Can you fix it? The tension between the right to repair and intellectual property rights – Farming

http://ipkitten.blogspot.com/2020/02/can-you-fix-it-tension-between-right-to.html

Echo is always a level-headed repair Kat!

In consumer electronics, there is a natural tension between the consumer’s right to use the products they have purchased as they see fit and the rights of producers concerning the IP embedded in those products. A growing focus has been placed to secure greater rights on behalf of consumers in the United States under the umbrella of the ‘right to repair’.

Right to repair concerns a variety of consumer products with embedded IP: vehicles and tractors increasingly rely on proprietary software; similarly, consumer electronics such as phones, tablets, and laptops feature components with embedded software that also bear trademarks.

With various right to repair bills proposed in the legislatures of 20 different US states, as well as some support from Bernie Sanders and Elizabeth Warren – two leading candidates for the Democratic party’s presidential nomination – this Kat thinks it is time to explore these proposals and their viability under US copyright law.

Right to Repair – Farming

Although right to repair bills effect a large variety of consumer products, this post will focus on tractors and farming implements.  Another important venue for the right to repair movement is the consumer electronics market; phones, laptops, tablets, and video game consoles often rely on embedded software. Because these devices also concern proprietary components not easily replicated by consumers, the right to repair these devices implicates broader IP concerns that this Kat will address in a future post.

Farming

Tractor repair circa 1943
By the rural nature of agriculture, farmers develop a unique capacity for self-reliance; in the expansive, rural United States, where less than 20% of the population occupies 97% of the land mass, many farmers must drive several hours to reach the nearest city with a tractor dealer to service their equipment. As a result, farmers often depend on their own ability, or the abilities of their neighbors, to service and maintain their equipment. 
As tractors and farming implements have grown more complicated with the advent of on-board computers, that ability for farmers to exercise self-reliance has fallen under threat. Former Register of Copyrights and Director of the US Copyright Office,Maria A. Pallante issued a recommendation to exempt software embedded in motorized vehicles from the Digital Millennium Copyright Act (DMCA) in 2015:

“Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.”

Nothing runs like a Deere

A national conversation arose in October of the next year around the right to repair when John Deere, one of the largest tractor and farming equipment manufacturers in the United States issued a new licensing agreement covering embedded software. This agreement would contractually bypass such an exemption, forcing farmers to seek repairs from licensed John Deere dealers. 
Nebraska farmer Kyle Schwarting noted the substantial cost involved in complying with the license agreement in an interview with Motherboard,
They’re never too young to help out
on the farm

“Look at the size of this machine. If I had to haul this thing 100 miles [160 km] every time something went wrong with it, it’d cost a fortune. Just to get it on a truck is $1000 and by the time you get it hauled somewhere and get it hauled back, you’re two grand into fixing something that may be relatively minor.”

While the median farm household income in the United States is $76,590, much of that income is generated off of the farm; the median on-farm income is -$1,840 per year. The inability to repair ones own equipment creates a substantial financial burden on farmers. Speaking before the Nebraska state legislature, hog farmer Danny Kluthe described the importance of prompt repair,

“[W]hen crunch time comes to be really important and we break down, chances are we don’t have time to wait for a dealership’s employee to show up and fix it … right down the road, we have a nice repair shop, independent repair shop to work on it if we can’t do it ourselves.” 

The problem pervades off the farm as well, having negative effects on education; in the same hearing, then Nebraska Senator Lydia Brasch recounted that even “some engineering students at the University [of Nebraska], they are about to graduate but they are not being taught any of the diagnostic and repair tools in fear that they may be competition at some point.

Rigid Self-Reliance

Despite the roadblocks imposed by John Deere’s license agreement, Vice reports that several farmers have continued to exercise their capacity to repair their own equipment through “software [that] is cracked in Eastern European countries such as Poland and Ukraine and then sold back to farmers in the United States.” Farmers then purchase the necessary diagnostic tools and cables to utilize the software while making repairs. The author of this Vice article describes the process in detail, having paid to join a forum where the cracked software is made available to farmers.
I find this picture
heart-wrenching
While this sort of software cracking may ostensibly violate the exclusive rights provided under § 106 of the U.S. Copyright Act, §117 (c) provides an exception for machine maintenance and repair:

“[I]t is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if—

(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and
(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.“

This exception would cover much of the activity of these farmers. Further, the 2015 recommendation from the Register of Copyrights tracks closely with § 117 (c), exempting software necessary for operation while maintaining exclusive rights over ancillary entertainment software embedded within vehicles.

Comment

Computer repair
incoming!

While this Kat firmly believes in the importance of securing the exclusive rights provided by copyright law, it seems clear that the legislature intends to exempt the reproduction and use of software necessary for diagnostics and repairs of consumer vehicles, such as tractors and farm implements. Both in the text of § 117 (c) and the 2015 recommendation, the right to repair is preserved, although its contours may depend on compliance with environmental regulations and Department of Transportation restrictions. 

The compliance with such regulations remains a point of contention for those opposing state-level right to repair laws; another is the requirement that schematics, proprietary information information, and replacement parts be provided at reasonable costs to consumers. As a result, any legislation would need careful construction as to protect trade secrets while providing consumers the necessary information to make repairs or seek repairs from third parties. 
With last year’s FTC workshop on the right to repair and several states – including Hawaii, Maine, Massachusetts, and Washington – already holding hearings on right to repair in 2020, this Kat is certain that this issue will continue to make headlines. Look out for a future post regarding the right to repair legislation concerning personal electronic devices.

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