The Right to Repair Your Stuff with Gay Gordon-Byrne

Episode Notes

Transcript

[Music]

Trisha Rich: Hello, everyone, and welcome CBA’s @theBar, a podcast where we have unrehearsed and unscripted conversations with our guests about legal news, events, topics and other stories we think you’re going to find interesting. I’m one of your host today, Trisha Rich of Holland & Knight, and co-hosting the pod with me today is Jennifer Byrne, the executive producer of this little podcast that could, and the director of CLE programming at the Chicago Bar Association. Jen, great to have you on today.

Jennifer Byrne: Nice to be here with you too.

Trisha Rich: And joining me and Jen today is Gay Gordon-Byrne. Gay is the executive director of the Repair Association, more formally known as the Digital Right to Repair Coalition, which unites repair companies to advocate for responsible public policy and promote industries commitment to customers, consumers and communities. The Repair Association was formed in 2013 as a response to the tension between consumer’s rights to repair goods and the emerging practices from manufacturing industries that predetermined how those repairs could be made and indeed, if they could be made at all, which included manufacturers refusing to provide instructions, parts, tools, and even access to products to thwart an ability to repair.

Now, the Repair Association works to increase awareness of this increasingly important issue and also works to write and pass legislation across the country that gives consumers an opportunity to repair their own items, things they have already purchased. Gay has been featured at many conferences and in all kinds of media, talking about these issues including NPR, C-SPAN, TED Talk, VICE Magazine, and now, @theBar. Gay, welcome.

Gay Gordon-Byrne: Thank you. It’s great to be here.

Trisha Rich: Thanks so much for coming. We’re very excited to have you. I’ll just start by saying I’ve watched your TED Talk on this subject. I know Jen has to, and I thought it was really interesting. I am somebody who likes to use things until they are, you know, at the end of their useful life. But I didn’t realize that there was, you know, whole organization that was working on this issue. So, for our listeners who haven’t heard of or thought about this before, can you just describe generically or briefly what the problem is and how you became involved?

Gay Gordon-Byrne: Well, the problem is actually very simple, manufacturers that used to send things like manuals and schematic diagrams in the box with the product stopped doing it, and I don’t It was very nefarious. I think it was just cheaper since they could post the information on the Internet and let people download. And then all of those things kind of cascaded into why is anybody — we don’t know who’s on our website downloading this information, and should they have access to this information. And then it became a, “We have to authenticate the person that is looking to download a manual,” and then it became a pay wall, and then it became, no. So, it’s been a series of small steps that have removed the very basic repair materials that we always used to get and you always used to have access to kind of one at a time slowly over, probably at least a decade, probably between 2000 and 2010 to the point where you can’t buy a part, you can’t get a manual, you can’t get a diagram, you basically can’t fix your stuff at the whim of the manufacturer, and not very good legal purpose.

Jennifer Byrne: You know, what interested me in the topic initially were a couple personal incidents that happened and Trisha knows about these because I’m sure I vented about them on our @theBar text chain. But what recently happened in my household was my husband’s laptop had its battery died and he took it to the Apple Geniuses who then told him, “Well, we don’t repair batteries, it’s totaled. You need to buy a new laptop.” So, he took it home and sat on it for a while and was like, “Should we buy a new laptop?” And I was like, “We don’t have money for a new laptop right now. We’re just going to have to wait on that, I guess.” So, in the meantime, he went online and he found this company iFixit, and he ordered a kit to repair the battery himself which, of course, I observed this process and thought he was a little bit insane. He had to order some special magnifying glasses that had lights on them in order to see these really small screws. But after about a day at our dining room table using this kit that he had ordered, he was indeed able to repair the laptop, and that sent him down a little bit of a rabbit hole and that’s where he found out about your organization and said to me, “Jen, this is a legal issue that you should be thinking about here because it’s, you know, it impacts consumer protection issues. I think it touches on intellectual property.” And so, just by way of background, I think the average person walking around, most consumers probably feels the way Trish articulated at the top of the episode, which is we like to use things until the end of their useful life.

(00:05:00)

But then when you come up against a situation like this and you see, I guess the ridiculousness that you can’t even replace a battery on this expensive device that you purchased, you’re like, “Wait a second. How did we get here,” you know? And so that’s kind of what brought this about. So, I just, I thought I’d point that out for the listeners at home who may have had similar frustrations and experiences and that’s sort of what led me to thinking about this as a topic us as lawyers and then the broader consumers should really be taking a closer look at

Gay Gordon-Byrne:  Well, your experience is totally classic and honestly, it’s why we’ve been able to make so much progress legislatively because every legislator, every staffer, and every constituent has a similar story. It’s almost impossible that they haven’t run across some form of barrier to replacing a battery or a piece of glass. And it doesn’t have to be just Apple, it could be everything that can break, and the barriers are all over the place and it has been really simple to explain to people that this is wrong. It’s legally wrong. It’s morally wrong. It’s bad for the planet and we should do something about it. So, it’s been a pretty easy lift when we get to that point. Those stories are everywhere.

Trisha Rich:  Yeah, I wonder — one of the things I really thought was interesting in your TED Talk — first of all, there were a number of issues I want to talk about today and you just hit on one of them which is the environmental impact of this phenomenon and I want to get to that today. But first, I want to talk about the way that you discussed mom and pops shops and how those kinds of don’t exist anymore. And I think in your TED Talk, you gave the example of an electric toothbrush. And that was interesting to me because it seems to me there’s almost a cultural shift now, right? And I actually think my electric toothbrush to give an example is kind of like nearing the end of its useful life. So, I’ve been thinking about this in preparing for the podcast and, you know, dealing with my toothbrush, and it is just so easy now for me to just open up Amazon, be like, “Yup, new electric toothbrush,” and get one at my house tomorrow, rather than trying to find maybe the one or four places in all of Chicago that would repair an electric toothbrush. Take it there. Give them time to figure it out. Me, not have a toothbrush in the meantime. I don’t know. And go back, pick it up, pay them, etcetera. And it just kind of occurs to me that I wonder if we’re in a chicken and an egg moment where like, it’s now — you know, these mom and pop shops don’t exist anymore because of the way that manufacturers have treated this. And even if you want to try to find a mom and pop, sort of fix something, it’s so hard because they’re so rare anymore. And is there a bit of a cultural problem you have on educating people?

Gay Gordon-Byrne: Oh, everything you say is so true. Not everything that you can fix makes economic sense to fix. Like you just explained, how far away do I have to go to get something fixed. What is the cost of that time? What’s the cost of the metro ticket, or whatever it is, or the cab, or however you’re going to drive around? So, not everything makes sense to fix. But since I just took a good look at my electric toothbrush last night, say, Kyle of iFixit told me that they sell electric toothbrush batteries. I’m like, “Huh?” So, I started looking for where there might be an access point to my toothbrush and I found this little incredibly tiny, tiny, tiny little, what might be a place for really tiny screwdriver. And then if I open that up, maybe it’s just as simple as taking a battery out, just like you do with your flashlight and shoving another one in.

So, some repairs are more difficult. You might want to have that mom and pop opportunity. But some of them are probably very practical if the product was made in the way that makes the access is easy. So, we have so many problems because manufacturers have no incentive to make it easier for consumers to fix their stuff, which leads to less repair, which leads to fewer repair shops, which leads to the problem that you’re experiencing, the, “Where do I even go? Where do I start?” So, our starting point is we just got to make sure that people have the basics that they actually, if they wanted to, could get the parts, they could get the tools, they could get the diagram that shows them what it is they have to do in order to be able to do something simple like replace a battery.

So, it’s a big mess and we’re just attacking it from the one angle that we can because there is a legislative solution. I don’t think we can change culture all that easily legislatively.

Trisha Rich: I will say, Jen, since you shared your husband’s story, I’ll share a story for my husband. My husband and I both travel a lot for work and he has this suitcase. So, this is an easier problem I think than an electric toothbrush, actually. But he has a suitcase that is like, I don’t know, 10 Or 12 years old.

(00:10:01)

The guy from The Amazing Race, he had a suitcase line like a million years ago, and he got a couple of these and he thinks they’re best suitcases that ever lived. And so, he had one and the handle broke, and then he traded his mother for the one she had. He gave her the one with the broken handle and took hers and she charged him for it, actually. It’s a story for another podcast. So, he’s already incurred just for those of you at, you know, doing the math, he’s already incurred the cost of the suitcase, the trade to his mom and then he has a suitcase for like a couple of months and one of the wheels doesn’t work anymore, and my husband’s a scrappy guy, so he’s like dragging this broken wheel suitcase through airports all over, right? And so, he ordered some wheels on Amazon, and he gets them and they — I am by far the handier of the two of us and I look at them there like these are not the right wheels for the suitcase. I mean these won’t work and they don’t fit, and he was like, “I think you can just take them off,” and I like, “No, you can’t. Like I’m going to have to find somewhere, somehow that repairs suitcases, and I sort of knew somewhere in the back resources of my mind that like I think that people that repair shoes also repair of suitcases, which is not to me an intuitive thing but I have read that somewhere.

So, I looked all over Chicago and I found a place that repair suitcases, and I went there and it was closed. It had shut down, maybe during the pandemic or, I don’t know. So, I found another place that repaired suitcases and I had to make a special trip all the way to that part of town and nobody was there. But as I was like sitting outside of my car, Googling the third suitcase repair place, somebody wandered up and unlocked the door and we got in. I got in and I go in and I tell them what happened and he’s like, “Yeah, I can fix this. This is no problem.” But he tells me then, you know, “You can’t just replace one wheel on a suitcase, you have to replace it least two,” which makes sense to me. I mean because I’m thinking about cars. You do the same thing with cars, right? And he’s cash only. I don’t have any cash, of course. But he tells me if I promise to bring cash with me when I pick it up, he’ll let me go, which is fine. And he says it’ll be a couple days. So, I go back to pick it up and the total bill — I mean the suitcase is repaired and it’s in working condition but the total bill is $120.00 for these two wheels to repair the suitcase.

So now, we have the suitcases, 10, 15 years old, we incur the cost of the suitcase, the cost of — trades the suitcase and now, $120 for these wheels and I just told my husband, I was like, “This is it. This is all the money we’re putting into the suitcase.” And to your point, I think there’s a really good environmental benefit to something to like extending the useful life on things. But I felt it was just like this odyssey and I was like, “How much time and effort and money am I going to put into this one suitcase?” So, as somebody on the consumer end who is like trying to do the right thing, and my husband was so attached to the suitcase, I was just going to figure it out, it just felt like it was a lot of work. It just felt like it was an extraordinary amount of work.

Gay Gordon-Byrne: Oh, you have quite a saga there.

Trisha Rich: I know. It’s like three hours later, I’m telling the suitcase story, but it just felt like it was too hard.

Gay Gordon-Byrne: Well, it was too hard, but not because anything about it was electronic.

Trisha Rich: Yeah.

Jennifer Byrne: Well, I think this speaks to one of the points that Gay brought up in the TED Talk, which is, and I think it was your opening preamble in fact. It is the way to extend the useful life of things we love or things we enjoy. And so, you know, while in the case of your husband, maybe the suitcase really was totaled. You certainly could replace a suitcase for $120, and there’s no electronic component there. But it’s an item that he may have had sentimental attachment to. He may have felt that, you know, the inner workings of how you store things in the suitcase were super important and irreplaceable to him. And so that brings us I think to one of the points in your talk, Gay, which is that, you know, sometimes we just want to preserve the things that we care about and that we enjoy using and we made a careful selection to purchase and we used our resources and invested in this product. And so, I think that is an essential part of this. You phrase it as the right to repair, the right of the consumer to buy something and then to use it as they see fit. So, I think that’s extremely important.

But, you know, you touch on many of the other things that we sort of alluded to so far in this conversation which are the local economy and how being able to repair your product supports that in various ways. We also touched on the environmental side and so maybe we can dig further to that, and I think that’s what Trish is talking about.

(00:15:02)

She’s trying to do the right thing by not being a wasteful throwaway consumer. So, can we talk a little bit about the environmental side of this and how our sustainability goals are underpinned and supported by being more conscientious about repairing our goods and pushing for legislation that might enable us to do so.

Gay Gordon-Byrne: Oh, absolutely. It’s a big component of why people want to do this. They want to be able to keep the things they like in use and consequently, out of the landfill, and the environmental consequences are pretty easy to document. If you fix something and keep it in use, you are amortizing all of the wasteful products, the cost of mining, the cost of transportation, all the things that went into it that you never see. But you’re amortizing that over a longer period of time. So, you’re already being a good responsible sustainable citizen, even if you only, let’s say get two years out of that suitcase with its new wheels.

Trisha Rich: I better.

Gay Gordon-Byrne: Yeah, you better considering how much you – yeah, how much you got cost into that thing. But the barriers to repair are a little bit harder to control when there’s electronic components because there is a point in time in which manufactures no longer make parts. I don’t know how they got these wheels. But eventually, somebody might be willing to say use a 3D printer to make a wheel. It’s not impossible. But if you had an electronic wheel, I’m kind of going a little off the reservation here, it might be a really hard thing to find. And if you can’t say breakdown another suitcase that has good wheels for ones that have bad wheels because the manufacturer won’t let you install the wheels, then you have another level of difficulty making that suitcase last, and that’s where we’re active legislatively. We’re not saying everything should be repairable, but if it is, you got to make it possible.

Jennifer Byrne: Tell us the landscape legally regarding that and how things have evolved, because I think again you mentioned in your TED Talk that it used to be the case that the schematic would be provided, and I think you mentioned that at the top of this podcast as well that there was a transition when the Internet made it possible for manufacturers to post that information online, and then over time, they sort of made the gatekeeping tighter and tighter until it was no longer provided. But can you clarify from a legal standpoint, was it historically, the law that manufacturers had to provide this information, or was it just something that was done, custom and practice, and then after that was eroded and they found it to be beneficial to them, now, we’re engaged in sort of a, you know, we’re trying to legislate the consumers right to have access to this information. Can you kind of describe for us that landscape?

Gay Gordon-Byrne: Yeah. In the high-tech world, there is actually a lack of law, and a custom and practice, but it goes back to the 1950s when there was a much more active and I trust interest on the part of the Department of Justice in making sure that there was access for competition for used equipment and for parts, and they the number one company that came under their scrutiny was IBM, then International Business Machines. So, by 1956, the DOJ had already decided that IBM being a 90% monopoly on business machines needed to be constrained. And the way they went about it is they said, “Okay. You have to, rather than just rent the products because they didn’t sell them, you have to also offer them for sale and you have to also allow people to fix them and you also have to allow them to buy and sell in the used market,” and that underpinned, as you can imagine in the 1950s, that underpinned kind of the contract form that was used throughout the IT industry for 50 years. It was really only finally released in 1999, and that was kind of at the dawn of the personal computer error. So, there’s a whole kind of backstory about what was required under law that nobody knows about. It was required but not in the way that we think of it today. So, the industry developed with this access to repair that was just common practice, everything could be repaired. It might not make economic sense, but it could be repaired.

So, now, we have this situation where we don’t have any actual laws other than on our trust, which is a little bit after the fact as opposed to preventative. Now, we have to create the laws that were never created that protect us from manufacturers, basically going back to 1956 and saying we’re not helping.

Trisha Rich: Well, it’s definitely a start and also a good place for a break, I think. So, let’s break there and we’ll pick that back up when we come back.

[Music]

(00:20:00)

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[Music]

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[Music]

Trisha Rich: Okay, and we’re back. Gay, when we broke, we were talking about some of the legislative efforts your group has undertaken, and let me just start by asking how successful has that been? I mean where are you in terms of passing legislation on the States? How are representatives — how has it been received? How are consumers receiving it? Just, can you give us a sort of a 30,000-foot overview of where you are?

Gay Gordon-Byrne: Oh, certainly. This year has been really quite the breakthrough year. We have passed and been signed into law, four different laws. There’s a pretty limited law that was first signed in Colorado for powered wheelchairs. And we had hoped that that might catapult some additional interest in some other States for a little further, you know, go a little more into the disability rights community, but that hasn’t happened yet. The other three bills are, there was a bill that we got passed very late in the year in New York that covers primarily consumer electronics. We were able to get another much more significantly scoped bill done in Minnesota, it was signed into law. And there was a third bill that got done, kind of all at the same time, again in Colorado, scoped for agricultural equipment. So, there’s activity that has been successful in three different categories, medical, agricultural and your standard computer kind of cellphone world, and we are off to the races in a bunch more States. So, it’s been very successful.

When these bills get to the floor, they are passing by enormous majorities. I don’t think legislators really think that it’s to their political advantage to say, “You shouldn’t fix yourself.” So, we’re seeing 99% kind of passage.

Trisha Rich: And one has been introduced in Illinois, right? I think I saw that.

Gay Gordon-Byrne: Yes, we had one this year. I think we had, may have been two or three. Michelle Mussman introduced several, trying to see if she could get, you know, a toehold into one of those categories. So, we’ll see how that goes. There’re bills still active in California and in Michigan. As soon as some of those additional States pass, I think the pressure on manufacturers to comply voluntarily, even if there’s no law behind it, will become really, really hard to escape.

Trisha Rich: Jen, you’re going to have to report back to John that I was not the first person to bring up Michigan today.

Jennifer Bryne: Okay, I will. I will certainly report that. That’s sort of an in joke with us, Gay, because Trisha is from Michigan and frequently, will reference the State.

Trisha Rich: I’m getting the thumbs up from, Gay.

Jennifer Bryne: Right, from podcast to podcast, but that brings up a follow-up question for me when you mention the manufacturers. Are you facing significant opposition? Because it would seem that you would, because they have a major incentive to keep this information under lock and key and I would think this would be an uphill battle for you, although it’s, you know, heartening to hear that you’re having success so far.

Gay Gordon-Byrne: Well, this is kind of the ultimate David v. Goliath kind of battle, and to say that there’s opposition is a real understatement. One of our members said, “I wonder what the market cap is of all the companies that have already lobbied against us.” It was something like 22 trillion. Overwhelming opposition but not principled opposition and that’s the problem that they have is they just say, “We don’t want to be covered,” and then if anybody ask them why, they don’t have an answer. The Federal Trade Commission asked the same question, you know, “Why should you not have to repair,” and they couldn’t come up with anything. I mean pathetic that they couldn’t come up with anything. Because there really aren’t any good excuses for monopolization, and it’s just we just don’t want to, doesn’t really cut it and that we don’t want to.

Jennifer Bryne: Well, you know, I’ll put my lawyer hat on although I won’t claim to be an expert in this area. but I could see an argument — I don’t want to give anyone any ideas here. But I could see an argument being made that there should be some protections for the intellectual property at stake. Have you seen any of those arguments being promulgated with any success or without success? And can you speak to that a little bit? I know you’re not a lawyer but, you know, have they tried that one on you?

(00:25:05)

Gay Gordon-Byrne: Oh, early and often. Yes, that’s kind of the number one thing that comes up and then we have to point out to them that, “Excuse me, the copy right law already allows for repair.” It is legal to backup and restore all of your IP, on your device without creating a proliferation or any kind of copyright violation. And there’s similar protections under patent law. There’s nothing about a trade secret that we would have any interest in. So, these arguments really kind of fall apart very quickly, and the IP end of it has not held up well in terms of protections. We’ve added some language to make it even clearer for those people that don’t like existing law. But, yeah, that’s the first try. And then they start trying with, “Oh, you might be unsafe if you repair your own stuff,” and that comes under my caddy, give no shit Sherlock if you —

Trisha Rich: Yeah, that’s — I’m sorry. I hate to interrupt. That’s what exactly where I was going to go next. Isn’t there like a tort liability argument here that like if you put wheels on your suitcase that don’t fit and somebody gets hurt, or you open up your laptop and get electrocuted, or you try to tear your toothbrush apart, and, I don’t know, whatever, you know, it explodes, I don’t know.

Gay Gordon-Byrne: Right, yup.

Trisha Rich: I mean, if I’m a manufacturer, can’t I say, “Listen, our product is so complicated and nuanced and wonderful that if somebody else, an amateur, a mere mortal tries to repair it, they could, you know, seriously injure themselves, or somebody else and we, company shouldn’t have liability for that,” isn’t that a decent argument?

Gay Gordon-Byrne:  Well, again, it’s a good argument on the surface. But it falls apart when you — it falls apart because, guess what, the first thing every manufacturer does, in every contract I’ve ever seen, believe me, I’ve seen thousands, I’m kind of a contractski(ph), there’s always a disclaimer and limitation of liability which says, “No matter what you do, when you’re using our product, Mr. Customer, we’re not responsible.” And the test for responsibility is really one of gross negligence, so it’s really, really hard for a consumer to say, “Yes, I hurt myself using my electric toothbrush somehow”. God knows how and you are responsible because when you bought the toothbrush, you were told the manufacturer says, “We’re not responsible. It’s yours baby. It’s all up to you. You use it safely or you don’t use it safely so that it’s not my problem”. So we run across the limitations of liability in the contract and then going back to the FTC, the same claim is made to the FTC and nobody brought up a case.

We’re talking two years of investigation and opportunity for somebody that actually seen that situation actually materialized. So given that, I think that the tort bar might have some examples and they didn’t bring any up. So it’s really hard to — it’s hard to stand by that and say, “Yeah, that’s really going to happen.” Because here’s an example of a cut from the opposite side. You’re driving down the road, you’re exceeding the speed limit and you’re using your cell phone. You violated all sorts of laws, right? When you get caught–

Jennifer Byrne: So far, you’re just describing my commute to work so go ahead.

Gay Gordon-Byrne: Yeah. Okay. So you’re driving, you’re violating all sorts of laws and the cop pulls you over and who gets the ticket? You do because you’re the owner and you’re responsible. So these arguments don’t hold up very well.

Jennifer Byrne: It brings up another point that I wanted to ask about which is what about these manufacturers and maybe this is just me having a notion that they’re doing this. But what about manufacturers making things harder to repair intentionally? Is that going on and is there any effort on your organization’s part to keep that under control? And by that, I mean, again, I’m going back now to the 90s. These memories are vague. I was a kid during the original cell phone era, but I seem to recall and correct me if I’m wrong here, you used to be able to change the battery on your cellphone yourself, yes? Now, it’s like the riddle of the Sphinx to get this thing– it’s not, you can’t get it open. You take it to the geniuses, they tell you this is totaled, you must now buy a new phone.

And by the way, they don’t encourage you to buy new phones anymore. They encourage you to lease your devices so that you’re highly incentivized to just throw this thing away, get the brand-new on and walk out with the new device and not worry about the battery. So what do you have to say about that? Is this a problem or am I imagining it?

Trisha Rich: And actually, before you answer that, I want to say, speaking full circle to like, trying to do the right thing. I did one time take in my iPhone into a place where they changed out batteries and they didn’t have batteries that were the right size. So they’re like this one’s a little bit bigger than the one that would fit in your iPhone but they like squeezed it in, right?

(00:30:03)

And then the touchpad didn’t work anymore because the battery was like pressing up against the back. So I ended up going through that battery process and then having to buy a new phone anyway and where did my old phone go? Into a landfill somewhere. I mean, I drop it off at the recycling thing at the Best Buy or whatever but like presumably, it does mostly end up in landfills. So I just want to say I’ve gone through the process of trying to do that and it just wasn’t successful.

Gay Gordon-Byrne: You guys are on to such great points that everybody is experiencing. Batteries were very replaceable and I can’t remember how many phones I had over the years where it pop the battery up, put new battery in, keep going, keep going, keep going. And then some genius invented glue. They started slathering things with glue and then it got harder and harder to get into them and then they stopped using screws and they used only glue and it was a lot of consumer pressure to get some of that changed. A lot of that design kind of pressure is coming from Europe. They have recently banned the use of glue and some products and they’ve also made some design requirements that we’re not good at mandates here in the U.S. We like the free market. Some of those incentives are coming in from Europe, but it’s very, very true that stuff has been made not to be repairable. And particularly, the only be repairable by the person that has the match password, because even if you can get in, even if you can rip the glue apart, when you go to replace a part now and this is really truly scary stuff, the part has to match the motherboard.

And even if you have the original manufacturer part in the right shape and right size to go in and fit as it should, it has to be paired to be recognized by the motherboard and that pairing is only done at guess whose location? You can’t do it yourself and you can’t –an independent can’t get access to those tools. Some of that is changing under pressure of legislation because that’s one of the things that’s kind of banned under the laws. We’re saying you must provide the ability to pair use part. You must provide a part that fits. You must provide access to the authentic tools that you are using and you are selling to your authorized repair providers so that a high-quality service can be performed. Even if not by you, even if you don’t want to try to do it yourself, there should be the opportunity for someone to go into business, learn, figure it out and do a good job.

So we are making progress through legislation but on the design side, we’re not doing it. It’s Europe is pushing those. And relative to your question about what happens when that product goes to the landfill? These products are very bad in landfills. They mostly all have embedded batteries of some kind. Even the electronic toothbrush has a little battery. And if that battery is not totally dead when it goes to the landfill, as soon as it hits a crushing machine, it literally comes into contact with oxygen and the lithium explodes which is why you have so many fires in recycling facilities and in landfills and in other locations where these electronics should not be located. So there’s more to that too.

Jennifer Byrne: And as we continue to become more and more dependent on electronics, and I’m thinking about devices, not just such as iPads, phones, computers, but EVs, this is the next thing that’s coming down the pipeline. A major transition to electronic vehicles, which I think most people who want to buy an electronic vehicle believe they would be doing so because it’s better for the environment, right? And it makes us less dependent on oil and gas. But in the course of this conversation, i see a number of potential problems that could emerge as people become dependent on electronic vehicles. Do you have any thoughts on that?

Gay Gordon-Byrne: Yeah. I have thoughts on a lot of things. One of the things that we’ve always followed has been the battle for right to repair that really kind of got started 10 years before we did in the auto industry because the auto dealerships were able to fix things that the manufacturers work letting the independent mechanic fix and that led to a law passed in Massachusetts in 2012 which basically created the mold for right to repair. So starting in 2014, actually was used as the basis for a national memorandum of understanding which has led all of us be able to fix our cars at a local dealership, but it didn’t cover electric vehicles. It didn’t cover Tesla. And it’s not going to cover electric vehicles going forward because it doesn’t say electric.

So there’s a lot of holes in that environment that we’re going to start to see come up and it’s pervasive in the manufacturing space for automobiles and trucks and it’s only going to get worse. And so some of the people that have now become kind of colleagues in the right to repair space include auto and truck interests, you know independent interest.

(00:35:07)

So we’re actually all fighting the same problem. We’re fighting the monopolization of repair but we came about it from different industries and our side of it was very poorly organized until we started. There’s lots of trade associations that were picking in one little tiny pocket of the industry. You know, there’s recyclers, there was reverse logistics, there were people that were buying and selling used parts. People that were selling new parts that go into other parts and so we were able to pull them all together which is why we’re coalition. Now, we’re crossing into the auto space.

Trisha Rich: Same problem.

Jennifer Byrne:Yeah, seems very universal when you look at it from that perspective.

Trisha Rich: When we talk about the environmental impact, one of the interesting things I think we heard in your Ted Talk, which I encourage all of our listeners to go listen to, it’s only, you know 10 or 15 minutes long. So it’s really interesting and it’s an easy lesson. But when you talk about the environmental impact, one of the things you said was by the time a product gets in our hands, an electric toothbrush or computer, suitcase or whatever it is, most of the environmental impact on that product has already happened. And I think that’s a little counterintuitive to people because even as we’ve been talking about it today, we’re talking about things on the back end, like when it goes into a landfill, what happens. So I wondered if you could talk some about that environmental impact on the front end of building a product and how harmful that is.

Gay Gordon-Byrne: Well I think the statistic I use came from the U.N. and nobody’s argued really that I have the wrong statistic but we’ll just throw it out there. Something like 80% of all the environmental costs in building and shipping a gadget to us here in the states is associated with the manufacturing and transportation process. So the fewer things we buy, the less damage we’re asking primarily Asians to absorb because we’re not, we’re not mining here. We are not pulling cobalt out of the ground with child labor in Africa. The manufacturers are digging around for everything that they need and then shipping it to Asia to be processed and then we get it only after it’s pretty.

So these are very real harms to happen around the world but we don’t see them. So we’re kind of putting blinders on when it comes to how useful these devices are. Do we really need everything that’s electronic to be electronic? I argue no. I don’t need a touchpad on my refrigerator. I don’t need a touch pad, especially don’t need a refrigerated looks inside with a wireless ID to tell me I need eggs. I think I could figure that out. I don’t highly value that function.

Jennifer Byrne: It’s solving a problem that you have?

Gay Gordon-Byrne: There’s a lot of that i think. A lot of the products are being made with features nobody has — they can create the feature but nobody’s asking for the feature and even if the feature is available, who’s using it? Is anybody actually using it and we just over complicated our lives for no good reason. You know, repair really is a little off that topic but when it comes to fixing things and being able to pull the parts apart, the recycling end of the business is not where we think it is. We think that if we turn something into the bin and turned it into recycling, it’s actually getting recycled I think that this is statistic again. People could argue the actual amount but it’s something only like 14% of what we’re presenting to be recycled is actually getting recycled. And that’s because it’s all glued together. It’s all made with all sorts of materials that don’t have a lot of economic value so it’s really hard to expect to be able to put the labor into them, to pull them apart, to generate a raw material that can be remarketed and believe me, a lot of these manufacturers are buying new parts because they can get a million of them in a batch.

They’re not looking to get 5, 10, 15 a week of parts to be able to reuse them. It’s just impractical from a manufacturing standpoint. So we’re kind of deceiving ourselves and we think that recycling can do more than it’s doing and then, of course, what, it’s not doing, it’s actually keeping stuff out of the landfill because the vast majority of this material is going into the landfill.

Trisha Rich: Yeah, I’m actually surprised that it could even be as high as 14%. It seems to me that recycling programs are largely ineffective and inefficient.

Gay Gordon-Byrne: I wouldn’t disagree. We’ve mandated them all over the country. There’s all sorts of requirements that thou shalt recycle X, Y and Z. But then, there’s no business model to support that. So, a lot of — I’ve seen some states that have had these requirements pass legislation undo the requirements because they have–

Trisha Rich: No interest.

Gay Gordon-Byrne: Yeah. West Virginia I think had a law mandating something and they couldn’t execute it so they removed the law which I think is emblematic of how hard the problem is.

(00:40:05)

Trisha Rich: Yeah. And into your point earlier, the people that really, really believe in a free market I guess would say, like, “Listen, if we can make recycling work, a free market would build up around it” and it really hasn’t outside of aluminum I think.

Gay Gordon-Byrne: Yeah, there’s some metals that are, you know, worth digging around for, but for — this is also an element of right to repair. The recyclers get random stuff in in random quantities. They don’t know what’s coming in the door from one minute to the next. So, they’ve got to have an ability to sort and pick through the pile of stuff that shows up in their doorstep and know what’s valuable and what’s not. And it’s not worth their effort and their employee’s effort to do a lot of work to find that out because the amount that they get at the end of that line is pretty limited. So the more people can repair stuff, the more used parts, they will have a justification to buy and the more incentive there will be for the recycling industry to provide those parts. But right now, the value proposition is just lousy.

Trisha Rich: Yeah. So we’ve talked about just some of the logistical difficulties in repairing things and some of the avenues people take to do that and we’ve talked about some of the legislation and some of the environmental concerns. But one of the things that came up in your Ted Talk that I want to make sure that our listeners are thinking about, is this idea that being able to take things apart, fix them and put them back together is a really valuable skill for a lot of different kinds of people and you talked in your Ted talk about how you grew up doing that with your dad, I think it was. And I grew up on a farm so i have some experience doing that as well, but to think about this as sort of an access point for people that want to become engineers or architects for those sorts of things, I wondered, if you could talk to us a little bit about that for a few minutes.

Gay Gordon-Byrne: Sure. Most of the people that I know in the repair industry, especially for the cellphone industry, they started out fixing stuff on the kitchen table because they were curious. And they would take a screwdriver to something that Mom said it’s okay, possibly didn’t say it was okay, and pull it apart and put it back together, kind of hope for the best. And there’s a whole generation of people that aren’t doing that because there’s no opportunity for them to charge and make any money. When you used to be able to charge somebody, a little bit of money to replace, you know, a piece of glass or a battery, you could make 25 bucks or 50 bucks in a short period of time and it was really, really a great way to enter a business.

So a lot of our entrepreneurs are younger, mostly guys, were coming from that environment. It’s now, it’s getting hard. It’s getting very hard. Every time we turn around, there’s some new barrier to repair. Like we talked earlier, the people that used to have repair shops, the appliance guy, the computer guy, the radio guy, the stereo guy, the AV guy, and the appliance guys are all gone and it’s not because they want it to be gone. It’s because it became impossible for them to get the parts and tools and materials they needed to keep going. So we’re at that inflection point right now where we’re losing a whole generation of creativity. Our kids are going to college with absolutely no experience of taking anything apart. They don’t think they should, they think they might get hurt. And we’re losing a lot. And I think the big loss is not so much at the college level but at the tech school level. We need a lot more repair techs than we have. We have the same problem with getting plumbers and electricians. We’re not even doing shop class in high school.

We should be doing a lot more because these are real jobs. These are jobs that are here, they feed families. You can make enough to actually have a small business and be pretty successful, but we’re trying to kill those jobs or manufacturers are allowing those jobs to be killed through their own incentives or profits. And that’s a real shame.

Jennifer Byrne: I thinks that’s charitable reading from you Gay, like there’s a couple of times you’ve said, you’ve basically said, it’s not the manufacturer’s intent, it’s just a byproduct of their profits. And I think that’s kind of you.

Gay Gordon-Byrne: I’ve learned to try to be kind.

Jennifer Byrne: I think even on a sort of, I guess you would say, larger scale, you mentioned Steve Wozniak in your Ted Talk and how he grew up on this type of, you know, repair work and pulling things apart, putting them back together, building new things. And I mean, you know, he helped build one of the, I guess, the culprits in this conversation, but, uhm, one of the biggest companies in the world. And so, from like a really, like global perspective about Innovation and creativity and just basically like the empowerment of an individual to know how to do things for yourself, I just think is so important and it seems like this is a small piece in that, but it’s actually to me a very significant one.

(00:44:58)

And so, yeah, I’m glad we were able to touch on that because had it not been for listening to your Ted Talk, I don’t think I would have been thinking about those things, although we all are kind of walking around, I don’t know, feeling a little bit powerless about the world right now I think and you know, the environmental issues and economic issues and things that we deal with and see every day. But this to me gives our listeners and gives us some inspiration to be thinking about something that we can do to change it. And so on that note, is there anything that you think our audience should be aware of in terms of legislation that they could be supporting or, you know, how they could support your organization or the movement in general?

Gay Gordon-Byrne: Oh, that’s a really big gift. Thank you. Anybody who wants to be able to fix their stuff really has to use their mouth. And that’s all they have to do is use their mouth. You will be astonished at how important your voices. And I don’t mean when you vote, I mean use your mouth. Call your legislator in the states, call your house representative and your senate representative and say, “Hey, I really want to be able to fix my stuff” and you can do — you make that phone call today. I want you to sponsor or help somebody in your legislature sponsor right to repair legislation and get it done. Single phone call, massively impactful. Because that’s how all of our bills got started. And we’ve had over 100,000 people do that which is I think the main reason why we have bills in 30 states because people are asking for it and that legislators are asking each other how come we haven’t done this. So it is something that’s very timely. It can definitely be done and  the most important thing you can do is use your mouth. People should stop talking to each other about this and start calling your legislators because that’s where it can actually happen.

Trisha Rich: That is a really great action item and I think on that note, we will take our last break and we’ll be back in just a minute for Stranger Than legal Fiction.

[Music]

Okay, and we are back for our third and final segment Stranger Than Legal Fiction. All of our listeners and Jen, of course, know the rules but Gay since it’s your first time on the podcast, this is how this goes. Jen and I have both researched a few laws and we have brought here with us today one law that is fake and one law that is real and we’re going to quiz you and each other on those laws and see who wins, which is the wonderful prize of all of the glory of this episode of the podcast. So Jen, are you ready to go?

Jennifer Byrne: I’ll go first. So it’s very simple, very simple one to guess. In the State of Illinois, it is illegal to drive without shoes on. In the State of Illinois, it is illegal to drive wearing flip-flops. Can you guess which of these is real and which of these is fake? Gay, you want to go first?

Gay Gordon-Byrne: Oh sure. I think it’s illegal to drive without shoes.

Jennifer Byrne: Trisha, what’s your guess?

Trisha Rich: Yeah, I agree. Although certainly, i have violated at least both of these laws once but flip-flops are you know, 10 months out of the year, my go to shoe. So I think it is illegal to drive without shoes and okay to drive with flip-flops.

Jennifer Byrne: This week, I did a dirty trick on you both and both of those are actually fake laws. Although it is an urban myth, in many states including Illinois that the Illinois Law or that driving without shoes is illegal. Many people believe this to be the case. In fact, last week, I was inspired to look this up because I was wearing a pair of really uncomfortable shoes that gave me a horrible blister. And I walked all the way from the office to the train and I had blood just like coming out of the back of my shoe. So I’m like there is no way I’m going to get in my car with these on and do one more moment in these shoes once I got to my car. So I took them off and then I had this thought in my mind. Am I committing an illegal act by driving without shoes on, but I have to do it, so I did it. And then I said to myself, “I better look this up to better make sure I wasn’t breaking the law.” And in fact, i was not, there is no law in the State of Illinois that prohibits driving with either flip-flops or barefoot.

However, if you are driving with no shoes on or an unsafe type of a shoe sandal flip-flop, and you get into a car accident, you can be liable for damages to another person who you may injure or you can be convicted of reckless driving. So there still can be consequences for driving in an unsafe manner with unsafe footwear or no footwear, but it’s not — there’s no actual, you know, law on the books that says it is illegal to drive without shoes.

(00:50:05)

So it’s a bit of a trick question there.

Trisha Rich: That is interesting because first of all, I want to point out that walking to the train in uncomfortable shoe story, you tell, is a pain men will never know. I mean, I feel like women’s shoes that are uniquely uncomfortable. But I actually think it’s kind — like, it makes me feel uncomfortable driving in heels which has not been a problem since the pandemic, I don’t know when the last time I put on a heel is, but I think that leads to like some unstabilization in driving.

Jennifer Byrne: Well, i think it could be the case of any type of a shoe. So if like your shoe causes you to get into a car accident where someone gets hurt or, you know, recklessness in general, you can still be found guilty for the recklessness but there’s no actual restrictions on the type of footwear you have to wear or not wear while you’re driving.

Trisha Rich: Okay, so because you are an evil person and you bent the rules–

Jennifer Byrne: I do that often on this show.

Trisha Rich: Do we both get a point or didn’t either of us get a point?

Jennifer Byrne: I say you both get a point.

Trisha Rich: Okay, great. Thank you. Thank you for your mercy. Okay, you ready?

Jennifer Byrne: Yes, ready.

Trisha Rich: My two proposed laws both come out of Australia this week. So number one, in Queensland, Australia, taxicabs must carry a bale of hay in their trunks at all times or number two, in Australia, it is illegal to be drunk in a bar? Gay, why don’t you go first?

Gay Gordon-Byrne: Number one with the bale of hay is so bizarre, it’s probably true.

Trisha Rich: Oh, you’ve stumbled upon the only rule we have in Stranger Than Fiction which is the weirder it is, the more likely it is.

Gay Gordon-Byrne: Yeah, I’m going to go with that one and drunk in a bar in Australia, I think that’s the whole purpose of going to the bar.

Trisha Rich: Jen, what do you think?

Jennifer Byrne: I’m going to have to agree. I’m going to have to agree with Gay on this one because again, the more bizarre, the more likely to be true and there’s no way it’s illegal to be drunk in a bar in Australia or anywhere.

Trisha Rich: Okay. Well, you are both wrong, sorry to say which I do think makes me the winner.

Gay Gordon-Byrne: It does. It does. Hands down, you got it.

Trisha Rich: So the taxi cab carrying a bale of hay in their trunks at all times. So this is wildly rumored to be a law in Australia. It shows up on the Internet all the time. And it’s said to be sort of a holdover from like horses and buggies where you would need to have a (00:52:29) carrying a bale of hay with you in case you needed to get a buggy out of a mud situation. Similar to why people in the midwest keep kitty litter in their cars during the winter, right? And whether or not that was a law, I wasn’t able to actually verify that it was. It is certainly no longer on any books in Australia. However, under the Liquor Act of 2007, it is now illegal in Australia to be drunk inside of a bar and this comes from not only sort of, I think the dram shop principles that we have here in the United States, you can’t continue to serve a drunk person in a bar, right? But it actually takes it a step back that once you are intoxicated, you are supposed to be removed from the bar and it’s just basically an offshoot of, you know, not being allowed to be drunk in public. So, yes, under the Liquor Act of 2007, you are no longer allowed to be drunk in a bar in Australia. And there you go.

Jennifer Byrne: Hard to believe, but okay.

Gay Gordon-Byrne: I think she wins.

Jennifer Byrne: I think so.

Trisha Rich: I’ll take it. I’ll take it. Well, I think we are out of time and that’s our show today. So I want to thank you Gay for coming on. This has been extremely interesting and enlightening. I hope our listeners learn something. I know that Jen and I did. I also want to thank Jen, of course, for co-hosting with me today and the work she does behind the scenes as our executive producer that makes this whole machine work. And as always, huge thanks to Legal Talk Network. They are just wonderful to work with, the best in the business. We love working with them. And remember, you can follow us and send us comments, questions, episode ideas on Facebook, Instagram, and Twitter, CBA, @theBar, all one word. Please also rate us and leave us your feedback on Apple podcast, Google Play, Overcast, Spotify, or wherever you download your podcast, it helps us get the word out. And until next time, from everyone here at the Chicago Bar Association, thank you for joining us and we’ll see you soon @theBar.

[Music]

Gay Gordon-Byrne: You know, I knew you were going to say that.

[Music]

Jonathan Amarilio: Need a lawyer Steve?

Steve: I do.

Jonathan Amarilio: You look like you need a lawyer. The Chicago Bar Association Lawyer Referral Service has been making referrals for over 70 years to attorneys who have been thoroughly screened for experience in over 40 different areas of the law. Call (312) 554-2001 or visit us online at www.chicagobar.org/lrs.

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