Daily Report for Executives provides in-depth coverage of unfolding legislative, regulatory, and judicial news from the nation’s capital, the states, and around the world. This daily news service...
By Casey Wooten
Aug. 17 — Not long ago if a tractor broke down, the farmer could pop the hood, fiddle around with the engine and likely get back to the fields in short order. At most, the farmer could take it to the local repair shop for servicing.
But the digital age hasn't overlooked agricultural equipment, and today's farm machinery is packed with high-tech global positioning systems, emissions controls and on-board computers, all of which make the typical repair job much more complicated.
It is not just complexity that's getting in the way of do-it-yourselfers, however. Increasingly, the manufacturers of products ranging from combine harvesters to mobile phones have used copyright laws to restrict manuals and diagnostic tools to authorized repair centers, leaving consumers and independent technicians unable to service the latest equipment.
In the agriculture world, equipment makers like Deere & Co. and Eaton Corp. say that the restrictions are in place to protect sensitive hardware and maintain a safe, fuel-efficient machine. But some farmers and activists are backing state-level legislation that would require manufacturers to open up their repair manuals and diagnostic tools to consumers and independent technicians. The issue, known as the right to repair, has pitted some farmers, under pressure from low commodity prices and looking for ways to cut costs, against equipment dealers, who have increasingly relied on income from repairs in the face of declining sales.
“We can’t get the rights or get the repair information,” Danny Kluthe, owner of Bacon Hill Farms in Dodge, Neb., told Bloomberg BNA. “We need to know how to repair and modify and fix our equipment.”
Kluthe is a problem-solver. Several years ago, he modified his truck and his tractor to run off of compressed methane made with an anaerobic digester, fed by manure from his 300-acre hog farm.
“Both of these engines just purr,” he said.
But his equipment won't last forever and he said he's not sure he'll be able to retrofit new equipment with the same natural gas technology legally. He'd also like to take his newer equipment to an independent service center, which he says is cheaper than a dealership.
“I got an independent repair shop that probably charges 60 percent of what they do,” he said.
Kluthe worked with right-to-repair advocates earlier this year to push legislation in the Nebraska statehouse that would guarantee access to service information, schematics, repair manuals, and diagnostic tools for a wide range of products, from agriculture to consumer electronics. Legislators, however, didn't pass the bill before the end of their session in April.
Over the past few years, advocates like The Repair Association have introduced similar “fair repair” legislation in three other states—Massachusetts, Minnesota and New York—but lawmakers have yet to pass those, either.
Advocates plan to reintroduce the measures in 2017, and add a few new states to the list, Gay Gordon-Byrne, executive director of the The Repair Association, told Bloomberg BNA.
“We have some pretty good indication that Kansas wants to start a bill,” Gordon-Byrne said.
In several terms of Congress since 2001, lawmakers on both sides of the aisle have introduced right-to-repair legislation for the benefit of car owners and independent shops. However, these bills used a definition of motor vehicle that excluded farm machinery, and the measures died in committee.
Proponents of right-to-repair legislation say that allowing farmers or independent mechanics to work on equipment means tractors won't sit broken down in a field for days waiting for an approved technician. And when you've only got a week to harvest a crop, lost time is lost income.
“Time, money, all that comes into play,” Kenny Roelofsen, part-owner of Abilene, Kan.-based Abilene Machine, told Bloomberg BNA. “And when they are the only people in town that can do the work, it kind of creates a monopoly, there’s no competition allowed at that point.”
Now, farmers with high-tech equipment need to contact a dealership to send out a technician, but as sales have slowed, dealerships have consolidated and locations are spread further apart, Roelofsen said.
“For example, in western Kansas, you could live 40 miles from a dealership,” he said.
Roelofsen, whose company makes and sells spare parts for agricultural equipment, has had his own experience with copyright laws. His company had plans to sell diagnostic tools made overseas that would read error codes put out by the on-board computers in tractors and combines. After consulting with lawyers, however, the company abandoned those plans to avoid running afoul of manufacturers.
That's what got him involved in the right-to-repair issue. Roelofsen said it's a matter of keeping up with industry standards.
“If I can’t sell these newer-age pieces of parts and software the people need, it could very well endanger my company,” he said.
But allowing independent shops to repair farm equipment may exacerbate a decline in dealerships.
“We’ve had a lot of consolidation in those dealerships across the country in rural America, and farmers want those dealers to remain in their communities,” Jordan Dux, director of national affairs at the Nebraska Farm Bureau, told Bloomberg BNA.
Indeed, equipment sales have declined. A July report from the Association of Equipment Manufacturers showed that U.S. sales of tractors and combines dropped 13.5 percent between July 2015 and July 2016.
The Nebraska Farm Bureau has so far taken a neutral position on the right-to-repair issue and Dux said he has yet to see a groundswell of support for it among most of his members.
Dux said the economics of the agricultural equipment business means that dealerships have had to increasingly rely on income from repairs to make up for a decline in sales income.
“A lot of farmers just aren’t buying equipment, and so the majority of the money being made at the dealerships is through repairs,” Dux said.
Dux said another concern is that free access to onboard software means that farmers buying used equipment may find that past owners have altered the equipment in ways they can't restore.
The right-to-repair issue is twofold. First, advocates are fighting for access to manuals and schematics. Second, advocates want to be able to modify on-board software, and that's where the controversy gets more complicated.
The software issue goes back to the Digital Millennium Copyright Act, a 1998 law that has impacted how consumers are able to use digital products. Section 1201 of the law makes it unlawful for users to circumvent copyright protections to access or modify software.
The DMCA was intended to fight computer software and DVD piracy, but as vehicles, heavy equipment and other machines gained ever more complex onboard software, the law has crept into other product categories as well, Kit Walsh, staff attorney at the Electronic Frontier Foundation, told Bloomberg BNA.
“Because software can be copyrightable, and it typically is, it has been deployed into more devices that we rely upon, from cars to tractors to phones and appliances,” Walsh said. “Section 1201 has created a barrier to doing independent repair.”
The software that's running a modern vehicle—known as Class 21 in DMCA-speak—falls under those copyright protections.
In a 2015 letter to the U.S. Copyright Office, Moline, Ill.-based Deere & Co. said that purchasing a vehicle amounts to receiving an “implied license” that is subject to limitations of use.
Bypassing the copyright protection—in this case, an onboard encryption chip called a trusted platform module (TPM)—violates that license, the letter said.
“Circumvention of the TPMs for Class 21 will make it possible for pirates, third-party software developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software designed by leading vehicle manufacturers and their suppliers,” it said.
In late July, the EFF filed a lawsuit against the U.S. to overturn Section 1201 of the law, saying that it violated First Amendment protections.
Right-to-repair advocates have made some headway, and some in the industry are open to compromise on the right-to-repair issue.
On Oct. 31, the Librarian of Congress will enact a two-year exemption to Section 1201 for the owners of agricultural machinery. That would allow farmers, but not commercial technicians, to modify onboard software. Advocates will have to reapply for the exemption after it expires.
In addition, Deere now sells repair manuals to individual farmers.
It is that cooperation between industry and consumers that is likely to resolve the right-to-repair issue, Nick Yaksich, senior vice president of government and industry affairs at the Equipment Dealers Association, told Bloomberg BNA.
Yaksich said his group is working to find a middle ground that will satisfy both consumers and manufacturers.
He said his group is open to the idea of sharing more information, but access to the “nuance of the machine” should still be restricted.
To contact the reporter on this story: Casey Wooten in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Heather Rothman at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)