SALEM, Ohio — Legislation introduced in Nebraska this year has gained a lot of attention from farmers and equipment dealers across the county and stirred up a lot of questions on intellectual property rights and ownership.
The Right to Repair Act, or LB 1072, was introduced into Nebraska Legislature Jan. 20, but was unsuccessful in gaining any traction. State Sen. Ken Haar, who introduced the bill, has exceeded his term limits and will not be heading up the bill in 2017, but a similar bill is expected to surface in the coming year.
The act would essentially require equipment dealers to surrender access to software protected by copyright laws and allow equipment owners to make their own repairs and modifications as they see fit. Movement of this kind in Nebraska and other states has triggered a lot of questions about what farmers can and cannot do with their equipment.
Q. Can I still work on my tractor?
A. “There has been a gross misconception that farmers do not own their own tractors and cannot perform even the simplest of repairs” — like oil changes, tire changes, etc., explained Nick Tindall, senior director for the Association of Equipment Manufacturers. “You own your own equipment and you have the right to work on your equipment,” said Tindall. There are, however, restrictions to tampering or tinkering with the software on newer machines.
Q. What is the Digital Millennium Copyright Act (DMCA)?
A. The Digital Millennium Copyright Act protects the creators of the software, making it illegal to circumvent (or hack into) the software in order to redistribute or recreate that software. Exemptions can be granted.
An exemption for agriculture equipment was granted that allowed for “certain repairs that may be known as more tinkering,” said Jordan Dux, director of national affairs with Nebraska Farm Bureau Federation. This exemption granted individual farmers the right to circumvent software on their own equipment in order to make necessary repairs, providing the repair or modification does not violate safety laws or regulations put in place by government agencies such as the Environmental Protection Agency.
These modifications or repairs can only be done by the owner to his own equipment. A farmer cannot take his machine into an independent repair shop for these services, nor can he service another farmer’s machine to make these modifications or repairs, explained Dux. However, exemptions only last three years before they have to be renewed.
This particular exemption is up for renewal in October of this year, he said. The Right to Repair Act wants to make this exemption permanent. “Folks don’t want to reapply for them all the time,” said Dux.
Q. Are diagnostic equipment and repair manuals available to me?
A. A component of the Nebraska Right to Repair Act is requesting that operating manuals and diagnostic equipment be made available to farmers. According to many proponents for the Right to Repair Act, only dealerships have access to the equipment necessary to diagnose software malfunctions.
But, according to Tindall, “There is a whole wealth of service information out there to make it easier for farmers to work on their own equipment.” Equipment buyers and third party members have access to service and operation manuals, service bulletins, product guides and original equipment manufacturer (OEM) best practices, guidelines and safety.
What isn’t available is technical information such as proprietary information and EPA information in the software, said Natalie Higgins, vice president of government relations and general counsel at Equipment Dealers Association.
Q. Is the safety/liability concern just a smokescreen?
A. Consumers are prohibited by law from altering their equipment in a way that circumvents federal safety and emissions standards. Unauthorized repairs void warranties and could lead to civil or criminal penalties, said both Tindall and Higgins. “We’ve heard (proponents of the act) say ‘oh, you’re just making this safety issue up. It’s not really a concern,” said Higgins. Not only is there a potential for the individual to hurt himself, but a potential to hurt others, she said.
A common misconception to liability law is, the owner assumes all responsibility, but it is not clear that that is the case, said Higgins. “This idea that (equipment dealers) are absolved of liability because of modifications beyond specs is a myth,” said Tindall.
Q. Will having a Right to Repair Act create competition?
A. Proponents of the act feel dealers (like John Deere and Case IH) have a monopoly in the equipment industry, but historically that is not the case, explained Dux. According to Dux, Nebraska Farm Bureau members raised concerns over the economic health of local dealers, saying in the recent economy, tractor sales are down, making repairs a key source of income. Would taking away those repairs hurt dealers even further?
“This would actually put dealers at an unfair advantage,” said Higgins. Dealers invest time, money and resources into training and education for their employees so they can run this software. “Dealers would actually be competing with average Joes that want to cut corners,” if this legislation was passed, she said.
Q. How would working on my own equipment affect resale value?
A. If a farmer is going to look for a piece of used equipment and they look into a piece that has been modified, they run the risk of purchasing a piece of equipment modified by an inexperienced technician, Higgins said. Farmers also run the risk of purchasing a piece of equipment neither the farmer nor dealer knew had been modified. “What does that do to the equipment buying world?” she said.
Q. Should farmers be allowed to “tinker” with their own equipment?
A. “It’s kind of a double-edged sword,” said Conrad Amstutz, store manager at Sterling Farm Equipment in Wooster, Ohio. “As a farmer myself, I would like to fix my own equipment. But, if I’m not schooled in the software, I shouldn’t be in there working on that anyway. I could really screw that computer up,” he said.
As a licensed dealer of Case IH equipment, Amstutz said their technicians have the training and licensing to work on the software. “As far as complexity goes, we offer one-on-one training with operators to help them understand the software they need to use on their operation,” he said. “I’m all for letting them have software if they know what they are doing. They would also be a lot more efficient if they know their way around it,” said Amstutz.
Dux said the Nebraska Farm Bureau remains neutral on the current act, adding there are a lot of questions that still need to be answered. “I think there is a larger debate that is happening about intellectual property rights in general. Farmers are just kind of in the middle of that, as everything gets more computerized,” he said.
The Equipment Dealers Association has scheduled a free webinar for members to discuss components of the Right to Repair Act and address questions and concerns. Register here or email email@example.com for more information.
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