Do You Have a Right To Repair Your Phone? The Fight Between Big Tech and Consumers

He’s a recycling evangelist. The law did not agree. In a couple of days he’s going to prison. There’s no winning when you go up against
Microsoft. After a 6 year legal battle with the Department
of Justice, Eric Lundgren is reporting to a federal correctional
facility to begin a 15 month sentence. His crime was copying and selling CDs for
restoring the Windows operating system on broken PCs. So why did Lundgren’s crime result in a jail
sentence? The answer cuts to the heart of a major battle
going on in the tech industry today. Companies are in a battle to preserve certain
aspects of US copyright law that give them enormous power over the products
we own and in the process they’re trampling our First
Amendment rights. To better understand why Eric Lundgren posed
a major threat to the tech industry consider the third party repair shops that
have popped up all over the country allowing consumers to get their devices fixed
faster and cheaper. Or a company like IFIXIT, which runs an online
repair community where people post repair tutorials on a broad
range of products. Kyle Wiens is its co-founder. I like to say that if you can’t fix it you
don’t really own it. And there was this kinda dark period in the
80s and 90s where we had all of these new gizmos that
were coming out we have VCRs, we had camcorders, we had all
of these complex new gadgets and nobody really knew how to fix them and now that we have the internet all of this
information can get shared online. Wiens started the company in his dorm room
15 years ago when his first macbook broke. There had been information online on how to
fix it and they had gotten a legal takedown notice
from Apple and that made me angry and so I decided ‘well if they don’t want
people to know, maybe I want people to know.’ And so went ahead, took it apart again, took
photos, put them online and the rest is history we’ve been doing it ever since. In 2016 IFIXIT did more than 21 million in
sales of tools and repair kits with 10 million monthly visitors, the company relies on its community of over 50 thousand contributors who offer repair tips that comprise a growing
library of open source manuals. We’re going to Kansas, Pennsylvania, Minnesota,
we ship all over the world. First tech companies struck back by integrating
special screws and adhesives that aren’t available from third party sellers. Then IFIXIT had it’s developer account banned
and app removed from the Apple Store after it posted a tear down of the apple TV
in 2015. And for a period of time Apple was disabling
iPhone 6s when the company had detected work had been
done at independent repair shops. The company was later served with a class
action lawsuit and reimbursed thousands of effected consumers. But none of these tactics worked, IFIXIT didn’t
need the app to operate their business and the company figured out a way around those
special screws and adhesives. So tech companies turned to a provision in
US copyright law Section 1201 of the Digital Millennium Copyright
Act, known as the DMCA which makes it illegal to break digital locks
protecting copyrighted work. The law is intent was to protect creative
content like movies, music and software from being
stolen and copied. And as software increasingly replaces hardware
underneath the hoods of our tech devices this appeal to copyright law had its desired
effect, shifting the balance of power over the stuff that you buy. Eric Lundgren was just a few weeks away from
going to prison the day we spoke with him. One man’s trash is another man’s treasure,
right? Well this is the world’s trash and it’s my
treasure. Before Lundgren landed in prison, he spent
his days running a company in Los Angeles that recycles about 40 million pounds of e-waste
annually. He’s been passionate about the field since
he was a teenager. I grew up in a very small town, so I just
said ‘well I’ll help you recycle it.’ By 18 I was doing it for American Airlines,
for Coca Cola, it just blew up very fast. All of this is, you know, keyboards and mice
and power cords and I mean a power cord, it’s a cord, it can
be used again and again and again so if I get in truckloads of brand new power
cords, we’re gonna put them with something new and
be able to use them. When he was 19, Lundgren relocated to Shenzhen,
a city in China’s Guangdong province that became known as the Silicon Valley of
hardware. In 2011 he was basically working to source
generic parts from electronics and finding brokers in the United States and
basically working as a middleman there. That’s Jake Swearingen, tech writer for New
York Magazine. A broker named Bob Wolff approached him, he
had already worked with Bob Wolff in the past. Bob Wolff would provide what’s called a Dell
OEM, which is Original Equipment Manufacturer, a Dell OEM restore CD and Lundgren would take it to a duplicate
shop in china and get tens of thousands of copies made which then Bob Wolff would use as a broker
and sell to PC refurbishers here in the United States. When Lundgren took this Dell OEM restore CD
to the duplicate shop in China they didn’t just duplicate the software on
there they duplicated everything about the CDs so that includes the labeling on it, so the
Dell logo, the Microsoft logo, everything about it they just duplicated the whole thing wholesale. Then in 2012, one shipment got flagged by
customs, Wolff is approached by the feds participates in a sting operation targeting
Lundgren and then ultimately the feds raid Lundgren’s
house in Florida. And both he and Wolff are eventually indicted
on about 21 counts that range from conspiracy to distribute counterfeit
goods to wire fraud and a whole host of other charges. So the government’s case was that Lundgren
and Wolff were attempting to create a large scale counterfeiting
enterprise. Lundgren plead guilty to conspiracy to traffic
in counterfeit goods and criminal copyright infringement and there’s no doubt that he’s guilty of wrongdoing. Emails sent by Lundgren reveal that he even pressured Wolff to sell batches
of CDs that came out slightly defective showing his eagerness to make some money off
of this counterfeited merchandise. But what’s less clear is the impact his actions
had on Microsoft. One of the real problems in this case that I feel like neither side was really able to fully resolve is that there is no real market for a Dell
OEM restore CD. And the reason for this is is that when you
buy a Dell, you get this restore CD for free. If you lose it at any point, you can download
the software off the internet for free. It doesn’t look like he really hurt anyone
very seriously and yet they’re going to basically put him
in a cage for 15 months. Tom W. Bell is a law professor at Chapman
University specializing in intellectual property and copyright. Microsoft may be firm on the law, but we can
question wether, you know, their motives are really about protecting
the software. Those motives are all about controlling software
through copyright law what tech companies are finding is that their
most powerful weapon against third party repair companies like
IFIXIT. Ever since 79 terms of copyright have gotten
longer, the rights protected have gotten more and
more broad, the sanctions against infringing have gotten
more and more punitive, all the founders cared about were books, maps
and charts, they knew about music and sculpture and paintings
and architecture, they didn’t think it needed copyright. Enter the 20th century. For adults there’s only one hot item: the
VCR. It’s an invention that some say is changing
the whole idea of television. Movie studios said this violated the copyright
laws. What you started seeing was the music industry
and Hollywood really aggressively moving forward on the
idea that copyright infringement should become a criminal issue and not purely
a civil one and more particularly that people that were
infringing on a large scale basis serve time in jail. And copyright law was written so broadly,
it applied to software too. Copyright law doesn’t distinguish, if you
have a lot of copyrights in music then you go and ask for stronger copyrights, many of the provisions you’d have change in
your favor like the term of copyright, gonna benefit
everybody who has a copyright. Then as the 2000s rolled along software was
suddenly everywhere. Now we are surrounded in copyright, we are
immersed in copyrighted content. So that means tractors and cars, it means
your smartphone, it means increasingly the refrigerators and
washing machines that people have in their homes. Kit Walsh is an attorney with the Electronic
Frontier Foundation, also known as EFF. She says that software’s ubiquity has changed
the meaning of copyright law. There’s a lingering hook that the seller has
in your property that they’re arguing gives them really broad
powers to dictate how you use that property going forward. You’re not even allowed to look at what’s
in there, we sold you this but you’re not allowed to
know how it actually works or what it’s actually doing because that’s our copyrighted code, you’re
not allowed to look at it. And that’s presented some unintended consequences
for security researchers. Software that’s deployed in cars, tractors,
other important devices, has these controls on it, which is a good
thing for a security measure, the problem is when you the owner don’t have
the keys or the permission to go in and open it up. So this interferes not just with repair but
also security research, safety research, like the folks who did crash test dummies. EFF is pushing for copyright reform on First
Amendment grounds. Code is a form of speech and courts have grappled
with that because code also feels a lot like a tool they say based on that functionality that it’s not going to be as protected as other forms of speech even though we have case law that says if
you publish instructions, if you publish a cookbook, if you publish even instructions that are
dangerous to the reader then that’s still speech. While EFF is challenging copyright protections
in court right to repair advocates are pushing for
legislation at the state and federal level. I was testifying in front of the copyright
office saying ‘hey we need to ability to repair game
consoles in a cost effective manner.’ and we had the Entertainment Software Association
opposing us saying ‘no if people can repair their game
consoles it will enable rampant piracy.’ So we’re literally fighting an army of suits,
it feels like the Matrix sometimes where there’s a new suit that appears from
around the corner every step of the way. We need to actually repeal sections of 1201
of the copyright act it’s not doing anybody any good. And we also need to, these state level right
to repair laws where you have states across the country that
are saying ‘hey big manufacturers, if you’re going to
sell products in our state you need to support our local repair industry,
you can’t cut them out of the mix you can’t monopolize service.’ There are at least 18 states considering fair
repair bills. Which are modeled after the 2012 automotive
right to repair law in Massachusetts which lead to a national agreement with the
auto industry to allow independent repair shops to work on cars. What we want is competition in the marketplace,
we want the free market, we want- the independent repair shops shouldn’t have
an advantage over the Apple store they should just be able to compete on an
equal footing. For me ownership is being able to understand
how something works, the ability to not be trapped in some ecosystem,
be dependent on somebody else I’d like to be able to be self reliant, to
be able to, if I have something go wrong, understand it enough to be able to fix it. Thats what Lundgren says he was trying to
do. When copyright is criminalized it’s not just
making a criminal out of this Lundgren fellow but you can very plausibly sit down and examine
what we do every day, forwarding emails, posting stuff on Facebook,
watching an unauthorized copy of a movie on YouTube that all of us are probably many times a day
now violating copyright law and probably some of us, you know, should
worry about criminal law who owns the products that you buy? You do. And you need to be able to repair those and
use those and give those away and let other people benefit from whatever
it is that you rightfully own. If I have to go to prison and it’s going to
raise awareness, I’m happy to go. I just want to be able to get people to become
aware and to be able to have the right to repair
what they legally own.

Leave a Reply

Your email address will not be published. Required fields are marked *