Claim for repair? – Ohio Ag Net
By Leisa Boley-Hellwarth
Does a farmer have the right to repair his own tractor? That’s actually not an easy question. And I’m not sure I know the answer.
Last July, President Biden issued an executive order to promote competition in the economy. An executive order is a directive from the President who administers the affairs of the federal government. This order required the Federal Trade Commission (FTC) to restrict anti-competitive practices to promote economic growth in the United States. Included in that 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 ban repairs of their products, either by themselves or by third parties. While the right to repair affects many products, special attention is drawn to the fact that agricultural markets are 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 prices for repairs that a farmer or third-party repair shop could have done much cheaper.
The executive order is law. While the executive branch’s position is obvious, it is not clear what the ultimate impact of this directive will be on the issue of farmers’ right to repair. This leads us to seek an answer in court.
The largest agricultural machinery dealer in the world is John Deere. There are currently six class action lawsuits pending against John Deere for the right to repair. Let’s look at one of them as the cases are similar. In January, North Dakota’s Forest River Farms filed a lawsuit alleging monopolization of the market for repair services for John Deere equipment equipped with onboard computerized engine control units (ECUs). Forest River Farms is the proud owner of five John Deere tractors and two John Deere combines that use ECUs. That’s a lot of green paint. The lawsuit alleges that Forest River Farms suffered antitrust damages as a result of John Deere’s repair policies. The software blocks owners from repairs. The case is being brought as a class action lawsuit on behalf of farmers who have repaired John Deere equipment since January 12, 2018 to date. Five other lawsuits using similar language are pending in Illinois, Alabama, Tennessee and Oklahoma. John Deere filed a motion to refer 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 dealers to repair their equipment will result in: unsafe operation of its products; disruption to machine capabilities and performance; illegal changes to emission controls; void warranties; lack of transparency in resale changes; and a subpar customer experience.
The judiciary will likely deal with the right to repair for years.
“There’s more than one way to skin a cat.” Can I ever say that more? In other words, there are many ways to do something. Sen. Jon Tester, a Montana farmer and senator, introduced the Ag Right to Repair Act in February. The bill will require farm equipment manufacturers, farmers and ranchers to provide diagnostic equipment to facilitate repairs.
Specifically, tester legislation addresses repair market consolidation by requiring equipment manufacturers to: provide any documentation, parts, software or tools necessary to diagnose, service or repair their equipment; providing means for disabling and re-enabling an electronic security lock or other security-related function to perform diagnostics, repair or maintenance; Allow third party software to provide interoperability with other parts/tools and protect both farmer’s data and equipment from hackers; ensure that when a manufacturer no longer produces documentation, parts, software or tools for its equipment, the relevant copyrights and patents enter the public domain; ensure that parts are interchangeable with commonly available tools without damage to the equipment, or make specialist tools available to owners or independent suppliers on fair and reasonable terms; Returning data ownership to farmers. Manufacturers currently collect and sell all data generated by farmers, and this data is farmers’ “secret ingredient” to the way they run their business. The legislation will also authorize the Federal Trade Commission (FTC) to treat any breach of the above provisions as an unfair or deceptive act. It also gives the FTC authority to make regulations necessary to carry out this bill.
Opponents of the right to repair often make arguments including: user safety; shrink technology; efficiency; Contest; Demand and supply; and no incentive to innovate. The Tester’s bill represents the legislative approach to the Right to Repair, although the process is just beginning.
Does a farmer have the right to repair his own tractor? It will be interesting to see if the three branches of government agree on an answer.