Faster phone upgrades than Taylor Swift's eras? Fight planned obsolescence with Right to Repair!

Ever feel like your phone mysteriously slows down right before a new model is released? Or maybe your perfectly functional laptop suddenly needs a costly repair just outside of warranty? Or that your perfectly functional printer suddenly refuses to cooperate? Are you also beginning to experience something similar with your TV, smart electronics, kitchen appliances, vacuum cleaners and even your cars? Welcome to the world of planned obsolescence, a deliberate business strategy adopted widely by the tech industry, where they design products to shorten their lifespan by ensuring that they are more purchases and reduced replacements.

In legalese it means that - while the ultimate legal responsibility for a product's durability hinges on the specific warranties and guarantees offered by the manufacturer, the intentional design of products to have a shortened lifespan for increased sales, raises potential product liability concerns for manufacturers under strict liability principles. In an ideal ethical world, this strategy could potentially expose manufacturers to liability under theories of deceptive marketing or failure to disclose material information, thereby impacting their legal responsibility for product longevity.

In fact many years ago when my brother introduced me with this darling concept - while I researching I found that the concept is not restricted to the tech sector alone. It is in fact a key component of a capitalistic economy that requires consumerism to continue for its own survival. Slowly I started seeing this concept play out into my wardrobe - where I observed that fast fashion clothing has a shorter shelf life than the others. Today, I can testify to witnessing the death of many a fast fashion fabric in a single wash cycle! I even read a report which connected this to “affordable” housing - where there were was an overuse of substandard resources, but the houses built were not durable and would put the owners per force, back into the consumer cycle of looking for yet another “affordable” option. This gets even more extreme when we look at the healthcare sector. Dr. Lars Thording observes that many healthcare organizations have experienced the negative effects of under-designing products for planned obsolescence. For example, sensor-enabled catheters in an electrophysiology lab typically cost more than $1,000 per device. The lab cannot complete procedures without these devices. Yet over the past few years, leading manufacturers in the space have taken built-in obsolescence to an entirely new level.

It is a strategy frequently used across industries, predominantly because there is hardly anything barring its widespread adoption. There is however a growing movement to fight this detrimental strategy by lobbying for the - Right to Repair. If we are consumers who want a balanced and fair marketplace free of unfair and abusive commercial practice that threatens sustainable consumption, a semblance of good business ethics and waste reduction - we must fight the good fight for Right to Repair. If we care about none of the above and only care about saving our precious dollar and wish to get the most bang for our buck then - even that is reason enough to read further and see what difference we can make in your sphere of operation.

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Planned Obsolescence as a business strategy

Research on the subject suggests that planned obsolescence is not a recent phenomena. In fact it appeared in the early 20th century with the Phoebus cartel and intensified as a tool to stimulate consumption during the global crisis of 1929— as a result of the combination of multiple factors, such as the amazing production capacity, the constant technological innovation, mass consumption, and today's culture, among others. The origin of the phrase planned obsolescence goes back at least as far as 1932 with Bernard London's pamphlet Ending the Depression Through Planned Obsolescence. The essence of London's plan would have the government impose a legal obsolescence on personal-use items, to stimulate and perpetuate purchasing. It is imperative we understand where it all began as the reasons for its beginning are instrumental in coming to executable solutions.

For the purposes of this edition, we will focus on the classification of obsolescence proposed by the European Economic and Social Committee (EESC) in their report titled Towards more sustainable consumption: industrial product lifetimes and restoring trust through consumer information. The four types of obsolescence distinguished here are: i) planned obsolescence ii) indirect obsolescence, iii) incompatibility obsolescence, and iv) style obsolescence.

Section 2.4 of this EESC's report succinctly defines and exemplifies the different types of obsolescence as follows:

1. Planned obsolescence, in its strict sense, consists of designing a product to have a shorter life, if necessary by designing it to run only for a limited number of operations.
2. Indirect obsolescence generally occurs because the components required to repair the product are unobtainable or because it cannot be repaired (e.g. batteries welded into an electronic device).
3. Incompatibility obsolescence occurs, for example, when software no longer works once an operating system is updated. This type of obsolescence is linked to after- sales obsolescence, which encourages consumers to replace rather than repair a product, partly due to the time and cost of repair.
4. Style obsolescence occurs because marketing campaigns lead consumers to perceive existing products as out-of-date. It is pointless to make manufacturers produce tablets that last ten years if our consumption patterns make us want to replace them every two years. For example, mobile phones are replaced every 20 months on average (every 10 months in the 12-17 age group).

Despite the above classifications, identifying and analysing the characteristic elements of planned obsolescence is more important in each case. At times the particular case might not be fit into one category clearly. In that case, there are 5 distinct factors that need to come together to tick all boxes for planned obsolescence as a business strategy :

1. Deliberate shortening of lifespan: Companies strategically decide to shorten a product's life or how often it needs replacing. They meticulously consider various factors like production capacity, market trends, and desired product lifespan to maintain a profitable cycle of production and replacement.
2. Rapid product decline: This deliberate business manoeuvre often leads to products with an unnaturally short lifespan. Goods expire and are replaced quickly due to malfunctions, sometimes even within the warranty period.
3. Limited consumer choice: While not directly forced, consumers often feel trapped in a "buy-throw-away-buy again" cycle, especially for essential goods. As a natural off-shoot of this, the consumers are not given the option to choose repairing over replacing their products.
4. Company influence: Companies encourage this cycle by promoting the idea of replacing products before they naturally wear out. This is usually not an in-your-face invitation to buy their shiny new product, but is done subtly through sophisticated advertising tactics.
5. Loss of consumer control: Consumers lose control over their purchases, feeling pressured to replace products they might otherwise keep using. Had their hardware or software been working fine, they probably would not have made this choice. This is a really vital step - as beyond a reasonable point, the consumers are driven to make this choice to replace.

The two big tech companies that have faced accusations of employing business tactics, ethics, raising questions about consumer protection and corporate responsibility are predictably - Apple and Samsung.

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Apple's throttling controversy is a prime example where Apple admitted to intentionally slowing down older iPhone models to prevent unexpected shutdowns caused by degraded batteries. While Apple claimed this ensured a better user experience, critics argued it was a manipulative tactic. They believed Apple aimed to push consumers towards expensive phone upgrades rather than the more affordable option of replacing the battery. This incident highlights how planned obsolescence can limit consumer choice and potentially force them into unnecessary purchases.

Similar to Apple, Samsung's software updates were under the radar, where users reported a significant performance decline in older Samsung phones following software updates designed for newer models. Critics suspected these updates were not purely focused on bug fixes or security enhancements, but might have also throttle performance on older devices. This could have nudge users towards upgrading to newer models with the latest software, even if their current phone was still functional.

In 2018 the Administrative Court of Lazio, following an investigation in these obsolescence matters by the Italian competition authorities hit Apple with a 10 million euro fine while Samsung received a bill of 5 million euros. Similarly in the U.S. some Apple customers who owned an iPhone 7 or 7 Plus and experienced audio issues may be entitled to up to $349 as part of a proposed $35 million settlement on a class-action lawsuit. The lawsuit, which was filed in 2019 in the U.S. District Court for the Northern District of California, claimed that the iPhone 7 and the iPhone 7 Plus had audio issues related to the “audio IC” chip in those devices, according to a settlement administrator’s website. The settlement received preliminary approval last year and the final approval hearing is scheduled for July 18, 2024. While companies may have justifications for such practices, it's crucial to maintain transparency and offer consumers genuine choices. But the muscle power of these companies and the grey areas within the legislations in which they operate, let them get away with not maintaining transparency in the way they conduct business. Some countries like France lead the way, as they have made planned obsolescence illegal as of 2015. After weighing the negative environmental, social and cultural impact of this strategy, in my opinion the burden to prevent such practices falls on the shoulders of governments to bring tight consumer protection laws and competition laws to make these tech companies accountable for their actions. A crucial effort in this direction has been the Right to Repair movement.

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Right to Repair movement

The right-to-repair movement is a consumer rights movement that advocates for the ability of individuals and small businesses to repair and modify their own devices, such as smartphones, laptops, and other electronic equipment. The movement has the potential to contribute to protecting the environment, and promoting sustainable living by continuing to advocate for laws that expand internet access, lengthen the useful lives of current technology, and enhance digital equity.

The issue of repairability is not limited to consumer electronics - it is crucial to industries such as agriculture and construction where inability to repair equipment is leading to increased expenses and downtime. Its impact on the environment is profound, both in terms of the surging amount of electronic waste produced (an estimated 53 million tonnes of it was discarded in 2020) and the extraction of rare-earth metals needed to manufacture new devices. Improved repairability can decrease the carbon footprint, resource use, and e-waste from the electronics and machinery industries. While some companies in these industries are focused on improving their environmental performance, repairability is an often overlooked aspect of these strategies that needs to go hand-in-hand with recyclability.

If repair is the right way forward - why are manufacturers so reluctant?

While the benefits are clear, powerful forces seek to maintain the status quo of planned obsolescence. By keeping the ever-churning cycle of consumption alive, they increase their profit margins and in some cases that enables them to maintain a monopoly in their respective markets. But it is also important to acknowledge that this is a layered issue and for a nuanced dialog we need to look at things from the manufacturers and producers side as well. Letting go of this long established status quo has its own challenges that make offering repair difficult. When we imagine a modern day tech company, we must also realise that it is grappled with other issues that it must take care of in tandem with the issue of repairs.

In my view, there are two pressing challenges that companies face that stand in the way of offering repair unabashedly :

1. Intellectual Property : Manufacturers often cite the need to protect IP as a reason to limit repair options. This IP can encompass a range of elements for them internally, including the top three :

• Confidential product design, where they argue that the intricate design and schematics of their products are either protected IP or trade secrets, and access could be used freely by competitors to create replicas.
• Specific materials chosen for a product is also a closely guarded secret, affecting performance and functionality. So the manufacturers invariably are hesitant to disclose this information, again fearing competitors could use it to create cheaper, better performing alternatives.
• Manufacturing procedures used to assemble a product can be a valuable asset for a tech company. Manufacturers often have strict policies against reverse engineering so that they can limit access to this information. To be fair, there have been countless incidents where attempts have been made to counterfeit their product or make unauthorised reproductions.

1. Data Security and Cybersecurity : The rise of connected devices presents a new layer of complexity to repair. Modern electronics often contain software, firmware, and sensitive user data. Manufacturers obviously worry that unauthorised repair could compromise this data or introduce security vulnerabilities. In this regard they usually cite two practical challenges :

• They have data security concerns - Imagine a scenario where a repair technician inadvertently exposes sensitive user data during a repair. This raises concerns about data breaches and the potential for identity theft.
• They aim to minimise cybersecurity risks - With more devices connected to the internet, the risk of malware and hacking increases. Manufacturers are hesitant to allow access to internal systems fearing that unauthorised repairs could introduce security vulnerabilities, leaving their devices susceptible to cyberattacks. Again as a lawyer I can say that arguing on the point of the above will render one’s matter weak. While these concerns are legitimate, they cannot be used as an excuse to completely shut down repair options. Solutions like secure repair procedures, data encryption, and technician training can mitigate these risks without hindering consumer choice.

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Collaboration is key

Finding common ground between these major concerns and the right to repair requires open dialogue and collaboration between manufacturers, consumers, repair professionals, and policymakers. By working together, we can create a future where innovation is protected, data is secure, and the ability to repair our electronics remains a viable option. The fight for the Right to Repair goes beyond these and there are tangible reasons to fight this good fight -

Environmental impact - E-waste is the fastest-growing waste stream globally, and planned obsolescence contributes to it significantly.

It is found that the most obvious potential for right to repair is in consumer electronics. World Economic Forum reports that these products are often thrown away in environmentally unfriendly ways. E-waste is worth $62.5 billion of material value annually, according to the World Economic Forum. But only 20% of it is handled appropriately. Yet, the concepts of right to repair are equally applicable for automotive, aerospace, and other?industries.

Imagine the environmental benefit of repairing a phone instead of manufacturing a new one – the energy saved, the toxic materials spared from entering landfills. Each repair becomes a conscious choice for a cleaner, greener future.

Social impact - Right to Repair fosters independent repair businesses, creating jobs and promoting local economies. This right aims to bring back local repair shops. These independent businesses become hubs of skilled technicians and a vital cog in the repair ecosystem. With readily available repair options, the local economy benefits from the creation of jobs and the reinvigoration of a skilled trade. Furthermore, access to affordable repairs fosters digital inclusion. Low-income families, often disproportionately affected by the high cost of electronics, can keep devices operational, ensuring they remain connected to the digital world and are not left out of the equation.

Cultural impact - Rapidly changing tech can lead to a culture of disposability. This right encourages a more sustainable approach to technology.

Keeping circularity at its core, this right isn't just about fixing broken things - its about mending a cultural mindset. It challenges the notion of electronics as disposable commodities and encourages us to view them as valuable tools worthy of investment and maintenance. This shift fosters a culture of innovation and ingenuity and a step in the direction of creating a circular economy. Instead of mindless consumption, we embrace problem-solving. Fixing becomes the norm, not the exception. We learn to disassemble, diagnose, and revive, fostering a sense of ownership and respect for our possessions.

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Industry efforts : Apple’s Self-Repair program

In 2022, a few months after the Federal Trade Commission said that it would ramp up enforcement against tech companies that made it hard for people to fix their electronics, Apple released a white paper titled, Expanding Access to Service and Repairs for Apple Devices, where it almost dissuaded people from using it’s 2021 self-repair program with a heavy-duty caveat.

For the vast majority of customers, the safest and most reliable repair is achieved through an Apple Store or one of the thousands of Apple Authorised Service Providers and Independent Repair Providers around the world. Repairing modern electronic devices that are complex, highly integrated, and miniaturised isn’t easy — and these technicians have the expertise, training, parts, and tools to get the repair done right. For customers with experience in the complexities of repairing electronic devices, we created the Self Service Repair program — which provides access to repair manuals and the same genuine Apple parts and tools used by Apple’s service and repair network, at the same cost. - Excerpt from the white paper released by Apple

Those who used this service reported that it was complex and time consuming. Brian Chen chronicled his “impractical” experience with the same in an elaborate fashion in The New York Times where Brian, along with an independent phone repair technician Shakeel Taiyab set out to to replace his iPhone 12’s battery with the kit.

His experience brought forth certain issues in this program that unfortunately point to tokenism, more than facilitating the repairs for everyone. Brian and Shakeel observed that this program was ultimately impractical because it was :

1. Prohibitive cost - Renting the industrial-grade equipment had a whopping cost. It involved first placing a $1,210 hold on Brian’s credit card to rent 75 pounds of repair equipment.
2. Intimidating steps -Apple's manuals seemed straightforward, but the reality was far more complex. Disassembling the phone involved a sequence of specialised machines and delicate procedures.
3. Extremely fragile process - Even with Shakeel's help, a crucial step was missed, leading to a destroyed phone screen, which was fortunately salvageable with spare parts. It did complicate the matter further.
4. Control over repairs - Even using genuine Apple parts triggered warning messages. Completing the repair required Apple's remote approval, which is obviously a frustrating delay in the whole process.

Apple's self-repair program, while presented as a concession to the Right to Repair movement, exemplifies why legislation is crucial. The program's high costs, complex procedures, and limited user control highlight the need for enforced regulations. Without them, companies can offer programs that appear to address the issue but ultimately make repairs inaccessible for most consumers. Legislation would establish clear standards for manufacturers, mandating readily available repair manuals, tools, and affordable parts. This would empower users to choose their repair options, promote independent repair shops, and extend the lifespan of electronics, reducing e-waste. Therefore, it is essential to dismantle the fa?ade of token gestures and ensure genuine consumer choice and control over their devices.

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Legislative efforts

The Right to Repair movement is a global fight, but the battleground differs from country to country. The EU leads the charge with strong regulations as it rolls out a battery of provisions directed at tacking this issue, while the US deals with this right state-by-state. The UK and others are starting to implement similar policies. As e-waste grows and consumer choice shrinks, the need for clear and enforceable Right to Repair legislation becomes ever more pressing. Standardisation across regions would be ideal, but for now, progress at any level is a win for user empowerment and a more sustainable future for electronics.

This particular head requires its own edition and is perhaps better understood when applied to specific industries. For instance, in the coming weeks we will talk about the Right to Repair legislations with respect to electronics and as it applies to the sustainable fashion industry. As a bonus, I will also include tips for entrepreneurs and offer a new way to navigate some sticky IP & Tech issues which potentially stand in the way of repair.

In conclusion (and for the health of this edition’s length!), I would urge you to take this discussion into your life and try to spot planned obsolescence everywhere you can. Fighting for our Right to Repair - we can work towards a more sustainable and empowered relationship with technology, where we as consumers are in charge.

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