hiddenFeb 17, 2017 09:35:43 IST
By Asheeta Regidi
Apple is currently fighting the implementation of ‘right to repair’ laws in 8 states in the US including Nebraska’s Fair Repair Bill. Apple, and other consumer electronics companies, maintain a tight control over their repair services, restricting services to authorised repairers only. If implemented, the bills will force companies like Apple to grant access to repair manuals, tools, error codes and even software updates, without which independent repair of these highly sophisticated products is very difficult. This is expected to remove the monopoly of these companies, giving consumers access to competitive and better priced repair services from third parties.
Until these bills are enacted, however, any customer who attempts to repair an Apple product on his own or through a third party, stands to lose his warranty, and depending on the repair, may be infringing Apple’s copyrights. This is also the current situation on the subject under Indian laws.
Origin of the ‘right to repair’ for automobiles
The right to repair first originated in the automobile industry. This industry had created a similar monopoly in the ‘aftermarket’ or repair market, restricting access to genuine spare parts and repair manuals to authorised repairers only. This was seen as highly anti-competitive, which subjected customers to the high repair rates charged by these companies with no alternative service providers.
This was remedied through a series of bills introduced in the US, collectively also known as the Motor Vehicle Owner’s Right to Repair Act. An example of this is the Digital Right to Repair Act, enacted in 2012 in Massachusetts. This act led to a national agreement in the auto industry, agreeing to allow standardised access to repair and diagnostic information and tools, thus enabling even third parties to freely provide services.
The monopolistic practices
Companies like Apple often cite reasons like lack of safety in third party repair, effect on brand image due to faulty/ inadequate third party repair, and the dangers of a fake or spurious spare parts entering the market. For instance, these companies are said to have suggested that consumers who repair their phones on their own risk the lithium batteries catching fire.
Companies have also used methods like ‘anti-warranty’ stickers, or stickers which, if removed, void the warranty on the product, soldering of the products (like Apple’s MacBook’s processor, RAM and flash memory are soldered on), using customised hardware (such as Apple’s customised ’pentalobular’ screws), and such other features to make third party repair impossible.
These companies also make full use of their protection under copyright law, claiming copyrights over the repair manuals and installing software locks. The copyright law prevents any third party from publishing the repair manuals, while tampering with the software locks will amount to modification of software, or infringing the company’s software copyrights.
What happens if you repair your iPhone?
Despite all these factors discouraging third party repair, the high costs push consumers to look for alternatives. For example, though the actual cost of a screen is about Rs 10,000, Apple charges Rs 25,000 for a screen replacement in a current generation iPhone. So what happens if you attempt to repair your iPhone on your own, or through a third party:
i) Loss of Warranty
The primary effect is that the third party/self repair will void Apple’s warranty for the product. When you buy an iPhone, you accept the license terms. This constitutes a legal, binding contract between you and Apple. This includes its warranty agreement, which states that the warranty does not apply:
“(f) to damage caused by service (including upgrades and expansions) performed by anyone who is not a representative of Apple or an Apple Authorised Service Provider (“AASP”);
(g) to an Apple Product that has been modified to alter functionality or capability without the written permission of Apple;…”
Thus, all users have expressly agreed that if they have their iPhone serviced by a non-Apple authorised service provider, they lose their warranty on the product. In fact, in 2016, Apple had installed an ‘Error 53’ security measure, which ‘killed’ iPhones after they were repaired by third parties. A massive class action lawsuit against Apple forced it to withdraw the measure and restore the iPhones.
ii) Copyright Infringement
The second risk is of copyright infringement. The increasing integration of software with hardware in new age electronics leads to this issue even with repairs. Certain repairs, like replacing a screen, battery, speaker, etc., which do not involve any interference with the software, can be done without violating copyright law. But repairs of the fingerprint sensor, home button and mainboard, which do interfere with the software, do violate copyright laws. This could open you and third party repairers to a copyright infringement suit from Apple.
The Indian Copyright Act, 1957 does grant rights to fair use under Section 52, such as the right to modify software for a personal, non-commercial use. However, this right does not apply to modification for ‘repair’. Particularly, all such modifications are completely prohibited by Apple’s license agreement. The conflict seen here between the Copyright Act and software license agreements is yet to be resolved by Indian Courts. Until then, consumers will be risking copyright infringement by tampering with the software for any reason, including repair.
Right to repair introduced in India
The right to repair in the automobile industry, for the same reasons as in the US, was introduced recently in India. In 2014, in Shamsher Kataria v. Honda, Volkswagen, BMW, etc. , the Competition Commission of India prohibited the monopolistic repair practices of 14 top automobile companies, as they were anti-competitive and in violation of the Competition Act, 2002. While this decision is restricted to automobiles, it is conceivable that the practices of companies like Apple will also be considered anti-competitive. Until then, consumers and third party repairers must remember that they don’t (yet) have a right to repair under Indian laws.
The author is a lawyer with a specialisation in cyber laws and has co-authored books on the subject.
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