During the 2017 legislative session, Nebraska, Kansas, Minnesota, Massachusetts, New York, and Wyoming are holding hearings for newly-proposed bills concerning an individual’s “Right to Repair”. Right to Repair Bills first surfaced in the early 2000’s following the growing presence of computers and electronic components in automobiles (such as the On-board diagnostics (“OBD”) II port, federally mandated to be installed in all the 1996 and later model year vehicles). The original Right to Repair bills were drafted to provide independent repair shops with the same access as dealerships to the devices and tools necessary to fix computer and electronic component-based issues in automobiles. These bills were introduced in Connecticut, Illinois, Massachusetts, New Jersey, New York, Oklahoma, and Oregon, with Massachusetts adopting provisions in 2012 and 2013.

Since then, the subject matter in proposed Right to Repair bills has expanded to more sectors in the automobile industry (e.g. diagnostic and service manuals), but also to new industries such as the home appliance, tractor manufacturing, and consumer electronics industries. The expanded-subject Right to Repair bills focus on providing independent repair shops the same access rights as authorized retailers and repairers, but have been met with opposition. For example, Apple, Inc. has been a longstanding opponent of Right to Repair bills, which would potentially require the corporation to provide Apple product parts and diagnostic manuals to consumers and independent repair shops. The main focus of Apple, Inc.’s argument has traditionally been concerns about a lack of safety that may come with an untrained individual attempting to repair sensitive internal components.

John Deere, General Motors (“GM”), and other automotive companies (Original Equipment Manufacturer’s – “OEMs”) have also resisted the expanded-subject Right to Repair bills, but via a different route than appealing to concerns about a lack of safety. In early 2015, a group of OEMs (including John Deere annd GM) submitted an inquiry to the Copyright Office requesting a determination about what protections the Digital Millennium Copyright Act (“DMCA”) affords them. The submission for an inquiry focused on the idea that proprietary and copyrightable software code is now so integrated into modern tractors and cars that an individual purchases only an “implied license for the life of the vehicle to operate the vehicle” from the corporations, and not the actual vehicle1. The OEMs voiced concerns of copyright infringement, stating that “[a]llowing anyone to alter the software integrated into the machinery, even if only to perform repairs, would ‘make it possible for pirates, third-party developers, and less innovative competitors to free-ride off the creativity, unique expression and ingenuity of vehicle software.’ ”2  The only suitable alternative, according to the OEMs, was that the purchaser of the “implied license” should be required to service the vehicle at a certified dealership or repair shop, to ensure the proprietary software code is properly protected from infringement.

However, proponents of copyright reform such as the Electronic Frontier Foundation (“EFF”) and the Intellectual Property & Technology Law Clinic, as well as tens of thousands of consumers, sent comments to counter the 2015 inquiry3. In November of 2015, the Copyright Office issued exemptions to the DMCA which included “[c]omputer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, … when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function, … provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.”4 With the enactment of these exemptions, proponents of copyright reform believed at least a partial victory for the Right to Repair had been won.”5

But why only a partial victory? While the exemptions to the DMCA for select automotive software appear to represent a positive step for an unhindered Right to Repair, the positive step is only temporary, with DMCA exemptions lasting only for a period of three years. Perhaps recognizing this, legislation is introduced every session in an attempt to more permanently protect an individual’s Right to Repair. In the case of state legislature-introduced bills, those introducing the new bills likely hope that passage will signal Congress to take initiative. If no changes are made to the applicable sections of copyright law before the three-year exemption period is up, however, the battle for an individual’s Right to Repair will begin again.

One such piece of new legislation is proposed Nebraska bill, LB67, submitted by Senator Lydia Brasch of the 16th Legislative District of Nebraska. LB67 follows 2015 NEB LB1072, and attempts to grant owners and independent repair shops the Right to Repair utside of OEM purview. Senator Brasch explained the intent behind LB67 to Popular Mechanics, stating that “[t]he primary impetus is that [Nebraska is] an agricultural state. One out of every four jobs is connected to agriculture. When you work in farming, you are tied to weather restrictions—planting, harvesting, all have to take place when the weather is holding. When [farmers] have an equipment breakdown, sometimes there’s a waiting period to get repairs down. At the same time, you’re chasing daylight, and you’re helpless during that period of time to diagnose, to maintain, or to repair your own equipment as you had in the past. Farmers are falling behind waiting in the queue for someone to work on their equipment.”6

LB67 would require OEMs to give independent repair providers or owners “diagnostic and repair documentation, including repair technical updates and updates and corrections to embedded software, for no charge or in the same manner as … available to its authorized repair provider”. (§ 3(1)(a)). Additionally, LB67 would require OEMs to allow for the purchase of “equipment, inclusive of any updates to the embedded software of the equipment”, provided the parts are still available to the OEM dealership or authorized repair shop. (§ 3(1)(b)). Further, LB67 would require OEMs to allow independent shops and owners to purchase “all diagnostic repair tools incorporating the same diagnostic, repair, and remote communications capabilities” provided to the OEM dealership or authorized repair shop. (§ 3(3)). LB67 also includes language designed to reduce the increased burden being an authorized repair shop provides, requiring an OEM to stop requiring authorized repair shops to purchase proprietary versions of documentation otherwise available to independent shops and owners in a standardized format. (§ 3(2)).

The hearing for LB67 is scheduled for March 9th, 2017, at 1:30 PM in the Room 1113 of the State Capitol in Lincoln, NE. Interestingly, one list of potential industry representatives attending the hearing includes representatives from Apple, Inc. and AT&T, who would likely again voice concerns about the lack of safety in independent repair shops working with sensitive internal components – a position that may have increased foothold, due in part to recent consumer electronics issues such as the Samsung Galaxy S7. While there is no current indication whether OEMs such as John Deere or representatives of the automotive industry will be making an appearance, an appearance by these OEMs would not be surprising, given the focus of LB67. As someone who works on his own vehicles with some frequency (even though only as a hobby), I know I am interested in the outcome of LB67, and plan on attending the hearing. 

A direct link to Nebraska LB67: Adopt the Fair Repair Act may be found at http://nebraskalegislature.gov/FloorDocs/105/PDF/Intro/LB67.pdf.

Suiter Swantz IP is a full-service intellectual property law firm serving all of Nebraska, Iowa and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark or copyright matters and would like to speak to one of our patent attorneys please feel free to contact us.

1 Wiens, Kyle, We Can’t Let John Deere Destroy the Very Idea of Ownership, Wired, April 21, 2015, https://www.wired.com/2015/04/dmca-ownership-john-deere/



4 Brachman, Steve, Copyright Office issues DMCA exemptions for automotive software, jailbreaking smart TVs, IP Watchdog, November 9, 2015, http://www.ipwatchdog.com/2015/11/09/copyright-office-dmca-exemptions-for-automotive-software-jailbreaking-smart-tvs/id=62834/.


6 Grossman, David, “Right to Repair” Is About a Whole Lot More Than iPhones, Popular Mechanics, February 16, 2017, http://www.popularmechanics.com/technology/infrastructure/a25246/right-to-repair-legislation-under-fire-in-nebraska/