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. 

 

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. 

Repair.org and iFixit file formal comments with US Copyright Office

The US Copyright Office has been tasked by Congress to report on how copyright law is interfering with ordinary use, repair, and maintenance of purchased equipment. They have been holding hearings (which we attended) and asked for comments due October 27.  

Our comments were crafted with superb pro-bono support from IP attorney Luis Villa.

It's easy reading and worth the effort.  Download the PDF here. 

 

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.

 

 

American Equipment Dealers (AEM) fights Fair Repair in Nebraska

Nebraska Farm Bureau  (NEFB) hosted a balanced discussion of Right to Repair on September 23, 2016.   Kyle Wiens of iFixit and Gay Gordon-Byrne of Repair.org talked openly with AEM 's Natalie Higgins and Iowa-Nebraska Dealers Association's Will Rogers about the need and utility of Fair Repair for high-tech Agriculture.  

(Click here to watch the youtube)  Highlights will be posted with time stamps shortly. 

At about the same time, AEM Executive Advisor Magazine, September Issue, put forward their written series of concerns about so-called Right to Repair Bills in Nebraska and elsewhere.. This piece lacks the balance of the webinar and promotes the themes that a) Right to Repair is unnecessary, b) the market for repair of heavy equipment is very different from that of cars, c) only dealerships are suitably trained and d) dealerships invest heavily in training.  

Our view is that the types of detailed information necessary for repair are not consistently available, that the market for repair of electronics is converged regardless of the shape of the product, and that lack of training availability is deliberate to prevent competition.   Click here to read details of our position on points raised by AEM. 

 

The Onion takes up Right to Repair

The best form of flattery is parody.  Couldn't be happier to see Right to Repair get the attention of The Onion. 

Comments: 

“I’m flattered that Apple thinks I might have what it takes to repair my own phone.”

Ricky Mundt GROUNDHOG DISPLACER

 

“I’m sick of a paternalistic government trying to save us time and money by advocating for our autonomy.”

Selina Dabney CUPCAKE CRITIC

 

“Just trust Apple on this one. In a few years, those garbage heaps will be thinner and sleeker than ever.”

James Jaeger FABRIC HISTORIAN

Pro-Repair Victory in Minnesota

We won our first legislative victory today in Minnesota when the Environment and Energy Committee held an official hearing and unanimously approving moving our repair bill to their next step towards passage. The bill moves now to the Commerce Committee for their consideration. 

Filed as S. F. 3227, the bill requires manufacturers to make reuse more practical by providing access to documentation, schematics, diagnostics, tools, firmware and service parts. These are the same requirements included in last year’s Fair Repair Bill, which never even got a hearing.   

As S.F. 3227 moves to Commerce, there will be additional opportunities for improvements and amendments. Your voices are crucial.  If you don’t fight for your vision of repair-friendly policy, legislators won’t fight for you.  We can’t write for you—all we can do it make it easy. Write, call, or tweet your legislators and tell them you want S.F. 3227 passed.

Minnesota residents can also contact their representatives by sending an email in support of the bill here.

Update: Fair Repair in Nebraska

Update: Fair Repair in Nebraska

In January, Senator Ken Haar introduced a Fair Repair Bill (LB1072), which would require manufacturers to share diagnostic software and repair information with owners and independent repair technicians. Fair Repair principles are critical in the heartlands of Nebraska—where farmers and ranchers often have little other choice for their farm equipment but expensive dealership repairs.