TPP and a Farmer’s Right to Repair

The Trans-Pacific Partnership (TPP) will make permanent nonsensical laws which prevent farmers from actually owning their farm equipment, and turn farmers that that diagnose, repair, and/or modify their farm equipment into criminals.

First, some background.  TPP is a trade agreement among twelve Pacific Rim countries.  The stated goal of the agreement is to,

“promote economic growth; support the creation and retention of jobs; enhance innovation, productivity and competitiveness; raise living standards; reduce poverty in our countries; and promote transparency, good governance, and enhanced labor and environmental protections.”

The agreement was signed by President Obama’s trade representative on Feb 4th, 2016.   All of the signatory countries must now ratify the agreement for it to come into force.

Senators Rounds and Thune, and Rep. Noem have all indicated varying levels of support for TPP based primarily on the belief that it will benefit SD agricultural exports.  Ken Santema over at SoDakLiberty has done an excellent job covering TPP in SD and among our Congressional delegation.

So how will the TPP make criminals of our farmers?  Essentially, it eliminates a farmer’s right to repair and/or modify many parts of their farm equipment.  Here’s how it works: (I’m no lawyer, so hit me up with corrections)

    1. Modern farm equipment is all computerized.  Software in the farm equipment is used to guide machines, controls engine behavior, respond to various sensors, provide diagnostics, etc…
    2. Manufacturers such as John Deere have copyrighted the software in the farm equipment.  They also create technological measures such as custom connectors or passwords to prevent unauthorized access to the equipment’s software.
    3. When a farmer purchases a tractor from John Deere, John Deere does not transfer ownership to the copyrighted software in the tractor.  Rather, the farmer receives “an implied license for the life of the vehicle to operate the vehicle.”
    4. Section 1201 of the Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works such music, movies, video games, and computer programs.  It wasn’t foreseen at the time, but this also applies to the software in the tractor.
    5. Since there is are “technological measures” in place to protect the tractor’s software, any access to the tractor’s software by the farmer is thus illegal.  This severely limits what a farmer can do on his/her own tractor without Here is a better explanation and real-world example.
    6. The TPP contains much of the worst parts of the DMCA such as section 1201 mentioned above.  And once the TPP is ratified, it will become much more difficult for Congress to reform or make common sense updates to the DMCA such as a farmer’s right to repair.

Followers of this issue may note that the DMCA does allow for temporary exemptions to section 1201.  The High Plains Ag Journal has a good explanation of a recent exemption for tractors and the limitations of that exemption.

The TPP allows for this same exemption process, but TPP does not authorize the making available of devices to allow the exemptions to be exercised.  So under the TPP, even if an exemption is made to allow a farmer to access the software on his/her tractor, it will still be illegal for anyone to sell him/her the equipment to do so.

The TPP will affect the rights of more than just farmers.  The EFF has a great summary of how TPP will affect the rights of nearly every American.

Congressional Republicans have postponed the vote to ratify the TPP until after the Nov 2016 elections.  If you care about preserving your digital rights, be sure to let our congressional delegation know about it.

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