HR 5604 Introduced - Agricultural Right to Repair
Last month, Rep Perez (D,WA) introduced HR 5604, the Agricultural Right to Repair Act. The bill would require original equipment manufacturers (OEM) to provide owners and repair providers with the tools, parts, and documentation required “for use in order to diagnose, maintain, or repair farm equipment”. It would make the Federal Trade Commission (FTC) responsible for enforcing rules related to the requirements of this legislation. No additional funding authorization is provided in the bill.
Definitions
Section 2 of the bill provides the definition of 15 key terms used in the legislation. These definitions include the following technical terms:
The definition of the term ‘fair and reasonable cost’ is extensive and goes past the scope of a normal definition by establishing guidelines for determining what is a fair and reasonable cost for:
Tools, and
OEM Requirements
Section 3 of the bill establishes requirements for agricultural original equipment manufacturer. In general, OEM would be required to make available:
To any owner or independent repair provider, any documentation, part, software, firmware, or tool intended for use in order to diagnose, maintain, or repair farm equipment,
To the owner or with the authorization of the owner to an independent repair provider, any farm equipment data generated by the farm equipment of the owner, and
To any owner or independent repair provider, any documentation, part, software, or tool required to disable or enable an electronic security lock or other security-related function of farm equipment.
Subsection (c) deals with copyright issues related to the right-to-repair. It would allow any person to “circumvent a technological measure that effectively controls access to a work protected” under 17 USC, Copyrights, to:
Diagnose, maintain, upgrade, reprogram, or repair farm equipment,
Enable interoperability with any computer program or device used in farm equipment,
Conduct security research relating to farm equipment, or
Enable non-infringing modification of any computer program or device used in farm equipment.
To make those rights effective paragraph (2) specifically allows any person to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof that is primarily designed or produced for the purpose of or use in circumventing a technological measure that effectively controls access to a work” protected under 17 USC.
FTC Oversight
Section 4 provides that a violation of the OEM requirements outlined in the bill will be deemed to be ‘unfair or deceptive practices’ under FTC regulations {15 USC 57a(a)(1)(B)} and would require the FTC to enforce provisions of this legislation and any resulting regulations as if “all applicable terms and provisions of the Federal Trade Commission Act” were specifically incorporated in the bill.
Section 5 of the bill would require the FTC to promulgate such regulations as are necessary to carry out the provisions of this Act. Subsection (b) requires that those regulations would be incompliance with 40 CFR 1068.101(b)(1) and (b)(6), the EPA rules prohibiting the disablement of emissions control devices.
Safety Exceptions
Among the ‘limitations’ outlined in Section 6 of the bill on the requirements for OEM, paragraph (5) outlines the safety and environmental limitations on the right-to-repair requirements outlined in the Act. It notes that OEM are not required to allow:
Any modification that permanently deactivates a safety notification system when farm equipment is being repaired,
Access to any function of a tool that enables the owner or independent repair provider to change the settings of farm equipment so as to bring the equipment permanently out of compliance with any applicable safety or emissions laws,
The evasion of emissions laws or copyright laws, or
Any other illegal modification activities.
Moving Forward
Neither Perez, nor any of her four cosponsors, are members of the House Energy and Commerce Committee to which this bill was assigned for consideration. This means that there would not be enough influence to see this bill considered in Committee. While I expect that this bill would have significant bipartisan support in the agricultural community (and that is a large block of Congress), there would be significant opposition to the provisions of this bill among original equipment manufacturers and their authorized dealers. The Ag community support in the Energy and Commerce Committee (selected for primary consideration because of the FTC provisions in the bill) would probably not be strong enough to overcome the OEM influences. I doubt that this bill would be reported favorably in that Committee without significant changes being made.
Commentary
An important provision (for the purposes of this blog at least) is quietly buried in §3(c)(1)(C). It specifically allows for security researchers to “circumvent a technological measure that effectively controls access to a work protected under” the copyright protections of 17 USC. Allowing such researchers access to the underlying software for the purposes of identifying vulnerabilities is an important part of the right-to-repair movement. I was very happy to see this provision included in the bill.