Do You Have a Right To Repair Your Phone? The Fight Between Big Tech and Consumers
Meet Eric Lundgren, who got 15 months in prison for selling pirated Microsoft software that the tech giant gives away for free.
Eric Lundgren, an e-waste entrepreneur who built the first electronic hybrid recycling center in the U.S., will begin a 15-month prison sentence this month after a six-year legal battle with the U.S. Department of Justice.
In 2012, Lundgren plead guilty to conspiracy to traffic in counterfeit goods and criminal copyright infringement for copying and selling CDs for restoring the Windows operating system on broken PCs—CDs that Microsoft gives away for free.
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 trying to preserve aspects of U.S. copyright law that give them enormous power over the products we own. Repair advocates say that in their quest to protect their intellectual property, manufacturers are trampling on our First Amendment rights.
The Rise of Independent Repair Shops
To better understand why 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. Repair.org, a trade association representing independent repair workers, estimates that over 3 million repair and reuse professionals operate in the U.S.
iFixit is one example of a thriving independent repair organization. Kyle Wiens, who co-founded the online community in 2003 from his dorm room in San Luis Obispo, Calif., has become a passionate advocate for consumer repair rights.
"I like to say if you can't fix it you don't really own it," says Wiens. "There was this dark period in the '80s and '90s where we had all these new gizmos that were coming out and nobody knew how to fix them. Now that we have the internet, all this information can get shared online."
According to Inc., iFixit has delivered 30 percent growth year over year since its launch 15 years ago. The company did more than $21 million in sales of tools and repair kits in 2016 and has approximately 10 million monthly visitors to its site. iFixit relies on its community of over 50,000 contributors, who offer repair tips that comprise a growing library of open source manuals.
The company is best known for its teardowns of popular tech merchandise like the iPhone. Wiens was one of the first in the world to purchase an iPhone X and take it apart so he could give customers practical advice on how to fix the device.
Tech companies have responded by integrating special screws and adhesives that aren't available from third-party sellers. And for a period of time Apple was disabling iPhone 6s when the company detected work had been done at independent repair shops. The company was later served with a class action lawsuit and reimbursed thousands of affected consumers.
But none of these tactics have slowed the growth of independent repair industry. So tech companies have increasingly turned to a provision in U.S. copyright law, Section 1201 of the Digital Millennium Copyright Act (DMCA), that makes it illegal to break digital locks protecting copyrighted work. The law's intent was to protect creative content like movies, music, and software from being stolen and copied. With software overtaking hardware under the hood of our devices, companies are using copyright provisions to extend their control over a multitude of products.
Before Lundgren got in trouble with federal authorities, he managed an e-waste facility in Chatsworth, California that recycles about 40 million pounds of e-waste annually.
"Everybody in the whole town just knew me as the recycler," he says. "By 18, I was doing it for American Airlines, for Coca-Cola. It just blew up very fast." When Lundgren was 19 he moved to Shenzhen, a city in China's Guangdong Province that's known as "the Silicon Valley of hardware," and began learning more about e-waste and sourcing replacement parts for broken electronics.
In 2011, Lundgren was approached by a computer broker named Bob Wolff with the idea to duplicate Windows restore discs, which are commonly supplied by computer manufacturers so users can restore their Windows operating system if their computer malfunctions. The software is usually supplied for free and can only be used if the person already has purchased the license for the Windows operating system. Lundgren thought that by providing people with CDs, he could make it easier for consumers to fix their computers.
"My grandmother and my aunt—they don't know how to burn an ISO image or download something from the internet," says Lundgren. "But everybody knows how to put a repair tool inside of a computer, click enter, and let it do its thing."
The idea was that Lundgren would create the discs in China and Wolff would sell them to PC refurbishers in the U.S.
"When Lundgren took this restore CD to the duplicate shop in China, they didn't just duplicate the software on there," says Jake Swearingen, a tech reporter for New York magazine. "They duplicated everything about the CD. So that includes the labeling on it, the Dell logo, the Microsoft logo, everything about it."
In 2012, one shipment of CDs got flagged by U.S. customs. Wolff was approached by the feds and participated in a sting operation targeting Lundgren, which ultimately led to a federal raid on Lundgren's house in Florida.
After initially facing a 21-count indictment, Lundgren plead guilty to conspiracy to traffic in counterfeit goods and criminal copyright infringement. In April a federal appeals court upheld Lundgren's conviction, sentencing him to 15 months in prison.
"Microsoft may be firm on the law but we can question if their motives are really about protecting the software," says Tom W. Bell, a law professor at Chapman University specializing in intellectual property and copyright.
"When copyright is criminalized, it's not just making a criminal out of this Lundgren fellow," says Bell. If you "sit down and examine what we do everyday," he says, we're all "violating copyright law."
Copyright Protections Grow
U.S. copyright protections have grown increasingly broad over the years, and sanctions against infringing parties have become more punitive.
Bell says this trend doesn't balance public and private interests.
Kit Walsh, an attorney with the Electronic Frontier Foundation (EFF), a nonprofit that defends free speech and civil liberties in the digital sphere, says the ubiquity of software has changed the meaning of copyright law.
"The list of products and technologies that are affected by this restriction is practically infinite because it's anything that has software embedded in it," says Walsh. "There's a lingering hook that the seller has in your property that they are arguing gives them really broad powers to dictate how you use that property going forward."
Walsh says these restrictions are having unintended consequences, in particular for security researchers and creatives who are prohibited from even looking at the code that controls our everyday appliances. She says this violates our First Amendment rights.
"Code is a form of speech," she says. "Courts have grappled with that because code also feels a lot like a tool…Even though we have case law that says if you publish instructions…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. There are at least 18 states considering fair repair bills. The legislation is modeled off the 2012 Automotive Right to Repair law in Massachusetts which led 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," states Wiens. "We want the free market. The independent repair shops shouldn't have an advantage over the Apple store, they should just be able to compete on an equal footing."
"Who owns the products that you buy? You do," says Lundgren. "You need to be able to repair those and use those…If I have to go to prison and it's going to raise awareness, and it's going to spark a conversation, and people are gonna start looking into this, I'm happy to go."
Produced by Paul Detrick and Alexis Garcia. Narration by Garcia. Cameras by Detrick, Garcia, and Jim Epstein.
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