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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

As my high school English teacher, Gordon Muir – RIP – used to say, “Strike me pink and call me Rosy!”

Last week, The Economist endorsed the idea of the right to repair – albeit obliquely, in Repair is as important as innovation.  The article discussed a recent Festival of Maintenance, described as “a conference dedicated to keeping things in good nick.”

Over to The Economist:

Events about making new things are ten a penny. Less common are events about keeping things as good as new. Maintenance lacks the glamour of innovation. It is mostly noticed in its absence—the tear in a shirt, the mould on a ceiling, the spluttering of an engine. Not long ago David Edgerton of King’s College London, who also spoke at the festival, drove across the bridge in Genoa that collapsed in August, killing 43 people (pictured). “We’re encouraged to pride ourselves on all being innovators and entrepreneurs,” he said. Maintenance is often dismissed as mere drudgery. But in fact, as he pointed out, repairing things is often trickier than making them.

The article didn’t discuss the sustainability element of a right to repair, but instead focused on measuring the economic importance of maintenance – a topic I won’t consider here. Instead, I will focus on the right to repair movement, the importance of which The Economist acknowledged:

In March California became the 18th state in America to introduce a bill supporting the “right to repair”, by obliging manufacturers to make manuals more widely available to customers and independent repair shops. The European Commission has proposed something similar for dishwashers, washing machines and the like. Some think they have the right to repair public property, too. One speaker at the festival, who called himself the “guerrilla groundsman” and masked his identity with a helmet, described his surreptitious efforts to clean bridges and repaint signs in Cambridge without authorisation. In a disposable society, to repair is to rebel.

US DHS Not Yet Hip to the Right to Repair Program

Motherboard ran an article last week, DHS Seized Aftermarket Apple Laptop Batteries From Independent Repair Expert Louis Rossman, that discusses the latest attempt to stifle a right to repair for Apple products – which is part of an ongoing series of similar abominations I have analyzed in several previous posts, including Apple Battery Debacle: Yet Another Reason to Support a Right to Repair and Apple Spends Big to Thwart Right to Repair in New York and Elsewhere.

According to Motherboard:

Earlier this year, Louis Rossmann, the highest-profile iPhone and Mac repair professional in the United States, told Motherboard that determining “the difference between counterfeiting and refurbishing is going to be the next big battle” between the independent repair profession and Apple. At the time, his friend and fellow independent repair pro, Jessa Jones, had just had a shipment of iPhone screens seized by Customs and Border Patrol.

Rossmann was right: His repair parts were also just seized by the US government.

Last month, US Customs and Border Protection (CBP) seized a package containing 20 Apple laptop batteries en route to Rossman’s store in New York City. The laptop batteries were en route from China to Rossmann Repair Group—a NYC based repair store that specializes in Apple products. “Apple and customs seized batteries to a computer that, at [the Apple Store], they no longer service because they claim it’s vintage,” Rossmann, the owner and operator of Rossmann Repair Group, said in a YouTube video. “They will not allow me to replace batteries, because when I import batteries that are original they’ll tell me the they’re counterfeit and have them stolen from by [CBP].”

What set off CPB’s watchdogs? According to Motherboard:

A CBP spokesperson told Motherboard in an email: “CBP officers and trade specialists detained the shipment and submitted samples to CBP’s Consumer Products and Mass Merchandising Centers for Excellence and Expertise (CEE), the agency’s trade experts, who determined the batteries to be counterfeit.”

According to the phrasing of the complaint, it was the use of the Apple logo on the batteries and not the batteries themselves that CBP took issue with. “It is assumed that if something has that Apple logo on it, it must be counterfeit,” Rossmann said. “It couldn’t be that someone who has these batteries sold them to me. It couldn’t be that someone took these batteries out of machines that were on demo in stores….machines that they owned, packaged them up and sent them to me,” Rossmann said. “No, they must be counterfeit. There’s no other explanation for it.”

As I’ve previously discussed, Apple has fought right to repair initiatives tooth and nail.  With respect to the latest CPB seizure, Motherboard reports:

…this isn’t the first time the Department of Homeland Security has seized the property of third party repair stores. In May, CBP seized iPhone LCD screens worth a total of $1,727 from prominent right to repair advocate Jessa Jones. In 2013, ICE agents raided independent repair stores in South Florida and seized between around $300,000 in parts apple claimed were counterfeit. In Norway, customs officials seized repair parts headed for an independent repair shop there. Apple ultimately lost a lawsuit against a Norwegian repair shop after it claimed the owner violated Apple’s trademark by using unauthorized parts; the court ruled that he was free to import and use them.

Jerri-Lynn here: for further details on the lawsuit against the Norwegian repair shop, see my previous post, Four Rs: Reduce, Reuse, Recycle, and…Repair.

How Might This Shake Out?

Well, Motherboard previously analyzed such a scenario:

Legal experts told us that importing genuine parts for the purpose of repair is not illegal. From our earlier article:

The US Department of Justice, for its part, has said that gray market goods are legal to import as long as they are not substantially different from the original
product; this is called “parallel importation.”

“Congress did not intend the criminal provisions to apply to [company logos] on so called ‘parallel imports’ or ‘gray market’ goods, in which both the goods and the marks are genuine, but which are sold outside of the trademarks owners authorized distribution channels,” the DOJ’s criminal resources manual states. Similarly, the “ first sale doctrine” protects the ability of people to resell goods that have trademarked logos on them; even if the parts are refurbished or repaired, the trademark holder has still gotten money from the “first sale” of that good.

Aaron Perzanowski, a trademark, copyright, and intellectual property law professor at Case Western Reserve University’s School of Law, told me that Jones’s parts likely can’t be considered “counterfeit.”

“Assuming that: (1) the cable bearing the Apple mark is a genuine Apple product, (2) the cable used on these screens is the same as the one Apple uses in the U.S., and (3) the importer/seller clearly communicates that the screens are a non-Apple aftermarket product, then Apple’s case for treating these as ‘counterfeit’ goods is very weak,” Perzanowski said in an email. “Refurbished or repaired products are generally permissible under trademark law’s first sale doctrine, so long as they are clearly labeled as such.”

“This strikes me as an abuse of trademark law by Apple,” he added, “one clearly designed to maintain its stranglehold over the repair market and, ultimately, to force customers to buy new hardware

What’s Next?

Just because advocates promote a right to repair doesn’t mean such a right will be recognized  and widely available, practically speaking,  And just being right, from a legal perspective, doesn’t mean the 900 pound Apple guerrilla is going to surrender, and allow those who wish to avail themselves of third-party repair services- or fix their devices themselves– to proceed unchallenged. Apple remains committed to thwarting such initiatives.

Absent widespread adoption of a right to repair, consumers are likely to discard  their malfunctioning electronic devices even though these devices might – with the benefit of a small,  low-cost repair – continue to provide further years of useful service.

Without the necessary repair, a consumer is likely to throw the device away, and replace it with another. And that behavior will only exacerbate the planet’s waste problem.