What The Fix: Winning the War on Repair with Aaron Perzanowski (Complete Interview)

For our first episode we welcome Aaron Perzanowski, author of The Right to Repair: Reclaiming the Things We Own.

The subtleties of U.S. intellectual property and antitrust law don’t strike everyone (ourselves included) as a particularly energizing topic. After a reading of Right to Repair: Reclaiming the Things We Own, by Law professor Aaron Perzanowski, and a conversation with the author, however, we’re converts.

We first met Perzanowski when he published his book, The End of Ownership where he unpacks the changing role of property in the digital economy – and how corporations use intellectual property (in some less than savory ways) to expand their power in the marketplace. We recently sat down with him to discuss his latest book, where he makes a compelling case about why repair is an important issue for everyone (lawyers or otherwise).

Everything we buy wears down with time, from toasters to televisions, and to stop the cycle of trashing the things we buy, repair is essential. Whether you are legally barred from repairing your own things, or your iPhone’s design keeps you from even thinking about fixing it yourself, there are countless stumbling blocks keeping us from embracing repair.

The path forward, according to Perzanowski, is reclaiming a  “culture of repair” and moving back to a society that values repair. But the path to how we got to our current state - one in which manufacturers are antagonistic toward owner and independent repair- didn’t happen by accident. In reality, much of the present day state of repair can be traced back to larger changes in the legal landscape. Three especially important pieces of that legal puzzle include intellectual property law, antitrust policy, and consumer law. Trends in these areas of the law converged over time in such a way that has shifted power into the hands of corporations and away from consumers, opening the door to constrained service and repair ecosystems that generate higher profits by limiting choice and imposing higher costs on consumers and the economy as a whole. Agricultural equipment maker John Deere is the sterling example of this, and farmers’ lawsuits against the company have cited the statistic that its equipment repair business is now three- to six times more profitable than its equipment sales business.

The Right to Repair by Aaron Perzanowski

Culturally, things are changing. The right to repair movement is gaining steam and grassroots Fixit Clinics and Repair Cafes are popping up across the country. But Perzanowski makes it clear that no amount of individual action or repair cafés will be able to solve the biggest problem of all: forcing large-scale changes to the law. If we are going to swing power back to people and hold companies accountable in prioritizing repair, the law is the place to start. 

You can buy the book The Right to Repair: Reclaiming the Things We Own wherever you get your books. We recommend Bookshop.org (where proceeds benefit local bookstores) if you’re buying online or directly supporting a local bookstore near you.

Transcript

[00:00:05.890] - Paul Roberts

Hey, everybody, and welcome to What The Fix?! This is our inaugural episode of the What The Fix?! Podcast. This is a podcast focused on repair, the right to repair, circular economy, sustainability, you name it. I am your host, Paul Roberts.

[00:00:26.270] - Jack Monahan

And I'm Jack Monahan.

[00:00:28.410] - Paul Roberts

We're here talking to you about repair, the right to repair, circular economy, sustainability, all the issues around Right to repair. Jack and I maintain the Fight to Repair Substack newsletter. And I'm the founder of Secure Repairs, which is an organization of information technology and information security professionals that support Right to repair. And What The Fix?! is the podcast Jack and I both kind of talked about because we were following the right to repair issue and realized that the issue was kind of spreading out. There's just so much going on on the periphery of Right to Repair. There are so many other issues wrapped up in it. And we thought, you know what? This is ripe for a podcast. This is the type of topic that really deserves its own show. And so that's what this is. And so we're going to be coming to you every couple of weeks. And we are going to be talking about the news of the week, the repair news of the week, and also featuring interviews. We've done a bunch of interviews with really prominent figures in the right to repair movement or in related areas. And we're going to be bringing those to you.

[00:01:43.910] - Paul Roberts

So we're really looking forward to it. And we hope that you sign up and subscribe. This is going to be coming to you in your podcast platform of choice. And if you're a Fight to Repair newsletter subscriber, you'll be getting information about it. We're also going to be introducing some premium content around the podcast, access to special content and so on that will be attached to the Fight to Repair Substack. So if you're not signed up for that, not subscribed to that, please do so. And we'll have a link in the podcast for subscribing. Jack, how are you doing?

[00:02:22.970] - Jack Monahan

Feeling good! Ready to kick us off.

[00:02:24.520] - Paul Roberts

Yeah, absolutely. So the format we're doing, we're going to just start off by talking about some of the news of the week. And Jack and I have both been texting back and forth furiously and going over the news from our Fight to Repair daily newsletter that Jack and I put out every week. And we should probably have a link to subscribe to that, too. And picking out the stories that seem to us to be the most important of the week. And we're going to talk about them. We're going to break them out. So, Jack, I'm going to toss the ball to you. Why don't you start? What's your first story of the week?

[00:03:00.950] - Jack Monahan

So there's a piece written earlier this year that was about a company called SecondSight, which gave people brain implants to allow them to see. And the company shut down and left people literally in the dark. They couldn't see it. And they had lied on this equipment for years and years. And the company just threw up its hands at a certain point when they were shutting down. And so people are understandably, very upset. And it's calling into question what is the responsibility of a business that is impacting the quality of life of someone that heavily? And so this piece is essentially talking about the role of the Food and Drug Administration, the FDA, in regulating medical devices. And so right now there is some compliance and liability associated with medical devices, things like when you need to get approval for a medical device, you have to go through the FDA and there is some liability if you stop providing service or something goes wrong. Like companies and business owners of those companies can be held accountable. But right now they're arguing that regulators aren't really doing much.

[00:04:20.960] - Paul Roberts

It's really similar to issues that we see with much lower stakes. Right. Like the famous one recently was the Sonos speakers, where they decided to sort of end of life, some of their connected smart speakers, some of which people had maybe just bought recently within the last six months, same type of thing, end of life for this product line. We're not going to be supporting it anymore. And so it's basically going to get bricked because we're shutting down the servers that it relies on. And people were outraged. And the company kind of backtracked. There was another one about one of these little talking interactive robots. Right.

[00:05:01.470] Jack Monahan

Jibo!

[00:05:02.230] - Paul Roberts

Jibo, where there are all these videos, really sad videos of, like, Jibo dying as they weaned it off the software updates and it could do some stuff without the real time connection to their servers, but not much. And this is just a real issue, which is with software, connected devices right? When the company decides to walk away from maintaining the services that the connected device relies on, what happens? It really highlights this hardware versus software. What exactly do you own? Like, yeah, you own Jibo, but Jibo without the software and the services is basically just a paper weight.

[00:05:44.430] - Jack Monahan

There isn't much motivation for the FDA, for example, to do anything because they're not feeling pressure. So I definitely agree with the authors of this piece that we need to pressure the government to actually do something because otherwise these companies are going to continue to - they're okay shutting off these services. They're okay with not having people be able to repair these things that vastly improve their quality of life.

[00:06:07.240] - Paul Roberts

Yeah. In this case, if I remember, there was a lot about just the financial health of the company that made these. And there were all these efforts to kind of get the company bought by another company and that fell through, which is like, listen, this is the way business works, right? Not all these companies end up viable, but when you're making a product that's implanted in somebody's body and you decide to stop supporting that product. It's not like it's a dishwasher - 1

[00:06:32.670] - Jack Monahan

Well, they make the mention of cochlear implants from the 1980s, they can be upgraded. And they've been upgraded ever since, and they were designed with that in mind. But now that's changed.

[00:06:47.020] - Paul Roberts

Right. Which is a change in business culture, not a change in technology. Interesting. Okay, so my first story is and we'll have links to that in the show notes. My first story is regarding the hearing last week in Nebraska regarding an agricultural right to repair bill that was proposed in the Nebraska legislature that actually made it through committee and to a floor vote, which if you've been following right to repair is in and of itself a huge accomplishment. Many times these right to repair bills are killed in committee through concerted lobbying by, in this case, John Deere and the John Deere dealerships and the agricultural equipment industry. So this one made it through to a vote by the Nebraska Senate. Nebraska, I think has a unicameral legislature, and it died. It died not because there wasn't support for it, but because of a familiar villain to anyone who is a fan of progressive politics, which is the filibuster. There was a small handful of senators who basically filibustered and forced there to be just never ending debate on this. And they couldn't muster the votes to end debate. And so the legislation basically died.

[00:08:15.140] - Paul Roberts

They ran out of time. They made a decision not to bring it back up for more debate, and that was that. So on the one hand, a victory for right to repair and getting it to a floor vote. And I think folks who back right to repair are encouraged by that. On the other hand, the end of the day, same outcome, which is the interests opposed to agricultural right to repair bills were successful in killing off this legislation, at least for this year. So a couple of things that I wanted to talk about. One was that we are seeing sort of more focused right to repair bills in a bunch of States. There's the agricultural right to repair bill in a bunch of States, Florida, Nebraska, Maryland. And we're seeing a wheelchair right to repair bill in Colorado. So in some of these States, folks are saying, listen, if we can't agree on a broad spectrum right to repair, which we need, let's at least get this done for this really narrowly focused problem. And agriculture been so much written about John Deere and just the terrible situation that farmers are in trying to maintain especially late model John Deere equipment, which has all these sensors – the sensors go down – you need to have the John Deere dealership come out and punch in a code. And it's expensive and time consuming and all this other stuff.

[00:09:36.430] Jack Monahan

I think what I want to talk about is I watched that hearing and it made me want to pull my hair out. At the end of the day, what really strikes me is just all the bad faith arguments that the opponents of these bills make, that. Right to repair really is an issue with broad public support. The folks you hear opposing it are basically folks who either have a financial interest, they're representing the manufacturers, or they are John Deere dealers. And they just put forward all these arguments that on the face of them, on their face just are not true or don't make any sense. A big one is "John Deere is going to be responsible if farmers with this new right to repair, you're giving them modify the environmental or pollution controls on their equipment." Like, just not true, right?

[00:10:31.120] - Jack Monahan

Yeah, exactly.

[00:10:31.980] - Paul Roberts

The other thing they kept bringing up was like Teslas. And you had a bunch of senators saying things like, well, it's not like "you can't just bring your Tesla to an independent repair shop. Right?" Which is just untrue. Like, there are independent Tesla repair shops, and there's actually a whole community of people online who are Tesla owners who have YouTube channels and stuff all about modifying and repairing and servicing your own Tesla. It's like a huge community of people who are working on their own Teslas. And it's just like, can somebody do a Google search here? That's all we're asking. Before you get up there with your lobbyist talking points, do a fact check. Is any of the stuff you're about to say on the floor of the Nebraska Legislature actually true? And it's a little frustrating. It gives me hope that the facts are kind of on our side, but it is frustrating. It is frustrating.

[00:11:27.400] - Jack Monahan

Yeah. So my next story is about a lot of the things we've been seeing popping up out of the EU recently. So the EU passed its green deal in, I want to say, 2019. They adopted a new circular economy action plan in 2020. It was kind of like an update. And we've been seeing a lot of repair focused pieces come out of it in, like, the past two years. So first and foremost was a piece of it was either directive or legislation that was about sustainable battery usage and basically making batteries swappable stuff to do with supply chain stuff like that. And that was two years ago. And then in the past year, we've seen two kind of major directives. One is the sustainable product directive, which is essentially making sure that companies are getting out information on durability/repairability, kind of akin to the French repair index, but not necessarily a ranking system. And it also includes, like a digital product passport. So I would think, like a QR code that you could scan. And it would be like, here's where you can get this fixed, or like, her e is the schematic, something like that. It's pretty high level. At this point, but implementation will definitely make things a little bit clearer.

[00:12:38.980] - Jack Monahan

And then the last is they're creating a greenwashing blacklist.

[00:12:41.770] - Paul Roberts

Which I love,

[00:12:43.130] - Jack Monahan

which is trying to hold companies accountable if they lie about their environmental practices and essentially having to substantiate any environmental claims that they have. And so the ideas hold them accountable. But I'm kind of gleaning from this is – specifically around repair in the EU I'm seeing a lot of consumer focused stuff, like information is key, consumers will decide. And to a degree, I do think more information is power, but I also think that and this is probably capturing some more of the green deal in Europe's policy proposals, but kind of taking on corporations in a way that isn't happening already. I think consumer directed stuff is a piece of puzzle, but it's not whole thing.

[00:13:30.640] - Paul Roberts

I mean, what's really interesting is just how much progress has been made in the EU versus the US on some of these issues around repair/repairability. And that includes state level action like France and their repair index. And I think there is an EU version of that that's kind of working its way to becoming real. But France kind of jumped out in front with that, but then also just at the "federal level" in the EU, through the European Commission and so on, just a lot of really interesting new rules and regulations about this coming down. And obviously, you've seen a lot of – FairFone as well – a lot of innovation around repairability, circular economy. They're way ahead of the United States on circular economy concepts and really trying to operationalize circular economy principles. I feel like in the US, you just don't hear many people talking about that. And on the repair issues as well, they've been able to not perfect, but they've been able to implement some basic right to repair protections around home appliances and electronics that we have not been able to get done, not only at the federal level in the US, but the state level.

[00:15:01.450] - Paul Roberts

And why is that? I've had people sort of say there's a lot more support for civil society organizations in the EU than there is here. So there are more better funded organizations pushing for this at a grassroots level and then in the US.

[00:15:19.510] - Paul Roberts

But I'm a little jealous.

[00:15:24.370] - Jack Monahan

I guess, when it comes to that. It's like, take your pick.

[00:15:27.040] - Paul Roberts

There's a thousand different reasons. No, you're you're right. Right. It's not one thing. It's a lot of things, but encouraging for those of us who support right to repair, but also makes you sort of think like, okay, what do we need to do to actually get this done here at home?

[00:15:45.200] - Paul Roberts

My second story is so I was kind of torn on this because there's a lot going on this week. And in fact, I wanted to talk about, for example, and I'm going to kind of sneak in two stories here really. I want to talk about the Google Pixel news with iFixit, right? That I Fix It has announced a deal with Google, just like they announced a deal a couple of weeks ago with Samsung to provide replacement parts for Google Pixel phones that allow owners to maintain and repair their own Google Pixel phones. They did a similar deal with Samsung again a couple of weeks ago. So I Fix It kind of the organization, the company that really has promoted right to repair not only here but in the EU, is now actually really working with manufacturers to realize this, which is amazing, because usually it's like you have enemy camps and you don't talk to each other.

[00:16:39.520] - Paul Roberts

But in here, it's actually there have been bridges built to some of these large OEMs to sort of say, okay, let's do this. That is huge. But actually I wanted to talk about I think the even bigger story is one that actually came out and I'm bringing up because there was a really interesting kind of analysis of it that we included in one of our recent repair roundups on Apple. Two things: so first of all, the deals with Google and Samsung have shown the spotlight on Apple because they announced, of course, to a lot of fanfare that they were going to be supporting users ability to fix their own iPhones and selling replacement parts and so on and so forth back.

[00:17:24.080] - Jack Monahan

And now they're getting dunked on.

[00:17:25.770] - Paul Roberts

Now they're getting dunked on. So these other companies have come up with announcements that are actually a lot more filled in in terms of how this is going to work, particularly with the deal with iFixit, which Apple didn't do, at least not yet. And then also that has because of those Google and Samsung announcements, there's been this sort of like, hey, so what's going on with your program, Apple? You announced it back in November. You said you'd have more information soon, but it's still radio silence from Apple on the specifics of their user repair program and how it's going to work. So there's that and then there's this news that came out in Bloomberg last month that actually Apple, while it is sort of saying, yeah, we're going to allow people to fix their own phones, maybe shifting as a company to a subscription model for their phones and iPads and so on. Moving away from selling hardware to people to basically leasing hardware to people. Just adopting an entirely different model for ownership, which won't be ownership. You'll be a tenant. This has really big implications for right to repair.

[00:18:38.850] - Paul Roberts

Because if you don't own the phone hardware, arguably you don't have a right to repair it. It's Apples to repair. Just like when you lease an automobile. Right? Like you don't bring it to an independent garage, you bring it back to the dealership that you leased it from and they do the repair and service that's part of the attraction for many people. You don't have to worry about the thing breaking down because it's all covered. Though the cost to you leasing versus owning if you were to, again, thinking about a car, if you amortize that out over ten years, it's cheaper to own it. Right. Because eventually you pay off the car, whereas at least is going to be just a monthly cost regardless of the age of the car. And I'm guessing the same will be true with the iPhone and the iPads. On the one hand, I think this is a much more honest way of doing business than what Apple is doing now, which is kind of selling you the phone, but then treating it like actually they own the phone and you don't have any control over it. On the other hand, I do worry about consumers, because if we're moving to a model where nobody buys hardware anymore, we all just lease our dishwasher and lease our phone and lease our laptop. That's actually a much more expensive world for people.

Like back in the day when you used to pay AT&T for the phone hardware. Right. You kind of lease the phone. Those costs add up over time. And so that could be anti consumer. But there's also a part of me that's like, well, if companies like Apple moved to this lease model and other companies are going to be able to make money by saying, well, we'll sell you the phone and you can actually own the phone, and that's going to be cheaper over the long run. Right. And that becomes a competitive advantage for companies that are willing to actually let you own the thing. So it's a much more honest conversation in some way than the one we're having now. And so in general, I think it's a good thing. But I do worry.

[00:20:48.830] - Jack Monahan

I'm curious to see if it sticks for one and two becomes the norm for other companies because Apple is a trendsetter in the space.

[00:20:57.960] - Paul Roberts

Arguably, you kind of like already do. They already are kind of leasing you your phone. Because if you think about how most people are obtaining their iPhone or whatever, it's via, a Verizon or at and T, you're getting it for them and paying for it over three years or whatever it is you're paying, however much a month, $20 or $30 a month. But before that lease is up, they're already pushing new hardware on you. And so that lease rolls into another or that contract rolls into another contract with a new piece of hardware.

[00:21:37.510] - Paul Roberts

And so those payments kind of never go away. Right. It's just that in theory and for many people, eventually you actually do pay off the hardware. You have the option of not upgrading and just fully owning the hardware, and then those payments go away. But you can sort of see that for most people, if you're one of those people who's out there, you bought the phone before you paid for it. You've already upgraded and rolled into a new contract. Those monthly payments never go away for you. Practically. That lease agreement might not feel very different from what you're already doing. Right?

[00:22:16.470] - Paul Roberts

But for repair, it's a big issue because, of course, again, if you don't own it, you don't necessarily have a right to repair it. But I'm not sure that Apple actually fessing up and saying, yeah, okay. Actually, our business model is we don't really want you to own the hardware. We want to own the hardware. That's just a more honest conversation. And it makes the choices clearer for consumers than what's happening now. Same thing with John Deere. Maybe John Deere wants to go this route.

[00:22:43.450] - Paul Roberts

You know what? Screw it – we'll just lease you your tractor. But if you're going to lease a tractor, you're not going to be able to charge people a million dollars for it or $500,000 for it. So do the prices start to reflect the fact that I actually don't own this hardware? You own the hardware. I'm just a tenant.

[00:23:03.930] - Jack Monahan

I think this is a fantastic segue into our interview because we interviewed Aaron Perzanowski, who has authored a book called The Right to Repair, which is covering the history and policy and legal aspects of Right to Repair. But he also wrote a book called The End of Ownership, which covers a lot of stuff around this, which is around ownership, subscription models, the connection of digital transformation to ownership, stuff like that.

[00:23:33.020] - Paul Roberts

Yeah. End of Ownership really came out a few years ago before this Right to Repair issue had really consolidated or taken shape. This new book really kind of digs deep on the right to repair issue in particular. Aaron is a professor at Case Western University School of Law. So he's a legal scholar. He's an expert on kind of intellectual property and contract and many of the issues that kind of play into Right to Repair. So we got Aaron on the line and had a great conversation with him, both about the book and about some of the larger issues surrounding Right to Repair. And that's what we're going to bring you in our second segment. So without further Ado, let's hear from Aaron.

[00:24:32.830] - Paul Roberts

This is incredibly timely. You've got a new book coming out, the title, this is a repair focused podcast. You've got a book coming out called The Right to Repair. And this is, as Kyle Wiens that I fixed. It said basically required reading for anybody who's interested in the issue of Right to Repair. It's actually not your first kind of swing at these issues. You've got another book called The End of Ownership that also kind of touched on some of these issues. But tell us just a little bit about Right to Repair as a book and how you came to decide to do a whole book on this topic?

[00:25:20.590] - Aaron Perzanowski

Yeah, it's a really great question. And you're right. I mean, my interest in the repair movement does grow out of an older set of themes in my work, in my research. So Jason Schultz and I wrote this book called The End of Ownership that was looking at a set of questions about what does it mean to own something in the digital economy, not just digital media, although that's a big focus of the book, but also what does it mean when software and network connections are embedded in all sorts of the physical devices and appliances that we all rely on every day in our lives? And so we thought about those issues for a number of years, and we wrote this book, and we touched on some of the concerns around repair. But after that book came out in I think, 2016, I started to feel like there's a lot more to say specifically about the set of questions in the center of the right to repair debate. And so I wanted to sort of make a book length treatment of those issues because there's a lot going on in this space. I come to this with a background as a lawyer and a legal academic with a focus on intellectual property law.

[00:26:46.290] - Aaron Perzanowski

And so I talk a lot in the book about copyrights and patents and design patents and all those sorts of IP regimes. But it also involves issues around antitrust law, around consumer protection law, concerns about the environment, concerns about economics. All of these things, I think, really required a sort of like, deep and thoughtful effort to kind of construct a narrative that shows why repair is important, why repair is under threat, and what we can actually do about it, both through the law and through other sorts of interventions.

[00:27:23.970] - Paul Roberts

So when we're talking about the right to repair or a right to repair, what are we really talking about from the legal perspective?

[00:27:34.510] - Aaron Perzanowski

So I think that the terminology here has both sort of like a narrow and a much broader meaning. So I think in the narrow sense, often when people talk about the right to repair, they have in mind a specific set of legal interventions. So as you know, over the past handful of years, we've seen right to repair bills introduced in state legislatures all around the country. I think last year we were up to 27 States that considered these bills. And what those bills do is that they require manufacturers to make parts, software, and information available to consumers and to independent repair shops so that they can engage in repair. So I think in the narrow sense, that's the very specific thing that we're talking about in the repair context. I think about it in somewhat broader terms. Those bills, I think, are really important and incredibly supportive of them, and they address a real problem. But there's a lot more going on here. I think than those bills alone can really solve. So one way to think about the right to repair more broadly is by focusing on all of the kind of impediments that are created that interfere with our ability to repair things.

[00:28:54.770] - Aaron Perzanowski

Those could be assertions of design, patent protection. Those could be software locks that keep people out of their devices. And in some ways, they can be the very design of the device itself that is interfering with repair. And so I think the more kind of holistic approach recognizes all of those various ways in which firms can interfere with repair and recognizes that we need to have legal solutions, marketplace solutions, and just sort of shifts in our behaviors as consumers that kind of address each of those sets of problems.

[00:29:38.900] - Paul Roberts

I mean, it's interesting. I sort of see the problems that we have now as kind of a product of a lot of changes that have happened over the last 40 or 50 years. Obviously, the biggest changes are technological changes. The ability to have software running all manner of different devices, embedded software, even on very small electronics and machines, always available, internet connectivity, wireless Internet connectivity. But also on the legal front, laws like the Digital Millennium Copyright Act that made it illegal federally a crime to circumvent software locks. And that seems to be really at the root of it. The propellant for a lot of these restrictions on repair and service is this Section 1201 of the DMCA. Can you just talk about Digital Millennium Copyright Act and what kind of role that has to play in all of this stuff that we're talking about with repair and servicing?

[00:30:50.290] - Aaron Perzanowski

Yeah, it's a great point, and I think you're absolutely right that section 1201 of the DMCA really is sort of at the core of these sets of strategies that we see companies deploy. It's not the only thing that they rely on. Right. But it is really central to these strategies. So a little bit of background on this. So Section 1201 of the Digital Millennium Copyright Act. This was enacted back in 1998, and at the time it was passed by Congress, there was no sense whatsoever that this was going to be a piece of legislation that could stop you from repairing your car or your tractor or your television set. It had a very specific purpose, which was to provide a set of assurances to Copyright holders, to record labels, movie Studios, book publishers, that they would be able to distribute their works through online marketplaces without the risk of sort of rampant copyright infringement. And so the idea was that you create a law that says it's illegal to break the DRM on your digital movie download. And that way Hollywood feels comfortable selling movies online right now. Whether you agree with that purpose, whether you think the law was actually successful in achieving its stated goals, it's been used in a bunch of unanticipated ways that have created massive problems throughout the economy, throughout our culture and in the lives of consumers.

[00:32:32.610] - Aaron Perzanowski

so you have litigation over whether or not you're allowed to refill the ink cartridges in your home printer, litigation over whether or not you're allowed to buy a universal remote control for your garage door opener. And the theories here are rooted in this law. Section 1201 of the DMCA, and it's used in a lot of instances and has been used in a lot of instances to prevent people from opening up their devices, understanding what's wrong with them, and taking steps to fix them without getting too much in the weeds here. There are temporary exemptions to section twelve, one that the Copyright Office adopts every three years through this very long, very laborious, very time intensive process. And for the last three or so of those cycles, repair has been recognized as a lawful activity. And so these temporary exemptions exist, but they don't address one of the fundamental problems with section 1201, which is that not only does it tell you that you can't unlock your device to make a repair or to understand how it works, it also prevents anyone from creating or selling tools that allow you to engage in that behavior.

[00:34:05.990] - Aaron Perzanowski

And those exemptions don't apply there. So, for example, one of the new exemptions that the Copyright Office adopted this past year says that if you have a video game console with a broken optical drive that needs to be replaced, you can circumvent the DRM in order to install a new optical drive and have it pair with the rest of the device. Right. Wonderful. That's important. It's a step in the right direction. How many of us know how to do that on our own, without any guidance, without any software, without any tools? Right. I think I'm like a pretty smart, pretty tech savvy person. I doubt that I could pull that off on my own without a lot of effort. And so you're telling people, yes, sure, it's legal to repair your PlayStation, but you got to figure it out on your own, right? You can't download any software that makes it easier. That I think is sort of an empty promise in a lot of ways. And I think that's one of the major ongoing concerns with section 1201.

[00:35:06.450] - Paul Roberts

So, Aaron, in your book, Right to Repair, you lay out kind of four different ways to establish or reestablish what you call a culture of repair. Two questions. First of all, what do you mean by culture of repair? And second of all, those four areas law, markets, design and norms – just kind of walk us through your thinking on each of those.

[00:35:31.330] - Aaron Perzanowski

Sure. So when I talk about a culture of repair, I don't mean to sound so sort of obviously nostalgic, but it's hard not to when I talk about this. So what I'm trying to describe there is the difference between the way we relate to our possessions, to our devices, to the objects around us today compared to the way we've related to them in the past. We live in this sort of age of incredible abundance. We live in an age where prices for consumer goods have plummeted in many respects over the past few decades. And that led us to this sort of like disposable culture. If your TV doesn't work today, what do you do? You go out and replace it. Right. Because you can get a new one for a few hundred dollars, and it's not that big of a deal. When I was a kid in the 80s, if the TV broke, you took it to the TV repair person. There was someone whose job it was to fix these devices because we had expectations that they were going to last for decades because new ones were expensive and repair was relatively cheap. And that's just within the span of my lifetime.

[00:36:55.900] - Aaron Perzanowski

if you think about the early part of the 20th century where Ford was creating the Model T and making replacement parts available, including repair instructions in the owner's manual, explicitly saying, we hope you buy one of these in your lifetime, because that's how long this product should last. We've seen a huge shift there, and that shift has real consequences. Right. Particularly with respect to the environmental impact of this kind of disposable culture. We are buying more than ever. We're throwing things out more than ever, and we're creating just massive amounts of waste and waste that has real risks to human health, not to mention to the planet as a whole. So that's a big part of the concern here. So in the book, I try to talk about how we might shift people's behavior, and I'm borrowing here very explicitly from Larry Lessig, who talks about these different sort of modalities for affecting behavior. The obvious one for me as a lawyer and a legal academic is when you want to change people's behavior, you change the law. Right. You make something illegal that was legal before, or you create an exception or a defense to something that the law prohibited.

[00:38:29.000] - Aaron Perzanowski

And that will redirect people's behavior in a certain direction. And that's a good tool, but it's often not the most effective of tools. Another way we can affect people's behavior is by changing conditions in the market. If we want people to engage in certain behaviors, well, we make it less expensive. If you want to discourage behavior, you make it more expensive. Is there a parking shortage in the downtown of your city? Double the rates at the parking meters. That will change behavior. Norms are more about sort of our expectations of one another as members of a community. What are acceptable behaviors and what are not acceptable behaviors? How do we communicate that in a way that shifts people's behavior? Maybe you live in a neighborhood where your neighbors are going to gossip about you if you leave your recycling bin on the sidewalk an extra day, as I often do. I forget which day it got picked up and then I look around and I'm like, I'm the only person that hasn't pulled their recycling bin back to the –

[00:39:42.000] - Paul Roberts

Guilty! Sometimes Aaron, more than one day.

[00:39:47.030] - Aaron Perzanowski

Sure. If you got some judgmental neighbors. Right, you're going to start to feel that pressure. It's not a law. Right. But it is the expectation of your community. Then the other thing we can do is change the built environment. Lesley talks about this in terms of code, and code is certainly an important piece of the puzzle here. We change the code. We can often change some of these restrictions that we're worried about, but other features of the physical design of our products can make them easier or harder to repair. Contrast a smartphone made by Apple to the Fair Fone, for example, and you can see really immediately and intuitively what the difference is in a phone designed to be repaired. And one that's not. So all four of those, I think, are overlapping approaches that we can think about in terms of how we make repair easier, cheaper, more accessible, more attractive to people. And so that's kind of the broad outline of what I have in mind there.

[00:41:01.190] - Jack Monahan

Yeah. I thought you made a really compelling case just at the social implications of e-waste.

[00:41:08.990] - Aaron Perzanowski

So the environmental implications here are really staggering when you start to think about the scale and the magnitude of both the production of our devices and the disposal of our devices. And so I think for a lot of us, it seems obvious that the place to focus here is on the e-waste problem. And I absolutely agree. It's a huge, huge problem. The rates at which electronic devices are appropriately and responsibly recycled are abysmal. They're better in Europe than they are in North America. They're better in North America than they are in Asia and Africa. But we all do a terrible job at it. Some of us are worse at it than others. And as a US citizen, we certainly are not immune from lots of criticism on that front. These devices contain all sorts of problematic and toxic materials. Right? Those materials leach into the ground, they get into groundwater, they create real problems for human health, both short term and long term. Just the sheer amount of electronic waste that is produced around the world is just mind boggling. When you sit down and you look at the numbers. That is one piece of this puzzle, though.

[00:42:52.690] - Aaron Perzanowski

And the other piece of the puzzle comes earlier in the production chain for these devices. All of those materials, all of those metals, the gold, the copper, the rare Earth metals, they all come from somewhere, right. And mostly they come from the Earth. They are mined. They are mined under conditions that are inconsistent with our basic understanding of workers rights and human rights in many circumstances, that process itself has impacts on human health and safety, has impacts on the environment. Then we get to the production and shipping of all of these devices. Right. That has its own set of environmental consequences.

[00:43:50.250] - Aaron Perzanowski

And companies deserve some credit here. Apple has started using less packaging for many of its devices. They've stopped including Chargers with a lot of devices, which cuts down on some of the unnecessary production and waste. Companies deserve credit for their investment in recycling programs. Now that is not necessarily a choice that is driven by their deep and abiding concern for humanity. It's an economic question at this point. It's cheaper to get those rare Earth metals out of all of the foams that we throw away than it is to mine them from the Earth. Like we're literally running out of some of these metals. And there's more of them and certainly in a much higher concentration in a pile of old iPhones than there is thousands of feet under the surface of the Earth. So whatever their reasons are, though, I do think it is important that we acknowledge and support companies that are doing the more responsible thing here. But it's crucial to understand that even with those recycling efforts, we cannot keep pace with demand for these materials. So we've got to slow down the cycle of consumption, which means our devices have to last longer, which means they have to be repairable.

[00:45:25.620] - Aaron Perzanowski

Right. I mean, that's the basic equation here. The only way that we can really sort of stem the tide of this environmental harm is by extending the lifespans of our devices. A phone that you use for 18 months, it's just literally not sustainable. And so we've got to figure out solutions to those problems.

[00:45:50.550] - Jack Monahan

It's going to be a much harder sell to tell someone they have to give up their phone versus, you know, you can get a new phone in five years instead of two.

[00:45:59.370] - Aaron Perzanowski

Yeah, absolutely. Right. If our message is, yeah, technology is bad for the environment, so no more technology, whether you agree with that assessment or not, it is a nonstarter as a policy intervention. You are not going to convince people that they are just going to throw their electronic devices away and never buy another one. That's just not going to happen. Right. But you can have a real impact, as you said, by doubling the life of these devices. And they have pretty short lifespans to begin with. One place to look for some encouragement on this is if you look at the lifespan of motor vehicles in the United States over the last couple of decades, they've gotten longer and longer and longer. The cars on the road today, on average, are older than they have been in decades. And there are a bunch of reasons that that might be true. But one important reason is resale value matters to people when they buy a car. A car that is going to be worth some money five or ten years down the road is going to sell better. And so manufacturers are responsive to those market pressures in a way that is simply not true for not only our smartphones but laptops and so many other devices that we used to think of as kind of durable. And now we think of as disposable. I think that needs to be shift.

[00:47:30.760] - Paul Roberts

And also let's state the obvious here that automobiles is one of the only markets in the United States where you actually do have a healthy ecosystem of independent and repair options. And aftermarket parts, largely because Massachusetts in 2012 passed a law that basically allowed independent garages and parts companies to continue operating by making available diagnostic tools, software and so on that the manufacturers automakers were trying to restrict. So automobiles, you want to go get your car fixed, you got a lot of choices.

[00:48:10.960] - Aaron Perzanowski

You do. Absolutely. It goes back to this sort of this term we talked about earlier, kind of the culture of repair, repairing automobiles. Whether you're doing it yourself in your garage or you're taking it to your local shop or even if you're just driving it to the dealer, because it's more convenient. That has been part of automobile culture since the beginning in the United States. Right. This has always been something that we expect. And so when there were efforts to interfere with that long standing practice, people intervened. And we got this legislation passed in Massachusetts because it was a shock to people. And I worry that we haven't created the same expectation around this sort of new generation of devices. People don't think of them as things that ought to be repaired. And that's part of what we got to fight against.

[00:49:08.370] - Paul Roberts

It's funny. And I hear that often, even sometimes from other reporters who maybe are new to the issue or their kind of NPR will do a piece and they'll have their kind of tech guy come on, who's their technology pundit, basically. And they'll often kind of parrot the arguments of the electronics industry and in essence sort of saying, well, I don't know how to repair my iPhone. And so why does anybody need to do this? In essence, why should we even care about this. right? I mean, it's absurd. You're fixing your own iPhone. Forget about it. This kind of light. It is. But it's like a premature surrender on what seems to me to be a pretty central right of ownership and property.

[00:50:11.270] - Aaron Perzanowski

I think part of it you're right, is the messaging from manufacturers. For years. And there's some signs that this might be changing, but for years, the messaging has been, don't open this thing up. You can't be trusted with it. You don't know what you're doing. It's dangerous. It's going to explode.

[00:50:31.280] - Paul Roberts

You're going to ruin your warranty. You're not going to be able to have a warranty anymore. Again, not true, but a lot of people believe it.

[00:50:37.900] - Aaron Perzanowski

Yeah, right. All of those messages come together, along with the fact that, let's face it, as a physical matter, it is increasingly difficult to repair these devices. I mean, I remember in the early 2000s, I had a Motorola Razor flip phone. And if you needed to swap the battery out. Right. You use your thumb to remove the back cover. You pick the thing out and you swapped into one, and it took all of 90 seconds. Whereas today, if you want to replace the battery in your iPhone, you need to set aside an afternoon. You need to have a set of tools ready to go. I mean, not that it's like impossible or like a particularly difficult procedure, but it's not easy. And people are, I think, uncertain about their own level of ability. That's why fix it clinics and the restart parties, all that stuff is so crucial in this space to help people understand how these devices are put together and to build some confidence, I'd like to see device repair become a part of public education in this country. Shop class ought to have a day where you take your phone apart.

[00:52:03.070] - Paul Roberts

Right.

[00:52:03.280] - Aaron Perzanowski

And see how the thing works. I think that would go a long way to kind of giving people a little bit more confidence.

[00:52:12.110] - Paul Roberts

One of the trends that I've really seen, Aaron, and I'd be interested if you also have seen it as this trend towards, obviously, greater complexity in products, but also that is frequently being used as an excuse to try and limit the ability of people to repair them and I think the one that comes to mind recently is that Ford Motor put out a kind of memorandum six months or a year ago about the glass and some of their newer vehicles that has sort of built in heads up display. And there's some interaction with some of the accident prevention cameras in the car where they're kind of calibrated with the windshield. And the long and short of this message was this memo was nobody but Ford authorized dealerships and repair professionals should be in the business of replacing a broken windshield. If it's one of these windshields because it's just too complex and the safety features are involved and long and short, just leave it to us. And I was thinking like, we're going to start hearing a lot more of that. Automobiles are one example, but you can imagine as these more interactive kind of intelligent features come out, that's going to be a common refrain and what do we culturally as a society kind of what's the proper response to that argument, which on the face of it kind of sounds like it makes sense, but it's a slippery slope.

[00:53:42.330] - Aaron Perzanowski

So I think this is a really important question, because you're right. I think it's quite likely that we're going to see this kind of argument be deployed more frequently moving forward, in part because lots of devices are getting more complex. Right. I mean, that's been happening in the auto industry for decades. It's going to continue happening. It's certainly going to continue happening as we make the slow, incremental progress towards autonomous vehicles. Right. Maybe that's not going to happen as soon as people thought, but we're still heading in that direction. We're going to see more of that kind of functionality. And so I think as a descriptive matter, yes, this is something we are going to hear. Look, I don't think it's necessarily the case that every part of every device is necessarily going to be user repairable. It might not be a great idea for the average car owner to go in and replace these particular components, but I'm very skeptical of the idea that people who are professionals in this industry, who have training, who have access to tools and parts and information, but don't have the seal of approval of Ford or whoever the manufacturer is, that those people are somehow incapable of doing these repairs effectively and safely.

[00:55:13.170] - Aaron Perzanowski

And if those people are incapable of doing those repairs, then I think we've got to look at the design of these products and start to question some of the decisions that go into them. In the same way that we've been talking for the last decade now about banks shouldn't be too big to fail. I think we can say that consumer devices shouldn't be too complex to repair. It doesn't mean I can do it in my garage. But if you're selling a car and the message is don't open the hood. It's just too complex in there, or you can't replace a cracked windshield, it's simply too complex, then something has gone wrong in the design of that product. And I think we need to really interrogate that.

[00:56:04.830] - Paul Roberts

I mean, particularly with cars, because, of course, in the United States there's such a long and proud history of radically modifying vehicles. Hot rods and lowriders. I mean, oh, my God, East LA lowrider culture is one of the most important things that's come out of the United States culturally in the last 50 years and that was all about taking these kind of standard off the assembly line cars and making them look totally different and be able to do totally different things.

[00:56:36.980] - Aaron Perzanowski

and we've survived just finen in a world where people are making those sorts of changes to their vehicles, I think the one difference here is in the past we're talking about sort of mechanical changes. You put in a hydraulic system or you chop a car down to make it look different. That didn't require access to software and that is, I think, the sort of entry point for manufacturers to sort of drive this wedge between what they can do and what people can do, who have skills, and they're working independently – which I think is a huge part of the reason that access to that software code for repair purposes is so essential moving forward.

[00:57:36.490] - Paul Roberts

One of the responses that we've seen to some of these issues in the last few years is sort of a legislative or regulatory response. And I'm thinking in France of the Repairability index law that was passed, that was something that the EU had been looking at more broadly. And France kind of said, you know what, we're not going to wait for this. We're going to do our own came out a couple of years back and has had a really big impact on the repairability, at least of the devices that it covers. The smartphones are among them, and laptops. I'm interested because I know you have some mixed feelings about Repairability Index as a tool. Talk about what your reservations are and maybe what some ways that it might be possible to use regulations or legislation to level the playing field.

[00:58:43.870] - Aaron Perzanowski

So I think the basic instinct behind these repairability scores is a really valuable and useful one. And the basic idea is if we make information available to consumers at the time they're making a purchasing decision, not after they've already spent $1,000 on a phone or a dishwasher, but at the point where they're making a decision, if we can convey to them in a very straightforward and simple way, how easy, how expensive is it to repair this device that's going to influence their decisions in the marketplace. Right. So if you're comparing two phones and one has a repairability score of 3.2 and a big red warning sign on it, and the other one has a score of 8.5 and a friendly green label encouraging you. Right. You might pick the one that's more repairable, and that creates some valuable incentives in the marketplace for companies to actually design products and set policy in a way that encourages repair. And I think there's good evidence that that actually works when that information gets communicated. So I'm on board with that. I've got a couple of reservations, though, when it comes to these systems. One is a worry that at least as it's implemented right now, the French system might be grading people a little bit too easily. Like a little bit of grade inflation, everybody gets a passing grade or it's too easy to get up in the kind of middle section of this one through ten scale, there are some products that have really low scores and they deserve them. But when they're all kind of clustered together, it really, I think, detracts from the sort of signaling mechanism that we're relying on this law to do. If one phone is a 6.2 and the next one is a 7.2, and everything falls within that range, then how much good is it really doing? Right. It's a new system. This has only been implemented for a little over a year now. I imagine there will be tweaks to it as it moves forward, either in France or when the EU adopts a sort of broader territory wide kind of approach to this. Maybe they'll make some adjustments here so you don't get a full point on the one to ten scale for providing documentation with your software updates. Right. Is that really worth that much? The other hesitation I have is there are some practices that I think are problematic, even if they are disclosed, even if you have a score that builds in the idea that you don't sell replacement parts or that you sell replacement parts at an incredibly high price, and maybe you get dinged on that on your repairability score, but it's not enough.

[01:02:04.740] - Aaron Perzanowski

I think there are certain kinds of practices that we ought to just say are unlawful. Right. They're unfair to consumers or they're unfair as a matter of competition, and we ought to just prohibit them directly. And there's perhaps some worry that not that the repairability score does harm, but that it's just not aggressive enough of an intervention. I think we got to keep all the options on the table.

[01:02:31.970] - Paul Roberts

And just as a follow up question, it seems evident to me or it seems pretty clear that if you dig in even today in the United States and I guess in Europe as well, there are a bunch of practices going on regarding repair and servicing that on the face of them, would seem to be anti competitive, OEMs refusing to sell replacement parts to people or refusal to deal type behaviors. But we don't often hear of any real kind of legal consequences for those companies. Why is that? Why are there these kind of sketchy behaviors that seem pretty clearly to be violations of antitrust or any monopoly laws that people kind of shrug at?

[01:03:26.310] - Aaron Perzanowski

So I think part of this ties into the history of antitrust enforcement in the United States over the last 40 years or so. And there is a sense in which any trust law has really sort of withered in that time period. And antitrust enforcement agencies, whether that's the Department of justice or that's the Federal Trade Commission have until recently, I think we should say, seem to have kind of lost their stomach for these fights. And the courts, I think, are a big part of explaining why courts have become a lot quicker to find sort of business justifications for these kinds of policies that on their face do seem anticompetitive. But if the company can come in and say, well, actually, this helps us offer products at a lower price point, and isn't that ultimately good for consumers? Or maybe this system of steering all of the repairs to our authorized service providers is actually like a more efficient way of getting devices repaired or it leads to increased quality or security or something along those lines, then perhaps a court is going to allow those justifications. I think a lot of those arguments are pretty problematic, and we can, I think, cite some solid examples, but it's simply not true that the repairs are better in any objective sense or more secure in any objective sense.

[01:05:18.680] - Aaron Perzanowski

But that's the kind of uphill battle that we've been looking at in antitrust law in this space. I think there are signs that that is starting to change. The FTC's Nixing the Fix report, talked a lot about the competitive downsides of these repair restrictions. And so I think there's kind of a reconceptualization on the part of the FTC about the way we ought to be looking at repair restrictions through the kind of competition and antitrust lens. And I think that's really encouraging. We're starting to see litigation going on. John Deere in the middle of a couple of antitrust cases right now that I think are notable and interesting as an opportunity for private parties to try to push back on this trend. So I think there's room for things to evolve and develop in a positive direction. But antitrust has been a tool that's kind of gone unused for too long in this space.

[01:06:31.970] - Paul Roberts

You brought up the John Deere antitrust lawsuits. There's been a kind of string of news in recent months for supporters of right to repair seem encouraging. The Deere lawsuits are kind of the latest. I mean, your thoughts on those? These are two suits, one filed in Chicago, but the farm, I think, was in North Dakota. And then a second suit that was filed by a farmer, I believe, in Alabama, both against John Deere, both alleging that it is running an illegal monopoly in sales and service. Thoughts?

[01:07:13.190] - Aaron Perzanowski

Yes. When we talked about behaviors that on their face look like they violate anti trust law on Deere. Provide some good examples. Right. So one thing that we worry about in antitrust space is this idea of tying so if you have considerable market power when it comes to one particular product or service, and you use that as leverage to gain control over another market for a product or service, we look at that pretty skeptically as a matter of antitrust.

[01:07:44.270] - Aaron Perzanowski

So part of the allegations in these cases is that John Deere is using its power in the market for its farm equipment to leverage that as a way of gaining control over the market for repair services. And they do that right through this sort of software tie that says, look, we'll sell you the tractor, once we've sold it to you however, the only place that you can get some repairs done is through us. Right. If you buy our parts and you install them correctly, they're not going to work until we send somebody out to your farm and connect our laptops with these payload files and then magically bless everything so that it will operate. That looks like an effort to tie products to repair services in a way that's arguably unlawful. And part of what I think is the important backstory. That was at least news to me when I read that first complaint was the really intense degree of concentration that's gone on in the John Deere dealership space, right. Where they really forced out a lot of independent dealers. And so that market is much more concentrated than it used to be.

[01:09:15.680] - Paul Roberts

Yes.

[01:09:16.080] - Aaron Perzanowski

Farmers have fewer choices about where to buy their tractors, about where to get their tractors serviced, all of which, I think, lends a lot of power to the arguments that they're right.

[01:09:28.190] - Paul Roberts

This is technically within the authorized repair community of Deere, the folks who have franchises for dealerships to sell and service equipment. And even there, by one account, seems like there was a very concerted effort to thin that population so that farmers, in essence, now are saying, I can take my equipment to the dealer 10 miles from here, 50 miles from here, 200 miles from here. They're all owned by the same company. Because Deere has gone through this process of concentrating ownership of dealerships among very large owners. How would that impact how the courts might look at that charge of antitrust?

[01:10:16.110] - Aaron Perzanowski

Yeah, I think it goes to the question of Deere and their dealership's kind of concentration of market power when it comes to the sale of those tractors. If there are fewer places to buy the tractors and there are fewer places to get authorized service, that all gives Deere kind of more control over maintaining this tie between the tractor and the service that's being rendered. Now one thing that I think they're likely to point out here is that over the last couple of years, last few years, I suppose they have promised and are making minor steps towards making good on the promise to make some of this software available directly to farmers. They promised that years ago, and eventually it seems like they're starting to roll out some limited access to this kind of software tools that farmers might need, at least for diagnostic purposes. I'm not sure if it's going to allow them to actually initialize authenticate parts.But that's really expensive, right? I mean, the complaint talks about the prices that are being charged for access to the software, and as I recall, it's something like $8,500 a year for a license to this software.

[01:11:43.890] - Aaron Perzanowski

And so that doesn't alleviate the concern here. If a company says, oh, no, we'll sell you parts or we'll make software available to you, but at like an astronomical price, that doesn't really solve the problem here. And so I think that's going to be a point of contention.

[01:12:05.430] - Paul Roberts

So we've seen some other good news, notably in Massachusetts in November 2020, the voters expanded that state's auto right to repair law. That's the reason that if you have a car anywhere in the United States, you can still take it to an independent car dealership. And obviously, we've seen some moves by Apple and Microsoft in recent months to step back a little bit from their kind of hardline stance on repair, particularly Microsoft, and in some ways even embrace this notion of owner repair and making more fixable devices. What are your thoughts? Is there a sea change going on here with repair? Are these kind of more cynical kind of strategic step back so that we sort of live to fight another day type moves on the part of OEMs – how do you read all of this?

[01:13:07.510] - Aaron Perzanowski

Yeah, I think this is one of those examples where things happen very slowly and then all at once. And the people that have been involved for years in this fight, they've been making slow and consistent and in some cases, like maybe from the outside, almost imperceptible progress, and then a lot of pieces fell into place all at once. And I think companies are smart and sophisticated and recognized the environment that they are operating within has changed. So we have a President who on multiple occasions now has very directly talking to cabinet meetings, talking at public events, issuing executive orders that, of course, the President is not writing them himself, but they speak for the administration. And he has been pretty clear in his support on this issue. We have new leadership at the FTC and even before Lena Khan came in as chair of the FTC, we had the Nixing the Fix report, which took a position that was quite clearly closely aligned with what repair advocates have been arguing for for years. And so if you're a Microsoft or you're at Apple or maybe even if you're a John Deere, you see that and think, well, we need to adjust our strategy, because if we don't, we are going to be the focus of regulatory enforcement of private antitrust suits like Deere is facing now of criticism from the President in one way or another, or a state is going to pass one of these bills or multiple States are going to pass one of these bills.

[01:15:09.570] - Aaron Perzanowski

And maybe rather than fighting it kicking and screaming, we try to negotiate, we try to figure out, okay, how do we come up with a bill that we can live with? How do we adjust our business strategies in a way that will align with this new reality? And so I think that's part of what you've seen from Apple. I think that those developments are really positive. They don't mean the fight is over. They don't mean the war is won here. This is an ongoing debate, an ongoing sort of policy struggle that we're going to continue to see play out for years and years and years. Companies are making concessions, but they're not making universal concessions by any means. Right. Apple has gotten a lot of good press and a lot of good coverage for its decision to start selling, I think, three parts on two iPhone models and good for them.

[01:16:14.840] - Paul Roberts

Right. But that's not the whole newer iPhone models, too. Not the old ones that need to need repairing. But anyway.

[01:16:24.110] - Aaron Perzanowski

Right. We can't take that as like "Oh, yeah, this fight is over" or "Yeah the right to repair used to be a thing we had to worry about, and now we live in a sort of utopia." Not by a long shot. This is encouraging, and I think it's really useful to build momentum to take these arguments down kind of one at a time as we see them, and that helps moving forward. But there's going to be a lot of fights left to go in this space. We're seeing that even in Massachusetts. Right. So they passed the update to the automotive rates repair bill, and that's going to get fought out in court. And that very well might happen with the general right to repair legislation that I hope we'll see past this year.

[01:17:22.510] - Paul Roberts

Do you see that case, this one that could go as high as the Supreme Court, or do you feel like the courts are there isn't that much legal ambiguity about this. It just hasn't really made it it hasn't really been brought to court.

[01:17:36.910] - Aaron Perzanowski

So I think it's really hard to say until we see kind of what the initial decision looks like. The odds of any particular case making its way to the US Supreme Court are abysmally low. My hope is that we don't need to go that far to resolve this issue, but it will, I think, send a signal about how likely these fights might be in courts in response to other state bills around the country in the event that they get passed.

[01:18:14.170] - Paul Roberts

Final question. It's something like 27 States proposed right to repair legislation last year. I think we're going to see at least that many bring it forward this year. If you were sitting down with the legislature considering one of these laws who had concerns about some of the arguments they're hearing about intellectual property rights and you have a right to repair but not to modify and all the kind of catchphrases that the industry lobbyists use, what would your scholarly legal advice be to them as to how to look at these laws asking for access to schematics and diagnostic software and that type of information?

[01:19:03.250] - Aaron Perzanowski

So I think the first and most important thing to communicate to any policy maker that is thinking about this issue is to try to relate to them first as a matter of personal experience. Everybody has some experience with repair or the frustrations that come along with attempted repair in this environment that we live in right now. And I think you've got to win people over on the kind of gut instinct level, on the kind of personal narrative level before you want to turn to kind of the ins and outs of trade secret law or circumvention under the Copyright Act or whatever it might be. And then I think once you've got somebody who intuitively understands this issue, understands why it's important, understands how it affects their constituents, then I think it's a lot easier to kind of dismantle a lot of these arguments that get raised in this space on the intellectual property angle. I think it's really important. Again, in part, this is a function of me spending a lot of time teaching and writing. But narrative, to me is so important to persuasion and the narrative that I focus on is this idea that for literally hundreds of years in this country, intellectual property law has been limited by this notion of exhaustion or the first sale doctrine, which means once you buy something, once you own a book or a record or a car or a phone, and it is your personal property, intellectual property rights don't limit your ability to make all sorts of uses and repair is very clearly within that sort of sphere of personal autonomy.

[01:21:21.830] - Aaron Perzanowski

I think trying to get people to understand this in those terms is really the key to kind of helping them navigate the complexities of the legal arguments. It's got to start with kind of a true and relatable story and one that I think appeals to people on a kind of intuitive level.

[01:21:48.350] - Paul Roberts

Aaron, the book is Right to Repair. Where can our listeners get it?

[01:21:53.450] - Aaron Perzanowski

Hopefully all the places that you get books. So Cambridge University Press has it for sale on their website. If you're an Amazon shopper, you can get it there, your local bookstore. If they don't have it in stock, I'm sure they can order it. And I really hope that this book makes its way out into the hands of people who care about this issue but don't really see themselves as kind of experts on the legal questions. I wrote it to be accessible, and you don't need to be a lawyer or have a law degree to understand the arguments that I'm making.

[01:22:30.850] - Paul Roberts

Having read it, I can assure you that's true. It's a great introduction for folks who want to understand this issue in more depth, but very readable and accessible. So first of all, thank you for writing it because I think it's really important and very timely. And second, thanks for coming on our podcast and talking about it.

[01:22:50.670] - Aaron Perzanowski

Absolutely. This was a lot of fun, and I really appreciate the invitation.