Criminalizing planned obsolescence: A walkthrough
By Nimra Shahab
Picture this scenario: you bought a brand new phone from a big tech company. However, just a few months after your purchase, you notice something odd: your phone’s camera quality has decreased, the battery doesn’t last as long, and each software update makes your phone lag. In an all too common turn of events, you have become a victim of planned obsolescence.
Planned obsolescence, by definition, is the production of goods that are programmed to have shorter lives, forcing customers to make repeat purchases. However, despite its usage in swaying customers in ways that many critics consider “unethical”, the practice remains largely legally unchecked. But is it possible to outlaw such an enduring business model, and if so, how do we do it?
To understand the current status of the legality of planned obsolescence, it is essential to examine the origins of the principle. Planned obsolescence at its core is a solution to the “durapolist problem”: durable goods monopolist companies cannot afford to make products with good durability, as buyers often will buy less of the product and anticipate the prices to be lower in the future. As the time between price changes shrinks, businesses lose their monopoly power and are ultimately unable to continue operations. As an alternative, companies will often adopt the practice of planned obsolescence to maintain business with minimal price adjustments. Due to the pressure on companies to lower the prices of their goods, competition authorities and antitrust law often treat durable goods markets differently, allowing planned obsolescence to occur while being completely legal under the guise of a free market and business. Such a practice has virtually unlimited potential to not only monopolize the market but also the environment, through the production of product waste (especially e-waste in modern electronics).
On one hand, it seems that the legality of planned obsolescence is intertwined with the modern market. To specify, Intellectual Property (IP) laws play a large role in shielding the practice from any real backlash from both the courts and consumers. Most, if not all, products on the market are protected with IP rights, which are used to control who can repair said products. For instance, in the United States, the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent technological measures that are embedded in copyright works, which include but are not limited to smartphones, home appliances, medical equipment, agricultural machinery, and more. As a result, many manufacturers claim that only authorized personnel or the manufacturers themselves are qualified to repair their products in order to avoid consumers being liable for IP right infringements. This creates the perfect scenario for planned obsolescence: companies can create faulty products that require frequent repairs, costing consumers more money and bringing in more revenue. Additionally, many companies will try to install software during the repair process that causes deterioration, and some manufacturers urge customers to buy new products altogether. When such legal circumstances exist and planned obsolescence becomes more implicit, it becomes far more tedious a task to criminalize the practice. Furthermore, the virtual elimination of consumer self-repair only perpetuates this system, allowing companies to have their way with the durability of the products and granting a state of almost complete immunity to this business model.
However, recent findings show that the manufacturers’ reliance on IP law to maintain such a practice may not be infallible after all. According to the Federal Trade Commission’s May 2021 report, while many companies cite copyright, patents, and trade secrets to restrict independent repair, these claims often fall flat. Copyright law already allows owners to make copies of software for maintenance or repair, and the DMCA contains exemptions that permit the circumvention of technological protection measures for repairing cars, smartphones, and home appliances. Similarly, much of the information that manufacturers label as “trade secrets” is already shared within authorized repair networks and doesn’t qualify for such protection. These nuances display that IP law does not present an insurmountable barrier to independent repair, and that manufacturers may be utilizing it more as a shield for planned obsolescence than as a necessity.
Planned obsolescence itself has begun to face some complications in its legality, especially in the modern field of electronics and technology. In Bilic et al. v. Apple, the plaintiffs alleged that Apple fraudulently sold devices with defective batteries and later intentionally throttled their performance through software updates to mask these defects and boost new device sales. Since Apple falsely claimed that these software updates were beneficial, they were found to have been guilty of common law fraud and negligent misrepresentation, and agreed to pay $500 million in damages. The idea that companies can be held liable for misleading consumers based on the functionality of their products raises some intriguing questions regarding the changing legal status of planned obsolescence: is the practice as a whole now subject to scrutiny, or is such judgment only saved for products that have their deterioration tampered with after purchase? Do consumer rights only come long after the purchase in the case of durable products?
Another legal solution to the issue of planned obsolescence comes from a quick workaround: the implementation of right-to-repair laws. The concept of right-to-repair is simple: facilitate cheaper and faster repairs by requiring companies to legally abide by regulations on parts availability and warranties. By doing so, the drawback of planned obsolescence to consumers would be eliminated, and the e-waste produced by faulty products would also be reduced (an unpredicted additional benefit of such a venture). Many states have already begun to adopt legislation addressing this issue, yielding promising results for consumers and businesses alike. In Massachusetts, the state legislature passed the Right to Repair Act, which requires automobile manufacturers to provide owners and independent repair facilities with access to the necessary vehicle data and documentation for repairs. By implementing this legislation, the state hoped to create fair competition and bolster the economy, thus contradicting the main economic incentive behind companies adopting planned obsolescence. Other states have also followed suit: in California Senate Bill No. 244 Ch. 704, the state declared that electronic products that cost between $50 to $99.99 to manufacture must have effective services and parts provided by the manufacturer for at least 3 years after production (7 years for products that cost $100 or more to make). In the New York Digital Repair Act, the state ruled that electronic product manufacturers must provide diagnostic and repair information, as well as offer training and certification programs to independent repair shops. On a more federal scale, the Car Allowance Rebate System gave government subsidies to encourage people to upgrade to fuel-efficient cars when trading in their old vehicles in an attempt to salvage the materials from older vehicles and prevent excessive waste. By doing so, the government was able to directly mitigate the major environmental impacts of planned obsolescence, as well as reduce the excessive consumption of fossil fuels and numerous repairs often associated with older, less fuel-efficient vehicles. By creating a circular economy of recycled materials, repairs could be conducted at a far lower cost and larger rate, thus combating the business model of planned obsolescence.
Planned obsolescence has long been guarded by economic logic and legal loopholes, but its stronghold in the market is beginning to weaken. From Apple’s $500 million lawsuit to the popularization of right-to-repair laws, courts and legislatures are starting to recognize the real harm of this business model on consumers. Yet the question remains: should the law go one step further and criminalize the practice? Doing so would strike at the foundation of a centuries-old durable goods market.
If nothing else, the unfolding legal battles highlight that planned obsolescence is no longer an inevitability, but a choice. Lawmakers, courts, and consumers alike must decide whether the short-term profits of large corporations outweigh the long-term costs of a high-waste, deceptive, and unequal practice. The outcome of this debate will shape not only the lifespans of our products but the future of consumer rights and product regulation itself.
