Review – S 3068 Introduced – AG Right-to-Repair

Sen Welch (D,VT) introduced S 3068, the Freedom for Agricultural Repair and Maintenance (FARM) Act. The bill would require covered original equipment manufacturers (OEM) to make available any documentation, part, software, firmware, or tool intended for use in order to diagnose, maintain, upgrade, reprogram, or repair farm equipment. It would also require OEM to make available to owners any farm equipment data generated by the farm equipment of the owner. No new funding is authorized by this bill.

The bill is very similar to HR 5604, the Agricultural Right to Repair Act, introduced by Rep Perez (D,WA) in September 2023. No action was taken on that bill in the 118^th Congress. Most of the differences between the two bills are editorial. The major changes in S 3068 include:

Removing the definition of the ‘embedded software’,

Adding the definition of ‘maintenance’, and

Adding additional enforcement authority for the FTC.

Moving Forward

While Welch is not a member of the Senate Commerce, Science, and Transportation Committee to which this bill was assigned for consideration, one of his two cosponsors, Sen Fetterman (D,OH) is a member. This means that there may be sufficient influence to see the bill considered in Committee. I suspect, however, that there will be substantial opposition to this bill among the Republican members of the Committee, so the bill will not likely be taken up by the Committee.

 

For more details about the provisions of this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/s-3068-introduced-ag-right-to-repair - subscription required.

Review - HR 5857 Introduced – FARM Act

Last month Rep Perez (D,WA) introduce HR 5857, the Freedom for Agricultural Repair and Maintenance (FARM) 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.

This bill is similar in intent and scope to HR 5604, the Agricultural Right to Repair Act, that was introduced by Perez in September 2023. No further action was taken on that bill in the 118^th Congress. Most of the changes were differences in wording that would be of interest only to litigators, but there were two significant differences. First HR 5857 added definitions of two new terms; ‘maintenance’, and ‘repair’, as well as removing the definition of the term ‘embedded software’. Secondly, it added potential civil penalties to the FTC enforcement provisions.

Moving Forward

Neither Perez, nor any of her three 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.

 

For more information about the provisions of this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-5857-introduced-farm-act - subscription required.

CRS Reports – Week of 7-13-24 – Automotive Right-to-Repair

This week the Congressional Research Service (CRS) published a report on “Access to Motor Vehicle Software and Data”. This report is a relatively lengthy discussion of the issues related to the ownership and use of data produced by and stored in modern motor vehicles. It includes an analysis of HR 906 (has not been covered here), the Right to Equitable and Professional Auto Industry Repair (REPAIR) Act, which addresses those issues.

Sections of the report addresses: 

• Motor Vehicle and Aftermarket Industries,

• Software-Defined Vehicles (SDVs),

• Potential Direct OEM-Consumer Relationship and Bypass of Dealers,

• Executive Branch Oversight of Aftermarket,

• Copyright Laws Related to the SDV Aftermarket,

• State Laws and Reactions: 2012-2024, and

• Options for Congress

In the discussion about copyright laws (particularly 17 USC §1201), there is a detailed (and thoroughly footnoted) review of the proposed extension of the Library of Congress’ current exemption “{§1201(a)(1)} allowing a person may circumvent access controls on computer programs when doing so is a necessary step for diagnosing, maintaining, or repairing a motorized land vehicle, such as a personal automobile or commercial vehicle. The current exemption expires on October 27^th, 2024.

Review - HR 8544 Introduced – Right-to-Repair

Back in May, Rep Morelle (D,NY) introduced HR 8544, the Fair Repair Act. The bill would establish a requirement for original equipment manufacturers to make available “documentation, parts, and tools, inclusive of any updates to information or embedded software” for the purpose of diagnosis, maintenance or repair of equipment sold or used in the United States. It would also make the Federal Trade Commission the agency responsible for enforcement of the requirement.

Morelle introduced a similar bill last session, HR 4006 (removed from paywall). No action was taken on that bill. There have been significant changes made from that earlier version.

Moving Forward

Neither Morelle or his three cosponsors are members of the House Energy and Commerce Committee to which this bill was assigned for consideration. Generally, this means that the Committee is unlikely to consider this bill. If the bill were to be considered in Committee, it would almost certainly draw significant opposition from Republicans supporting manufacturers, and from some Democrats for privacy issues. There may not be enough votes to move the bill forward because of that opposition.

Commentary

This bill addresses an issue of some importance, but I think that more works needs to be done on the concept.

There is one particular piece that deserves specific attention, the provision concerning security measures. If this were included in a bill written by some law-and-order Republican, I would suspect that §4(1) was specifically included to provide police with a way to get around encryption on computers and communication devices. Limitations need to be put into place to ensure that this is not a tool to get around self-incrimination protections.

 

For more details about the provisions of the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-8544-introduced - subscription required.

Review - 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.

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.

 

For more details about the provisions of the bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-5604-introduced - subscription required.

Review - HR 6566 Introduced – Right-to-Repair

Last week, Rep Jones (D,NY) introduced HR 6566, the Freedom to Repair Act of 2022. The bill would amend 17 USC 1201 to establish a new class of exemptions to the prohibition against the circumvention of copyright protection and management systems for the diagnosis, maintenance, and repair of certain digital electronic equipment.

Moving Forward

Both Jones and his sole cosponsor {Rep Spartz (R,IN)} are members of the House Judiciary Committee to which this bill was assigned for consideration. This means that there may be sufficient influence to see this bill considered in Committee. There is sure to be some opposition to this bill from supporters of the software industry and some equipment manufacturers, but I suspect that there would be sufficient bipartisan support to see this bill pass out of Committee. I do not think, however, that that support would be sufficient to move the bill to the floor of the House under the suspension of the rules process, since that would require a super majority for passage.

I do not think that this bill is ‘important enough’ to see it considered under the regular order. It could however be considered as an amendment to some other bill, either from the floor or through the committee process.

Commentary

The right-to-repair movement is gaining steam in many sectors of the economy. This may still be too early in the growth of that movement for this bill to make it through the legislative process, but it is certainly heartening to see it being offered.

Having said that, it disappoints me to see that the crafters of the bill ignored the fact that the lack of definitions for certain key terms (‘diagnosis’, ‘maintenance’, and ‘repair’ in particular) used in this bill make the provisions so vague as to gut the legitimate protections of the intellectual property rights of the developers and vendors protected by §1201. I do not have any definitions to offer at this time, but something will have to be done along those lines before industry objections to legislation of this type can be overcome.

 

For more details about this bill, see my article at CFSN Detailed Analysis - https://patrickcoyle.substack.com/p/hr-6566-introduced - subscription required.

Review - HR 4006 Introduced – Fair Repair Act

Last month, Rep Morelle (D,NY) introduced HR 4006, the Fair Repair Act. The bill would establish a requirement for original equipment manufacturers to make available “documentation, parts, and tools, inclusive of any updates to information or embedded software” for the purpose of diagnosis, maintenance or repair of equipment sold or used in the United States. It would also make the Federal Trade Commission the agency responsible for enforcement of the requirement.

Neither Morelle or his sole cosponsor {Rep Khanna (D,CA)} are members of the House Energy and Commerce Committee to which this bill was assigned for consideration. Generally, this means that the Committee is unlikely to consider this bill. If the bill were to be considered in Committee, it would almost certainly draw significant opposition from Republicans supporting manufacturers, and from some Democrats for privacy issues. There may not be enough votes to move the bill forward because of that opposition.

For more details about the provisions of the bill and my suggestions for improvements, see my article at CFSN Detailed Review - https://patrickcoyle.substack.com/p/hr-4006-introduced - subscription required.