Vermont #RightToRepair S.180 Bill - Wall Chargers, Ink Cartridges in Chamber 35

The session on Vermont S.180 was crammed into one hour and fifteen minutes. I sat on a cushioned wall shelf in chamber room number 35.  Twelve committee members and staff. Three witnesses in favor of the Right To Repair Bill (VPIRG's Dan Brown, EFF's Kit Walsh by phone, and Michael Duplessis, of SunCommon, Apple repair guru). I was a wallflower.

You wouldn't think that the most important e-waste legislation in the United States was being discussed here, unless you counted the manufacturing lobbyists.  Not that the 3 anti-S.180 witnesses were over the top. They'd travelled to talk against a bill that was already defanged. Neutered. Eviscerated.  VPIRG told me it was effectively killed in the previous chamber.

The remaining "debate" is whether the Vermont Legislature should even form a task force or committee to further review the Right To Repair.  The lobbyists were there to strongly advocate not to have any discussions about it.

A lobbyist for the medical equipment manufacturers seemed to insinuate that people could die if finely tuned medical instruments are improperly reused.  A lobbyist for farm equipment dealerships said the line had to be drawn below dealerships.  His members were currently satisfied. (One legislator correctly pointed out the Ag Dealerships were protected by similar legislation when manufacturers prevented them from servicing multiple brands some years ago.... the lobbyist nodded, yes, that's where to draw the line)

The strategy of industry in opposition to discussion of the Fair Repair Act is obfuscation.  They left the impression that the Task Force would have to cover a pandora's box of questions.  The House Committee on Commerce and Economic Development Chairman, Bill Botzow (D-Bennington), was genuinely daunted.  "Which bite of the cake do we eat first?"

How about the icing?   15 U.S.C. § 2301  Because this cake was already baked 40 years ago.  The debate was held between 1972 and 1975, all the cautions were weighed and balanced.  This is an act to establish a Task Force to review an old law and see how it can be updated.  Easy peasy...

Ask about the wall chargers.  Europe already passed rules making them universal, and no airplanes fell out of the sky.

By Evan-Amos - Own work, Public Domain,

Representative Botzow needed the Pareto Principle applied to this issue. What are the 20% of problems which would produce 80% of the benefits?  It's a smart approach to regulation.  Unfortunately, even the esteemed Kit Walsh, Staff Attorney of EFF, stumbled (by phone) in his response.

Botzow offered another soft pitch - What does the European Union do that the USA does not?  Both Kit and Michael had given excellent pitches for an informed expert, but they were missing something for the "cake analogy" audience.

Meanwhile, the industry representatives were zooming the legislators' lens in and out, in and out, from the most global 100,000 foot view (every device ever sold will be governed by this legislation) to the worst of the mundane examples (a farmer will be able to hack the pollution emission controls on his diesel tractor, like Volkswagen did).  The hot-cold, high-low, zig-zag is an old strategy for delaying legislation, for postponing action.  And the Right to Repair folks were outgunned.... It's called "Leading them into the swamp."

I have two KISS keep-it-simple-stupid suggestions.

1) Magnuson Moss Act of 1975

Focus on where FTC's 15 U.S.C. § 230has fallen behind. The people who care most passionately about the current Right to Repair / Fair Repair acts in 20+ legislatures were not born in 1960, when Vance Packard published "The Waste Makers", a seminal work by an award winning journalist chronicling the strategy of "Planned Obsolescence" in some repair industries.  Many of the Vermont legislators, on the other hand, were born before 1960, and most were born well before the Magnuson Moss Warranty Act, was introduced in 1972.
An Act to provide disclosure standards for written consumer product warranties against defect or malfunction; to define Federal content standards for such warranties; to amend the Federal Trade Commission Act in order to improve its consumer protection activities; An Act to provide minimum disclosure standards for written consumer product warranties; to define minimum Federal content standards for such warranties; to amend the Federal Trade Commission Act in order to improve its consumer protection activities; and for other purposes.
Magnuson Moss Warranty Law already governs everything in "the cake". Legislators are not being asked to invent a whole new series of laws. They are being asked to revisit what can be said to violate a warranty, and whether repair of a device can be said to be a "patent infringement".  The same seemingly existential (swampy) questions raised about medical devices etc. etc. were already raised by industry opponents in 1972.  They were debated, they were answered, and NONE of the disasters predicted occurred.
(1) The term “consumer product” means any tangible personal property which is distributed in commerce and which is normally used for personal, family, or household purposes (including any such property intended to be attached to or installed in any real property without regard to whether it is so attached or installed).
The envelop governing product warranty laws has been more than pushed.  It has been hacked. A Task Force could quickly determine some of the ways consumer protection has "leaked", and if not pass an entire act, put industry on notice that Vermont is rigorous in defending consumers property.

2) Printer Cartridges and Wall Plugs

Vermont legislators are not in the pocket of industry.  They are in "pick your battles" mode.  They cannot right every wrong or save every patient.  Their necks are already sore, and Obfuscation from a 50,000 s.f. drop to mundane "pace maker" example creates a whiplash they have to avoid.  One legislator actually caught that, pointing out that no one is trying to repair their own pacemaker.  And what got the most positive attention in the room was the idea that cell phone makers could all be told to use a single wall plug charge (one licensed to third parties).

And EFF knows this.  Kit Walsh has written about one of the best examples,  in Supreme Court Victory for the Right to Tinker in Printer Cartridge Case (March 2017).  It addresses the most obscene price setting in the printer industry.  Ink cartridges that cost less than a pack of ball point pens are sold for over $20.  One manufacturer had the "bright idea" to slip a piece of paper into each box of cartridges saying that by using the cartridge the buyer agreed not to refill the cartridge or sell it to someone for the purpose of reusing it.  The court said that sale already been consummated and you can't use "warranty violation" as an afterthought.

It is frightening how many lawyers were sent to defend and appeal and take that very ink cartridge case all the way to the Supreme Court. And that frightening power was on display in cozy Vermont Chamber 35.

Right to Repair must not get led into the swamp.  There are simple things that Magnuson Moss intended to cover which industry is becoming bold about challenging.  Repair of CRT televisions was a big deal in 1975, and a lot of precedents were set. Ask some old NESDA yodas.

Vermont's Place

Downstairs, Vermont House and Senate combined House and Senate Natural Resources Committee was dealing with farm water runoff.  That was a packed, standing-room-only conference room.  There were cameras and reporters.  Consumers, farmers, environmentalists were squaring off.  It had a very Vermont flavor (our local Addison County Senator Chris Bray is there in the center, with the locally made bow tie).

Upstairs in Room 35, the legislators were being lulled into a sense of emptying an ocean with paper cups.  They were being intimidated with velvet gloves.

But manufacturers are paying attention to Vermont for another reason.  I encourage Vermont legislators to show more confidence.  They don't need to make self deprecating remarks about when they last replaced a TV or programmed a phone.  It is the young eager DIY movers and shakers who are trying to reinvent the Magnuson Moss Warranty Act Wheel.

Vermont can simplify the discussion, using the same King Solomon wisdom used to pass the Magnusson Moss Warranty Act in 1975.  OEMs have a right to lease, rather than sell, their devices.  And they have a right to claim the devices are protected by warranty - or not.  But if they DO claim their devices are protected by warranty, THAT positive claim carries responsibilities.   

Once a warranty is offered, the OEM can't claim that they "ran out of parts" or say "no one in your state is authorized to do the warranty repair, we won't give instructions, and we'll sue if you do it yourself".

You can lease it. You can sell it "as is" and not claim it's protected. But once you claim it's covered, there are rules to keep you from weaselling out.

That was the beautiful King Solomon answer to manufacturers questions in 1975, and bears repeating.

Manufacturers are not required to issue a warranty under Magnuson Moss.  That was the beautiful response to the obfuscation.  If there are legitimate reasons not to warranty or repair an item you sell, you can A) lease it rather than sell it, or B) sell it "as is" and explain why you don't offer the Warranty.


Cell phone providers are already moving to a lease model.
But if the manufacturer wants all the cash up front, rather than receive it over 3 years, then they have to bite the bullet and SELL the device.  Once they have sold it to me, I own it, and it is not a patent violation for me to resell it to whoever I want to, to upgrade it however I want to, and to fix it.

Magnuson Moss says that if the manufacturer claims an item can be repaired, it must provide the repair schematics (much easier to do now in PDF) and supply the parts necessary.

Manufacturers can control the ownership of the device, through leases, or not control the device by refusing to provide legitimate warranty.  They should not be issuing warranties made of sugar, and they have to tell the consumer whether a device is repairable after the warranty has expired.

And keep an eye on Europe.  Apple just lost a suit against a Norwegian telephone repairman.

Next Steps:

Don't follow the lobbyists into a swamp.  Keep the discussion on ink cartridges (profit margins) and wall chargers, things everyone buys.  The warranties on heart pacemakers can be dealt with by insurance lawyers, not in a Vermont House or Senate Committee.

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