For the past several years, the “right-to-repair” movement has been at odds with many manufacturers of products (such as medical devices, motor vehicles, and equipment) that contain imbedded software and telematics used for remote diagnosis and repair. Right-to-repair advocates have sought access to manufacturers’ diagnostic and repair software and telematics data, notwithstanding manufacturers’ claims that such access jeopardizes their intellectual property rights, warranties, and product safety. In recent years, efforts to obtain such access have been the subject of regulation, legislation, and even litigation.1 This past month, however, a trade association and a manufacturer came to terms that may—or may not—serve as a blueprint for agreements with other manufacturers in that particular industry (farm equipment) and perhaps others.
At the 2023 annual convention of the American Farm Bureau Federation (AFBF), AFBF and John Deere signed a right-to-repair memorandum of understanding (MOU).2 The MOU is aimed at “continu[ing] to enhance the ability of Farmers to timely control the lawful operation and upkeep of Agricultural Equipment” and “assur[ing] that the intellectual property of [the] Manufacturer, including copyrighted software, is fully protected.” The MOU’s stated objectives include ensuring the timely availability of certain repair tools while also not compromising safety controls and protocols and emission control requirements.
Under the MOU, the “Manufacturer” (John Deere) voluntarily agreed to provide farmers with particular tools, software, and documentation, including training and company publications, through subscription or sale. The agreement permits access not only for farmers who own or lease specific equipment but also for independent technicians assisting the farmers. The Manufacturer also agreed to provide the tools needed to temporarily disable certain security related functions to allow for diagnostics and repair.
The AFBF, in turn, agreed “to encourage state Farm Bureau organizations to recognize the commitments made in this MOU and refrain from introducing, promoting, or supporting federal or state ‘Right to Repair’ legislation that imposes obligations beyond the commitments” in the MOU. Should any such state or federal legislation or regulation be enacted, the farmers and the Manufacturer have the right, upon fifteen days written notice, to withdraw from the MOU.
The MOU encourages cooperation between the farmers and John Deere. In furtherance of that goal, the MOU delineates a conflict resolution process.
The MOU was immediately effective as of January 8, 2023. AFBF and John Deere agreed to meet at least semi-annually to assess how the MOU is working.
At a time when right-to-repair has gained the attention of the White House, the FTC, and legislative bodies around the globe, the MOU is a first of its kind initiative that could set the stage for others to come. President Biden signed an expansive executive order on July 8, 2021 empowering the FTC to focus on right-to-repair. The FTC ultimately voted a few weeks later to develop a policy statement regarding right-to-repair for consumers. In the last two years, federal right-to-repair legislation was proposed in the House and Senate: H.R. 4006, the Fair Repair Act (June 2021), and S. 3830, the Fair Repair Act of 2022 (March 2022).
Additionally, at least 27 states have considered or are considering right-to-repair legislation. On June 3, 2022, New York passed the first right-to-repair legislation directed at electronic devices, requiring electronics makers to provide repair information, parts, tools, software, and components to consumers and independent repair providers.
Internationally, other countries are equally active. For example, the Canadian House of Commons is deliberating a right-to-repair bill that would amend Canada’s Copyright Act to permit circumventing software to repair and maintain any product with software repair limitations. In the UK, a right-to-repair law was enacted in July 2021. France adopted a “repairability index” for consumers in January 2021.
1 See “Is It Broke? The ‘Right to Repair’ — Implications for Product Distribution and the Supply Chain,” Foley’s Annual Law of Product Distribution & Franchise Seminar (October 1, 2021) (2021 D&F seminar outline); “President Biden’s Executive Order on Competition Could Mean Broad Changes Across a Range of Industries,” Legal News: Antitrust, Foley & Lardner LLP (July 14, 2021).
2 The MOU is available for download at www.fb.org/files/AFBF_John_Deere_MOU.pdf.