The battle for the “right to fix” is just beginning
Prior to January’s “Memorandum of Understanding” regarding a “farmer’s right to repair” his farm machinery, American equipment makers and their farm and ranch customers engaged in a legal and legislative battle over who could repair today’s complex farm machinery — the customer who owned or rented them, or the manufacturer who designed, built and carried the warranty.
But agricultural law experts say the announced memorandum of understanding between Deere & Co. Inc., the world’s largest manufacturer of agricultural machinery, and the American Farmers Federation, the nation’s largest agricultural group, are not enforceable.
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In fact, they explained, the “Understanding” does not provide legally binding rights for farmers or manufacturers and does not preclude any farmer or agricultural group from continuing their judicial and legislative battles for their “right to reform.”
This fight – and its hollow truce – is one that few would have expected a generation ago. At the time, farmers and ranchers routinely dealt with equipment repairs as simple as changing a tractor’s oil or as complex as rebuilding its engine.
Today’s agricultural machines, especially tractors and combines, are more software-driven than diesel and their day-to-day performance oscillates in electronics and algorithms such as cylinder pressure and hydraulic couplings.
Farmers quickly learned to love and hate this complexity. At peak performance, the machine is a highly productive, semi-survival partner that eats acres and performs tasks that a machine might not have even attempted 20 years ago.
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At its worst, however, it’s a silent pile of costly steel and cold cast iron until some deranged-cheeked dealer technician shows up to reset an inaccessible key or bypass some obscure and proprietary computer code.
Thus, the battle to fix: Farmers and ranchers want machine makers like Deere and CNH Industrial, owners of Case IH and New Holland, to give them access to the information and tools they need to do what they’ve been doing since the dawn of agriculture: repair their tools without extra cost or delay.
When private pressure failed to provide such access, farmers began to lobby both state legislatures and Congress for the right. Civil lawsuits soon followed—16 in all, now consolidated into a federal class action.
The AFC claims it worked to secure the monastery agreement — and, on March 9, a similar memorandum of understanding with Case IH — because its members wanted to de-escalate the escalating fighting while gaining a clear understanding of what they could and could not fix.
The six-page January memo outlines some of the sticking points between farmers and manufacturers. But critics and lawyers say most of its language is too broad and vague to make legal sense.
In fact, the memorandum, says Anthony Schutz, associate dean of the University of Nebraska Law School, “is a press release at best. It creates no rights by any party” and “none of them are enforceable by any entity.”
Why secure a non-binding agreement that gives farmers no new right to reform?
That — and the subsequent AFBF/Case IH deal — “reduces the political pressure (machinery makers) were getting statewide” from farmers and farm groups on reform issues, says Schutz.
“At the same time, the Bureau of Agriculture knew it could not continue to push state legislators against farmers’ rights reform without causing trouble for itself.”
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Evidence for this analysis came a month after the Deere/AFBF deal. On February 20, the Colorado House of Representatives passed the state’s Right to Repair Act over the objections of the machine makers and a state farm office subsidiary remarkably quiet.
Moreover, Kevin O’Reilly, right-to-fix campaign director for public interest research groups, predicts that the Colorado resolution passed by the House will pass the Senate and be signed into law by the end of March.
The reason is simple, he says: “The MOUs between the farm bureau and the machinery companies misunderstand the depth of anger among farmers over this issue. When enough states pass enough of their reform laws, Congress will act.”
If it’s the federal courts, don’t rule against the machine makers first.
Either way, the MOUs were more of an understatement than an MOU because this fight is just beginning.
Alain Joubert is an agricultural journalist. See previous columns in Farmandfoodfile.com. © 2022 ag comm