2023 is the year Colorado should pass Right to Repair for farm equipment

Modern farm equipment runs on software – that can be a good thing.

But it also provides an opportunity for manufacturers to restrict access to the embedded software and tools needed to repair broken or malfunctioning tractors and combines.

Without being allowed to fix it yourself, you are forced to rely on who the manufacturer authorizes. For farm equipment that usually means the dealer.

With fields to be plowed, planted and harvested, farmers don’t always have the time to wait for a dealer repairer to come to them or load up their tractor and haul it dozens or hundreds of miles to the dealer.

This drives up costs and can lead to inflated repair bills and lengthy delays that can threaten a farmer’s livelihood given their small operating margins and limited windows to get their work done.

For example, Jared Wilson, a Missouri-based farmer, experienced the problem firsthand when a mechanical valve on his fertilizer spreader blew. He told us that the malfunction activated the immobilizer, which prevents the equipment from operating normally until error codes are cleared with software repair tools. That drove him to haul his machine into the dealer, where he says it sat for 32 days. In the meantime, he estimates he lost $30,000-$60,000 because of his inability to get seed in the ground. There is a finite window during planting season. As he put it – “any seed we don’t plant in that window means less crop come harvest.”

Another example – a New Mexico farmer who informed us that it took three replaced sensors and an $800 repair bill to clear an error code, when a simple, “50-cent O-ring would have got the tractor running again with the proper diagnostics.”

Farmers and ranchers need to be able to fix their own stuff at fair and reasonable prices and should have the freedom to get help from someone they trust whether that’s themselves, a family member, a friend, an independent repairer or the dealer.

If tractors were like cars, farmers would be able to choose between fixing their equipment themselves, hiring an independent mechanic to do it for them, or using a dealer.

That’s because 86% of Massachusetts voters approved an automotive Right to Repair ballot measure that was eventually adopted by the industry nationwide.

A state law ensured that Colorado vehicle owners maintained the freedom to fix their vehicles themselves, take it to an independent repair shop or to the dealer.

This underpins a robust and competitive repair marketplace with car repair shops on most main streets, dealers able to compete to fix other makes and models of cars that aren’t their own, and vehicle hoods popped in driveways across the state on any given weekend as people like you and me work away.

Lots of people, working on their cars.

But no Right to Repair law exists for agricultural equipment anywhere in the country. That means some necessary software and tools are not available to farmers, independent repair mechanics, or anyone who is not manufacturer-approved.

As authorized dealers continue to consolidate and manufacturers like John Deere push dealerships to exclusively sell and service one brand of equipment, access to repair is shrinking in rural communities across the state. Our research found that there is only one John Deere Dealership for every 6,467 Colorado farms and every 5.3 million acres of Colorado farmland.

Right to Repair calls for the software tools, codes and passwords that farmers need, and does not require farmers access to codes to rewrite the software of the equipment.

Farmers need embedded code. Embedded code is not source code. While the two are related, there are significant differences between them.

Source code is instructions written in a human-legible programming language that tell a machine what to do. Anyone who can read the source code could modify it and use it in a competing form, justifying concern from manufacturers.

But before source code is turned into the software tools that dealers use to fix farm equipment, it is compiled into a series of computer-legible 1’s and 0’s known as embedded code.

In a combine, a farmer interacts with this embedded code through the controls in the cabin, which execute the embedded code to display a selectable button or list of settings on their screen.

Translating these 1’s and 0’s back into source code is nearly impossible, which is why Apple, HP and others make embedded code freely available for their products in the form of firmware updates.

Because Right to Repair legislation only mandates access to the embedded code required for diagnosis, maintenance or repair, and not the uncompiled source code behind it, there is no additional risk of source code leaking.

I’m an advocate for clean air and safety. CoPIRG has numerous campaigns designed to reduce air pollution and increase the safety of consumer products. We do not support farmers’ ability to illegally turn off emissions controls or other illegal tampering.

Repair does not require farmers gain access to tools that help them illegally tamper.

When a sensor in a tractor control system fails and is in need of repair, an error message is delivered to the equipment operator and the immobilizer is activated. A software key is needed to diagnose the issue and then indicate that the repair has been completed. This deactivates the immobilizer and allows the farmer to go back to their business.

If manufacturers provided farmers with access to software keys, farmers would be able to break free from reliance on the authorized repairer and perform critical repairs themselves.

Industry groups, however, claim that doing so would also allow farmers to bypass emissions or safety controls or to chip it – giving it added power.

This is not true. There is a clear difference between resetting an error code and ignoring or overriding codes.

According to agricultural repair experts, overriding emissions or safety controls requires modification tools, not the tools used for diagnosis and repair that Right to Repair legislation provides.

To override these controls, a farmer would have to first erase the operating system present on the machine and then upload new, modified software that either does not have emissions and safety controls or allows a farmer to ignore them. This is an illegal practice separate from the software tools called for by farmers advocating for the Right to Repair.

And these illegal practices are already happening today without Right to Repair protections.

According to Repair.org board member Willie Cade “Chipping is a process of altering software that enables the equipment to operate at a higher level of power. Manufacturer tools such as those called for in HB 1011 have nothing to do with chipping—they do not make it easier for farmers to unlock additional power.”

There have been other safety concerns raised.

Last year, during the debate on the Right to Repair Wheelchair bill, some argued only the authorized repairer should be allowed to fix a wheelchair to protect people from trying to fix something, failing to do so and accidentally hurting themselves.

However, because of Right to Repair in the automobile marketplace, people have been fixing their vehicles every day in Colorado for years.

If we allow people to take on the responsibility of fixing vehicles that can travel at 75 mph on a highway, we should allow farmers to take on the responsibility of fixing their combines quickly and efficiently.

We should give farmers unrestricted access to the same tools that the dealers have at the same prices.

These are not tools that will allow farmers to override safety or emissions controls. They will, however, provide farmers with what they need to diagnose, calibrate, authorize and perform repairs. All of this should be provided at a fair and reasonable price.

Since 2020, the Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law has done an analysis of introduced Right to Repair bills in Colorado including last year’s Powered Wheelchair law, which passed and went into effect in January.

Their analysis has consistently found Right to Repair legislation in Colorado does not run afoul of these laws and standards. For example:

• Intellectual Property Law – Previous Colorado Right to Repair proposals including the recently enacted Wheelchair bill do not conflict with rights companies have been granted under copyright, trade secret, trademark, or patent law
• Device Security and Compliance – Previous Colorado Right to Repair proposals including the recently enacted Wheelchair bill do not pose any threats to network security or enable device owners to avoid legal standards
• Warranty and Contract Law – Previous Colorado Right to Repair proposals including the recently enacted Wheelchair bill protect the rights of parties to contract, and does not alter the terms traditionally included in warranties
• Interstate Commerce – Previous Colorado Right to Repair proposals including the recently enacted Wheelchair bill are consistent with the Commerce Clause because they did not discriminate against any out-of-state actor and served many legitimate purposes, including e-waste reduction
• Antitrust and Competition Law – Previous Colorado Right to Repair proposals including the recently enacted Wheelchair bill are likely to bolster market competition, furthering the policy goals of antitrust and consumer protection laws

It’s worth digging in even deeper on copyright law since that is a significant part of our economic system.

Right to Repair does not undermine copyright law because the tractor is owned by the farmer. The first sale doctrine of copyright states that once a physical item is sold, the intellectual property holder loses the right to control distribution or resale of the physical item.

On a more basic level, if you buy a tractor, you don’t owe the manufacturer or dealer information on your use of it.

It’s also worth underscoring that repair does not negate warranties.

Warranties are primarily governed at the federal level by the Magnusson-Moss Warranty Act of 1975 (MMWA).

According to the analysis by the Samuelson-Glushko Technology Law & Policy Clinic, “The MMWA explicitly prohibits warrantors from tying warranty coverage to the use of only authorized repair services and/or authorized replacement parts for non-warranty service or maintenance. Under the regulations of the Federal Trade Commission (FTC): [A] provision in the warranty such as, “use only an authorized ‘ABC’ dealer” or “use only ‘ABC’ replacement parts,” is prohibited where the service or parts are not provided free of charge pursuant to the warranty.”

They go on to conclude “In other words, ‘the anti-tying provision gives consumers the right to make repairs on their own or through an independent repair shop without voiding a product’s warranty . . . .’ The FTC has also discussed “right to repair” bills as a mode of “increasing consumer choice in repair markets.”

The American Farm Bureau Federation (AFBF) and John Deere signed an agricultural Right to Repair agreement on January 8, 2023. The MOU states that Deere will provide farmers and—at the request of a farmer—independent mechanics, with “Tools, Specialty Tools, Software and Documentation,” that the company provides to its dealers.

This is a measured win, but there is work left to do. This action alone does not fully solve farmers’ repair restriction woes laid out in our report, Why Farmers Need Right to Repair.

The agreement does not include the enforcement that would come with regulation, something that was critical in the automobile sector after manufacturers agreed to an MOU following the passage of the Massaschusettes right to repair.

In addition, the recently signed MOU is not as comprehensive, does not ensure access at fair and reasonable prices and provides Deere with the option to walk away from the agreement after providing 30 days notice.

Deere and other agricultural equipment manufacturers, which are not included in the MOU, have also fallen short on prior commitments.

In 2018, a California trade group signed an MOU around Right to Repair to much fanfare, saying that it would take three years, but they’d provide access. As a PIRG and VICE investigation demonstrated, three years later, access was still being denied.

For more on the most recent MOU, check out this iFixit explainer.

Colorado should continue pushing Right to Repair legislation until every farmer in every corner of the state with every brand of equipment can fix every problem with every tractor.