In 2015, the U.S. Copyright Office adopted an exception to the anti-circumvention restrictions found in Section 1201 of the Copyright Act allowing the owners of “computer programs that control the functioning of a motorized land vehicle including… agricultural machinery for purposes of lawful diagnosis and repair” to take full control of their property.
A year later, John Deere published an agreement governing the use of products with John Deere software. The agreement prevents any user from circumventing technological protection measures “that would constitute a violation under applicable law.” While the applicable law clearly made legal software circumvention and repair for John Deere tractors, the agreement further stated that products with software issues during the one-year warranty period may only be returned to “the place of purchase for repair or replacement.” After the warranty period, John Deere, at its sole discretion, may offer to provide software maintenance. While couched in the “applicable law” language, this agreement was clearly inconsistent with the 1201 exemption.
A 2018 flyer released by the Association of Equipment Manufacturers (in which John Deere is a leading party) committed to a comprehensive toolkit of maintenance, diagnostic, and repair information for tractors and combines by 2021. While responsive to “right-to-repair” advocacy at first blush, the promise only included on-board diagnostic service tools, still not allowing technological circumvention. These diagnostic service tools likely increase purchase prices further without allowing for cheaper repairs.
And last month, Kevin O’Reilly of U.S. Public Interest Group (USPIRG) published a report claiming that farmers are still waiting for a fix. Vice claimed that they, O’Reilly, and Motherboard called Deere dealerships asking for diagnostic software: all failed to obtain any. Why has the company not followed through? O’Reilly writes that “John Deere company filings pointed to trends that services and repair have been as much as three to six times as profitable as new equipment sales for John Deere and its dealerships.” In the last decade, part sales have risen as equipment sales fell substantially.
Farmers have to deal with up to 125 sensors in a combine, each connected to a controller network requiring access to the diagnostic tools Deere monopolizes. An agricultural equipment engineer told O’Reilly that these sensors and their associated networks are the most common points of failure on the machines. In response, some farmers resort to hacking via foreign software purchase. Others simply use older, non-software operated machinery.
What’s to be made of this sorry state of affairs? First, it shows that there are limitations to doing away with intellectual property protections. Section 1201 of the Copyright Act should be repealed in its entirety, full stop. However, as long as private firms can attach terms of service to sales of their devices (enforceable or not), the full potential of the right-to-repair movement won’t be realized. Ron Wyden (D-OR) and Yvette Clarke (D-NY)’s Critical Medical Infrastructure Right to Repair Act included language that would nullify such contracts.
Second, it shows that absent a full repeal of Section 1201, we need to make it so agents of those who own devices or people who make anti-circumvention tools are also exempt from liability. While not as aggressive as full repeal, the draft legislation of the Digital Copyright Act of 2021 makes those who “traffic” in anti-circumvention tools also subject to the triennial review and exemption process.
2021 may very well be a landmark year for right-to-repair legislation. But even if all the measures currently proposed make it through, there’s still plenty to be done to fully secure the right to private property.