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.
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.
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