How a Supreme Court Ruling on Printer Ink Bolstered Your Right to Repair

THERE'S A REASON everyone hates printers. They break, jam, and always run out of cyan ink—which, inexplicably, also breaks them. Even when they work, toner costs so much you have to give up avocado toast for a month to buy more. As Matthew Inman, one of the great poets of his time, famously said: "Either printer ink is made from unicorn blood or we're all getting screwed."

Impression Products wanted to make toner a bit cheaper by refilling Lexmark printer cartridges. Lexmark of course hated that and sued. The fight dragged on for years, and made it all the way to the US Supreme Court. This week, the highest court in the land ruled against Lexmark. You may consider this an insignificant tussle over printer toner, but this important ruling clears the way for small businesses to fix your stuff—even without the manufacturer's permission.

As an added bonus, it should also help bring printer cartridge costs down. Good news for those of you who still print out Supreme Court decisions.

Impression v. Lexmark

Lexmark sells two kinds of cartridges: an expensive, reusable model; and a less expensive, single-use one. The only mechanical difference? The cheap cartridge features a chip that disables the damn thing once you refill it. Lexmark also made consumers sign a "post-sale restriction" contract stipulating that only Lexmark could collect, refill, and resell them.

Of course, people found a way around those constraints. Third-party companies collected cartridges and disabled the chip. Impression Products, a small, family-run office supply company in West Virginia, started selling refilled cartridges for less than Lexmark charged. Lexmark sued for patent infringement in 2013. Impressions CEO Eric Smith was baffled by the letters he received from Lexmark's attorneys. The way he saw it, his company was simply selling refurbished printer cartridges, and Lexmark had no right to control cartridges after selling them.

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As originally published in WIRED June 1, 2017.

Advamed, Phillips, and Medtronic fight for the right to monopolize

A bill filed just a few weeks ago in Congress, H.R. 2118 is yet another attempt by medical equipment OEMS to avoid competition from independent repair.  This bill asks that independent repair businesses register with the FDA, follow the same regulations as those of OEMs, including record keeping and reporting of all patient injuries of deaths.  The text of the bill and filed testimony is available online at this link

The purpose is ostensibly to reduce the potential for patients to be harmed by incomplete or incompetent repair, and to force independents to suffer the same irritation of being regulated as manufacturers.   OK on the surface -- no one wants patients to be hurt.  

Lets assume that patients are being hurt, and that poor quality repairs may have been a contributing factor.  Is there a trend?  Does the data suggest that certain product categories have a higher incidence of repair-related injuries or infections?  Since all hospitals and care facilities are already required to report all injuries and deaths to the FDA, how is it that the FDA hasn't already taken action?  If independent repairs were a chronic cause of patient harm - why on earth would any facility continue to do business with that vendor? 

As it turns out - the FDA has been studying exactly these questions for over a year, and it is not the FDA that is proposing new regulations, but medical device manufacturers.  These are the same companies that have been making repair, even by hospital personnel, impossible. We're also hearing the same arguments made in opposition to Fair Repair legislation, so the discussion is timely. 

Some background on the FDA/CMS and regulations is necessary. Manufacturers are regulated by the FDA because the FDA approves their products for use - including confirming safety of use and subsequent error correction.  This is similar to the role of the EPA and NHSTA regulations for motor vehicles.  When problems are reported to the regulators, usually in some pattern, the regulators do their jobs and require recalls.  

Only the OEM can fix defects of design or manufacturing - which the FDA might appropriately require.  Under federal regulations, no one is supposed to modify or tinker with approved products without filing as a manufacturer and going through the approval process.  Makes sense. 

OEMS proclaim that they only want repair providers to be subject to the same rules -- which sounds reasonable until one realizes that repair is a wholly separate business from manufacturing.  OEMS are manufacturers first, and not all of them even engage in the business of repair.  Repair businesses are not manufacturers -- and if they were the registration requirement is already in place.  It is illegal under anti-trust law for manufacturers to tie the two businesses together -- as dramatically proven in April with GE having been found to be a repair monopolist in federal court. 

Repair is simply restoration of broken equipment to service and is not, in the context of medical equipment, tinkering or customization.  Even when the US Copyright Office permits tinkering, the FDA/CMS does not.  FDA rules still apply. 

Nor is the business of technology repair the same business as sterilization or preparation for invasive procedures.  Some service providers may offer those services as well, but the technology parts will have been repaired and then evaluated by hospital technology managers before being used.  We're limiting our discussion to repair and not further processing. 

There may well be shoddy repairs being made and the industry would benefit from an ethics process such as that already provided by member IAMERS.  The fact is that users have total control of which vendors they select, what types of SLAs they request, the types of technician skills and services they require and ultimately the power of the purchase order to change providers.   Bad vendors do not stay in business in a competitive marketplace. 

All we want is the opportunity to compete. 


Fine Whines from Lobbyists, As Expected

Fine Whines from Lobbyists, As Expected

Other than Apple, most tech OEMs have chosen to use their control of trade associations to hire lobbyists in opposition. These hired guns aren't tech savvy—and neither is their audience. The result is incredibly thin arguments based on Fear, Uncertainty, and Doubt (what I like to call, FUD), rather than Fact.  

This has never surprised us. Frankly—there aren't any good arguments for repair monopolies or for unfair and deceptive contracts. Our legislation isn't even directed at technology, it's directed at contracts, which in the case of tech products are often unfair.

US Copyright Office - Embedded Software Report to Congress

US Copyright Office - Embedded Software Report to Congress

On December 15, the US Copyright Office issued their report to Congress on the subject of Software Enabled Consumer Products.  They didn't solve any problems, were often contradictory, and punted a lot of issues.  However, they were very clear on an important point to us -- that most issues currently limiting repair, reuse and tinkering are not copyright infringement, but are the result of End User License Agreements (EULA) that remove rights already granted. 

Apple Touch Disease and Right to Repair

What does Touch Disease have to do with Right to Repair? Quite a lot, as it turns out.

Touch Disease is a problem of premature aging.  It’s the result of a design decision to make the iPhone 6 and, especially, the 6 Plus more flexible.

The two phone models are simply too flexible—so over time small cracks develop in the soldered connections. The cracks deepen and separate more over time. Each crack disables more and more of the phone’s touch functionality.

Every one of these phones was “born” with Touch Disease. It’s only a matter of time before they all show symptoms and premature death. The only solution is to replace the bad chips, restore the soldered connections, and reinforce the phone’s structure. It’s possible to fix these phones and it is being done— but not by Apple.

Apple won’t make these repairs in house. They won’t provide any schematics or service documentation to independents willing to take on these repairs. They won’t subcontract repairs to techs that have already mastered these repairs. In fact, Apple won’t even acknowledge Touch Disease as an issue. The only solution Apple has for owners of afflicted phones: “Buy a New Phone” or pay $329 for a refurbed unit. 

Here’s where it gets nasty for customers. Apple refurb phones aren’t fixed—they are swapped with diseased units that haven’t yet shown symptoms. But, of course, many replacements start showing symptoms quickly. In fact, some users report that their replacement units showed symptoms of Touch Disease right out of the box. No surprise class action lawsuits have been filed on behalf of users.

Here's the cool part: Only independent repair techs have been able to offer a fix because some of them can have the skills and equipment to microsolder. It was independents that discovered how widespread the issue was on their own, they came up with best practices for fixing it on their own, and they even developed some hardware tweaks to prevent the issue from reoccurring. On their own. 

 That's why we need independents in the repair business. Independents can innovate in different ways than the OEM. Innovations in repair are hindered, intentionally, by companies such as Apple that refuse to provide the basic schematic diagrams that would improve repair success and improve customer satisfaction. Apple goes so far as to fight against Right to Repair legislation to preserve their monopoly on repair—even when they aren’t capable of making the repair themselves.