Right to Repair
The Freedom to Repair Act Will Make All Electronic Repairs Legal
Article by: Elizabeth Chamberlain @elizzybethRestoring our right to repair what we own is being considered in the US House of Representatives right now. Today, Representatives Mondaire Jones of New York (D) and Victoria Spartz of Indiana (R) introduced the Freedom to Repair Act. The bill would permanently fix an important aspect of copyright law, making almost all electronic repairs legal by default.
- February 2, 2022
Copyright law shouldn’t prevent repair, but the Digital Millennium Copyright Act (DMCA) of 1998 made it illegal to circumvent technological protection measures for any purpose, repair included. More and more products have technological protection measures, to the point where fixing your Xbox or Keurig has become illegal. Every three years, we fight to get the Copyright Office to grant specific repair exemptions to the DMCA. We’ve had some success, but the limited exemptions we’ve received don’t allow people to share the tools or software necessary for these repairs.
The Jones-Spartz bill would simplify all of this. It would clarify that working around digital locks when fixing things isn’t a copyright violation. Making tools and software for those repairs would become legal. All products with embedded electronics are included, with the exception of medical devices. (We’re not thrilled about this exception.)
Nathan Proctor with US PIRG weighed in, “Manufacturers have gone too far by locking repair functions. Congress never intended to outlaw repair. It’s no surprise that fixing this oversight is bipartisan. It’s common sense.”
Eschewing unnecessary lock-outs also supports technology education, too, as cybersecurity expert Tarah Wheeler pointed out at a right to repair hearing in Washington recently. When “manufacturers restrict the right to poke around in their devices,” she said, it damages the opportunity for “curious minds to explore” and makes it harder for her, as an employer, to find employees with knowledge and skill.
Momentum for Right to Repair is growing. Yesterday, Senator Tester (D) introduced a Federal agriculture equipment right to repair bill. And state bills have moved out of key committees in Washington and Massachusetts this week.
Making more devices repairable will empower recyclers and refurbishers to reduce e-waste by extending the useful life of these products.
“We shouldn’t have to beg permission from the Copyright Office every three years for the right to fix our stuff. Repair isn’t piracy and it’s not how copyrights are infringed. This bill helps make repair practical again,” said Gay Gordon-Byrne, Executive Director of Repair.org. “When passed, this reform will improve choice in repair markets, which means better service at lower costs for consumers.”
Let your congressional representatives know that you support the bipartisan Freedom to Repair Act and the legal right to repair.
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A big problem for consumers is that the businesses that cause you problems are also the ones who wind up controlling all the contacts you have with them, and they like to do so in ways that make it hard for you to later prove that they told you A, B, or C when they claim to have told you X, Y, and Z.
Here's a suggested template for taking notes during and after phone calls with any business (a bank, a credit card servicer, a billing department, a mortgage lender, etc.). It's not a guarantee that you won't have problems, but it would sure help a lot if the company trying to screw you wasn't the only one with records of all your contacts. 1. On _________ (date) at about _________(time), (I called [company]/[company] called me) and I spoke with a representative of [company] who identified (him/her)self as __________________(name), ID number _____________. The number (I called/was called from) was __________________. 2. During the call, I expressed my concerns about account number _________________________ specifically concerning a. (first concern) __________________ b. (second concern) __________________ (and so on -- as many different topics as you discuss) 3. About these concerns, ___________________ (company rep. name) told me that a. (what they said) ___________________________ b. (what they said) ___________________________ (and so on -- as many different topics as you discuss) 4. (company rep. name) told me that : a. (first one) I (should/must) do this: ___________________ no later than (time/date) _____________________ b. (second one) I (should/must) do this: ___________________ no later than (date) _________________________ etc. 5. I am sending you these call notes for your review and confirmation so that we may rely on them later. Please review these notes and advise me immediately, by email to (address), with followup by US Mail to (address), if [company] believes there are any discrepancies between these notes and [company] call records. Thank you, WOW. This FOX affiliate's "Reality Check" is an amazingly good piece of local TV journalism. WELL WORTH A WATCH.
Please share the video at the link with as many people as you can. Until everyday people realize just how badly the justice system has been privatized, corrupted, and turned against us, the real people, businesses will keep getting away with using arbitration to cover up their crimes and they will continue pouring money into campaigns to lock in their unfair dispute resolution scheme, where they get to use the power of the courts against you, but not the other way around. Popular outrage is the only antidote. We have to start defeating any candidate for federal office who won't make fixing this mess a top priority. 
Today marks John Gear Law Office's fourth birthday.
I am very grateful to all the clients who have trusted me with their problems and given me the opportunity to help them find solutions. Thanks to your trust and confidence, I have been able to meet my primary practice goal: Making a modest living with a "values-based Oregon law practice" -- where "values-based" means I don't represent the folks trying to take advantage of others, my clients are the ones wronged by those who do. It's not the easiest area of law and it's definitely not the most lucrative, but I think it's the most satisfying. As the Mrs. works towards her M. Div. and ordination as a minister, I am able to have a practice that reflects, rather than conflicts with, the values of a ministry. "In a decision just two days ago, a federal judge appointed by George W. Bush felt compelled by U.S. Supreme Court decisions to enforce an arbitration clause even though the judge noted that
(a) the court did not believe that the plaintiffs ever believed they were signing away their right to bring a lawsuit; (b) enforcing the clause would “undermine effective enforcement of federal antitrust laws”; and (c) enforcing the clause after the defendant first had decided to litigate in court was “inefficient and wasteful.” The court concluded that in this area of law, “common sense plays no role.” Here’s a blog post about the case, with link to the decision: http://bit.ly/1pPBFJP This is a true poster child of arbitration abuse, really highlighting just how unfair the law has gotten under the current U.S. Supreme Court’s decisions. If people will read this decision, they may well get a sense of just how out of whack the law has gotten in this area."  It's hard to get people to understand how they're being robbed and denied their rights when it happens without guns or violence.
But a lot of times, companies rip off customers and exploit their workers unfairly, and it's not until you try to do something about it that you find out that the company has built itself an "Accountability Shield" that does to the civil justice system what Kryptonite does to Superman -- allows the bad guys to escape the consequences of their wrongdoing, and leaves the good guys weakened or flat-out defeated. Every story needs a hook to get and hold the reader's attention long enough for the message to be received. For a lot of guys, a story about hot young women being mistreated by their employer is a strong enough signal to get their attention, and then they can finally get the message. And, of course, young women, who are often mistreated horribly in the workplace, can understand that even the most superficially exciting jobs can really be terrible grinds -- made much worse by the arbitration clause that essentially lets the company get away with anything short of murder.  By Paul Bland:
http://publicjustice.net/blog/important-new-book-proves-federal-arbitration-act-badly-distorted-by-supreme-court This post examines a recently published book by an extraordinary law professor, Imre Szalai, who has gone back through the papers of the three men who drafted and lobbied for and pushed the Federal Arbitration Act. In painstaking historical detail, reviewing all sorts of primary materials, he establishes convincingly that the FAA was never intended to (a) apply to employment contracts at all; or (b) apply to take-it-or-leave-it contracts. This book is an important development in the historical scholarship on the Act, and demonstrates conclusively that the FAA has been distorted and mis-shaped by the U.S. Supreme Court in recent decades. The Act now covers millions of people and transactions that it was never intended to address. The advocates of forced arbitration are literally on the wrong side of history – the Court’s decisions fly in the face of what the authors and supporters of this statute had intended. Paul Bland Senior Attorney, Public Justice Of Counsel, Chavez & Gertler On Twitter @PblandBland A consumer-rights leader and expert sends the following comment: From http://ctblueblog.com/ If you want to avoid having your 7th Amendment rights taken away by a corporation,
you’ll want to opt-out of Dropbox’s attempt to unilaterally impose arbitration on you: The link is here - all you need to enter is your name by March 20: https://www.dropbox.com/arbitration_optout  Tremendous editorial by the SF Chronicle.
A real breath of fresh air and truthtelling about the chains that pre-dispute arbitration clauses create. Funny, businesses love to spin about how great arbitration is, but they don't want you to be able to choose or decline it. What is it that they know that makes them think that, if you have a choice, you won't choose arbitration?  The National Association of Consumer Advocates (NACA) offers consumers a great free tool to download and review before shopping for a motor vehicle. You can access the app on your desktop or laptop by going to www.USLemonLawLawyers.com. Or take it with you to the dealer's by downloading it from the Apple App Store or the Google Play Store (Android).
A powerful retrospective report showing the real facts behind the notorious "McDonald's Hot Coffee" case -- the gruesome burns, the fact that she was in a parked car, not a moving one, the fact that McDonald's had hundreds of warnings that it was serving dangerously hot coffee, the fact that the plaintiff only asked for her medical bills to be paid (before McDonald's offered her a paltry $800 against medical bills of $10,000) -- on and on, the "outrageous" result turns out to have been more than justified, and the only real outrage is that McDonalds and the Chamber of Commerce have managed to fool most people into thinking that they were the victims in this case.
Watch this excellent New York Times report, and then if you really want to understand how corporate America tries to turn real people against each other (the better to fleece them, and keep them from standing up to big corporations), look for the great movie "Hot Coffee" too. P.S. Click here to make a contribution -- one-time or monthly -- to help make another documentary that helps set the record straight about the civil justice system, the only part of government where real people get to stand toe-to-toe and fight back on level ground with corporations. That's why corporations hate it so much, and why they want to tell you lies, so you'll hate it too.  Once upon a time, there was a country where the courts could tell the difference between business-to-business disputes and consumer-to-business disputes. The law for the commercial disputes values efficiency above all other concerns, which makes a lot of sense for disputes involving businesses, which are often fictitious entities anyway (corporations), with no personal stake in the problems. Further, being fictitious legal persons, entirely created under the law and having no natural rights of their own, the corporations involved in most business litigation could hardly claim to fall under the 7th Amendment right to a jury trial -- the companies only had the rights that the law gave them, and since they essentially all just wanted their disputes resolved in a predictable, roughly fair way, it was no problem that Congress said that they could bind each other to arbitration clauses, which sent their fights out of the court system and into private arbitration, where there are no juries, and there is no open court system that creates precedent with each decision. The problem is that, as in the Terminator movies, the creatures we created to help us have turned on us and taken over: the corporations have seized control of the courts and have persuaded a majority of the U.S. Supreme Court justices that, not only are they actually entitled to full constitutional liberties, including full First Amendment rights to "speak," they also should be allowed to force real people into arbitration, meaning that when you sue one of these fictitious people, you find yourself in a topsy-turvy world that Joseph Heller, author of Catch-22, could not have imagined on his most cynical day. We've been heading towards this mess ever since the first decisions in the late 19th Century that perverted the 14th Amendment, turning it from an aid to freed slaves into a weapon for the just-forming multinational corporations. The recent "Citizens United" decision -- a fantastic act of historic judicial activism, with the Supreme Court majority going completely outside the bounds of the case before it to create a new superclass of corporate citizens (all the rights of people but none of the duties) is the best known of the long train of absurd decisions that, one by one, are turning real people into servants of the new superclass. Which brings us to today's fantastic absurdity, where the federal 2nd Circuit, the appellate court for the Northeast, the second-highest court in all the land (and a leading court for commercial disputes), has held that a New York consumer -- that is, a flesh and blood person like you, one who might be under the vague impression that your Constitutional rights are at least as important as the "rights" of a legal fiction like a corporation -- must go to binding arbitration in Arizona to pursue the scoundrels who ripped off the consumer and essentially reduced the consumer to abject poverty (the company was one of the many (most?) bogus credit repair companies who promise to help you climb OUT of the hole with your credit cards). There is no way to put it except to say that this is the kind of thing that terrifies people who study history, because this is the kind of thing that survivors study when they try to figure out "What was the spark that caused the explosion? How did what seemed to be a civilized place suddenly erupt in such fury?" I would love to be wrong about this, but since the DNA of corporations requires that they grab all the power and money that they can, and that they do everything that they can get away with (to compete with all the others), expecting corporations to restrain themselves and not abuse consumers and real people is like expecting Donald Trump to take and keep a vow of silence and poverty. Thus, absent a miracle -- never the thing to bet on -- this isn't likely to get better. And that means we might well be getting close to finding out something awful, like what the 21st Century American equivalent is for 19th Century France's guillotine. Read on:
 Great story in an intriguing San Diego nonprofit news outlet called "Justice for Sale: Arbitration Purgatory."
The story is about what happens when you try holding a car dealer accountable. Thanks to the US Supreme Corp's love affair with arbitration -- the dispute resolution method intended for parties in parity with each other, and typically for those who need to keep dealing with each other -- consumers increasingly find that they have signed away their constitutional right to a civil trial. When you get ripped off by a big company these days, most often you will find that they have locked you into an arbitration agreement where they not only get to keep you from having the dispute heard by a jury of your peers, they also get to choose the forum. And since the big companies are the only repeat players in the game, guess who the arbitrators (who are themselves totally unaccountable to you) worry about pleasing? Hint: It's not you. Part 2: Justice for Sale: Ignoring the Law Part 3: Justice for Sale: The War on Consumer Class Actions
 I was impressed by Ms. Gunderson's wish to help her readers and explain things to them correctly -- a difficult task when writing about the law in the few words allowed in a column. I wrote her a note thanking her for mentioning me, and added two suggestions: One, we didn't discuss the small claims court limit, so I didn't know she had found something with the old, lower limit of $7,500. The current limit for small claims court is $10,000. Second, I wish I had thought of NACA.net when we spoke and she asked me how consumers could find an attorney to help with a defective product or service. NACA -- National Association of Consumer Advocates -- attorneys are likely to be much more experienced in handling consumer problems, and NACA attorneys (like me) are all committed on the consumer side of things: to join NACA, you have to agree that you won't represent any business against a consumer.
"Never forget, the law is never settled until it is settled right, it is never right until it is just, and it is never just until it serves society to the fullest."  (hat tip to "The Housekeeping Report")
NCOA Issues Updated Guide for Seniors Considering a Reverse Mortgage The National Council on Aging (NCOA) today issued the 2013 version of Use Your Home to Stay at Home™, the official reverse mortgage consumer booklet approved by the U.S. Department of Housing & Urban Development (HUD). The guide is designed to help seniors understand the pros and cons of a reverse mortgage. Reverse mortgages allow homeowners who are 62 or older to convert home equity into cash while remaining in the home. Amy Ford, director of NCOA’s Reverse Mortgage Counseling Services Network, called the guide “an older homeowner’s best resource when it comes to examining whether a reverse mortgage is right for them.” A free copy of the guide is available (download the pdf by clicking here).  The Federal Trade Commission is proposing to weaken the "Cooling Off Rule" that helps protect consumers from abuse by sellers who sell you goods away from their regular place of business (door-to-door, or the traveling shows that rent hotel rooms, etc.).
For whatever strange reason, the FTC is proposing to allow more sales to escape the rule by raising the threshold dollar value from $25 to $130. This is dumb. Instead of weakening the rule, the FTC should strengthen consumer protection by making it clear that internet sales are covered by the rule. Here's the comment I submitted at the FTC comment site. Rather than diminish the protections afforded by the cooling off rule, the FTC should instead make clear that all internet sales are presumptively governed by the rule, and require that sellers adhere to the rule for goods and services purchased over the internet except (1) When the "goods" consist of software that is downloaded immediately upon conclusion of the purchase transaction; or (2) when the buyer is informed, with a clear and conspicuous disclosure, that the cooling off period is limited to the lesser of three days or the period before seller delivers the goods to the delivery carrier for delivery to the consumer; AND, if the seller does not transfer the goods to the carrier within the promised period, then the buyer may refuse the goods at delivery and receive a full refund of the total price paid, including delivery charges.  If so, give me a call -- I had to learn quite a bit about those claims since agreeing to rewrite the chapter on Warranties in the 2013 edition of "Consumer Law in Oregon" attorney practice manual, a comprehensive, two-volume set dealing with all aspects of consumer protection law in Oregon. Official issue date is tomorrow 12-12-12!
 I got into a brief online discussion of the latest US Supreme Court Inc. decision upholding the "rights" of corporations (fictitious persons that are actually nothing but piles of property given certain permissions) to force consumers into arbitration.
I noted how odd that the folks who were all upset about the Affordable Care Act ("Obamacare") were paying no attention at all to Supreme Court Inc.'s far more radical steps into post-Constitutional law in the area of turning state governments into legal nothings. Essentially, since Justice Rehnquist, the main thrust of Supreme Court Inc. has been to dispense with states entirely and turn the US into a single, monolithic entity where corporations are free to to locate in and claim the legal protections of the most backward states, while using a pre-Depression statute, the Federal Arbitration Act, in ways that its authors and courts never imagined it would be twisted. Thus, since the 1970s, Supreme Court Inc. has moved to turn real people -- the ones whom the Founders who drafted the Constitution thought government was supposed to serve and protect -- into faceless non-entities who, in any conflict with corporations, should and almost always do lose. The apogee (so far) of the Court's decision to enshrine corporate power where the Bill of Rights used to be is the notorious Citizens United decision. In Citizens United, the corporate power radicals on the Court, with no necessity to reach the issue, undid nearly a century of work to limit the sale of elections to the highest bidder. And that was just one example of Supreme Court Inc.'s relentless push to endow property with Constitutional rights, even as those rights that are clearly written into the Constitution for protecting people from oppression -- like the 7th Amendment right to civil jury trials -- are turned into dead letters. Astonishingly, the radical justices most enamored of this ever-expanding, federalism-destroying posture are the ones who like to call themselves "conservative." (They also love to claim to follow the original intent of the Constitution's framers, regardless of their own personal preferences -- apparently the Founders loved corporate power much more than they thought they did!) In the exchange, Prof. Peggy Radin of the University of Michigan Law School concisely summed it all up as follows: Yes: Arbitration clauses are a threat to federalism because they are ousting state law consumer protection, aggregative remedies, and much else. Arbitration clauses are also a threat to the common law itself, and therefore to common law adjudication and the power of common law judges. The more the power to decide disputes is transferred to nongovernmental private parties whose decisions are without any public record and without any precedential value, the more the common law system is undermined. There is no opportunity to know whether like cases are treated alike, and no opportunity to rely upon past decisions in planning future actions. Arbitration clauses are also a threat to the rule of law, because they are destroying the right to redress which must be part of a legal system that honors and enforces the rights that it is set up to establish and protect. They are privatizing what must be public. The opportunity to rely on public decisions that are precedential in order to plan future actions is also a requisite of the rule of law. A regime of ad hoc decision making giving no notice to those who are subject to the law violates the rule of law. For the same reasons as above, mass market arbitration clauses make a mockery of equality before the law. (Prof. Radin is the author of "Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law," in which these (and other) issues are discussed.)  In my haste to warn people about the malicious changes being imposed by PayPal to strip you of your rights under the law, I failed to notice that eBay is doing the same thing, and has an even tighter deadline for responding! Read the prior post (below) and visit the story for the full details. The punch line is here:
If you want to opt out of eBay’s arbitration rules, you’ll need to send a similar letter postmarked by Nov. 9, to: eBay Inc., c/o National Registered Agents, Inc., 2778 W. Shady Bend Lane, Lehi, Utah 84043. |
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