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Right to Repair a Key Issue for Equipment Manufacturers and Dealers

Manufacturers, dealers, and their end customers share a key goal as it relates to their machinery: making sure that it functions to high standards and that repair and maintenance can be performed safely and efficiently, with a minimum of downtown for operators.

However, the issue is one of increasing complexity and polarization. It’s easy to understand both sides of the debate.

The Association of Equipment Manufacturers and the Equipment Dealers Association have jointly developed a Statement of Principles that seeks to provide the tools equipment operators, particularly in the farm and ag segment, need to minimize downtime and to maximize productivity of their equipment.

“End-users want and need the tools to be able to perform basic service maintenance and repairs on their farm equipment,” says AEM President Dennis Slater. “AEM’s Ag Sector Board and EDA have joined forces to make a series of diagnostic and repair tools available to end users of tractors and combines put into service by 2021.”

Manufacturers will make available, through authorized dealers, the following diagnostic and repair information beginning with tractors and combines put into service on or after January 1, 2021:

  • Operator, parts and service manuals
  • Product guides
  • Product service demonstrations
  • Training and seminars
  • On-board diagnostic tools (via in-cab display or telematics interface)
  • Electronic diagnostic service tools
  • Other service, parts, operation, and safety publications

“These tools will empower farmers and ranchers to perform basic service and maintenance on their equipment, minimize downtime, and maximize productivity,” adds Slater. “It will also help end users easily determine whether they need to involve their dealer to address more complex repairs.”

Say a rancher is out in the field and the tractor’s computer throws an error code. A properly equipped diagnostic tool will be able to help you determine if it is the kind of fix the rancher can handle or if it requires the assistance of a dealer.

EDA President Kim Rominger says its members, who are farm equipment dealers, work daily to manage an important balancing act.

“They want to empower their customers to perform everyday maintenance and repairs of their equipment but must also educate them on the types of issues that require an extensively trained technician,” he says.

The objective in both cases is to get the end user up and running as quickly and cost-effectively as possible while ensuring that the safety and emissions components of the piece of equipment remain in full effect.

“To help minimize downtime and maximize efficiency, manufacturers and dealers are committing to supply end users of combines and tractors with additional diagnostic tools over and above what is already available,” he says.

Why Right to Repair is not the same thing as Right to Modify

While equipment manufacturers believe in the end users’ right to repair their equipment, the right to repair is not the right to modify, a crucial distinction addressed by Mr. Slater.

“Manufacturers invest considerable resources in developing software that has revolutionized farm equipment. These innovations have made combines and tractors safer, more productive, and more sustainable than ever. Allowing access to the underlying software on farm equipment will risk the machinery’s compliance with laws governing emissions and safety and will undercut the resources manufacturers invest in developing the best possible products for their customers,” he says.

The industry commitment AEM and EDA are making provides the right balance of access to information while protecting end users from unnecessary risks.

“While we want end users to be able to maintain and repair their equipment, it is critical to understand the difference between a repair and a modification,” says Rominger. “Modifications to sensitive software technology not only risk compliance with emissions and safety laws but also open the door to additional liability concerns when it comes to equipment that has been modified unbeknownst to the dealer and is then traded and sold.”

AEM’s Nick Tindall adds that there are already many companies providing service information to customers on older model tractors and combines.

“Many of them also have electronic diagnostic tools of various forms,” he says. “This announcement is setting the guidelines moving forward, and it will be up to the individual companies and dealers on how to provide this service information to meet their specific customer needs.”

“The fact is the commitment we are making today is a commonsense solution that responds to the needs of our customers and end users. The commitment manufacturers are announcing strikes the right balance in the way Right to Repair legislation would not,” says Slater.

Those legislative proposals, he continues, are not about empowering farmers and ranchers. “They are driven by special interest groups who want to access the software code so they can line their own pockets.”

Manufacturers and dealers have opposed Right to Repair proposals in various state legislatures because of concerns that the broad terms of those proposals would risk machinery’s compliance with safety and environmental regulations, and would undercut the investments manufacturers make in developing onboard software. The two associations will continue to oppose overly broad legislation that would grant access to source code onboard farm equipment.

Right to Repair Early History:

Manufacturers have had good reason to control the rights to repair their products since the dawn of the computer era. In 1956 IBM was found in contempt of anti-monopoly laws, and was forced to allow a market for used equipment and independent repair in the form of the 1956 Consent Decree. Repair became an openly competitive business which had been the norm for computers until 1996 when the Consent Decree was abolished. Independent repair of computers has been in steady decline ever since.

Many types of equipment not technically considered “computers” have imitated the recent practices of the computer industry to exclusively own repairs. These industries usually have internal computer components, such as medical equipment, cell phones, ATMs, TVs, Major appliances, Small Appliances, and more.

Cars are also “computers”

Independently, and without any obvious connection, the auto industry also discovered the importance and relevance of using the presence of computers to own repair rights. Repair of cars became limited exclusively to “Dealers” – creating a sense of mystery surrounding repair and forcing consumers to cease doing their own repairs or using local (and fully competent) mechanics. By 2002 aftermarket automotive businesses – from local repair mechanics to parts stores to tool vendors were suffering the pinch. They began pressing for Automotive Right to Repair in Congress – where it stalled. The aftermarket auto industry focused its efforts instead on state action — and in 2012 they were able to pass the Automotive Right to Repair Law in Massachusetts, the first of its kind in the country.

Right to Repair and Copyright Law

In 1998 the US Congress modernized copyright law in the Digital Millennium Copyright Act which attempted to better protect digital content.

Although it was written largely by the content industry, it included a new section (Section 117) pulled from The Computer Maintenance Competition Assurance Act intended to preserve the option of independent repair. Section 117 was included with notes that indicated it wasn’t complete (it wasn’t). Section 1201 – the famous “Anti-Circumvention” provision has effectively overwhelmed Section 117.

The DMCA of 1998 gave new power to any manufacturer who saw fit to claim copyright protection for tools or access. Most manufacturers would claim protections even in the absence of infringement because of the clear benefits to own repair and exclude competition from anyone who would want to repair their used equipment.

Notably, there are have been a number of key developments in recent years that are relevant to the right to repair conversation. For example, cell phone unlocking passed by Congress, no fewer than twelve Right to Repair bills have been considered state legislatures, and numerous exemptions have been won from the Library of Congress for repair and tinkering of cell phones, tablets, medical equipment, and motorized land vehicles. These trends will continue with implications for ever-broadening matters of use and repair.

Timeline

  • 1956 The IBM Consent Decree The US DOJ Anti-Trust Division found IBM to be a monopoly and required them to allow for a used equipment market and independent repair. The Consent Decree was not lifted until 1996. Independent repair of computers has been in steady decline as the computing industry re-monopolized.
  • 1992 Kodak V Image Technical Services Supreme Court ruling requires Kodak cease monopolizing repair. This ruling is almost the entire body of anti-trust law related to repair until the 2012 case of AVAYA v Continuant.
  • 2001 Motor Vehicles Right to Repair Act S.2617 Filed in 107th Congress The first of many attempts by the automotive aftermarket to restore independent repair. It took a State Law passed in Massachusetts in 2012 to spur the industry to cooperate.
  • 2008 Supreme Court Okays Cellphone Unlocking The cell phone unlocking battle spurs owners rights, digital rights advocates, and ordinary citizens to further action.
  • 2010 Oracle blocks independent repair for SUN equipment, creating the impetus for IT B2B industry action. The Service Industry Association creates their International Customer Competitiveness Committee to work on restoring competition. This group becomes one of the original founders of the Digital Right to Repair Coalition.
  • 2012 Automotive Right to Repair Passes Unanimously in the MA Legislature The bill showed how right to repair can be approached in states.
  • 2012 Cell Phone Unlocking Becomes Illegal This gets a lot of people upset, including our own Sina Khanifar who inspired 116,000 people to contact the White House demanding their right to unlock their phones.
  • 2012 Supreme Court rules in favor of used market in Kirtsaeng v Wiley Advocates from ASCDI, eBay and many others file critical Amicus Briefs on this matter. ASCDI becomes one of the founding members of the Digital Right to Repair Coalition
  • 2013 Unlocking Cell Phone Petition gets attention in Congress and the White House. iFixit, the Electronic Frontier Foundation, FixtheDMCA.org become founding members of the Digital Right to Repair Coaltion
  • 2013 July – The Digital Right to Repair Coalition is Incorporated. Founders include SIA, ASCDI, IAMERS EFF, and iFixit.
  • 2013 AVAYA v Continuant Trial Finds AVAYA in Violation of Anti-Trust This case is the first since “Kodak” that specifically dealt with monopolization of repair. It is on appeal.
  • 2014 First Digital Right to Repair Bill Filed in South Dakota
  • 2014 Automotive Right to Repair Memorandum of Understanding is announced.
  • 2014 Cell Phone Unlocking Bill Passed making Unlocking Legal
  • 2015 January – New York Fair Repair Bill Filed
  • 2015 January – Massachusetts Digital Right to Repair Bill Filed
  • 2015 February – Minnesota Fair Repair Bill Filed
  • 2015 February – DRTR puts 40,000 letters of support in front of the Librarian of Congress for repair-related exemption requests.
  • 2015 October- LOC rules in favor of repair and tinkering of tractors, and more.
  • 2016 January -Nebraska Fair Repair Bill Filed

 

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