28 Apr As We Move into 2022, Right to Repair (R2R) Is Accelerating
Right to Repair (R2R) is an issue that is central to Third Party Maintenance (TPM) and we’ve been monitoring it for many years. Previous articles here have introduced you to what R2R is all about; and also tracked some of the legislative initiatives and controversy surrounding the ability of consumers, farmers and other IT equipment owners to be able to repair the devices and infrastructure they own.
New Legislation Introduced That Will Strengthen R2R
Much of the legislative emphasis on R2R has been coming from the states, but the Biden administration and Congress have started to get interested in this issue. We’ve seen some proposed legislation of that is gaining traction.
The first is The Agriculture Right to Repair Act, introduced in the U.S. Senate by Senator John Tester of Montana. According to an article in theRegister.com, the bill “aims to force farm equipment makers to provide parts, documentation, software, and tools for repairs to third parties on reasonable terms.”
The agricultural industry has long been a point of contention between large equipment manufacturers like John Deere and the farmers who purchase the equipment. The bill requires that parts and special tools needed to repair agricultural equipment be made regularly available in the open market at reasonable prices. Also, as copyrights, patents and software expire, the manufacturers are required to make this information available in the public domain so that farmers and their repair partners can access it reasonably.
Another piece of legislation has been introduced into the U.S. House of Representatives called, The Freedom to Repair Act. Sponsors were Victoria Spartz of Indiana and Mondaire Jones of New York. Here’s a summary: “The FTR Act exempts ‘the diagnosis, maintenance, or repair of digital electronic equipment’– except medical devices – from the anti-circumvention provision of the Digital Millennium Copyright Act. It also exempts the manufacture, sale, and importation of circumvention products that enable repairs of non-medical devices. If passed, it will make breaking digital locks for the purpose of fixing products legal by default in most cases.”
Congressman Bobby Rush of Illinois has also introduced a bill entitled: The Right to Equitable and Professional Auto Industry Repair (REPAIR) Act. This proposed act has similar requirements as the agricultural act above and would cause the auto industry to open up their tooling, parts, software and documentation to consumers and auto repair shops.
For the most part, manufacturers are gradually opening up their back-ends, documentation and software. Although reluctant, they are also more readily complying with consumers and equipment purchaser requests to make owner or third-party repair easier. However, they understandably resist more legislation or regulation in favor of letting the market take care of R2R issues.
Litigation is Also Heating Up Against Big OEMs over R2R
Certainly, we’ve seen disputes and lawsuits over access to repair parts, information, software, etc. over the years. Recently, John Deere has been the subject of some well publicized suits from farmers.
Forest River Farms in North Dakota filed an anti-trust lawsuit against John Deere alleging non-competitive practices. From an article in Successful Farming: “According to the plaintiffs, owners of John Deere tractors have historically been able to repair their own equipment or take it to an independent repair shop. Now that software is essential to equipment function and Deere is choosing to make it available only to authorized dealerships and technicians, the software essentially locks owners out of making repairs.”
There have also been complaints filed in Illinois and Alabama. They contend that John Deere and its dealers restrict access to software and tools necessary for repair. The litigation gets at the heart of the matter, which is the enormous profits that OEMs can make from restricting repairs. From the complaint: “The motive behind restricting access to [the proprietary software] is simple: Deere and its Dealerships did not want their revenue stream from service and repair—a far more lucrative business than original equipment sales—to end when the equipment is purchased, as it often did in the past when owners could perform their own repairs or rely on individual repair shops,” the Alabama complaint says….Both complaints contend Deere’s repair business is three to six times more profitable than its equipment sales business.”
We expect more of this type of litigation in coming years.
Summary of Takeaways:
- We will continue to update you on trend we see in R2R. Certainly if you encounter situations where you believe your ability to repair your own devices, equipment and infrastructure is being restricted by a manufacturer, bring us in evaluate your options. Often, we will have run across similar problems.
- As we’ve also recommended in the past, document any instances of OEM restrictions, challenge the OEMs and consult legal help where appropriate. Also, be prepared to lobby or testify with State and Federal governments as they continue to wade into the matter of R2R.
- The Repair Association: https://www.repair.org/