[Author: Andy Goodman, I-NEDA President/CEO, 2016 | Keywords: Legislation, Right to Repair]
Legislative bill 1072, known as the “Fair Repair Act,” was introduced to the Nebraska Legislature by State Senator Ken Haar on January 20, 2016, and heard by the Judiciary Committee on February 25, 2016. The bill reads as follows:
“Each original equipment manufacturer of equipment sold or used in this state shall make available for purchase by owners and independent repair providers all diagnostic repair tools incorporating the same diagnostic, repair, and remote communications capabilities that such original equipment manufacturer makes available to its own repair or engineering staff or any authorized repair provider.”
The suggestion for this bill came from a constituent of Senator Haar and Grass Roots Energy of Nebraska, and was supported in testimony by Abilene Machine of Abilene, Kansas. The bill did not make its way out of the committee onto the floor for a vote.
On February 11, 2015, a similar bill, H.R. 862, entitled, “You Own Devices Act” was introduced into the United States House of Representatives by Representatives Farenthold of Texas and Polis of Colorado. The bill reads as follows:
“…if a computer program enables any part of a machine or other product to operate, the owner of the machine or other product is entitled to transfer an authorized copy of the computer program, or the right to obtain such copy, when the owner sells, leases, or otherwise transfers the machine or other product to another person.”
On the surface, both LB1072 and HR862 sound like simple and straightforward consumer legislation. Essentially, these bills would require an equipment manufacturer to make highly technical computer information – which the manufacturer currently provides to its own repair and engineering staff or authorized repair providers – available to any buyer or subsequent buyer to make do-it-yourself repairs or modifications to the equipment. The ramifications of this legislation for both the manufacturer and dealer are enormous. Even though LB1072 did not make it out of committee, we believe that a thorough discussion of these bills is necessary to prepare for future similar legislation.
First, we must consider the dealer’s investment and expertise in supporting the equipment they sell. Today’s farm and construction machinery is highly sophisticated and expensive, with cutting-edge advanced technology that requires highly trained on-site support service. Dealerships make enormous investments in computers, service centers and extensive training of support technicians to maintain this equipment to the high level of performance and efficiency that manufacturers guarantee and customers demand. It is hard to imagine that someone who is not highly trained would be able to support this equipment to that level.
Another issue to consider is the safety and environmental impact of such legislation. Manufacturers and authorized dealers are required to ensure that all machines they sell or service meet the safety and environmental requirements under state and federal law. Court cases have confirmed that when a customer modifies a piece of equipment and subsequently brings it back to an authorized dealer for servicing, the dealer must return the equipment back to the safety and environmental standards originally required. An unauthorized repair person could modify the equipment, dismantle the safety and/or environmental components of the equipment and ignore the safety and environmental laws enacted to protect the user and the environment.
In addition, it is important to consider the impact of this legislation on manufacturer warranties. If manufacturers are to provide warranty protections, they must know that the equipment is being properly maintained, serviced and utilized for the purpose it was engineered. Without these assurances, a warranty would likely be void.
Finally, these bills could affect copyright and patent laws. Manufacturers make enormous investments in the development of new products and protect their innovative ideas through copyright and patent laws. Legislation such as LB1072 and HR862 could negatively impact a manufacturer’s desire to develop new products if their innovations cannot be protected.
It is our understanding that organizations such as Farm Bureau and Farmers Union are having discussions about these legislative proposals. We believe that equipment buyers/users should be provided with the correct information and possible consequences of this type of proposed legislation before it can become law. The participation of dealers on a local level will be critical to this discussion.