Procurement to the Rescue of the Right To Repair 2: Chess Game To Future-Proof

While I'm a big supporter of the Right To Repair legislation, a friend in an influential position at DEP (former hire, elevated to my former position) asked the Zoom group whether Right to Repair Legislation should be their top priority.

Fair Use Review

I'm always on my guard against "Group-Think".  Here were 15-20 proponents of reuse, actively engaged in DEFENSE of repair.  What did we all have in common, and how could common thought become a weakness?

In a tweet later, @WR3A (World Reuse, Repair and Recycling Association, my Twitter handle created 12 years ago) I used the words "my one qualm with #RightToRepair [as a movement] is that it is backward oriented. Trying to take back too many chess moves by planned obsolescence which were already played [successfully, by OEMs]... Each new device developed or sold is the next chess game. I recommend government procurement contracts as the opening move."

Ironically, the Right to Repair twitter advocate who responded (a friendly fire incident, if I offended) responded in a quote tweet... "Made the move to influence government buying at least 6 years ago. Have the conference badges to prove it. If only it were that easy. OEMs have made sure that the GSA won't even consider buying used equipment. If only it were that easy..." 

[as if I'd dispute it? I've got them going back to 1990]

My point about Procurement isn't about government buying used equipment. It is about strategically wording FTC-backed warranty language on things the government hasn't even purchased yet. Backward Oriented, Exhibit A?

When I said my one qualm with #RightToRepair [as a movement] is that it is backward oriented", and the group (7 likes) thinks that my Procurement argument is about making the government purchase older used devices, that's exactly what I mean by "backward oriented". 

Too many of us are fighting over lost board position, focused on lost chess pieces from a previous play. In 1990, government had the purchasing clout over PCs to have insisted Operating Systems be licensed to the buyer. Whiff. A decade later, government lawyers were trying to sue Microsoft for being a monopoly, as Bill Gates' Queen slaughtered the chessboard.

In fact, my @WR3A twitter post showed photos of solar panels (not that new a technology, but fairly new government purchasing programs are being developed) in order NOT to be focused on flip phones or disdain of elective upgrade of PAST technologies. People who electively upgrade (buy new stuff) are not inferior to people who fix their stuff - the upgraders are vital to both the wealthy economies AND to the secondhand and thirdhand less-wealthy buyers. 

Shaming people who choose to upgrade is definitely not an effective strategy to make policies that revolve around your personal device, purchased in the past.  We want them to buy the new stuff they will certainly buy, with post-first-use-doctrine baked into the warranty. Right to donate X in markets which do not compete with OEM new sales?  Never heard of it? It's called "punting" into developing markets, and the Bill and Melinda Gates Foundation deserves credit for bringing artificially cheap generic AIDS/HIV pharmaceuticals into Africa with that punting strategy.

The battle to reuse flip phones is long past. It rings of "white guilt" (again, Ptolemy Liability Trap, the Circular Economy doesn't revolve around me).  OEMs wasted time fretting over whether the flip phones would cannibalize sales of their new smart phones in Africa. The black hats of the Anti Gray Market Alliance shot themselves in the foot, as the secondhand flip phones were unlocking investment into mobile phone towers necessary to scale consumer markets for three billion people.

wikimedia.org/wikipedia/commons/d/db/MicroTAC

The problem/enemy is not the smart phone, or its consumers, or its manufacturer/inventor/contract manufacturer. OEMs deserve praise - and billions of dollars. The problem is that first use buyers are not consciously buying stuff with secondhand market protection. Very large institutional buyers - government and private universities and hospitals, etc. - are missing in action.

Whether or not the procurement language protects our King, it signals to OEMs that we are fully conscious of our intent to protect reuse.  In future legal suits, that clear intent may swing the Supreme Court.

It does not prevent the many other "shenanigans and malarky" which are used by protectionists to dissuade reuse... it's only protection against one OEM chess piece. The "black hat" OEM strategy is the suppression of the second hand market.  Procurement protects against the Bishop, not the Knight.  

Propaganda and fear of liability are still on the board. The OEM Anti Gray Market Alliance (yes, that's an actual alliance, going back to the 1990s) convinced US and EU consumers that global resale to African, Asian and Latinx emerging market tech sector was evil, so the flip phones would be either shredded for "Ptolomy circular economy" metals, or those conscientious consumers would suffer cognitive dissonance, unable to decide what to do with the flip phone, and resign their position by leaving their upgraded flip phone in a desk drawer.

Yes, I'm happier with the stalwart conservationists who stand against planned obsolescence and pridefully continue to use older devices. I've been watching Mika and Joe on @Morning Joe - on a Samsung CRT analog television - as I type. But - I also obtained it "secondhand" as an upgrade to the 1990s Philips CRT TV, which I brought to recycle. Making other wealthy nation citizens feel guilty about buying new stuff isn't the right chess move in a game of PERSUASION.  This is not about my, or your, reuse merit badges - comparing our reuse rates to one another is a zero-sum game, we are measuring against the normal curve. Where we fall on the percentile of other humans reuse rates is not a global strategy.  All OECD countries fail at that, in any case, compared to the non-OECD tech sector - which is perhaps why we prefer to measure "formal recycling" and "big shred" in Europe rather than Life Cycle Analysis (LCA).

We need to anticipate the OEMs future strategy. The flip phone example above is a lost chess match. Always worth studying. OEMs are PERSUADERS.  The MagMoss Warranty Act of 1975 is a powerful chess piece, and Procurement will allow major purchasers to declare their first user rights and privileges, securing at least that corner of the board (casting?).

I'm not disputing the twitter discussion above that "OEMs have made sure that". I'm studying HOW reuse advocates like myself have lost PAST chess matches (recently binge-watched The Queen's Gambit, highly recommend it) to identify HOW the OEMs take steps to shorten the life use of their products. I knew about Vance Packard's "The Waste Makers", and the term "Planned Obsolescence" in bloody high school (it was a bestseller in the early 1960s - the time period Season One of QGambit takes place).

If this gets any traction, I'd suggest we meet to discuss a list of defensive Procurement moves.  Some of  which this blog has bird-dogged over 15 years - Twitter for 12. Some are persuasion, some are software related, some are hardware related, some are simply elective upgrades by wealthier consumers.

FUTURE PROOF is not RETROACTIVE.  #RightToRepair should treat past planned obsolescence as retroactive.  Taking back moves is a losing retreat strategy, let's focus on electric car batteries, solar panels, tablets and wonkadoilies.

"All OEMs, by submitting a bid to supply products under this RFP, acknowledge Warranty Act of 1975 FTC protections and 'first use' rights to surplus property after First Use"