Keeping Repairs Tied Up

Nikon has been notorious for trying to keep the repair situation for their products tightly held. So notorious that The Economist once described how Nikon would put up a tent around their big stepper equipment at semiconductor plants whenever they did a repair, so nobody could see what they were doing.

A few years ago we Nikon camera owners were forced to say goodbye to any independent camera repair company being able to buy parts from NikonUSA. To be a Nikon Authorized Repair Station you now have to buy a costly training and gear package from NikonUSA.

I’ve been quiet about this issue for awhile. But there were two interesting things brewing in the background that impact this closely-held repair policy, and the Supreme Court just decided one of those this past week. So it’s time to bring up the subject again, I think.

The two issues I’ve been following are: (1) do patents restrict what can be done by third-parties after the fact? and (2) can states break the manufacturer monopoly on repairs?

So let’s start with #1, which was decided 7-1 in favor of customers by the Supreme Court (technically, the dissent was only based upon how this might apply Internationally, with Justice Ginsberg basically arguing that the decision applies solely to patents in the US). 

The case in question was Impression Products vs. Lexmark International. While this case has to do with refilling printer ink cartridges, Lexmark’s arguments in this case included very broad patent claims, basically that patents can restrict what happens with products downstream of the sale. 

This is how a lot of companies try to tie up repairs and modifications of their products. Thus it’s not surprisingly that companies and organizations as diverse as the AARP and Huawei filed motions of support on one or another side of this case.

In its decision, the Supreme Court basically reiterated Bloomer v. McQuewan, where a product “no longer [is] within the limits of the [patent]” once sold. Basically, contract law applies, but patent law does not to any product once the First Sale principle is triggered. 

Here’s the downside, though: while the courts have decided that both Copyright and Patent intellectual property law is not a downstream-of-sale protection that allows companies to put limits on what customers can do with the product they bought (e.g. where they get it repaired), in reading the full set of questioning and opinion at the Supreme Court, it seems to be clear that contract law can be used instead. 

Which is why companies like John Deere are making farmers sign end user license agreements (EULA) when they “buy” a tractor. I put the word “buy” in quotes here because there are definitely arguable legal points to be made about whether an EULA can actually be part of a “sale” and even whether it implies that there is not actually a sale, but rather an indefinite, revokable lease of the product. 

Moreover, we have the issue of "shrink-wrap" EULAs (where just using the product commits you to the agreement) versus ones you specifically have to sign or agree to. [Disclosure: I use what I hope is a simple, understandable, and rational one-click-to-agree EULA for my book sales. I do this because Copyright law and Internet practices have created a legal vagary with downloadable product rights, unfortunately. The EULA I use creates a more specific agreement between you and I.]

The question I got in my InBox from several people when the Supreme Court decided Impression Products this week was whether or not Nikon was using Patent IP to constrict who repairs Nikon products in the US. I don’t think so, not directly; NikonUSA’s legal counsel may have used the Patent IP idea as part of their thinking on how NikonUSA could protect the restrictions they made should they be challenged in court, though. 

For the most part, NikonUSA has simply used “access.” Access to repair manuals, access to repair and testing tools, and access to parts. That seemed to be enough to weed out most of the “unauthorized" repair facilities, though someone really trying to get around the restrictions could probably find a copy of repair manuals on the darker side of the Internet, and these days the parts supply stream in SE Asia can pretty much net you anything if you know where to look for it. 

But the hassle of doing that exceeds the benefit of profit from repairs, I would conclude. That, plus the declining camera market and the fairly low failure rates really make the camera repair business one that is tough to profit from at small scale if you have to jump through hoops to get parts.

The second issue that would impact repairs is one that hasn’t been resolved but is ongoing: Illinois, Iowa, Massachusetts, Minnesota, Nebraska, New York, North Carolina, and Tennessee all are considering “right to repair” legislation. You can add Kansas and Wyoming to that list if you’re more worried about your farm equipment than camera gear ;~). 

You might notice that all of those are farming states. John Deere’s requirement that people use their proprietary diagnostic software to perform any repair on their farm equipment—said software covered by EULA and not available to anyone—is the second genesis of the right to repair movement (automobile repair was the first, for similar reasons). 

These potential right to repair laws seem to have spawned from Massachusetts Automotive Right to Repair law created in 2012. Many of the proposed laws currently being considered by states derive from a template created by repair.org based on that 2012 law.

These laws actually get to that “access” issue I mentioned that NikonUSA is using: right to repair laws generally all would require manufacturers to publish repair manuals and sell parts, diagnostic software and tools. 

This is where it gets tricky. NikonUSA technically sells manuals, parts, and diagnostic gear. For a pretty healthy five figure number that’s tied to training. So the wording in any state law would have to be fairly specific to keep the manufacturers from keeping the bar so high that they can continue to control the repair market. 

Quite obviously, lobbying plays a part in what will happen. But lobbying obviously works two ways: both sides to an issue can lobby ;~). Repair.org has set up a page where those of you in the states currently considering such legislation can get involved.

Having been in the high tech industry making hardware, I obviously have been on the manufacturer side of the fence and understand their concerns. That said, I think the tight noose on most hardware repairs that is currently in place is wrong and misguided. 

Some of you may remember the days of stickers over a screw that said “open and you void warranty.” I’m fine with that. I’m a grown up and can understand the risks I take by not using “official” repair methods. But these days, I can’t even manage to take that risk, as there’s no (easy) way I can get parts I’d need for such repairs.

Not to make this a partisan or political debate, but I do have to add: those of you who think the US is a “free country” should think carefully about whether you’re actually free or not, or being slowly restricted by very large business entities. I see far too many moves by one political party that says it’s all about freedom that actually take many small freedoms like my right to repair away, all because the ones who lobby them with the most money win. I find that hypocritical and anti-American, myself. 

The alternative to repair is to live in a throwaway world, where any product that has problems just gets jettisoned into the waste stream. That seems wasteful. Surely there is a balancing point in the middle that is better for all of us. 

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