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How to Avoid Buying Consumer Products with Software Kill-Switches
Since at least as far back as the Great Depression of the 1930's, manufacturers of consumer products have been building obsolescence into their wares with the goal of increasing profits. Several methods are employed to make products die sooner, including using parts designed to fail much sooner than necessary, making products intentionally difficult to repair, and not selling spare parts. One example that most of us are probably familiar with is the incandescent light bulb that a few years ago was designed to have a lifespan of only a few hundred hours. Light bulbs made in the 1800's had much longer lives. In fact, one ancient light bulb has been shining continuously since 1901. Another more recent example is laptop, tablet, and cellphone manufacturers making their products without user-replaceable batteries, despite the fact that we have been accustomed to replaceable batteries in laptops and cellphones for decades. Wikipedia has a page showing life expectancies of consumer products with and without planned obsolescence.
Over the last fifteen years or so, manufacturers have invented a new method of making their products fail early. Software kill switches make consumers want to get rid of perfectly good hardware. But, software kill switches do not necessarily have to render a product completely inoperative to be effective. They only have to reduce its functionality enough to convince consumers to buy the newer model. And, you guessed it, the newer model also has a software kill switch designed to motivate consumers to buy the next model a few years later.
Occasionally, software kill-switches backfire, as was apparently the case with the Windows Phone. As ex-Microsoft executive Terry Myerson put it,
We had a differentiated experience, but it's so clear in hindsight that the disruption in business model which Android represented was enormous, and that building our early versions of Windows Phone on an incomplete Windows CE platform, designed for small embedded systems, left us too hobbled to ever catch up.
As a result of Microsoft's stripped-down Windows CE operating system, customers chose to buy Android and IOS cellphones instead. Customers had been complaining about Windows CE for many years, but Microsoft seems to have chosen money over providing what its customers needed. I'm sure Microsoft knew that customers only leave one product when another exists that they want more. Until Android came along, there was not much else for them to go to. I would like to be able to say that companies that don't add built-in obsolescence drive out manufacturers that do, but this would be naive. The truth is that most consumers chase the next shiny bauble, not the best, longest-lived, or most cost-effective product.
Though any product that relies on software can contain a hidden kill switch, the most effective activation mechanism for a kill switch is an Internet connection. When a device is connected to the Internet, the manufacturer can simply wait until they have a reason for flipping the kill switch on their product. Perhaps they have just developed a new model that they want to sell. Maybe their accountants have decided that supporting an old product is costing the company too much money. Or, perhaps their marketers have come up with a new marketing strategy.
On December 20th last year, via an over-the-air update, autopilot features worth $8000 were removed from one Tesla that the owner bought used. This occurred despite the dealer's assurances that it would not happen. Tesla said to the owner, "We looked back at your purchase history and unfortunately Full-Self Driving was not a feature that you had paid for. We apologize for the confusion." Tesla did this despite the feature being listed on the car's sticker when the dealer bought it at auction and later when the customer bought it from the dealer. This would be like Microsoft saying that the laptop I just bought from an Amazon reseller was not supposed to come with Windows and removing it during an update.
In a report (PDF) released by the United States Copyright Office in December of 2016 entitled, Software-Enabled Consumer Products, the Copyright Office summarized the concerns of some consumer groups as follows.
The increased inclusion of embedded software in consumer products raises the issue of whether and how consumers can resell or otherwise transfer such products. Some products traditionally resold without restriction, such as cars, now include embedded software, and consumer groups have voiced concerns over whether section 109's first sale doctrine permits the resale of that software when the product itself is resold.
As noted above, the first sale right only applies to the 'owner of a particular copy.' Does the owner of a car also 'own' the particular copies of software that are embedded in that car for purposes of exercising the first sale right? A number of commenters expressed concern that, under current law, the answer to that question might be 'no,' especially in light of licensing practices for standalone software. Another concern was that license agreements may only provide software updates such as security patches to the original licensee, and will withhold them from downstream purchasers. As a result, these commenters worried about the use of copyright law to encroach on established consumer rights and expectations.
The Copyright Office responded by saying in the report that,
Although commenters made various claims regarding the prevalence of licensing terms restricting the ability for consumers to resell or transfer their copies of software or the products in which such software are embedded, the Copyright Office saw little evidence to substantiate those claims. The Department of Commerce's Internet Policy Task Force reached the same conclusion earlier this year. And while the Office agrees that the ability of downstream purchasers of software-enabled consumer products to obtain security updates after transfer is important, the Copyright Office again did not find evidence that the kinds of products that are the focus of this Report are subject to such limitations. The evidence provided to support the assertion that manufacturers are restricting the resale of software-enabled products involved licenses for enterprise-level products (such as the products of NetApp, Oracle, Palo Alto Networks, and EMC),rather than consumer products. These types of products are not purchased by the average consumer, and do not raise the same concerns about the inequality of bargaining power or the enforcement of contracts of adhesion.
One has to wonder whether Tesla is unaware of the Copyright Office's report or if Tesla is aware and has been emboldened by it. Regardless, the Copyright Office does not seem inclined to specifically protect the rights of consumers who buy consumer products that contain embedded software. Another question naturally arises. By the use of the word "embedded", does the Copyright Office mean to exclude consumer computer operating systems from consideration in their report?
Below is a list of some products that have in the past had software that appeared to contain software kill switches.
Some Consumer Products that may have Software-Kill Switches:
Computers and Tablets
Inkjet Printer Cartridges
Smart Phones
Automobiles
Televisions
Smart Lightbulbs
Smart Refrigerators
Smart Home Devices
Smart Watches
DVD's Players
Light Fixtures
Speakers
Remember, any product that uses software or firmware can have a hidden kill switch, whether activated by some kind of timer or via a software update over the Internet.
Identifying when a software kill switch has been thrown on a product can be difficult. Some manufacturers are open about only providing a limited period of software support, but some are not. They simply allow their products to fail and, if pressed, often claim that their customers have no justification for thinking the software should work correctly. And, courts uphold this reasoning, in part due to unfair license agreements, which customers have no choice but to agree to if they want the product. When manufacturers do not announce that they have intentionally degraded or disabled one of their products, as Apple and Samsung did not when they slowed down their phones, it can be difficult to prove that they have intentionally employed kill switches. When caught in the act, manufacturers can give all sorts of plausible-sounding reasons for their behavior. Apple justified its actions after it was caught by saying that phones with old batteries are more likely to shut down spontaneously unless their processors are intentionally slowed. If this had been allowed to happen, it could have been a signal for customers to replace their batteries. As it was, they had no idea what was happening or what to do about it.
Sometimes, what a consumer may call a software kill switch is looked upon by manufacturers as a DRM (Digital Rights Management) issue. This applies to DVD players. But, whether or not this is a legitimate argument, one has to admit that moving to a location where a different region code applies would most likely necessitate a consumer buying a new DVD player. On principle, I object to companies treating me like a serf who is expected to never leave his home country. I feel this way when any company provides any type of service, whether it be banking, cellphone service, email, movie streaming, or any service accessible over the Internet.
In judging what is and is not a software kill switch, I believe that an old saying should apply. If it looks like a duck, walks like a duck, and quacks like a duck, it's probably a duck.
How to protect Yourself Against Software Kill-Switches
A number of options are effective when faced with potential software kill switches. Here is a summary of methods of dealing with them.
7 Methods of Defending Yourself Against Software Kill Switches
Become a knowledgeable consumer.
Refuse to buy products from companies that have been caught employing kill switches in the past.
Buy products that have ongoing software support.
Buy products that allow the owner to load open-source software.
Buy products that are easier to repair.
Buy products that are manufactured in large quantities.
Support laws that are consumer friendly and fight against those that are consumer hostile.
Become a Knowledgeable Consumer
Your best defense against purchasing a device that has a software kill switch is to learn which companies and products to be wary of. News stories abound about companies engaging in this practice, but news organizations rarely come right out and say that the companies in question have employed kill switches. You have to understand what a kill switch is and be able to read between the lines of news articles to understand what is occurring. This takes effort. It may also require developing more critical thinking skills--something that could benefit nearly all of us.
A good general practice is learning as much as you can about each major product that you buy. When you buy a computer, a television, an expensive cellphone, etc., read enough online reviews to understand exactly what you are buying and how it may or may not fulfill your needs. This includes reading online reviews by people who have bought a product and used it for at least a few months. Amazon.com is a good source of these kinds of reviews. Professional reviews are good for helping you narrow your choices from dozens of similar products to a handful. Reviews by owners can help you pick the one product to buy. Read at least 20 reviews by owners of any device you are considering, the more the better. This is a process that can take time, but nothing else beats the results. This is how to find products that come the closest to meeting your needs with far fewer post-purchase surprises.
Refuse to Buy Products from Offending Companies
Another strategy for protecting yourself from software kill switches is to refuse to buy any product from a company that is known to have employed a kill switch in the past. This follows from the general principle that the best predictor of what a person (or organization) will do in the future is what he (or it) has done in the past. I am assuming here that an industry contains manufacturers who have not made use of this despicable practice. In the computer and cellphone industry, the most notable offenders may be Apple and Samsung, but they are not alone. Microsoft appears to have made it impossible for non-Windows operating systems to be installed on most PC's through its promotion of UEFI. Whenever possible, avoid buying from manufacturers that have sold programed-to-fail products.
Buy Products that have Ongoing Software Support
Many companies take no thought about what will happen after a customer has bought their product. They just don't care. This means that when problems are found with the software (such as security holes), customers likely have no recourse but to buy new devices. If not for Linux, this would be the case with all desktop and laptop PC's that I know of. Manufacturers do not provide drivers for more than one or at most two versions of the Windows operating system. This means, for example, if you bought a laptop that was sold with Windows Vista, you probably cannot run Windows 7 on it, even if it has sufficient RAM.
Fortunately, some manufacturers provide ongoing software support. The better router manufacturers provide firmware updates after security holes are found, and they continue to do this for a few years until the hardware no longer supports further updates, or until they feel their customers have received a satisfactory return on their money.
Buy Products that Allow You to Load Open-Source Software
Another way to avoid software kill switches is to buy products that allow you to replace their software with open-source alternatives. To take advantage of this capability you have to do your homework before you buy. Good examples are routers that allow users to re-flash their firmware with various open-source firmwares like Tomato, OpenWRT, DD-WRT, LEDE, and others.
In my opinion, Linux is the best alternative operating system for desktop and laptop computers. I own several old Dell and HP laptops that work very well with Linux. I have only been able to keep using them on the Internet because Linux continues to support security updates. On the other hand, the six-year-support kill switch associated with Chromebooks is effective precisely because it is very difficult to run Linux on a Chromebook. (I mean a different distribution of Linux, because technically Chrome OS is Linux.)
Buy Products that have been Produced in Large Quantities and are Easier to Repair
Sometimes, through no intention of the manufacturer, a product fails before its usefulness is at an end. When this happens, whether you repair it yourself or pay someone else to repair it, you will save money buy buying products that are manufactured in large quantities and are designed to be easier to repair. When millions of these products have been manufactured, repairmen are plentiful, you have a much easier time finding spare parts, and the parts are cheaper. I should say that on cheapskatesguide.org "cheap" means inexpensive, not low-quality. Do-it-yourself repair information is also much more likely to be easily obtained for devices that have been sold in large quantities.
Volkswagen automobiles illustrate the benefits of buying easier-to-repair devices that have been manufactured in large quantities. Thanks to decisions made before World War 2 in Germany, enormous numbers of VW's were made in the 1960's and 1970's. Unlike most of today's cars, VW's of that era are conceptually simple to repair with inexpensive tools. For these reasons, even today, there are large numbers of VW owners needing parts. Thus, manufacturers are willing to make parts. Since many manufacturers are competing to make many parts, VW parts are inexpensive, a fact that can be confirmed by visiting the J.C Whitney company's website. On the other hand, Ferrari and Lotus parts are notoriously expensive and hard to find because not many were manufactured. The same rule applies to all sorts of consumer products--laptops, cellphones, heat pumps, refrigerators, washing machines, etc.
Support Laws that Defend Your Right to Repair Devices that You Own
If you have ever watched the movie Brazil, you probably remember the air conditioner repairman being the most wanted criminal in the entire country. His crime: repairing air conditioners without filling out the proper paperwork. One of my favorite scenes in the movie is when he is about to be apprehended by the police. He escapes by sliding out of sight into the night on an escape cable, like Batman.
Though this may be funny precisely because we have a hard time believing that the criminalization of rogue air conditioner repairmen could never happen in real life, think again. Section 1201 of the DCMA and its European counterparts have made it a felony to remove a digital lock on your light fixture, so you can use third party lightbulbs! This may also mean that it is technically illegal to bypass the TPM chip in your laptop or to remove a software kill switch on a product that you own. One thing you can do about this is to work to get these types of laws changed.
Don't give up hope. In 2014, France passed the Hamon Law. This is the first law in history designed to prosecute companies for planned obsolescence.
Efforts are being made by legislatures in the United States to protect the rights of owners to repair the hardware and software in products they own. These laws are known as "right to repair laws". This is a growing movement, thanks to some of the more egregious practices by Apple and others. By the way, thanks to the Magnuson-Moss Warranty Act of 1975, labels on products that say that removing the label voids the product's warranty are no longer supported by law.
Final Words
The bottom line is that, for the time being, the best way to prevent yourself from being stuck with products that have been hobbled or permanently shut off via software kill switches is to become a knowledgeable consumer. Don't buy products with kill switches in the first place. Buy products with upgradeable hardware and software that are sold in large quantities and are designed to be easier to repair. Also, support right-to-repair laws.