By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
Recent months have seen progress on the right to repair front, with new legislation introduced at both state and federal legislation, and litigation planned, pending, or ongoing
I previously posted on some of these developments in March, in Senators Introduce Right to Repair Legislation.
Last week, Motherboard (Vice) reported that smartphone manufacturers Google, Samsung, and even longstanding right to repair opponent, Apple, have made some concessions on the right to repair in Corporate Repair Initiatives Don’t Replace the Need for Right-to-Repair Laws.
Will these concessions suffice to accord consumers a meaningful right to repair, and therefore render further legislation (and litigation), unnecessary?
In a word, no.
The first problem with these corporate concessions is that they are incomplete. They concern smartphones only. To be sure, planned obsolescence for consumer electronics products generates enormous quantities of unnecessary e-waste. And any initiative that might reduce such waste should be welcomed. But these products comprise only one component of the right to repair problem. Concessions made by their makers don’t apply to other product categories. Autos. Tractors. Air conditioning systems. And other home appliances, including those touted as ‘smart’.
Another big problem with relying on corporate sweet nothings is that like all sweet nothings, they’re unenforceable. A company may promise to embrace the right to repair and then simply choose to ignore its promise. Last week, Kevin O’Reilly, right to repair campaign director for the U.S. Public Interest Research Group (U.S PIRG) shared some details about farmer Ken Helt’s recent troubles with tractor maker John Deere’s record, Will corporate repair policies alone solve Right to Repair? I’m skeptical.
O’Reilly focused primarily on John Deere. But his account also mentioned in passing that Apple failed to follow through on a much ballyhooed right to repair program it promised to roll out early in 2022 (see this April reviewgeek discussion for further details, Apple Promised Us a Repair Program, Where the Hell Is It?)
Back to U.S. PIRG and John Deere:
… Farmers can’t make many repairs on their half-a-million-dollar tractors without intervention from a manufacturer-affiliated dealer. In addition to inflating costs, that can mean repair delays of up to a month. Such delays during planting season can have a huge impact on farmers’ bottom lines—each day farmers don’t get seed in the ground, their profits evaporate with the morning dew.
I’ve worked closely with farmers such as Ken Helt, who grows corn and soybeans in southeastern Iowa, to show lawmakers how we need Right to Repair reforms to address farmers’ problems in the same way we need them to address the problems with consumer electronics.
So, when John Deere announced last month that it would sell its Customer Service ADVISOR repair software directly to consumers, why didn’t Ken and I celebrate?
For one, the announcement is long overdue: Deere and other manufacturers promised in 2018 to make diagnostic tools available to farmers at the beginning of 2021. Deere failed to meet its own deadline.
But the problem goes beyond unmet commitments. Customer Service ADVISOR won’t free farmers such as Ken from being shackled to the dealer for many repairs.
In a nutshell, the Deere commitment is incomplete. Limited in scope. And ties farmers too closely to working with its dealerships only. Over to U.S. PIRG again:
Take the year-long repair saga that Ken finally solved last April. Ken says his John Deere 7280 tractor was rolling to a stop as often as once an hour. It disrupted his work and was a safety hazard—one night his tractor stopped in the middle of a four-lane highway, exposing him to oncoming traffic.
Ken told his dealer technician that he thought his transmission was faulty, but the tech insisted that wasn’t the case. Without access to the Dealer Technical Assistance Center (DTAC), a database of common failures, the Product Improvement Programs (PIPs) designed to address them, or the dealer-level Service ADVISOR, which provides additional diagnostic information and the ability to pair a serialized part to the machine at the end of the repair process, Helt had to take the tech’s word for it. Farmers and independent mechanics cannot buy these tools.
To make the problem worse, John Deere has pushed many of its dealerships to consolidate into chain networks. Our research found that there is one Deere chain for every 12,018 American farms and every 5.3 million acres of American farmland. Most of the dealerships in Ken’s area are owned by the same chain—the closest competitor is a 100-mile roundtrip away.
Helt finally got the full story when he stopped at a Nebraska dealership during a family road trip. The tech pulled up DTAC and found that there were 9 PIPs on his tractor’s transmission. A year and some $27,000 in repair fees later, Ken finally could use his tractor normally again.
“If you have a dealer who doesn’t give a hoot, they don’t bother to tell you,” Ken told me. “Farmers should be able to go in, get the software, and see what’s wrong with the thing so they can get it fixed.”
Even if Ken had access to Deere’s less-comprehensive Customer Service ADVISOR, it would have been of little help. He would need access to DTAC to find the problem and dealer-level Service ADVISOR to finalize the repair by pairing a part to the tractor, or the option to hire an independent mechanic who has access to those tools.
A further problem: Even if the corporate promises are sincere (and implemented in a timely fashion), they’re just promises. They’re reversible and by no means permanent. What’s to prevent corporate executives from in future reneging on a previous commitment made – perhaps in all sincerity -today?
Nothing.
Now, some may say that a similar objection also might apply to any right to repair statute or regulation that may be adopted. Laws can also be changed, regulations overturned, litigation results appealed and reversed. All true. But although by no means impossible, it’s more difficult to overturn a statute than reverse a corporate policy. Further, changing laws is usually a matter for public debate of which there’s a record. And therefore, the political process provides right to repair advocates a chance to save a statute – at least in theory.
So, I say, we should applaud the apparent conversion of corporations to the right to repair cause. But these corporate commitments should set a floor, not cap the ceiling, for what to expect.
Right to repair advocates have certainly made great strides. But the movement is still far from the finish line.
That means that either federal Fair Repair Act – as mentioned in the first paragraph above and discussed further in my March post – or something similar, along with parallel Federal Trade Commission (FTC) actions, and state initiatives, are all still necessary.
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Re: Useful reference for the article:
https://www.vice.com/en/article/v7dagd/corporate-repair-initiatives-dont-replace-the-need-for-right-to-repair-laws
Relevant definitions in this quote:
“To fix the tractor, Helt had to go to a repair store backed by John Deere. There, a tech could access the Dealer Technical Assistance Center (DTAC), the Product Improvement Programs (PIPS), and ADVISOR. The triumvirate of programs is crucial. DTAC is a database of error codes, PIP helps fix the codes, and ADVISOR allows the repair tech to pair replacement parts with the tractor. Without these programs, it’s impossible to do the repair.”
Long gone are the lost weekends spent hovered over a Chiltons with a rebuild kit while a bored girlfriend exercises her brow muscles. I’m surprised John Deere didn’t figure out a way to integrate a subscription-based service into the mix, where you a buy a license for the Right-to-Repair.
Thanks for your comment. The Motherboard (Vice) article is indeed a useful reference and I cited it in paragraph 3 above. When I saw your comment, I then realized I’d inadvertently omitted a key paragraph in the second U.S. PIRG passage – the one introduced by the phrase, ‘In a nutshell….’
I have restored the missing paragraph, which now appears as para two in the second U.S. PIRG quotation, beginning, “Ken told his dealer technician that he thought his transmission was faulty, but the tech insisted that wasn’t the case….”
Without your comment, I wouldn’t have realized I’d unintentionally failed to include this necessary snippet.
So, thanks again for reading my work so carefully.
This is an important topic, thanks for following it. The DTACs and PIPs terminology was somewhat unfamiliar, and didn’t really google easily as appears Deere specific, so that is only reason why I added that.
With food shortages in the near future due to the Ukrainian war, perhaps this will give those farmers some leverage. Through their representatives in the American Farm Bureau Federation, they could let it be known to Washington that they would gladly try and make up for the shortfall so that there will be no prospect of food riots in American streets in the coming months. Unfortunately, due to the right to repair laws which groups like John Deere have crippled, that they will be unable to increase food production that much as a large percent of American tractors are out at any time waiting for John Deere to get around to them in their sweet time as they are not allowed to repair their own tractors. Sorry. If they can get Washington to unblock John Deere doing this, then that may be an opening to go after other corporations like Apple and Google. Maybe.
Is this sort of sneaky underhanded crap actually taught in Business School? Is it part of the SAT’s? Do college entrance departments screen for it now? Do professors catch students cheating in inventive new ways on exams and pull them aside with advice about going for an MBA and what a perfect fit? Seriously, these guys don’t ever give up.
It’s nuts. It seems to have started with the tobacco company executives making decisions they knew full well would kill people en-mass with horrible gasping deaths, and then spread out to all areas in which financial control over others is exercised institutionally, and somehow wrapped itself up in the insane jingoism of USA USA always right in every way… Then exported internationally as being as American as chewing gum or being better dead than red.
Have you no shame didn’t end it, at all. Instead no shame became the goal.
Having worked for several large-and-on-the-downward-trajectory-but-still-keeping-bonuses-paid corps with large tech divisions, I have a guess as to how this turned into such a sh!tshow: technical support is seen as both a cost and a product, with the end result that it pleases nobody. The idea from management is that ‘support’ – the manuals, the products associated with the manuals, the actual paid engagements for paid technical people to go on site and fix problems, etc – all of that is a product. It has to pay for itself, the company doesn’t give it extra money to keep operating, and when it doesn’t make enough income from support contracts then the people fixing problems are let go and tickets languish without a resolution. When it’s software vaporware and tickets languish without a resolution, oh well. But when it’s harvesting equipment…
One idea I had when reading this was wondering if a cooperative organization of farmers could form their own repair franchise and thereby buy access to the manuals and service systems. When John Deere inevitably has to sell or open source the support division due to harvest failures that cooperative organization would be in position to pressure for the right thing for the farmers to be done, instead of selling it off to another sh!tty company to attempt to exploit in the same way JD did.
A cooperative is a good idea though I doubt John Deere would go along as it stands and it is only a partial and isolated solution at best. We need to do the same thing the European Union has done in protecting right to repair generally.
But with regards to the US domain of farming, I also wonder why individual farmers (business entities basically) don’t tackle John Deere directly. My understanding is that many “farms” are now owned and run by huge industrial scale concerns operating on thousands upon thousands of acres that one would assume have considerable clout even by themselves. Do they get special treatment or would that be the camel’s nose in the tent for smaller operations?
In any event, this seems like yet another generational battle where big money simply never gives up.
Ultimately, this comes down to ownership of the product and as such can only be enforced through appropriate laws. Somewhere along the way the basic principle that when you fork out money for a product, you own it with the only legal connection being the warrantee, has been lost. I think that if the companies were sincere in not opposing right to repair, they would favour strong regulation, as this removes (for them) the free rider problem if one company goes off and does its own thing. Regulations are not a ‘restriction’ on companies if they apply broadly and fairly.
The huge problem of course is that software is intruding into so many products. In the past 2 weeks, two friends have had car problems, and both were seemingly software related, although it was hard to tell. So instead of being able to attempt even a basic fix, they were at the mercy of the affiliated garage. And this of course made it very hard for them to query any bill, as they don’t really know what the issue was, apart from a blinking warning light which (according to google) could have been the result of any number of software or hardware issues.
IIRC, John Deere must comply with R2R requirements in its EU operations. I’ve emailed some contacts to confirm that fact. I’ll update this comment accordingly once I hear back.
I remembered correctly. U.S. PIRG replied with an excerpt from their February
DEERE IN THE HEADLIGHTS II report:
Sorry, I couldn’t figure out how to copy the footnotes, so if you want to see those, you’ll have to click on the above link to the full report.
For many consumer electronics, the energy involved in the manufacturer and disassembly/disposal is now larger than the energy consumed over the useful of the device. The ability to upgrade software/firmware for existing hardware is important for reducing GHG emissions, but this issue is going unaddressed.
The key word in all of this is software. As soon as they put a chip in it, DMCA applies. You can’t touch it or you’ll be circumventing their access controls, which are left completely undefined in the law for maximum applicability to anything from physical obstruction to complete encryption.
John Deere’s tractors. A new chapter of Giles Slade’s extraordinary book “Made to Break: Technology and Obsolescence in America” link: https://archive.org/details/isbn_9780674022034