The Federal Trade Commission (FTC) announced Thursday that it will expand its enforcement against unfair methods of squelching competition. For Americans looking to save a buck—or a few hundred—the FTC’s action comes not a moment too soon.
For example, once Scott Helme finished installing a new tow hitch on his Tesla Model Y, he reported hitting a snag with the car’s software. He tweeted: “If you buy a Tesla, you’re not allowed to tow anything unless you buy their towing kit. [Yet]They don’t have any towing kits available for sale.”
The Tesla Model Y manual states that drivers “must use the Model Y trailer hitch when towing a trailer.” However, even if Scott wanted to buy Tesla’s official $1,300 hitch, the company has been out of stock since at least June, with no restocking timeline available.
Scott asserts that the third-party tow hitch he installed was fully functional and from a reputable dealer, but the preinstalled Tesla software wouldn’t allow him to use the “Trailer Mode” setting on his car. This mode includes important safety features that ensure the car’s assisted driving functions properly with a trailer attached.
When I buy a car, I expect to be able to install basic add-ons such as a roof rack or a trailer hitch. Using software to limit customers to only brand-authorized products seems to violate the basic idea that I bought the car, and it’s mine.
Tesla’s conduct is hardly unique, and raises questions about which software lockouts are really about safety, and which are about forcing customers to take out their wallet for additional purchases, a practice known as “tying.” Companies are not supposed to tie the use of one product to the purchase of additional items or services. The Federal Trade Commission’s (FTC’s) guidelines explain, “the general rule is that tying products raises antitrust questions when it restricts competition without providing benefits to consumers.”
Tethering customers to the manufacturer has long been restricted
Fortunately, the FTC has recently been enforcing its longstanding anti-tying protections more stringently, perhaps most notably in a recent case against Harley-Davidson. When the motorcycle manufacturer used the threat of a voided warranty to dissuade customers from installing third-party trailer hitches, and to push its own add-on sales, the FTC took action against Harley’s tying violation. Looking the other way could create a slippery slope. What if instead of voiding warranties, Harley-Davidson wrote software to deactivate its motorcycles if it detected the new hitch? Would the motorcycle giant have been able to get away with it? That would be absurd. If voiding warranties due to attaching third-party products is illegal, then software lockouts should be illegal as well.
Software enables new ways to control customers that historically would have been viewed as deceptive or unfair. Tesla leads the passenger vehicle industry in the amount of software features in their cars. However, more software is not a plus if it restricts use, threatens the rights that owners have over their vehicles and could stymie competition and increase costs.
Not being able to attach safe, basic, accessories to the car I own—because of software or not—is outrageous. Yet the real damage is when we are led to believe that manufacturers have secret rights over our devices, and that our tinkering or fixing is a violation of that hidden agreement.
Being able to fix, tinker, and reuse the products we own is the core principle behind the Right to Repair movement. When manufacturers prevent repair, they can coerce us into buying new products we don’t need. The companies that make our cars, phones, and computers (not to mention internet-connected light bulbs, refrigerators and dog feeders) cannot be allowed to use software lockouts to prevent repair or other usage.
Companies restricting how we use our stuff isn’t only a headache for consumers who expect to own the things they pay for, it’s a disaster for our planet, which is flooded with disposable products that could have been repaired or repurposed. Not being able to replace, fix or reuse parts from the devices we buy makes everything from: laptops and phones to smart home gadgets disposable. I can’t stand by while software lockouts fuel the e-waste crisis in which we trash 59 million tons of used electronics (the weight of 161 Empire State Buildings) each year.
Products should be designed to last
All of this explains why U.S. PIRG Is launching a new campaign around consumer rights, planned obsolescence and the software in our products. I’m investigating the crisis of our disposable technology because I believe that in the same way the FTC reaffirmed that voiding warranties to restrict use is illegal, software lockouts should be as well.
Unreasonable software restrictions and obsolescence are against the spirit of the law, restrict competition, and leave us with less money in our pockets and more trash strewn across our planet. Join us in fighting for a reusable, repairable future, in which our products are designed to last.
Director, Designed to Last Campaign, PIRG
Lucas leads PIRG’s Designed to Last campaign, fighting against obsolescence and e-waste and winning concrete policy changes that extend electronic consumer product lifespans and hold manufacturers accountable for forcing upgrades or disposal.
Senior Director, Campaign for the Right to Repair, PIRG
Nathan leads U.S. PIRG’s Right to Repair campaign, working to pass legislation that will prevent companies from blocking consumers’ ability to fix their own electronics. Nathan lives in Arlington, Massachusetts, with his wife and two children.