Are Contracts Fair, or Feudal?

Are Contracts Fair, or Feudal?

According to Law Professor Josh Fairfield of Washington and Lee University, corporate oligarchs—such as Apple, John Deere, and CISCO—have taken back enough property rights of ownership to qualify as Feudal Lords. Peasants (meaning, all of us) no longer own equipment in the traditional sense. We merely rent it from the Lord. Fairfield's analogy, discussed in Owned Property, Privacy and the New Digital Serfdom, is perfect. 

July 9 -- Day Against DRM

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Join us in talking about DRM with fellow organizations at DayAgainstDRM.org and Twitter: #DayAgainstDRM

DRM is the single most effective roadblock that manufacturers have deployed to prevent a flourishing independent repair market. Even when Fair Repair statutes are passed in states, DRM will still prevent owners from making any alterations to the software embedded in the products they rely on—which thwarts repair, reuse, and innovation.

If owners want to ensure their Right to Repair, they need to fight the spread of DRM in the products they own.

DRM is sometimes known Digital Rights Management and sometimes called Digital Restrictions Management. But when you boil it down, DRM is a software lock designed by companies to tie the hands of owners. Such locks were originally deployed to lock down content—like books, movies, and games. But DRM locks have spread past the world of creative content; they are now common on equipment that has no connection to media content at all.

DRM is used to prevent owners of refrigerators from replacing thermostats. DRM blocks tractor owners from resetting ignition timing on farm equipment. DRM prevents independent technicians from applying essential firmware patches and fixes on spare parts that were sitting in storage. Why? Because the companies who made those products want to keep control of how you use and repair their products—even after you’ve purchased them.

Worse, US copyright law gives companies carte blanche to sue people who break DRM. The only legal way around digital locks is to ask the Copyright Office for permission to circumvent them on certain products, and then only for certain applications. And you’re only allowed to ask permission to do this once every three years.

So, that’s exactly what we’ve done. Every three years, we beg the Copyright Office to give us permission to unlock our own property so we can repair broken stuff. We file the same requests over and over: one request to unlock a mobile phone, another request to unlock an iPod, a different request to unlock a tablet—even though the differences between those devices are technically trivial. Each time we appear before the Copyright Office, we remind them that these locks are monopolistic tactics used to prevent repair and resale. They don’t benefit consumers, and they don’t protect creative work.

This year, the US Copyright Office came to the same conclusion. They have recommended that Congress reform Copyright Law to permanently exempt repair and maintenance from copyright law (except for gaming equipment, for some reason). The timing of these recommendations is particularly exciting, because the EU Parliament just voted strongly (662 to 32) in favor of enabling repair and reuse by removing limitations, such as DRM.

Getting rid of DRM that inhibits repair is possible through Congress. Big Content is going to fight hard and we have to be prepared to fight even harder to make sure that rules designed for the VCR-era do not continue to thwart repair and reuse into the future.

For more information from supporting organizations visit DayAgainstDRM.org

Twitter: #DayAgainstDRM

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.

Read the rest on Wired.com.

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 Repair.org 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.