This month the U.S. Copyright Office will hear arguments on the pros and cons of letting farmers repair the software that runs agricultural machinery, but not a single representative from a farmers union is scheduled to speak at the upcoming hearing in California.
Although farmers are limited in making their own repairs to modern tractors and other agricultural machinery without access to the software, very few farmers have shown an interest in the debate on whether they should be allowed to diagnose, repair and modify the software in agricultural machinery. Currently only dealers, original equipment manufacturers and licensed repair companies can do these tasks.
Surprisingly, an assortment of other groups have taken it upon themselves to make comments to the Copyright Office concerning farmers.
“Farmers are left at the mercy of their equipment dealer’s time schedules and fee schedules” to make repairs, wrote an assistant law professor, Dan D. Nabel, and a handful of law students from the University of Southern California’s Intellectual Property and Technology Law Clinic in their 22 pages of comments.
To modify machinery to run differently than the manufacturer settings, some farmers have turned to an anonymous man who has hacked the software of all types of agricultural machinery – apparently in violation of copyrights – except Caterpillar models which were too difficult to crack, according to Nabel. The vendor sells software programming and “modules” to farmers to make their machinery run faster or save on gas, and he might gain more clients if his work actually becomes legal.
Other comments to the Copyright Office came from Kyle Wiens, who made headlines in April with his widely republished article from Wired titled, “We Can’t Let John Deere Destroy the Very Idea of Ownership.” In that article, he described his farmer friend Kerry Adams who could not repair his transplanter without accessing the software. Wiens had written about Kerry Adams and the broken transplanter two years earlier for Wired in an article titled, “Forget the Cellphone Fight – We Should Be Able to Unlock Everything We Own.”
In comments to the Copyright Office, Wiens wrote about another farmer friend – referred to only as “Dave” – who would “like to troubleshoot error codes. Most of all, he’d like to be able to repair his equipment himself – because it’s what he’s been doing all his life.” In reality, Dave had asked Wiens to repair his $100,000 tractor, according to the comments, but Wiens was unsuccessful because he could not access the software.
Wiens is the co-founder of a company that sells repair parts and tools. His company, iFixit, employs more than 50 people in its 17,000-square-foot headquarters in San Luis Obispo, Calif., and makes more than $10 million in revenue a year. It’s likely that parts, tools and services for repairing agricultural machinery would be quickly added to his offerings should the Copyright Office vote favorably this summer.
To promote access to farm equipment software, Wiens has founded the Digital Right to Repair Coalition. The Coalition solicited more than 2,000 signatures to a two-paragraph statement submitted to the Copyright Office including these words: “I should have the right to remix, modify, and repair the things that I own. As electronics are integrated into every kind of product, please consider the needs of consumers as well as rights holders.”
Nabel and Wiens are two of the five scheduled speakers who will argue at a hearing of the Copyright Office in Los Angeles May 19th in favor of allowing farmers and others access to the software in agricultural machinery. Organizations scheduled to argue against access to the software are General Motors and the Alliance of Automobile Manufacturers.
Where are the farmers?
Although an organization called Farm Hack submitted one page of comments to the Copyright Office supporting access to software, the group doesn’t have anyone scheduled to speak at the debate in California. Farm Hack was founded in 2010 and is a community of farmers, engineers, and technologists who want to make farm tools and equipment more accessible and adaptable for small and medium farms.
It is possible that some farmers haven’t gotten involved because they don’t own their machinery, but lease it, rent it or hire-out the work. Maybe others just don’t want to learn the software programming required to diagnose, repair and modify the software in agricultural machinery.
“Individual vehicle owners do not have the technical resources to provide safe, reliable and lawful software for repair, diagnosis, or some dubious ‘aftermarket personalization, modification, or other improvement,’” an attorney for agricultural machinery manufacturer Deere & Company, also known as John Deere, told the Copyright Office.
Deere’s attorney argued that allowing access to the software “will make it possible for pirates, third-party software developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software designed by leading vehicle manufacturers and their suppliers.”
That might not be all bad for farmers, who could benefit from having more repair companies to choose from, even if the farmers never did their own repairs. More options could give them more convenience, or better pricing.
However, there is also the possibility that letting untrained people tinker with the software in agricultural machinery could cause unintended consequences, such as poor performance, breakdowns, injuries, pollution or lowered resale values.
The Copyright Office will hear debate on the issue in Los Angeles on May 19 and in Washington, D.C., later in the month. The Copyright Office will issue a decision over the summer. For more information about the debate, go to www.copyright.gov/1201/.
Dayna J. Sondervan is an attorney based in Atlanta, Georgia and can be reached at dayna.sondervan@gmail.com. As an attorney since 1994 and a former Vice President & General Counsel of a company, she has experience in a wide range of legal issues that confront businesses. She also has served on a Georgia Senate Lien Law Study Committee helping to draft new lien legislation, and she has been admitted to practice before the Supreme Court of the United States. Ms. Sondervan's articles are for general information only and subject to editing, and readers should consult an attorney for legal advice about current laws and options that apply to their situation.