High-Tech Machines Create a Right-to-Repair Dilemma

Not long ago, you could take your newest piece of technology — a TV, a computer, or even a microwave- to a repair shop of your choice or fix it yourself. Depending on the nature of the repair, that may no longer be the case as manufacturers increasingly use copyrighted software to control functions and operation. To varying degrees, many manufacturers limit access to the information and equipment necessary for do-it-yourself maintenance and repairs.

We're seeing the same trend with farm equipment, much to the dismay of many farmers. Most new tractors come equipped with on-board computers, complicated diagnostic systems, and software systems that control everything from the radio to the navigation system. You can't diagnose a computer system problem with just any wrench — it requires special diagnostic systems and official service information that is copyrighted by the manufacturer. And often times, a product's warranty will only be valid if repairs are conducted by a certified dealer.

Manufacturers are not legally required to provide this information to consumers, aftermarket parts stores or independent repair shops. Some farmers are concerned that the current situation limits their ability to complete repairs themselves or prevents them from using an independent repair shop to complete repairs or replace parts. Said differently, they believe the current situation means any and all repairs would need to be done by a manufacturer's certified dealership.

To add to the complexity of the issue, there are two ongoing "right to repair issues" — one being debated by several state legislatures and one being discussed by Congress.
State legislation is focused on access to software updates, diagnostic schemes and technical manuals, and the ability to obtain spare parts. A federal initiative could address these issues, but for now, they are being debated within state legislatures.

Federal legislation addresses the copyright provisions - the legal ability to access and/or modify the software or talk to a tractor electronically as well as to be able to create the tools to communicate with the equipment.

Exploring State Legislation

The issue of right to repair for some or all appliances, computers, farm equipment, etc. has been debated in at least ten state legislatures. In the last two years, South Dakota, New York and Nebraska considered, but did not pass, legislation that specifically identified the right to repair farm equipment.

The automotive repair industry is driving much of the discussion about right to repair agricultural equipment. Repairing motor vehicles has became a high-tech operation, with computer diagnostic tools replacing a mechanic's observation. Manufacturers are the "gatekeepers" of advanced information necessary to repair or supply parts to motor vehicles. The independent automobile repair industry pushed for the first right to repair bill in the U.S. Senate and House in 2001, and in several state legislatures. The attempts were unsuccessful at the state level until Massachusetts made progress.

In 2012, the Massachusetts "Right to Repair" Initiative appeared on the ballot. The measure required vehicle owners and independent repair facilities in Massachusetts to have access to the same vehicle diagnostic and repair information made available to the manufacturers' Massachusetts dealers and authorized repair facilities. The initiative passed by 86 percent, but a few months prior to the election, a legislative compromise was agreed to and passed. The question remained on the ballot due to timing issues.

After the ballot measure passed, the state legislature passed a new bill to reconcile the earlier statute and the ballot initiative. It was signed into law in late 2013. It became clear the automakers were likely to face a patchwork of state laws, so in early 2014 a trade group representing automakers and one representing independent garages and retailers worked out an agreement to make the Massachusetts' law a national standard.

Called the Automotive Right to Repair Memorandum of Understanding (MOU), this agreement was signed in 2014 asking all auto companies to make their diagnostic codes and repair data available in a common format by the 2018 model year.

This means auto manufacturers will provide diagnostic information to non-authorized dealer parties such as repair facilities, service tool manufacturers and consumers. Manufacturers must also sell both repair tools and service information at a "fair and reasonable price." Information that manufacturers deem to be a trade secret or proprietary is exempt from the agreement.

Lobbying groups for repair shops and parts retailers agreed not pursue right to repair legislation in other states. The MOU, however, is non-binding; it isn't law and cannot be enforced like a law. In addition, the MOU excludes information about telematics like navigation, vehicle location technologies and wireless communication technologies.

Some manufacturers are altering their procedures regarding right to repair. For example, John Deere is in the process of allowing equipment owners to purchase specialized diagnostic equipment through their authorized dealer organization. They are not offering this to independent repair shops. Farmers will have to buy manuals, diagnostic equipment, and pay a monthly fee for updates. The John Deere website techpubs.deere.com may help producers review this information on their particular equipment, but generally manuals cost in the $100-$600 range.

Where is Congress Headed With Right-to-repair?

The Digital Millennium Copyright Act (DMCA) was enacted by Congress to prohibit the circumvention of technological measures employed by copyright owners to protect access to their work. Manufacturers of agricultural machinery rely on the DMCA to employ technological protective measures such as proprietary software, passwords and memory modification to prevent access that may be necessary to diagnose, repair and modify farm equipment.

The DMCA criminalizes circumventing an access control, whether or not there is actual infringement of the copyright itself. This means equipment owners are often prohibited from making repairs to devices with copyrighted software and instead are required to take their equipment to an authorized dealer. Bypassing built-in security codes voids most warranties and can result in fines of up to $500,000 and even time in prison.

In 2015, the Library of Congress granted an exemption allowing farmers to fix their tractors, planters, combines, etc., without fear of legal repercussions. The exemption was based on the fact that the restricted access places the livelihood of farmers at risk because they must sometimes wait significant periods of time before their disabled vehicles can be repaired by a technician authorized by the manufacturers.

Good news, except that getting an exemption is easier said than done. Anyone can petition the office for an exemption but it takes time, knowledge of copyright law and/or the finances to hire intellectual property lawyers. Those opposing such exemptions are well-funded and include groups like the Motion Picture Association of America, the Recording Industry Association and the Alliance of Automobile Manufacturers.

Two exemptions were approved in 2000, four in 2003, six in 2006 and six in 2010. Exemptions expire after three years and must be resubmitted. Consequently, all of these exemptions are no longer valid.

In 2015, ten exemptions were issued including some for computer programs that are contained in and control the functioning of a mechanized agricultural vehicle. The exemption for agricultural vehicle repair applies only to the owner of that vehicle and not an independent mechanic and only for purposes of repair, not to infringe on legitimate copyright issues. In addition, the exemption restricts circumvention for telematics, entertainment, and anything that violates Environmental Protection Agency or Department of Transportation regulations.

While the Copyright office did not define telematics in the decision, a reasonable viewpoint would be that it includes systems associated with automatic guidance. Farm Bureau also believes that controllers that manage emission performance would be excluded under this exemption, as modification of these units could result in emissions not meeting EPA requirements.

In general, copyright law favors copyright interests. It is up to those seeking an exemption to show that it is necessary and that it meets the legal standards for fair use. Several ideas have been discussed and introduced in past and current Congresses to change the way the DMCA operates.

Repealing a portion of the DMCA that makes it "illegal to circumvent a technological measure that effectively controls access to a work protected under the DMCA" and providing explicit permission for consumers to circumvent a manufacturer's digital lock on its software for a lawful repair are two ideas.

Farmers also want to shift the burden of proof from making the supporters of DMCA exemptions show that an exemption is absolutely necessary to having those opposing DCMA exemptions show that an exemption is absolutely unnecessary. Finally, the exemption should not expire.

Of course, for valid reasons manufacturers of advanced farm equipment are opposed to any reforms that dampen their investment in research, engineering and training. The challenge will only grow as equipment advances. It is up to farmers, manufacturers and independent mechanics to find a workable solution to keep that equipment rolling.