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Will 2021 Be the Year for the Right to Repair?

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Will 2021 Be the Year for the Right to Repair?

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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

Will 2021 prove to be the year that several states finally adopt a right to repair?

Motherboard seems to think so, according to The Right to Repair Movement Is Poised to Explode in 2021:

Last year witnessed monumental progress for right to repair, including the expansion of an existing Massachusetts law that requires car makers to provide independent mechanics access to the same diagnostic tools used in dealerships. A federal right to repair law was also considered for the first time in US history.

2021 is expected to take the effort to an entirely new level.

Consumer rights organizations like US PIRG state that fourteen states are now in the process of introducing and debating new right to repair laws, including New Jersey, Delaware, Florida, Massachusetts, Maryland, Montana, Nebraska, Oklahoma, New Hampshire, New York, Oregon, South Carolina, Vermont and Washington.

This 14 number understates state interest. In 2019, 20 states mulled such initiatives – to no avail (see this 2019 post, which included a map of states then considering adopting some form of a digital right to repair, Nebraska Farmers Lead on Right to Repair). And according to Food Tank, nearly three dozen states have considered right to repair legislation, in Farmers Fight For Right To Repair Their Own Equipment.

What Makes 2021 Different?

First, with the Trump era now relegated to history, at least for the time being, the political climate has changed. There’s more appetite for considering new regulatory initiatives, at both federal and state levels, with big Tech squarely in the crosshairs, as Apple has been a leading opponent of right to repair efforts. Yet the costs of limiting the ability of consumers to avail themselves of third-party repair services –  both environmental and out-of-pocket – are increasingly unjustifiable, not to mention they promote long corporate supply chains at the expense of local repair jobs (see my recent post, Right to Repair: Saves Consumers Money, Promotes Local Jobs Rather than Global Supply Chains).

Second, at the federal level, COVID-19 has also altered the regulatory calculus. Over to Motherboard again:

The fight has taken on additional urgency in the Covid era. As the pandemic pushes the nation’s health care infrastructure to the brink, essential medical equipment has proven in some instances impossible to legally repair because manufacturers enjoy a monopoly on tools, documentation, and replacement parts.

Federal legislation to address this problem stalled last year. But the prospects this year are better, now that Democrats have nominal control of the Senate – although it remains to be see whether the Biden administration will make this issue a property. Per Motherboard:

Last year, Senator Ron Wyden and Representative Yvette D. Clark introduced federal legislation that would make it easier for hospitals to fix medical equipment during the COVID-19 pandemic. While the effort stalled in the gridlocked Mitch McConnell led Congress, Wyden’s office told Motherboard the bill is likely to be updated and reintroduced this year.

And third, farmers continue to press for a right to repair, according to Montana newspaper, The Fairfield Sun Times, in MFU to Host Interactive Town Hall on Farmers’ Right to Repair:

Planting and harvest is a timely process for all farmers and ranchers.  It is critical that machinery is in great working condition during the farming seasons. Proprietary software prevents farmers, ranchers or highly qualified local mechanics willing to abide by manufacturers’ rules from working on farm equipment.  Three major equipment manufacturers sell most of the equipment used by Montana farmers.  These companies only allow their technicians to make repairs. The inability to repair their own equipment costs farmers and ranchers time and money. Montana Farmers Union is addressing the issue of a farmers’ right to repair by promoting legislation at the Montana legislature, and secondly by hosting a virtual town hall on February 8 at 7 pm. Right to Repair bill LC1562 is sponsored by Rep. Kate Sullivan (D) (HD89) and Sen. Mark Sweeney (D) (39). This legislation will address the need for adequate service and repair that will allow farmers to bring a quality crop to market.

The virtual town hall will examine the issue of right to repair as it relates to agriculture. Town hall panelists include Montana Farmers Union President Walter Schweitzer, Rep. Kate Sullivan and Right to Repair advocate Kevin O’Reilly.  “While these companies say that are looking into the issue, the fact remains that there are local mechanics that are more than capable to determine the cause and needed repairs on heavy equipment,” said Walter Schweitzer. “We are grateful to Rep. Sullivan and Sen. Sweeney for sponsoring this legislation and for making time to participate in the town hall.”

Similar efforts to pass right to repair legislation for farmers is underway. In the Florida similar right to repair legislation is making its way through the state legislature.

One of these farm initiatives may be the next state right to repair initiative to be adopted, as the ability to repair farm machinery quickly and cheaply is crucial to the livelihood of farmers. While a digital right to repair would affect far more people, as most Americans now own multiple digital devices, including smartphones, yet those devices are not as crucial to the economic survival of consumers in the same way farm equipment is to farmers. So that whereas a right to repair digital devices enjoys widespread consumer support, consumers are unlikely to devote as much attention to pressing for its enactment as farmers would expend to lobby for a right to repair farm equipment.

As Food Tank explains the problem, big money is at stake, with farmers bound legally and in perpetuity to overpriced manufacturer repair options:

The Right to Repair (R2R) movement is helping farmers protect their right to fix their own farm equipment without facing legal repercussions.

The R2R movement lobbies for repair-friendly legislation, standards, and regulations through organizations like the Repair Association. The Association advocates for guaranteeing property rights, obtaining equal access to information, non-discriminatory pricing of parts and tools, and unlocking software.

“We’re trying to maintain our consumer rights which means we’d still like to be able to repair and modify our tractors just like our dad, grandfather, and great grandfather did years ago,” says Kevin Kenney, an Alternative Fuel Systems Engineer at Grassroots Energy LLC, and a member of the R2R movement, tells Food Tank President Danielle Nierenberg on Food Talk Live.

The R2R movement is confronting corporations like John Deere who control machinery that farmers use. These companies prevent farmers from repairing equipment such as tractors and instead force farmers to hire outside contractors. According to Kenney, this can cost farmers up to US$150 an hour.

Kenney explains that corporations are able to do this through tactics such as lengthy Extended Use License Agreements (EULAs). Companies argue that farmers who sign these EULAs do not own their tractors, but receive a license to operate the vehicle. This forces farmers to comply with the manufacturer’s instructions and prevents them from repairing either the equipment or the software on their own.

Kenney tells Food Tank, “with major equipment manufacturers…they make us sign these [EULA]’s; and it’s just like your cell phone where you have the right to use your cell phone but you don’t really own it.”

And just as with aging smartphones, these agreements limit repair options, driving up the price of repair, and thus often force farmers to replace rather than repair farm equipment. Again, according to Food Tank:

One of the main concerns of the R2R movement is aging farm equipment, often called legacy equipment. When manufacturers introduce new software, they often stop supporting the old version, making it nearly impossible for farmers to repair existing equipment.

“The problem that we are having is if [manufacturers] decide to quit supporting [equipment] with software, we can’t get it fixed,” Kenney tells Food Tank.

This practice forces farmers to buy new software and equipment, which can reach up to US$600,000 dollars.

The cost does not only force current farmers to invest in costly new equipment or repairs to continue their work. Kenney explains that it also acts as a barrier for young farmers who lack access to capital to acquire these technologies when starting their farms.

Farmers are looking to the auto industry for precedent as they press for a right to repair, according to Food Tank:

In response to this criticism, many farmers are using the auto industry’s Memorandum of Understanding to show that the right to repair is possible. In 2014, car manufacturers voluntarily agreed to make the same information and tools they provide to franchised dealers available to independent repair shops.

Kenney asks, “If you can fix your car or truck, why not your tractor?”

Farmers also endorse open source solutions. Per Food Tank:

Kenney and other members of the R2R movement are also advocating for open source software, which gives users freedom to share, study, and modify software. Kenney is currently working with the Free Software Foundation to create open source resources for farmers.

….

“The fact that you are taking business away from the very very few and offering up assistance to 50-60,000 farmers [in Nebraska]…How could that be a bad thing?”

Will 2021 be the year for the right to repair? We can only wait and see.

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