downsides. First, such a complex and complete regulatory response can quickly be seen by many as overregulation and inappropriate intervention in the free market. Such regulation is more common in the European Union but would gather little support from a nation like the United States which values market forces over market regulation. This is especially the case concerning product design requirements, which are incredibly onerous on manufacturers and are arguably just as well solved through less intrusive means such as product repairability labelling, which entices but does not force, OEMs to design more repairable products.¹⁶³ Further, creating regulations for every different product or product group is a significant undertaking that will have a high time and economic cost. This cost combined with the concerns of overregulation may not be attractive to many nations seeking to implement a right-to-repair response and may drive them towards alternatives, such as the United States' more simple legislation. This complexity will also make it difficult for international trade with the European Union. Companies outside of the European Union will need to comply with the regulations set within the Union if they want their products to be sold on the internal market, this could be severely unattractive to businesses, who may simply stop selling goods to the European Union rather than complying. Next, given that regulations will be made for different product types or groups individually there is a risk that consumers' rights about certain products will vary unnaturally from their rights regarding other products, such as having access to spare parts for phones but not for tablets. Consumers may assume that similar rules apply to their electronic devices and differences in regulation may only serve to confuse them. Given these regulations are being made under a complex framework by an expert body this concern is low. Further, unlike the United States approach, eco-design regulations can account for all repair barriers but do not have to. Eco-design regulations can be made for products without giving consumers access to some or any key inputs, though there is a strong presumption that key information will be supplied spare parts may not be. This risks depriving

¹⁶³ Thorin Klosowski “What you should know about Right to Repair” The New York Times Wirecutter (online ed, New York, 15 July 2021).

consumers of access to key inputs which would significantly hinder their ability to repair their devices.

3. Conclusion

The European Union’s eco-design framework is a complex but effective solution to product repairability issues. It contains the necessary expertise and safeguards to ensure that regulations properly connect with the manufacturer's strategies and do not create negative outcomes for consumers. Given the wide scope under which regulations can be made, there is a risk that eco- design regulations will not all contain solutions for all product repairability issues, but this is yet to be seen. Creating new regulations for every different product or product category on the market is a significant undertaking and is not as easy to implement in other nations as a simpler bill like the United States model legislation, but if done is much more effective.

C. Conclusion

The right-to-repair movement has highlighted significant and real harms being done by electronics manufacturers' current strategies to hinder independent product repair. This drives up the cost of device ownership by inflating the cost of device maintenance and repair. Manufacturer’s explanations for these strategies are unsubstantiated and manufacturers accept that preventing these strategies would lead to cheaper and more effective repairs for the consumer. Manufacturers are directly taking advantage of their imbalanced power and information in the market and consumers, the environment and society as a whole ought to be protected from this. Solving product repairability is a complex task that touches on several different areas of the law. Previous attempts at a solution in the courts have been unsuccessful and unappealing, while potential solutions amending existing legislation appear little better. The complexity and lack of solutions elsewhere indicates that the right-to-repair is best suited to a specific legislative response.

Implementing such a response, the United States and the European Union are on two different ends of the spectrum. The United States has followed a simple and effective approach that provides consumers access to competitive repair services through the availability of key inputs for repair. It is effective and simple to implement either within the United States or by other nations seeking to adopt right-to-repair legislation. Conversely, the European Union has chosen

to create a monolithic regulatory framework to effectively deal with the manufacture of every different type and category of product on the internal market. Such a complex and costly solution, while undeniably effective, is unlikely to catch on in other parts of the world and can easily be seen as overregulation. Both approaches have their strengths and weaknesses but are effective steps in a promising direction: Giving the consumer a right to repair their devices.

Bibliography

A Cases

1. United States

Alcatel USA v DGI Technologies [1999] USCA5 155; 166 F.3d 772 (1999).

Digital Equipment Corporation v Unique Digital Tech [1996] USCA7 45; 73 F.3d 756 (7th Cir. 1996).

Eastman Kodak Co v Image Technical Services [1992] USSC 73; 504 US 451 (1992).

Tatum v Chrysler Group Civil Action 10-4269 (ES)(CLW) (D.N.J 2011).

2. European Union

CEAHR v Commission Case T-712/14 (2017) ECLI:EU:T:2017:748.

Info-Lab/Ricoh Case No IV/E 2/36.431 (1999) COMP/C-3/39.391 EFIM.

Pelikan/Kyocera, Case No IV/34.330 (1995).

Synstar Computer Service (UK) Ltd v ICL (Sorbus) Limited and International Computers Limited [2001] UKCLR 585.

B Legislation

1. United States

Massachusetts Right to Repair Act Ch 368 (2012).

Magnusson Moss Warranty Act 15 U.S.C. Sherman Act 15 U.S.C.

C Books and chapters in books

Brian W. Harvey, Deborah L. Parry, The Law of Consumer Protection and Fair Trading (4^th ed, Butterworths, London, 1992).

Goldring, Maher, McKeough, Pearson Consumer Protection Law (5^th Ed, The Federation Press, Australia, 1998).

D Journal articles

Aaron Perzanowski “Consumer Perceptions of the Right to Repair” (2021) 69 Ind. L.J. 361.

Chen Jin, Luyi Yang, Cungen Zhu “Right to Repair: Pricing, Welfare, and Environmental Implications” (2022) 69 Management Science 1017.

Daniel Moore “You Gotta Fight for your Right to Repair: The Digital Millenium Copyright Act’s Effect on Right-to-Repair Legislation” (2019) 6 Tex A&M L. Rev 509 at 509.

David A.J, Goldfine, Kenneth M. Vorrasi “The fall of the kodak aftermarket doctrine: dying a slow death in the lower courts” (2004) 72 Antitrust L.J. 209.

Jared A. Mark “Realizing a New Right: The Right to Repair at the Federal Stage” (2021) 23

N.C. J.L. & Tech. 382.

Jeremy Bulow “An Economic Theory of Planned Obsolescence” (1989) 101 Q. J. Econ 729. John J. Voortman “Curbing Aftermarket Monopolization” (1993) 19 J. Leg 155.

Larry A. DiMatteo, Stefan Wrbka “Planned Obsolescence and Consumer Protection: The Unregulated Extended Warranty and Service Contract Industry” (2019) 38 JLPP 483.

Leah Chan Grinvald, Ofer Tur-Sinai “Intellectual property Law and the Right to Repair” (2019) 88 FLR 63. [at 3]

Leah Chan Grinvald, Ofer Tur-Sinai “The Right to Repair: Perspectives from the United States” (2020) 31 AIPJ 98.

Marissa MacAneney “If it is broken, you should not fix it: The Threat Fair Repair Legislation Poses to the Manufacturer and the Consumer” (2018) 92 St. John’s L. Rev. 331.

Markus Krajewski “The great lightbulb conspiracy” (2014) 51 IEEE Spectrum 56.

Michael Saidani, Alicia Kim, Madeline Kim “The Right-to-Repair Movement and Sustainable Design Implications: A Focus on Three Industrial Sectors” (2023) 3 ICED23 3464.

William Lucy “Access to Justice and the Rule of Law” (2020) 40 OJLS 377 at 377.

E Parliamentary and Government materials

European Commission “Right to repair: Making repair easier for consumers” (press release, 22 March 2023).

European Commission A new Circular Economy Action Plan (11 March 2020) Com(2020) 98 final.

European Commission Proposal for Ecodesign Requirements for Sustainable Products and repealing Directive 2009/125/EC.

European Parliament “Right to repair: MEPs want more durable and more easily repairable products” (press release, 7 April 2022).

F Reports

Carlos Montalvo, David Peck, Elmer Rietveld A longer lifetime for Products: Benefits for consumers and companies (European Parliament, IP/A/IMCO/2015-11, June 2016).

Daniel A. Hanley, Claire Kelloway, Sandeep Vaheesan Fixing America: Breaking Manufacturers’ Aftermarket Monopoly and Restoring Consumers’ Right to Repair (Open Markets, April 2020).

M Moeslinger, K Almasy, M Jamard, H De Maupeou Towards an Effective Right to Repair

for Electronics (Publications Office of the European Union, EUR 31167 EN, 5 August 2022) at 38.

Maciej Bukowski, Tomasz Kaczor Contribution to Growth: Consumer Protection (European Parliament, PE 638.396, May 2019).

Nixing the Fix: An FTC Report to Congress on Repair Restrictions (Federal Trade Commission of the United States, May 2021) at 17. [at 5]

Right to Repair (European Parliamentary Research Service, PE 698.869, January 2022). Software-Enabled Consumer Products (United States Copyright Office, December 2016) at 11.

G Internet Materials

“A European Green Deal” European Commission <https://commission.europa.eu/strategy- and-policy/priorities-2019-2024/european-green-deal_en>.

“An EU Repair Clause – A Missing Piece Of The Rights To Repair” (September 2023) BEUC

<https://www.beuc.eu/sites/default/files/publications/BEUC-X-2023- 077_POSITION_PAPER_design_directive_2023.pdf> at 3.

“How to Prolong Lithium-based Batteries” Battery University

<https://batteryuniversity.com/article/bu-808-how-to-prolong-lithium-based-batteries>. “Legislation" Repair.org <https://www.repair.org/legislation>.

“Our Mission and History" Repair.org <https://www.repair.org/history>.

“Preventing Fire and/or Explosion Injury from Small and Wearable Lithium Battery Powered Devices” (20 June 2019) Occupational Safety and Health Administration

<https://www.osha.gov/sites/default/files/publications/shib011819.pdf>.

“Share of appliances under warranty that were brought to a professional in France in 2019” (2019) Statistica <https://www.statista.com/statistics/1293578/warranty-rate-appliances- repair-france/>.

“The Antitrust Laws” Federal Trade Commission <https://www.ftc.gov/advice- guidance/competition-guidance/guide-antitrust-laws/antitrust-laws>.

Alex Diaz-Kokaisl “Samsung Galaxy S21 Battery Replacement” (5 March 2023) IFixit

<https://www.iFixit.com/Guide/Samsung+Galaxy+S21+Battery+Replacement/148741>.

Alex Reinauer “Two Wrongs Don’t Make a Right to Repair” (1 March 2023) Competitive Enterprise Institute <https://cei.org/studies/two-wrongs-dont-make-a-right-to-repair/>.

Annette Mutschler-Siebert, M. Jur (Oxon), Francesco Carloni “EU general court upholds luxury-brand restrictions on supply of spare parts” (27 October 2017) K&L Gates

<https://www.klgates.com/EU-General-Court-Upholds-Luxury-brand-Restrictions-on- Supply-of-Spare-Parts-10-26-2017>.

Bryan Cave, Leighton Paisner “Competition/antitrust challenges in technology aftermarkets” (5 March 2015) Bryan Cave <https://www.lexology.com/library/detail.aspx?g=d4728967- 31cc-497c-a426-d6f089cc4ffe>.

Elizabeth Chamberlain “What is Right to Repair?” (9 June 2022) IFixit

<https://www.iFixit.com/News/61140/what-is-right-to-repair>.

Kevin Purdy “Apple Is Using France’s New Repairability Scoring – Here’s How It Works” (1 March 2021) IFixit <https://www.iFixit.com/News/49158/france-gave-apple-some- repairability-homework-lets-grade-it>.

Kyle Wiens “We Are Retroactively Dropping the IPhone’s Repairability Score” (19 September 2023) IFixit <https://www.iFixit.com/News/82493/we-are-retroactively-dropping- the-iphones-repairability-score-en>.

Lauren Greenlee “Why Electronics Rely on Glue – And Why They Shouldn’t” (10 August 2022) IFixit <https://www.iFixit.com/News/63249/why-electronics-rely-on-glue>.

Manuel Haeussermann “Google Pixel Watch Repair” (13 October 2022) IFixit

<https://www.iFixit.com/Device/Google_Pixel_Watch>.

Martin Lueken “Defining Market Failure (with Examples)” (24 May 2018) Edchoice

<https://www.edchoice.org/engage/defining-market-failure-with-examples/>.

Ron Amadeo “Google says it can’t fix Pixel Watches, please just buy a new one” (16 September 2023) ArsTechnica <https://arstechnica.com/gadgets/2023/09/11-months-after- launch-googles-pixel-watch-still-has-no-path-to-repair/>.

Sam Goldheart “Apple’s New AirPods Are Telling Users to Replace the Batteries Already. Too Bad That’s Impossible” (5 October 2022) IFixit

<https://www.iFixit.com/News/66194/apples-new-airpods-are-telling-users-to-replace-the- batteries-already-too-bad-thats-impossible>.

Tobias Isakeit “iPhone 14 Battery Replacement” (25 September 2023) IFixit

<https://www.iFixit.com/Guide/iPhone+14+Battery+Replacement/152966>.

H Other Resources

Kyle Wiens “Using copyright to keep repair manuals secret undermines circular economy”

The Guardian (online ed, England, 20 December 2013).

Thorin Klosowski “What you should know about Right to Repair” The New York Times Wirecutter (online ed, New York, 15 July 2021).