The Importance of Getting Right the Right to Repair

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The “right to repair” movement continues to pose challenges for manufacturers and designers of consumer products. It also poses challenges to dealership networks that are the conduit to the custom­er and are most often responsible for carrying out necessary repairs and warranty work. What started as a push to require consumer elec­tronic manufacturers and design­ers to provide the necessary tools, parts, and manuals that would allow consumers, or a third party, to re­pair their own devices, has expand­ed significantly into a movement that now encompasses automobiles and appliances and, significantly, agri­cultural equipment.

From a consumers’ perspective, the right to repair is deceptively simple – I purchased the product, so I am entitled to repair it myself or take it to a technician of my own choosing for repairs. However, the increasing complexity of the technology in agricultural equipment, particularly with the growth of software as a product, has made repairing tractors and equipment more difficult and specialized.

The default position for manufacturers has historically tended to be to allow only autho­rized dealers to repair many products. By con­trolling the number of authorized repair loca­tions, manufacturers have greater control over repair quality, which ultimately protects con­sumers’ safety, privacy and security, including cyber-security. There are also product liability risks, reputational harms with faulty repairs, and environmental worries.

While the right-to-repair movement would seem ideally suited to regulatory efforts, trends suggest that manufacturers and designers, as well as their distributors and dealers, are not waiting for governments to mandate action and may not require government involvement.

The Right to Repair

Although it has been gathering momen­tum in recent time, the right to repair move­ment in the United States has its roots in leg­islation such as the Magnuson-Moss Warranty Act (“MMWA”), which was enacted in 1975 and is enforced by the Federal Trade Com­mission (“FTC”). Amongst other things, the “anti-tying” provision of the MMWA clari­fied how written warranty provisions could be used when marketing products to consum­ers, while also making it illegal for a manu­facturer to void a warranty or deny coverage if a customer has a repair or maintenance per­formed by an independent repair shop or us­ing a third-party replacement part.

Recent initiatives at the federal level in the United States have given momentum to the right to repair movement, including: Presi­dent Biden’s Executive Order on “Promoting Competition in the American Economy,” and subsequently, the FTC’s prioritization of right to repair objectives and agreement to sign onto the standards outlined in this Executive Or­der.

President Biden signed Executive Or­der 14036 on July 9, 2021, and addressed a breadth of anti-trust issues, including the right to repair. In particular, the Order called for the FTC to exercise its statutory rulemak­ing authority in areas such as unfair anti-com­petitive restrictions on third-party repair or self-repair of items, such as the restrictions im­posed by manufacturers that prevent farmers from repairing their own equipment. (Exec­utive Order 14036, “Executive Order on Pro­moting Competition in the American Econ­omy”, July 9, 2021, the White House, the United States of America).

This Executive Order followed the FTC’s previous report from May 2021, entitled “Nix­ing the Fix,” which examined “consumer pro­tection and anti-trust issues relating to re­pair restrictions, with particular emphasis on those imposed by mobile phone and car man­ufacturers.” The FTC noted that the MMWA had not kept pace with technological develop­ments. Still, it plays, and will continue to play a role within the right to repair debate, as ev­idenced in three recent settlements in 2022.

In July 2021, the FTC voted to make right to repair a priority. It then set out to “scru­tinize repair restrictions for violations of the antitrust laws” through monopolistic practic­es, and to consider whether repair restrictions such as digital locks are prohibited by s. 5(a) of the Federal Trade Commission Act which pro­hibits “unfair methods of competition”.

Subsequently, in July 2022, the FTC reaf­firmed its focus on illegal repair restrictions, noting that such restrictions “can significant­ly raise costs for consumers, stifle innovation, close off the business opportunity for indepen­dent repair shops, create unnecessary electron­ic waste, delay timely repairs, and undermine resiliency – harms that can have an outsized impact on low-income communities in par­ticular.”

In Canada, the right to repair is being ad­dressed at the federal level through proposed changes to Canada’s Copyright Act, which cur­rently prohibits the bypassing of Technolog­ical Protections Measures (“TPMs”), also known as digital locks. This can restrict ac­cess to internal software information, and ren­der non-authorized replacement parts unus­able, effectively impeding the right to repair. Bill C-244, An Act to amend the Copyright Act (diagnosis, maintenance and repair), is current­ly under review by the Standing Committee on Industry and Technology. Bill C-244 pro­poses a blanket exception to intellectual prop­erty legislation to allow parties to circumvent TPMs for the purpose of diagnostics, mainte­nance, or repair.

Not Getting the Right Wrong in the Right to Repair

It is fair to ask whether legislating a right-to-repair is necessary. After all, many manu­facturers already support a consumer’s right to repair their own equipment and provide technical support through on-board diag­nostic systems and defined fault codes, tech­nical manuals, product guides, training, and product information hotlines. In the automo­tive sector, for example, there is the Canadi­an Automotive Service Information Standard (CASIS), which is a voluntary agreement be­tween manufacturers and aftermarket and in­dependent vehicle repair shops to share their service and repair information with the auto­motive aftermarket industry on a level equiv­alent to that of their authorized dealers. Sim­ilar self-regulation and knowledge-sharing is in place in the U.S.

Consider also the evolution of the chang­es made by Apple towards repairs in the con­sumer electronic space. While Apple had previously made its iPhone parts and tools available to third-party repair shops, in 2022, it released its Self Service Repair programs and made parts, tools, and manuals to repair its latest iPhone and Mac laptop models avail­able to consumers directly. There are surely many motivators behind Apple’s continued changes, including consumer demand, envi­ronmental concerns, as well as legal and busi­ness challenges.

In the agricultural space, John Deere also announced in March 2022 that it would en­hance the capabilities and availability of exist­ing diagnostic tools in order to facilitate easi­er repair. Further, John Deere began allowing customers and independent repair shops to purchase Customer Service ADVISOR (a dig­ital database of operator, diagnostic, and tech­nical manuals for John Deere Products) di­rectly from the John Deere website. In 2023, John Deere plans to roll out a mobile device interface that will permit users to download secure software updates directly to embedded controllers on select equipment.

Concerns will arise surrounding the effect of warranties, and the effectiveness of Sale of Goods legislation that imply specific condi­tions into most contracts of sale, including that the goods are fit for a specific purpose and that the goods are of merchantable quality. Notwithstanding the presence of the MMWA, if consumers can repair their products inde­pendently, manufacturers will have to recon­sider warranty provisions provided with a product. As it is, the MMWA does not extend to aftermarket parts in situations where such parts caused the damage being claimed un­der the warranty. Warranties – whether pro­vided by the manufacturer or through Sale of Goods legislation – are meant to provide guar­antees on the performance of a product, and will have to be rethought to address the pros­pect of personal repairs. Consumers are un­likely to benefit.

Any form of right to repair legislation must address the various legal and safety risks to en­sure that repairs do not jeopardize compliance with safety legislation and standards. Modern farming is dependent upon specialized and increasingly complicated machinery, which is being overlaid with increasingly sophisti­cated and data-driven agricultural practic­es. Tractors and other equipment are tested, designed, tested some more, then manufac­tured and sold to en­sure its safe operation, often in accordance with strict laws and regulations to ensure the safe operation of the product. The repair of such equipment should also follow stringent safety concerns, as the faulty repair of a tractor can alter its performance resulting in health and safety risks.

Manufacturers and distributors (the latter of whom are likely to be considered learned in­termediaries for the purposes of imposing li­ability) also face a duty to warn all consumers of potential dangers associated with the use of a product. The duty to warn extends to fore­seeable product misuses, and product liabili­ty law becomes quickly complicated with the imposition of a right to repair. By the same to­ken, users of products have a duty to read and heed warnings and instructions supplied with a product or bear the consequences of any re­sulting injuries. Could a manufacturer or dis­tributor ever fully grasp the myriad ways in which its products and software, if opened to repairs by all consumers, could be modified? How the law would respond in these situa­tions needs to be considered and understood.

Furthermore, a concern about the modifi­cation of equipment may have negative conse­quences to the environment. Environmental concerns, expressed in the modern language of ESG and the circular economy, are forc­ing designers and manufacturers of all prod­ucts to rethink the design and end-of-life of their products. Tied up in this is the right to repair, although it has a much less significant impact on agricultural equipment, which gen­erally have a much longer operating lifespan than consumer electronics. Still, rethinking the structure of our linear economy to a “cir­cular economy” has become more than just a trendy way of capturing a broad-based at­tempt to describe extending the life-cycle of products through the sharing, reusing, re­furbishing and, in particular, the repairing of products. This is an interesting point in which the right to repair movement has in­tersected with the circular economy, not to mention with the growth of ESG principles. Again, right to repair legislation may not be necessary or the correct way to address envi­ronmental concerns.

The threat of cybersecurity attacks is even more pressing with the growth of connected tractors, smart equipment, and technologies. This concern is particularly significant with­in the agricultural sector, where worries about food security extend across borders. It is no longer too far afield to contemplate an attack on digital farm equipment that could dam­age large swaths of food and agricultural land. In fact, automated tractors have already been hacked. Food supply chains need protection. Legislation that permits the bypassing of dig­ital protections, even if couched within a right to repair, may have unintended consequenc­es for the world’s food security that may not make it appropriate in the agricultural sector.

What’s Next

While right to repair efforts continue to gain traction worldwide, including with­in North America, legislators must proceed with caution. The potential impact of legis­lation on the agricultural equipment sector demonstrates how things can go wrong or fail to consider the potential consequence. A re­view of right to repair efforts reveals that the by-products of such measures raise safety, pri­vacy, security, liability, and quality assurance issues. These issues are likely to become more, not less, complex as technology becomes in­creasingly sophisticated.

Legislators need to get the right to repair, well, right.


Article Written By George Wray, BLG

GEORGE WRAY is an experienced litigator in all aspects of products law. George brings deep understanding of risk and regulatory concerns for designers, manufacturers, importers and distributors of products across various industry sectors. From automobiles to consumer and industrial products and software, BLG’s client trust George’s practical approach to litigation to handle the most complex and challenging of cases.

To speak to a BLG lawyer through the Canadian Dealer Hotline, call 800.661.2452.

About BLG:

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