About the curious case of the “right to repair” and how the USCO has enacted an exception.

//About the curious case of the “right to repair” and how the USCO has enacted an exception.

About the curious case of the “right to repair” and how the USCO has enacted an exception.

American farmers pirate their own tractors.

About the curious case of the “right to repair” and how the USCO has enacted an exception preventing abuse by vehicle manufactures.

All of us who dedicate ourselves to this matter, we are a staunch supporter of industrial and intellectual property rights, but as in everything else, we must establish limits to them insofar as they affect the rights of third parties.

The inclusion of complicated software in agricultural vehicles, protected by intellectual property rights, prevents a farmer from repairing his tractor in his village or nearby villages and forces him to take it to an official workshop more than 200 km away, since he cannot violate the software implemented in the vehicle.

In vehicles costing more than $200,000, the famous manufacturer John Deere has come to affirm “that farmers do not own the tractors for which they pay hundreds of thousands of dollars, but receive a” license to operate the vehicle. They block users in license agreements that prohibit them from even consulting the software running the tractor or the signals it generates. All this to prevent repairs from being carried out by workshops outside the brand.

Farmers and mechanics have been downloading pirated software and tools from John Deere sites. The decryption software mostly comes from Eastern European countries and enables the on-board software to be decrypted and the factory settings for the vehicle to be changed. You can download a pirated copy of John Deere Service Advisor, a program used by dealership technicians that allows them to calibrate the engine.

With this in mind, we would not then be faced with a contract for the sale and purchase of an agricultural vehicle, but rather with a contract for the use of agricultural machinery, so there would not have been any deception when signing a contract for the sale and purchase, was the farmer duly informed that it did not constitute a contract for the sale and purchase, but rather for the transfer of use, and was he warned of all this?

If not, in my view, there is a prior breach of contract that would invalidate any software infringement action that the farmer legitimately takes to repair his vehicle.

Currently, proposed Right to Repair laws (known as the Fair Repair Act in some states) are designed to make it easier for people to repair their broken electronic equipment, such as mobile phones, computers, appliances, cameras, and even tractors. The legislation would require manufacturers to disclose repair information to the public and sell spare parts to independent owners and repairers. If passed, the laws would give consumers more options than just the manufacturer to repair.

In addition to Illinois and Tennessee, Right to Repair laws have been introduced in Massachusetts, Nebraska, New York, Minnesota, Kansas and Wyoming. (Kansas and Wyoming bills target farm equipment and vehicles, while the rest of the bills attempt to cover the repair of any equipment with integrated electronic components.

Faced with this overstepping of the law and the extremely serious facts that represent a disguised limitation to the right of use and full enjoyment of property rights, the IPR Office has taken up the matter and issued a software infringement exception on agricultural vehicles.

The Millennium Digital Copyright Act, which specifically prohibits circumvention of encryption imposed by manufacturers wishing to protect their intellectual property, issued every three years by the U. S. Copyright Office, issued exemptions to section 1201 of the Millennium Digital Copyright Act and, last October, the new list of exemptions included “TRACTORS.

The exemption allows for the modification of’ software which is contained in and controls the operation of a motorised land vehicle, such as a personal car, commercial vehicle or mechanised agricultural vehicle’, provided that’ circumvention is a necessary step taken by the authorised owner of the vehicle to enable the diagnosis, repair or legal modification of a vehicle function’. This means that it is legal for U. S. farmers to pirate software built into their tractors, provided they do not alter the parts of the programs that control emissions.

It is certainly gratifying to see how an organization like the USCO, knows how to set limits to those who try to overstep the scope of their rights.

Nemesio Fernández

 

By | 2017-12-17T19:33:12+00:00 December 17th, 2017|intellectual property|0 Comments

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