Right to repair?

By Leisa Boley-Hellwarth

Does a farmer have a right to repair his or her own tractor? This is actually not a simple question. And I’m not sure I know the answer. 

            Last July, President Biden issued an executive order promoting competition in the economy. An executive order is a directive by the President that manages operations of the federal government. This order called on the Federal Trade Commission (FTC) to limit anti-competitive practices as a way to promote economic growth in the United States. Included in this order was a recommendation to the FTC to make it easier and cheaper for consumers to repair items they own by limiting manufacturers’ ability to bar self-repairs or third-party repairs of their products. While right to repair affects many products, agricultural markets are specifically noted as becoming increasingly concentrated and less competitive — meaning farmers and ranchers have to pay more for their products.

            Equipment manufacturers’ use of proprietary repair tools, software and diagnostics has prevented farmers from repairing their own equipment, according to the White House fact sheet. This forces them to pay dealer rates for repairs that a farmer or third-party repair shop could have done much cheaper.

            The executive order is law. While it is obvious the position the Executive Branch is taking, it is not clear, however, what ultimate impact this directive will have on the issue of right to repair for farmers. That brings us to seeking an answer in the courts.

            The largest farm equipment dealer in the world is John Deere. Currently, there are six federal anti-trust class actions pending against John Deere over the right to repair. Let’s look at one of them, as the cases are similar. In January, Forest River Farms of North Dakota filed suit over the monopolization of the repair services market for John Deere equipment built with onboard central computer engines control units (ECUs). Forest River Farms is the proud owner of five John Deere tractors and two John Deere combines that use ECUs. That is a lot of green paint. The complaint asserts that Forest River Farms suffered antitrust injuries because of John Deere’s repair policies. The software locks owners out of making repairs. The case is filed as a class action on behalf of farmers who have repaired John Deere equipment from Jan. 12, 2018 to the present. Five other lawsuits with similar language are pending in Illinois, Alabama, Tennessee and Oklahoma. John Deere filed a motion to transfer all six cases to federal court in Chicago.  

            John Deere does not comment on pending litigation. It has been reported that John Deere believes that allowing anyone other than John Deere dealerships to repair their equipment will result in: the unsafe operation of its products; disruption of machine capabilities and performance; illegal changes to emission controls; voiding of warranties; lack of transparency to changes on resale; and a less than optimal customer experience.

            The Judicial Branch of government will likely be dealing with the right to repair for years and years.

            “There’s more than one way to skin a cat.” Can I ever say that any more? In other words, there are many ways to do something. Sen. Jon Tester, a farmer and a senator from Montana, introduced the Ag Right to Repair Act in February. The bill requires farm equipment manufacturers to provide diagnostic equipment to farmers and ranchers to make repairs possible. 

            Tester’s legislation tackles consolidation in the repair market specifically by requiring equipment manufacturers to: make available any documentation, part, software, or tool required to diagnose, maintain, or repair their equipment; provide means to disable and re-enable an electronic security lock or other security-related function to effect diagnostics, repair, or maintenance; permit third party software to provide interoperability with other parts/tools, and to protect both the farmer’s data and equipment from hackers; ensure that when a manufacturer no longer produces documentation, parts, software or tools for its equipment that the relevant copyrights and patents are placed in the public domain; ensure parts are replaceable using commonly available tools without causing damage to the equipment, or provide specialized tools to owners or independent providers on fair and reasonable terms; return data ownership to farmers. Manufacturers currently collect and sell all the data generated by farmers, and that data is the farmers’ “secret sauce” for how they conduct their business. The legislation will also empower the Federal Trade Commission (FTC) to treat any violation of the above provisions as an unfair or deceptive act. It also grants the FTC authority to promulgate regulations necessary to carry out this bill.

            Opponents to right to repair frequently cite arguments including the following issues: user safety; shrinking technology; efficiency; competition; demand and supply; and no incentive to innovate. Tester’s bill represents the Legislative approach to right to repair, although the process is just beginning.

            Does a farmer have a right to repair his or her own tractor? It will be fascinating to see if the three branches of government agree on an answer.