If you buy something—a refrigerator, a car, a tractor, a wheelchair, or a phone—but you can't have the information or parts to fix or modify it, is it really yours? The right to repair movement is based on the belief that you should have the right to use and fix your stuff as you see fit, a philosophy that resonates especially in economically trying times, when people can’t afford to just throw away and replace things.

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 Companies for decades have been tightening their stranglehold on the information and the parts that let owners or independent repair shops fix things, but the pendulum is starting to swing back: New York, Minnesota, California, Colorado, and Oregon are among states that have passed right to repair laws, and it’s on the legislative agenda in dozens of other states. Gay Gordon-Byrne is executive director of The Repair Association, one of the major forces pushing for more and stronger state laws, and for federal reforms as well. She joins EFF’s Cindy Cohn and Jason Kelley to discuss this pivotal moment in the fight for consumers to have the right to products that are repairable and reusable.  

In this episode you’ll learn about: 

• Why our “planned obsolescence” throwaway culture doesn’t have to be, and shouldn’t be, a technology status quo. 
• The harm done by “parts pairing:” software barriers used by manufacturers to keep people from installing replacement parts. 
• Why one major manufacturer put out a user manual in France, but not in other countries including the United States. 
• How expanded right to repair protections could bring a flood of new local small-business jobs while reducing waste. 
• The power of uniting disparate voices—farmers, drivers, consumers, hackers, and tinkerers—into a single chorus that can’t be ignored. 

Gay Gordon-Byrne has been executive director of The Repair Association—formerly known as The Digital Right to Repair Coalition—since its founding in 2013, helping lead the fight for the right to repair in Congress and state legislatures. Their credo: If you bought it, you should own it and have the right to use it, modify it, and repair it whenever, wherever, and however you want. Earlier, she had a 40-year career as a vendor, lessor, and used equipment dealer for large commercial IT users; she is the author of "Buying, Supporting and Maintaining Software and Equipment - an IT Manager's Guide to Controlling the Product Lifecycle” (2014), and a Colgate University alumna. 

Resources:

• Gay Gordon-Byrne's TED Talk: “You deserve the right to repair your stuff"(August 2021)
• iFixit, the world’s largest online repair community, offering free step-by-step repair guides for thousands of products
• The Verge: “Right-to-repair is now the law in California” (Oct. 10, 2023)
• The Verge: "Maine’s right-to-repair law for cars wins with 84 percent of the vote" (Nov. 7, 2023)
• Ars Technica: "Oregon governor signs nation’s first right-to-repair bill that bans parts pairing" (Mar. 27,2024)
• National Conference of State Legislatures: Right to Repair 2023 Legislation
• How to Fix the Internet: “Making Hope, with Dan Savage" (Apr. 12, 2022) 

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Transcript

GAY GORDON-BYRNE
A friend of mine from Boston had his elderly father in a condo in Florida, not uncommon. And when the father went into assisted living, the refrigerator broke and it was out of warranty. So my friend went to Florida, figured out what was wrong, said, ‘Oh, I need a new thermostat,’ ordered the thermostat, stuck around till the thermostat arrived, put it in and it didn't work.

And so he called GE because he bought the part from GE and he says, ‘you didn't provide me, there's a password. I need a password.’ And GE says, ‘Oh, you can't have the password. You have to have a GE authorized tech come in to insert the password.’ And that to me is the ultimate in stupid.

CINDY COHN
That’s Gay Gordon-Byrne with an example of how companies often prevent people from fixing things that they own in ways that are as infuriating as they are absurd.

I’m Cindy Cohn, the executive director of the Electronic Frontier Foundation.

JASON KELLEY
And I’m Jason Kelley, EFF’s Activism Director. This is our podcast series How to Fix the Internet.  

Our guest today, Gay Gordon-Byrne, is the executive director of The Repair Association, where she has been advocating for years for legislation that will give consumers the right to buy products that are repairable and reusable – rather than things that need to be replaced outright every few years, or as soon as they break. 

CINDY COHN
The Right to Repair is something we fight for a lot at EFF, and a topic that has come up frequently on this podcast. In season three, we spoke to Adam Savage about it.

ADAM SAVAGE
I was trying to fix one of my bathroom faucets a couple of weeks ago, and I called up a Grohee service video of how to repair this faucet. And we all love YouTube for that, right, because anything you want to fix whether it’s your video camera, or this thing, someone has taken it apart. Whether they’re in Micronesia or Australia, it doesn’t matter. But the moment someone figures out that they can make a bunch of dough from that, I’m sure we’d see companies start to say, ‘no, you can’t put up those repair videos, you can only put up these repair videos’ and we all lose when that happens.

JASON KELLEY
In an era where both the cost of living and environmental concerns are top of mind, the right to repair is more important than ever. It addresses both sustainability and affordability concerns.

CINDY COHN
We’re especially excited to talk to Gay right now because Right to Repair is a movement that is on its way up and we have been seeing progress in recent months and years. We started off by asking her where things stand right now in the United States.

GAY GORDON-BYRNE
We've had four states actually pass statutes for Right to Repair, covering a variety of different equipment, and there's 45 states that have introduced right to repair over the past few years, so we expect there will be more bills finishing. Getting them started is easy, getting them over the finish line is hard.

CINDY COHN
Oh, yes. Oh, yes. We just passed a right to repair bill here in California where EFF is based. Can you tell us a little bit about that and do you see it as a harbinger, or just another step along the way?

GAY GORDON-BYRNE
Well, honestly, I see it as another step along the way, because three states actually had already passed laws, in California, Apple decided that they weren't going to object any further to right to repair laws, but they did have some conditions that are kind of unique to California because Apple is so influential in California. But it is a very strong bill for consumer products. It just doesn't extend to non-consumer products.

CINDY COHN
Yeah. That's great. And do you know what made Apple change their mind? Because they had, they had been staunch opponents, right? And EFF has battled with them in various different areas around Section 1201 and other things and, and then it seemed like they changed their minds and I wondered if you had some insights about that.

GAY GORDON-BYRNE
I take full responsibility.

CINDY COHN
Yay! Hey, getting a big company to change their position like that is no small feat and it doesn't happen overnight.

GAY GORDON-BYRNE
Oh, it doesn't happen overnight. And what's interesting is that New York actually passed a bill that Apple tried to negotiate and kind of really didn't get to do it in New York, that starts in January. So there was a pressure point already in place. New York is not an insignificant size state.

And then Minnesota passed a much stronger bill. That also takes effect, I think, I might be wrong on this, I think also in January. And so the wheels were already turning, I think the idea of inevitability had occurred to Apple that they'd be on the wrong side of all their environmental claims if they didn't at least make a little bit more of a sincere effort to make things repairable.

CINDY COHN
Yeah. I mean, they have been horrible about this from the very beginning with, you know with custom kinds of dongles, and difficulty in repairing. And again, we fought them around section 1201, which is the ability to do circumvention so that you can see how something works and build. tools that will let you fix them.

It's just no small feat from where we set to get, to get the winds to change such that even Apple puts their finger up and says, I think the winds are changing. We better get on the right side of history.

GAY GORDON-BYRNE
Yeah, that's what we've been trying to do for the past, when did we get started? I got started in 2010, the organization got started in 2013. So we've been at it a full 10 years as an actual organization, but the problems with Apple and other manufacturers existed long before. So the 1201 problem still exists, and that's the problem that we're trying to move in federally, but oh my God. I thought moving legislation in states was hard and long.

CINDY COHN
Yeah, the federal system is different, and I think that one of the things that we've experienced, though, is when the states start leading, eventually the feds begin to follow. Now, often they follow with the idea that they're going to water down what the states do. That's why, you know, EFF and, and I think a lot of organizations rally around this thing called preemption, which doesn't really sound like a thing you want to rally around, but it ends up being the way in which you make sure that the feds aren't putting the brakes on the states in terms of doing the right things and that you create space for states to be more bold.

It's sometimes not the best thing for a company that has to sell in a bunch of different markets, but it's certainly better than  letting the federal processes come in and essentially damp down what the states are doing.

GAY GORDON-BYRNE
You're totally right. One of our biggest fears is that someone will... We'll actually get a bill moving for Right to Repair, and it's obviously going to be highly lobbied, and we will probably not have the same quality of results as we have in states. So we would like to see more states pass more bills so that it's harder and harder for the federal government to preempt the states.

In the meantime, we're also making sure that the states don't preempt the federal government, which is another source of friction.

CINDY COHN
Oh my gosh.

GAY GORDON-BYRNE
Yeah, preemption is a big problem.

CINDY COHN
It goes both ways. In our, in our Section 1201 fights, we're fighting the Green case, uh, Green vs. Department of Justice, and the big issue there is that while we can get exemptions under 1201 for actual circumvention, the tools that you need  in order to circumvent, you can't get an exception for, and so you have this kind of strange situation in which you technically have the right to repair your device, but nobody can help you do that and nobody can give you the tools to do it. 

So it's this weird, I often, sometimes I call it the, you know, it's legal to be in Arizona, but it's illegal to go to Arizona kind of law. No offense, Arizona.

GAY GORDON-BYRNE
That's very much the case.

JASON KELLEY
You mentioned, Gay, that you've been doing this work while probably you've been doing the work a lot longer than the time you've been with the coalition and the Repair Association. We'll get to the brighter future that we want to look towards here in a second, but before we get to the, the way we want to fix things and how it'll look when we do, can you just take us back a little bit and tell us more about how we got to a place where you actually have to fight for your right to repair the things that you buy. You know, 50 years ago, I think most people would just assume that appliances and, and I don't know if you'd call them devices, but things that you purchased you could fix or you could bring to a repair shop. And now we have to force companies to let us fix things.

I know there's a lot of history there, but is there a short version of how we ended up in this place where we have to fight for this right to repair?

GAY GORDON-BYRNE
Yeah, there is a short version. It's called about 20 years ago, right after Y2K, it became possible, because of the improvements in the internet, for manufacturers to basically host a repair manual or a user guide. online and expect their customers to be able to retrieve that information for free.

Otherwise, they have to print, they have to ship. It's a cost. So it started out as a cost reduction strategy on the part of manufacturers. And at first it seemed really cool because it really solved a problem. I used to have manuals that came in like, huge desktop sets that were four feet of paper. And every month we'd get pages that we had to replace because the manual had been updated. So it was a huge savings for manufacturers, a big convenience for consumers and for businesses.

And then, no aspersions on lawyers. But my opinion is that some lawyer decided they wanted to know, they should know. For reasons we have no idea because they, they still don't make sense, that they should know who's accessing their website. So then they started requiring a login and a password, things like that.

And then another bright light, possibly a lawyer, but most likely a CFO said, we should charge people to get access to the website. And that slippery slope got really slippery or really fast. So it became obvious that you could save a lot of money by not providing manuals, not providing diagnostics and then not selling parts.

I mean, if you didn't want to sell parts, you didn't have to. There was no law that said you have to sell parts, or tools, or diagnostics. And that's where we've been for 20 years. And everybody that gets away with it has encouraged everybody else to do it. To the point where, um, I don't think Cindy would disagree with me.

I mean, I took a look, um, as did Nathan Proctor of US PIRG when we were getting ready to go before the FTC. And we said, you know, I wonder how many companies are actually selling parts and tools and manuals, and Nathan came up with a similar statistic. Roughly 90 percent of the companies don't.

JASON KELLEY
Wow.

GAY GORDON-BYRNE
So we're, face it, we have now gone from a situation where everybody could fix anything if they were really interested, to 90 percent of stuff not being fixable, and that number is going, getting worse, not better. So yeah, that's the short story, it’s been a bad 20 years.

CINDY COHN
It's funny because I think it's really, it's such a testament to people's desire to want to fix their own things that despite this, you can go on YouTube if something breaks and you can find some nice person who will walk you through how to fix, you know, lots and lots of devices that you have. And to me, that's a testament to the human desire to want to fix things and the human desire to want to teach other people how to fix things, that despite all these obstacles, there is this thriving world, YouTube's not the only place, but it's kind of the central place where you can find nice people who will help tell you how to fix your things, despite it being so hard and getting harder to have that knowledge and the information you need to do it.

GAY GORDON-BYRNE
I would also add to that there's a huge business of repair that, we're not strictly fighting for people's rights to be able to do it yourself. In fact, most people, again, you know, back to some kind of general statistics, most people, somewhere around 85 percent of them, really don't want to fix their own stuff.

They may fix some stuff, but they don't want to fix all stuff. But the options of having somebody help them have also gone. Gone just downhill, downhill, downhill massively in the last 20 years and really bad in the past 10 years. 

So the industry that current employment used to be about 3 million people in the repair, in the industry of repair and that kind of spanned auto repair and a bunch of other things. But those people don't have jobs if people can't fix their stuff because the only way they can be in business is to know that they can buy a part. To know that they can buy the tool, to know that they can get a hold of the schematic and the diagnostics. So these are the things that have thwarted business as well as, do it yourself. And I think most people, most people, especially the people I know, really expect to be able to fix their things. I think we've been told that we don't, and the reality is we do.

CINDY COHN
Yeah, I think that's right. And one of the, kind of, stories that people have been told is that, you know, if there's a silicon chip in it, you know, you just can't fix it. That that's just, um, places things beyond repair and I think that that's been a myth and I think a lot of people have always known It's a myth, you know, certainly in EFF's community.

We have a lot of hardware hackers, we even have lots of software hackers that know that the fact that there's a chip involved doesn't mean that it's a disposable item. But I wondered you know from your perspective. Have you seen that as well?

GAY GORDON-BYRNE
Oh, absolutely. People are told that these things are too sophisticated, that they're too complex, they're too small. All of these things that are not true, and you know, you got 20 years of a drumbeat of just massive marketing against repair. The budgets for people that are saying you can't fix your stuff are far greater than the budgets of the people that say you can.

So, thank you, Tim Cook and Apple, because you've made this an actual point of advocacy. Every time Apple does something dastardly, and they do it pretty often, every new release there's something dastardly in it, we get to get more people behind the, ‘hey, I want to fix my phone, goddamnit!’

CINDY COHN
Yeah, I think that's right. I think that's one of the wonderful things about the Right to Repair movement is that you're, you're surfing people's natural tendencies. The idea that you have to throw something away as soon as it breaks is just so profoundly …I think it's actually an international human, you know, desire to be able to fix these kinds of things and be able to make something that you own work for you.

So it's always been profoundly strange to have companies kind of building this throwaway culture. It reminds me a little of the privacy fights where we've had also 20 years of companies trying to convince us that your privacy doesn't matter and you don't care about it, and that the world's better if you don't have any privacy. And on a one level that has certainly succeeded in building surveillance business models. But on the other hand, I think it's profoundly against human tendencies, so those of us on the side of privacy and repair, the benefit of us is we're kind of riding with how people want to be in the kind of world they want to live in, against, you know, kind of very powerful, well funded forces who are trying to convince us we're different than we are.

JASON KELLEY
Let’s take a quick moment to say thank you to our sponsor. “How to Fix the Internet” is supported by The Alfred P. Sloan Foundation’s Program in Public Understanding of Science and Technology. Enriching people’s lives through a keener appreciation of our increasingly technological world and portraying the complex humanity of scientists, engineers, and mathematicians.

And now back to our conversation with Gay Gordon-Byrne.

At the top of the episode, Gay told us a story about a refrigerator that couldn’t be fixed unless a licensed technician – for a fee, obviously – was brought in to ENTER A PASSWORD. INTO A FRIDGE. Even though the person who owned the fridge had sourced the new part and installed it.

GAY GORDON-BYRNE
And that illustrates to me the damage that's being done by this concept of parts pairing, which is where only the manufacturer can make the part work. So even if you can find a part. Even if you could put it in, you can't make it work without calling the manufacturer again, which kind of violates the whole idea that you bought it and you own it, and they shouldn't have anything to do with it after that. 

So these things are pervasive. We see it in all sorts of stuff. The refrigerator one really infuriates me.

CINDY COHN
Yeah, we've seen it with printer cartridges. We've seen it with garage door openers, for sure. I recently had an espresso machine that broke and couldn't get it fixed because the company that made it doesn't make parts available for, for people and that. You know, that's a hard lesson. It's one of the things when you're buying something is to try to figure out, like, is, is this actually repairable or not?

You know, making that information available is something that our friends at Consumer Reports have done and other people have done, but it's still a little hard to find sometimes.

GAY GORDON-BYRNE
Yeah, that information gap is enormous. There are some resources. They're not great. none of them are comprehensive enough to really do the job. But there's an ‘index de repairability’ in France that covers a lot of consumer tech, you know, cell phones and laptops and things along those lines.

It's not hard to find, but it's in French, so use Google Translate or something and you'll see what they have to say. Um, that's actually had a pretty good impact on a couple companies. For example, Samsung, which had never put out a manual before, had to put out a manual, um, in order to be rated in France. So they did. The same manual they didn't put out in the U. S. and England.

CINDY COHN  
Oh my God, it’s amazing.

Music break.

CINDY COHN
So let's flip this around a little bit. What does the world look like if we get it right? What does a repairable world look like? How is it when you live in it, Gay? Give me a day in the life of somebody who's living in the fixed version of the world.

GAY GORDON-BYRNE
Well, you will be able to buy things that you can fix, or have somebody fix them for you. And one of the consequences is that you will see more repair shops back in your town.

It will be possible for some enterprising person, that'll open up. Again, the kinds of shops we used to have when we were kids.

You'll see a TV repair shop, an appliance repair shop, an electronics repair shop. In fact, it might be one repair shop, because some of these things are all being fixed in the same way. 

So  you'll see more economic activity in the area of repair. You'll also see, and this is a hope, that manufacturers, if they're going to make their products more repairable, in order to look better, you know, it's more of a, more of a PR and a marketing thing.

If they're going to compete on the basis of repairability, they're going to have to start making their products. more repairable from the get go. They're probably gonna have to stop gluing everything together. Europe has been pretty big on making sure that things are made with fasteners instead of glue.

I think we're gonna see more activity along those lines, and more use of replaceable batteries. Why should a battery be glued in? That seems like a pretty stupid thing to do. So I think we'll see some improvements along the line of sustainability in the sense that we'll be able to keep our things longer and use them until we're done with them, not to when the manufacturer decides they want to sell you a new one, which is really the cycle that we have today.

CINDY COHN
Yeah. Planned obsolescence I think is what the marketers call it. I love a vision of the world, you know, when I grew up, I grew up in a small town in Iowa and we had the, the people called the gearheads, right? They were the ones who were always tinkering with cars. And of course you could take your appliances to them and other kinds of things because, you know, people who know how to take things apart and figure out how they work tend to know that about multiple things.

So I'd love a future of the world where the kind of gearheads rise again and are around to help us keep our stuff longer and keep our stuff again.  I really appreciate what you say, like when we're done with them. I mean, I love innovation. I love new toys.

I think that's really great. But the idea that when I'm done with something, you know, it goes into a trash heap. Um, or, you know, into someplace where you have to have fancy, uh, help to make sure that you're not endangering the planet. Like, that's not a very good world.

GAY GORDON-BYRNE
Well, look at your example of your espresso machine. You weren't done with it. It quit. It quit. You can't fix it. You can't make another cup of espresso with it.

That's not what you planned. That's not what you wanted.

CINDY COHN
Yep.

JASON KELLEY
I think we all have stories like the espresso machine and that's part of why this is such a tangible topic for everyone. Maybe I'm not alone in this, but I love, you know, thrift stores and places like that where I can get something that maybe someone else was, was tired of. I was walking. Hmm. I passed a house a few years ago and someone had put, uh, a laptop that the screen had been damaged just next to the trash.

And I thought, that looks like a pretty nice laptop. And I grabbed it. It was a pretty new, like, one year old Microsoft Surface. Tablet, laptop, um, anyway, I took it to a repair shop and they were able to repair it for like way less than the cost of buying a new one and I had a new laptop essentially, um, and I don't think they gave me extra service because I worked at EFF but they were certainly happy to help because I worked at EFF, um, but then, you know, these things do eventually Sort of give up, right?

That laptop lasted me about three years and then had so many issues that I just kind of had to get rid of it Where do you think in the in the better future? We should put the things that are sort of Unfixable. You know, do we, do we bring them to a repair shop and they pull out the pieces that work like a junkyard that they can reuse?

Is there a better system for, uh, disposing of the different pieces or the different devices that we can't repair? How do you think about that more sustainable future once everything is better in the first place in terms of being able to repair things?

GAY GORDON-BYRNE
Excellent question. We have a number of members that are what we call charitable recyclers. And I think that's a model for more, rather than less. They don't even have to be gently used. They just have to be potentially useful. And they'll take them in. They will fix them. They will train people, often people that have some employment challenges, especially coming out of the criminal justice system.  And they'll train them to make repairs and they both get a skill, a marketable skill for future employment. And they also, they also turn around and then resell those devices to make money to keep the whole system going.

But in the commercial recycling business, there's a lot of value in the things that have been discarded if they can have their batteries removed before, before they are, quote, recycled, because recycling is a very messy business and it requires physical contact with the device to the point that it's shredded or crushed. And if we can intercept some of that material before it goes to the crusher, we can reuse more of that material. And I think a lot of it can be reused very effectively in downstream markets, but we don't have those markets because we can't fix the products that are broken.

CINDY COHN
Yep. There's a whole chain of good that starts happening if we can begin to start fixing things, right? It's not just the individuals get to fix the things that they get, but it sets off kind of a cycle of things, a happy cycle of things that get better all along the way.

GAY GORDON-BYRNE
Yep, and that can be, that can happen right now, well, I should say as soon as these laws start taking effect, because a lot of the information parts and tools that are required under the laws are immediately useful.

CINDY COHN
Right. So tell me, how do these laws work? What do they, what, the good ones anyway, what are, what are they doing? How are things changing with the current flock of laws that are just now coming online?

GAY GORDON-BYRNE
Well, they're all pretty much the same. They require manufacturers of things that they already repair, so there's some limitations right there, to make available on fair and reasonable terms the same parts, tools, diagnostics, and firmware that they already provide to their quote authorized or their subcontract repair providers because our original intent was to restore competition. So the bills are really a pro competition law as opposed to an e-waste law.

CINDY COHN  
Mm hmm.

GAY GORDON-BYRNE
Because these don't cover everything. They cover a lot of stuff, but not everything. California is a little bit different in that they already had a statute that required things of be, under $50 or under $100 to be covered for three years. They have some dates in there that expand the effectiveness of the bill into products that don't even have repair options today.

But the bills that we've been promoting are a little softer, because the intent is competition, because we want to see what competition can do, when we unlock competition, what that does for consumers.

CINDY COHN  
Yeah, and I think that that dovetails nicely into something EFF has been working on quite a while now, which is interoperability, right? One of the things that unlocks competition is, you know, requiring people to build their tools and services in a way that are interoperable with others, that helps both with repair and with kind of follow on innovation that, you know, you can switch up how your Facebook feed shows up based on what you want to see rather than, you know, based upon what Facebook's algorithm wants you to see or other kinds of changes like that. And how do you see interoperability fitting into all of this?

GAY GORDON-BYRNE
I think there will be more. It's not specific to the law, but I think it will simply happen as people try to comply with the law. 

Music break

CINDY COHN  
You founded the Repair Association, so tell us a little bit about how that got started and how you decided to dedicate your life to this. I think it's really important for us to think about, like, the people that are needed to build a better world, as well as the, you know, kind of technologies and ideas.

GAY GORDON-BYRNE
I was always in the computer industry. I grew up with my father who was a computer architect in the 50s and 60s. So I never knew a world that didn't involve computers. It was what dad did. And then when I needed a job out of college, and having bounced around a little bit and found not a great deal of success, my father encouraged me to take a job selling computers, because that was the one thing he had never done and thought that it was missing from his resume.

And I took to it like, uh, I don't know, fish to water? I loved it. I had a wonderful time and a wonderful career. But by the mid 2000s, I was done. I mean, I was like, I can't stand this job anymore. So I decided to retire. I didn't like being retired. I started doing other things and eventually, I started doing some work with a group of companies that repair large mainframes.

I've known them. I mean, my former boss was the president. It was kind of a natural. And they started having trouble with some of the manufacturers and I said, that's wrong. I mean, I had this sense of indignation that what Oracle had done when they bought Sun was just flatly wrong and it was illegal. And I volunteered to join a committee. And that's when, haha, that's when I got involved and it was basically, I tell people I over-volunteered.

CINDY COHN
Yeah.

GAY GORDON-BYRNE
And what happened is that because I was the only person in that organization that didn't already have relationships with manufacturers, that they couldn't, they couldn't bite the hand that fed them, I was elected chief snowball thrower. AKA Executive Director. 

So it was a passion project that I could afford to do because otherwise I was going to stay home and knit. So this is way better than knitting or quilting these days, way more fun, way more gratifying. I've had a truly wonderful experience, met so many fabulous people, have a great sense of impact that I would never have had with quilting.

CINDY COHN
I just love the story of somebody who kind of put a toe in and then realized, Oh my God, this is so important. And ‘I found this thing where I can make the world better.’ And then you just get, you know, kind of, you get sucked in and, um, but it's, it's fun. And what I really appreciate about the Repair Association and the Right to Repair people is that while, you know, they're working with very serious things, they also, you know, there's a lot of fun in making the world a better place.

And it's kind of fun to be involved in the Right to Repair right now because after a long time kind of shouting in the darkness, there's some traction starting to happen. So then the fun gets even more fun.

GAY GORDON-BYRNE
I can tell you it's ... We're so surprised. I mean, it took, we've had over, well, well over 100 bills filed and, you know, every year we get a little further. We get past this committee and this hurdle and this hurdle and this hurdle. We get almost to the end and then something would happen. And to finally get to the end where the bill becomes law? It's like the dog that chases the car, and you go, we caught the car, now what?

CINDY COHN
Yeah. Now you get to fix it! The car!

JASON KELLEY
Yeah, now you can repair the car.

MUSIC TRANSITION

JASON KELLEY
That was such a wonderful, optimistic conversation and not the first one we've had this season. But this one is interesting because we're actually already getting where we want to be. We're already building the future that we want to live in and it's just really, really pleasing to be able to talk to someone who's in the middle of that and, and making sure that that work happens.

CINDY COHN
I mean, one of the things that really struck me is how much of the better future that we're building together is really about creating new jobs and new opportunities for people to work. I think there's a lot of fear right now in our community that the future isn't going to have work, and that without a social safety net or other kinds of things, you know, it's really going to hurt people.

And I so appreciated hearing about how, you know, Main Street's going to have more jobs. There's going to be people in your local community who can fix your things locally because devices, those are things where having a local repair community and businesses is really. helpful to people.

And so I also kind of, the flip side of that is this interesting observation that one of the things that's happened as a result of shutting off the Right to Repair is an increasing centralization, um, that the jobs that are happening in this thing are not happening locally and that by unlocking the right to repair, we're going to unlock some local opportunities for economic things.

I mean, You know, EFF thinks about this both in terms of empowering users, but also in terms of competition. And the thing about Right to Repair is it really does unlock kind of hyper local competition.

JASON KELLEY
I hadn't really thought about how specifically local it is to have a repair shop that you can just bring your device to. And right now it feels like the options are if you live near an Apple store, for example, maybe you can bring your phone there and then they send it somewhere. I'd much rather go to someone, you know, in my town that I can talk to, and who can tell me about what needs to be done. That's such a benefit of this movement that a lot of people aren't even really putting on the forefront, but it really is something that will help people actually get work and, and, and help the people who need the work and the people who need the job done.

CINDY COHN
Another thing that I really appreciate about the Right to Repair movement s how universal it is. Everyone experiences some version of this, you know, from the refrigerator story to my espresso machine, to any of any number of other stories to the farmers, like everyone has some version of how.

This needs to be fixed. And the other thing that I really appreciate about her gay stories about the right to repair movement is that, you know, she's somebody who comes out of computers, and was thinking about this from the context of computers and didn't really realize that farmers were having the same problem.

Of course, we all kind of know analytically that a lot of the movement in a lot of industries is towards, you know, centralizing computers and making, you know. You know, tractors are now computers with gigantic wheels. Cars are now computers with smaller wheels. That computers have become central to these kinds of things, but also realization that we have silos of users who are experiencing a version of the same problem and connecting those silent silos together, let me say that again. I think the realization that we have silos of users who are experiencing the same problem depending on what kind of tool they're using, um, and connecting those silos together so that together we stand as a much bigger voice is something that the repair, um, the Right to Repair folks have really done well and it is a, is a good lesson for the rest of us.

JASON KELLEY
Yeah, I think we talked a little bit with Adam Savage when he was on a while ago about this sort of gatekeeping and how effective it is to remove the gatekeepers from these movements and say, you know, we're all fighting the same fight. And it just goes to show you that it actually works. I mean, not only does it get everybody on the same page, but unlike a lot of movements, I think you can really see the impact that the Right to Repair movement has had. 

And we talked with Gay about this and it's just, it really, I think, should make people come away optimistic that advocacy like this works over time. You know, it's not a sprint, it's a marathon, and we have actually crested a sort of hill in some ways.

There's a lot of work to be done, but it's, it's actually work that we probably will be able to get done and, and that we're seeing the benefits of today

CINDY COHN
Yeah. And as we start to see benefits, we're going to start to see more benefits. I appreciate her. We're in, you know, we're in the whole plugging period where, you know, we got something passed and we need to plug the holes. But I also think once people start feeling the power of having the Right to Repair again, I think I hope it will help snowball.

One of the things that she said that I have observed as well is that sometimes it feels like nothing's happening, nothing's happening, nothing's happening, and then all of a sudden it's all happening. And I think that that's one of the, the kind of flows of advocacy work that I've observed over time and it's fun to see the, the Right to Repair Coalition kind of getting to experience that wave, even if it can be a little overwhelming sometimes.

JASON KELLEY
Thanks for joining us for this episode of How to Fix the Internet.

If you have feedback or suggestions, we'd love to hear from you. Visit EFF. org slash podcast and click on listener feedback. While you're there, you can become a member, donate, maybe pick up some merch and just see what's happening in digital rights this week and every week.

This podcast is licensed Creative Commons Attribution 4.0 International, and includes music licensed Creative Commons Attribution 3.0 Unported by their creators.

In this episode you heard …Come Inside by Zep Hurme featuring snowflake and Drops of H2O ( The Filtered Water Treatment ) by J.Lang featuring Airtone.

You can find links to their music in our episode notes, or on our website at eff.org/podcast. 

Our theme music is by Nat Keefe of BeatMower with Reed Mathis

How to Fix the Internet is supported by the Alfred P. Sloan Foundation's program in public understanding of science and technology.

I hope you’ll join us again soon. I’m Jason Kelley.

CINDY
And I’m Cindy Cohn.

Copyright’s reach is already far too broad, and courts have no business expanding it any further, particularly where that reframing will undermine adversarial interoperability. Unfortunately, a federal district court did just that in the latest iteration of Oracle v. Rimini, concluding that software Rimini developed was a “derivative work” because it was intended to interoperate with Oracle's software, even though the update didn’t use any of Oracle’s copyrightable code.

That’s a dangerous precedent. If a work is derivative, it may infringe the copyright in the preexisting work from which it, well, derives. For decades, software developers have relied, correctly, on the settled view that a work is not derivative under copyright law unless it is “substantially similar” to a preexisting work in both ideas and expression. Thanks to that rule, software developers can build innovative new tools that interact with preexisting works, including tools that improve privacy and security, without fear that the companies that hold rights in those preexisting works would have an automatic copyright claim to those innovations.

That’s why EFF, along with a diverse group of stakeholders representing consumers, small businesses, software developers, security researchers, and the independent repair community, filed an amicus brief in the Ninth Circuit Court of Appeals explaining that the district court ruling is not just bad policy, it’s also bad law.  Court after court has confronted the challenging problem of applying copyright to functional software, and until now none have found that the copyright monopoly extends to interoperable software absent substantial similarity. In other words, there is no “software exception” to the definition of derivative works, and the Ninth Circuit should reject any effort to create one.

The district court’s holding relied heavily on an erroneous interpretation of a 1998 case, Micro Star v. FormGen. In that case, the plaintiff, FormGen, published a video game following the adventures of action hero Duke Nukem. The game included a software tool that allowed players themselves to build new levels to the game and share them with others. Micro Star downloaded hundreds of those user-created files and sold them as a collection. When FormGen sued for copyright infringement, Micro Star argued that because the user files didn’t contain art or code from the FormGen game, they were not derivative works.

The Ninth Circuit Court of Appeals ruled against Micro Star, explaining that:

[t]he work that Micro Star infringes is the [Duke Nukem] story itself—a beefy commando type named Duke who wanders around post-Apocalypse Los Angeles, shooting Pig Cops with a gun, lobbing hand grenades, searching for medkits and steroids, using a jetpack to leap over obstacles, blowing up gas tanks, avoiding radioactive slime. A copyright owner holds the right to create sequels and the stories told in the [user files] are surely sequels, telling new (though somewhat repetitive) tales of Duke’s fabulous adventures.

Thus, the user files were “substantially similar” because they functioned as sequels to the video game itself—specifically the story and principal character of the game. If the user files had told a different story, with different characters, they would not be derivative works. For example, a company offering a Lord of the Rings game might include tools allowing a user to create their own character from scratch. If the user used the tool to create a hobbit, that character might be considered a derivative work. A unique character that was simply a 21^st century human in jeans and a t-shirt, not so much.

Still, even confined to its facts, Micro Star stretched the definition of derivative work. By misapplying Micro Star to purely functional works that do not incorporate any protectable expression, however, the district court rewrote the definition altogether. If the court’s analysis were correct, rightsholders would suddenly have a new default veto right in all kinds of works that are intended to “interact and be useable with” their software. Unfortunately, they are all too likely to use that right to threaten add-on innovation, security, and repair.

Defenders of the district court’s approach might argue that interoperable software will often be protected by fair use. As copyrightable software is found in everything from phones to refrigerators, fair use is an essential safeguard for the development of interoperable tools, where those tools might indeed qualify as derivative works. But many developers cannot afford to litigate the question, and they should not have to just because one federal court misread a decades-old case.

Update: The FTC  is no longer accepting comments for this rulemaking. More than 1,600 comments were filed in the proceeding, with many of you sharing your personal stories about why you support the right to repair. Thank you for taking action!

Do you care about being able to fix and modify your stuff? Then it's time to speak up and tell the Federal Trade Commission that you care about your right to repair.

As we have said before, you own what you buy—and you should be able do what you want with it. That should be the end of the story, whether we’re talking about a car, a tractor, a smartphone, or a computer. If something breaks, you should be able to fix it yourself, or choose who you want to take care of it for you.

The Federal Trade Commission has just opened a 30-day comment period on the right to repair, and it needs to hear from you. If you have a few minutes to share why the right to repair is important to you, or a story about something you own that you haven't been able to fix the way you want, click here and tell the agency what it needs to hear.

Take Action

Tell the FTC: Stand up for our Right to Repair

If you’re not sure what to say, there are three topics that matter most for this petition. The FTC should:

• Make repair easy
• Make repair parts available and reasonably priced
• Label products with ease of repairability

If you have a personal story of why right to repair matters to you, let them know!

This is a great moment to ask for the FTC to step up. We have won some huge victories in state legislatures across the country in the past several years, with good right-to-repair bills passing in California, Minnesota, Colorado, and Massachusetts. Apple, long a critic, has come out in favor of right to repair.

With the wind at our backs, it's time for the FTC to consider nationwide solutions, such as making parts and resources more available to everyday people and independent repair shops.

EFF has worked for years with our friends at organizations including U.S. PIRG (Public Interest Research Group) and iFixit to make it easier to tinker with your stuff. We're proud to support their call to the FTC to work on right to repair, and hope you'll add your voice to the chorus.

Join the (currently) 700 people making their voice heard. 

Take Action

Tell the FTC: Stand up for our Right to Repair

EFF works every year to improve policy in ways that protect your digital rights in states across the country. Thanks to the messages of hundreds of EFF members across the country, we've spoken up for digital rights this year from Sacramento to Augusta.

Much of EFF's state legislative work has, historically, been in our home state of California—also often the most active state on digital civil liberties issues. This year, the Golden State passed several laws that strengthen consumer digital rights.

Two major laws we supported stand out in 2023. The first is S.B. 244, authored by California Sen. Susan Eggman, which makes it easier for individuals and independent repair shops to access materials and parts needed for maintenance on electronics and appliances. That means that Californians with a broken phone screen or a busted washing machine will have many more options for getting them fixed. Even though some electronics are not included, such as video game consoles, it still raises the bar for other right-to-repair bills.

S.B. 244 is one of the strongest right-to-repair laws in the country, doggedly championed by a group of advocates led by the California Public Interest Research Group, and we were proud to support it.

Another significant win comes with the signing of S.B. 362, also known as the CA Delete Act, authored by California Sen. Josh Becker. Privacy Rights Clearinghouse and Californians for Consumer Privacy led the fight on this bill, which builds on the state's landmark data privacy law and makes it easier for Californians to control their data through the state's data broker registry.

In addition to these wins, several other California bills we supported are now law. These include a measure that will broaden protections for immigration status data and one to facilitate better broadband access.

Health Privacy Is Data Privacy

States across the country continue to legislate at the intersection of digital privacy and reproductive rights. Both in California and beyond, EFF has worked with reproductive justice activists, medical practitioners, and other digital rights advocates to ensure that data from apps, electronic health records, law enforcement databases, and social media posts are not weaponized to prosecute those seeking or aiding those who seek reproductive or gender-affirming care. 

While some states are directly targeting those who seek this type of health care, other states are taking different approaches to strengthen protections. In California, EFF supported a bill that passed into law—A.B. 352, authored by CA Assemblymember Rebecca Bauer-Kahan—which extended the protections of California's health care data privacy law to apps such as period trackers. Washington, meanwhile, passed the "My Health, My Data Act"—H.B. 1155, authored by WA Rep. Vandana Slatter—that, among other protections, prohibits the collection of health data without consent. While EFF did not take a position on H.B. 1155, we do applaud the law's opt-in consent provisions and encourage other states to consider similar bills.

Consumer Privacy Bills Could Be Stronger

Since California passed the California Consumer Privacy Act in 2018, several states have passed their own versions of consumer privacy legislation. Unfortunately, many of these laws have been more consumer-hostile and business-friendly than EFF would like to see. In 2023, eight states—Delaware, Florida, Indiana, Iowa, Montana, Oregon, Tennessee and Texas— passed their own versions of broad consumer privacy bills.

EFF did not support any of these laws, many of which can trace their lineage to a weak Virginia law we opposed in 2021. Yet not all of them are equally bad.

For example, while EFF could not support the Oregon bill after a legislative deal stripped it of its private right of action, the law is a strong starting point for privacy legislation moving forward. While it has its flaws, unique among all other state privacy laws, it requires businesses to share the names of actual third parties, rather than simply the categories of companies that have your information. So, instead of knowing a "data broker" has your information and hitting a dead end in following your own data trail, you can know exactly where to file your next request. EFF participated in a years-long process to bring that bill together, and we thank the Oregon Attorney General's office for their work to keep it as strong as it is.

EFF also wants to give plaudits to Montana for another bill—a strong genetic privacy bill passed this year. The bill is a good starting point for other states, and shows Montana is thinking critically about how to protect people from overbroad data collection and surveillance.

Of course, one post can't capture all the work we did in states this year. In particular, the curious should read our Year in Review post specifically focused on children’s privacy, speech, and censorship bills introduced in states this year. But EFF was able to move the ball forward on several issues this year—and will continue to fight for your digital rights in statehouses from coast to coast.

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.

California often sets the bar for technology legislation across the country. This year, the state enacted several laws that strengthen consumer digital rights.

The first big win to celebrate? Californians now enjoy the right to repair. S.B. 244, authored by California Sen. Susan Eggman, makes it easier for individuals and independent repair shops to access materials and parts needed for maintenance on electronics and appliances. That means that Californians with a broken phone screen or a busted washing machine will have many more options for getting them fixed.

S.B. 244 is one of the strongest right-to-repair laws in the country, and caps off a strong couple of years of progress on this issue. This is a huge victory for consumers, pushed by a dedicated group of advocates led by the California Public Interest Research Group, and we're excited to keep pushing to ensure that people have the freedom to tinker.

California's law differs from other right-to-repair laws in a few ways. For one, by building on categories set in the state's warranty laws, S.B. 244 establishes that you'll be able to get documentation, tools, and parts for devices for three years for products that cost between $50 and $99.99. For products that cost $100 or more, those will be available for seven years. Even though some electronics are not included, such as video game consoles, it still raises the bar for other right-to-repair bills.

Another significant win comes with the signing of S.B. 362, also known as the CA Delete Act, which was authored by California Sen. Josh Becker. This bill was supported by a coalition of advocates led by Privacy Rights Clearinghouse and Californians for Consumer Privacy and builds on the state's landmark data privacy law and its data broker registry to make it easier for anyone to exert greater control over their privacy. Despite serious pushback from advertisers, California Governor Gavin Newsom signed this law, which also requires data brokers to report more information about what data they collect on consumers and strengthens enforcement mechanisms against data brokers who fail to comply with the reporting requirement.

This law is an important, common-sense measure that makes rights established by the California Consumer Privacy Act more user-friendly; EFF was proud to support it. 

In addition to these big wins, several California bills we supported are now law. These include measures that will broaden protections for health care data, reproductive data, immigration status data, as well as facilitate better broadband access.

Of course, not everything went as EFF would like.  Governor Newsom signed A.B. 1394—a bill EFF opposed because it's likely to incentivize companies to censor protected speech to avoid liability. A.B. 1394 follows a troubling trend we've seen in several state legislatures, including in California, when lawmakers attempt to address children's online safety. In seeking to protect children, bills such as these run a high risk of censoring protected speech.

As we wrote in our letters opposing this bill, "We have seen this happen with similarly well-intentioned laws. The federal Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA) ostensibly sought to criminalize sex trafficking, but swept up Internet speech about sex, sex workers, and sexual freedom, including harm reduction information and speech advocating decriminalization of prostitution. A.B. 1394 could follow a similar path, in which companies fearing the consequences of the law cast an overbroad net and remove information on how to prevent commercial sexual exploitation of minors or support groups for victims. Failing to comply with a notice could be construed as negligence under this bill as written."

We were encouraged to see that some other bills that raised similar concerns did not advance through the legislature. Rather than pursue these laws that facilitate censorship, EFF recommends that lawmakers consider comprehensive data privacy laws that address the massive collection and processing of personal data that is the root cause of many problems online.

As always, we want to acknowledge how much your support has helped our advocacy in California this year. Every person who takes the time to send a message or make a call to your legislators helps to tip the scales. Your voices are invaluable, and they truly make a difference.