California Gov. Gavin Newsom signed the most expansive and most important electronics right to repair law in the country Tuesday, in a move that will make fixing our things easier. It is an undeniable, major win for a grassroots consumer rights movement that has been making slow but steady progress over the last several years, but now that right to repair is the law of the land in California, are companies going to make it the norm across the country? According to a tech industry lobbyist, right to repair experts, and the industry’s response to previous right to repair laws, probably not.
The industry is already pushing for something called a “Memorandum of Understanding,” which is what companies do when they want to create something that looks like a law, but is not a law. If they don’t get their way, they might try challenging the law in court.
Many people were surprised and suspicious when Apple ultimately supported the California legislation, which they had spent years and millions of dollars lobbying against. The thought was that there must be a catch (and there is). We’ll get to what Apple, specifically, is doing in a minute. But in the immediate aftermath of this huge win, the electronics industry as a whole is thinking about how it can continue to fight against right to repair.
Walter Alcorn, a high profile lobbyist the Consumer Technology Association, which represents thousands of electronics manufacturers and which has been one of the most vocal opponents of right to repair legislation, told me at a conference last month that he thought the right to repair issue could play out “in the courts,” which seemed to be a suggestion that the industry could sue to attempt to block the law from going into place. California’s law is set to go into force July 1, 2024.
After Massachusetts passed a right to repair law for cars, major auto manufacturers sued the state. The resulting lawsuit has been in litigation for three years, and has become something of a mess, with various federal agencies weighing in and hundreds of documents being filed in the ensuing back-and-forth. The feds finally said that law could be enforced in August, but the lawsuit is ongoing.
I followed up with Alcorn after the conference to ask specifically what he meant when I spoke to him. He said that his organization has been asking right to repair advocates to sign what’s known as a Memorandum of Understanding (MOU), which is basically a cease-fire agreement where two sides agree to certain stipulations, and both sides basically stop trying to push for new laws.
“Memorandums of Understanding,” Not Laws
By signing a national MOU, manufacturers are trying to prevent a situation where they have to comply with, theoretically, 50 different laws in 50 different states. Alcorn said he is pushing for something similar for electronics: “On the national MOU we continue to offer a national agreement that would be based on the digital repair laws in 2, and soon to be 3, states,” he said. “We have had some initial discussions and I hope they continue. A patchwork of 10 or 15 or 20 different state laws will be a bonanza for attorneys and would turn what should be a dynamic, innovative repair industry into a compliance market where lawyers drive the decisions. I truly hope we can avoid that, and that is the focus of our current efforts, not lawsuits.”
There is a long history of MOUs in the repair world, and, generally speaking, they all seem to eventually favor big corporations.
After Massachusetts passed a 2013 law, automakers signed a national MOU that basically allowed that law to become national legislation (automakers agreed to comply with the Massachusetts law throughout the nation). This basically worked for a little while, until car manufacturers began to invent new ways of preventing repairs that were not covered by the MOU and which are the current subject of the 2020 lawsuit in Massachusetts. There, too, car manufacturers have signed a new MOU that they claim negates the need for legislation; actual car repair pros say the new MOU is “inadequate” and that they are not party to it.
John Deere and the agriculture industry, meanwhile, have signed a series of MOUs with lobbying groups that represent farmers that are nominally designed to make it easier for them to repair tractors. But Deere originally didn’t comply with its first promise, which was not technically an MOU but a bilateral “Statement of Principles,” between Deere’s dealers and the California Farm Bureau. A later MOU signed earlier this year between Deere and the American Farm Bureau Federation has a little more teeth but can become null and void if any state passes any law that is stronger than the MOU. As an anecdote for how this is going in practice, a farmer sent me a Signal message last weekend in the middle of the night to see if I could tell him where to find software that would allow him to “install and/or update corner post lights circuit board on 2008 John Deere 9870 combine … so hard to get help from John Deere without sacrificing first born lol.”
This is to say that voluntary MOUs are almost always less good than laws, which, you know, have the force of law behind them and penalties for not complying with them.
After nearly a decade of reporting on this issue, I generally understand what MOUs are and why they exist. I don’t necessarily fault any group for signing an MOU, and I understand why corporations push for them. But they’re also a sad and blatant reminder of how “the law” and “regulations,” broadly speaking, actually works in the United States, and how little of it actually has anything to do with regular people, their elected leaders, or … the law.
With electronics right to repair, the largest corporations of the world collectively spent millions of dollars paying lobbyists to explain to lawmakers why they should vote against or otherwise kill legislation that is overwhelmingly popular with the general public. Eventually, after years of this and many, many failed bills, lawmakers finally became brave enough to vote for right to repair legislation and to turn it into law. In California, the law only passed after Apple itself, the largest company in the world and largest most powerful company based in the state, formally gave the law its blessing.
Now that the law is passed, these same lobbyists who, again, represent the most powerful companies on Earth and, again have lost, are vociferously pushing for something that is not a law to govern right to repair in the rest of the United States. The leverage they are using here is the idea that, if an agreement is not reached, there will be a “bonanza for attorneys” or this will otherwise end up in the courts, as though this is something that can magically and passively happen without an affirmative act from the companies controlling these attorneys and which have more money than God.
Any MOU would presumably be signed between a right to repair advocacy group and some industry group like CTA. Right to repair advocacy groups (Repair.org is the biggest one) are also lobbyists, but they are often made up of a couple people and largely represents the interests of consumers and of independent repair shops, of which there are many but which are mostly small businesses of, at most, a few people. This is to say that I think right to repair advocacy groups are fighting for the right thing on behalf of regular people and small businesses, and have worked tirelessly against great odds to get laws passed. But they also aren’t lawmakers.
"We have always believed that, especially given how many manufacturers are out there, a real right to repair requires the force of law.”
On this point, it’s important to note that manufacturers can sign an MOU with anyone, and then claim that they have given the people what they want. It is not that unusual for two groups that are essentially on the same side of an issue to sign an MOU and then say that they have settled some longstanding beef in the name of the people. When I told Tommy Hickey, a car right-to-repair advocate in Massachusetts who was instrumental in passing the 2020 law there that automakers had signed a new MOU with a group called the Automotive Services Association, he didn’t initially know what I was talking about. After reading it, he told me: “Oh of course they back an MOU that has no penalty and is based off of 2013 MOU that doesn't help the aftermarket! We do NOT support the MOU with the manufacturers and ASA because frankly it doesn't do anything to advance right to repair.”
It is understandable why groups that represent the interests of small businesses and the general public do sign MOUs sometimes, though. One of the most powerful tactics big companies and their lobbyists use is bogging down legislation in the courts years, which delays the law being implemented and is enormously costly. MOUs can prevent that outcome, and advocates on the right to repair side of things say that they are always willing to talk about MOUs but haven’t decided if it’s the right path forward.
Nathan Proctor, senior director of US PIRG’s Campaign for the Right to Repair, a group that has been pushing for repair laws around the country, told me “ultimately, we want people to be able to fix stuff. We have always believed that, especially given how many manufacturers are out there, a real right to repair requires the force of law.”
“Looking forward, we are open to dialog with manufacturers, and are willing to talk. We have a lot of questions and concerns about how a negotiated approach would work. Whether that approach makes the most sense still need to be worked through,” he added. “For example, there are other types of repair restrictions, such as part pairing, which have not been addressed and are critical to people being able to fix stuff. We just want to best way to fix the problem of unfixable stuff, and will take whatever approach seems most likely to work.”
Parts Pairing and DRM
I wanted to talk to Alcorn originally because, during a panel discussion at the conference, he seemed out-of-step with representatives from Google, Samsung, and Motorola, who all more-or-less said they were prepared to comply with California’s right to repair legislation. Alcorn, meanwhile, said that there is a “culture clash” between repair professionals and electronics manufacturers.
“We have very different worldviews from a manufacturer’s perspective. These are companies that are the most well-respected brands on the planet,” Alcorn said, adding that they make products that are mass produced at a very high quality. “On the repair side—very different culture. Opportunistic culture, a culture that is based on some very practical creativity, and dealing with what shows up and figuring out what to do. That’s very very difficult. And so it’s been a little bit of a culture clash figuring out how those connect … I think where we need to end up is somehow finding a space where there are systems in place so that repair can be done responsibly by whoever is interested and is willing to figure out how to do it.”
He added there’s a “conflict with this new legislative mandate” in that “manufacturers have been told over and over and over again, you have to be responsible for your product that you put on the market …all of a sudden with these repair laws, it’s the exact opposite. It’s, ‘OK, open up, anybody who asked you for this stuff, go ahead, take it.’ That’s a little far. That’s a little hard for manufacturers.”
So, at this point, it’s not clear what happens next. Earlier I mentioned I would try to explain why Apple finally supported the California right to repair law. I believe that Apple was pulled kicking and screaming to this point by angry consumers, suspicious lawmakers, and a fight that had dragged on for years in dozens of different states. At the same time, as repair advocate Louis Rossmann, tech rights expert Cory Doctorow, organizations like iFixit, and Proctor have pointed out, Apple has found a new way to restrict repair, by “pairing” parts with specific phones. This means, for example, that an iPhone screen from one phone will not work if you put it on another phone, unless Apple recalibrates that part. This is a software, not a hardware limitation. I’ve written about this a handful of times, but it is essentially DRM for repair parts.
It is possible that Apple and other big manufacturers believe that by supporting right to repair laws as currently written, their practices won’t actually be affected that much because they can just move toward a system where parts are artificially paired with individual devices (it is not clear, exactly, how the California law will deal with the parts pairing issue).
They can also say that they “support repair,” push for a national MOU, and hope that no other state decides to enact a more forceful law. They can even try, like Deere did, to make the MOU unenforceable if a state tries to pass something stronger. Smaller manufacturers might not be able to pair their parts, and so perhaps they will try through larger lobbying organizations to hamper or bog down the legislation in the courts.
Either or both of these outcomes are possible. But the right to repair movement has made serious progress over the years and has forced manufacturers to play defense all over the country. Now is not the time to stop pushing.