John Deere is at it again, trying to strip customers of the right to open up and repair their own property. In the new License Agreement for John Deere Embedded Software [PDF], customers are forbidden to exercise their repair rights or to even look at the software running the tractor or the signals it generates.
The document purports to govern "any Software, data files, documentation, engine calibration tables, proprietary data messages, and controller area network (CAN) data messages that are in or communicated to or from any" covered product. Many of these items are numerical values that do not contain any copyrightable expression. The document forbids you to, among other things, "modify," "reverse engineer," or "reproduce" the covered information. These are necessary steps to understanding, repairing, and improving upon your equipment.
Previously, John Deere argued that Section 1201 of the Digital Millennium Copyright Act gave it the power to veto independent repair, audits, and innovation. We, along with a coalition of public interest groups and interested members of the public, persuaded the Librarian of Congress that manufacturers like John Deere should not have such anticompetitive power over their customers, resulting in a temporary exemption to Section 1201 liability for vehicle repair and modification.
The new License Agreement is John Deere’s attempt to write its own private law. It’s perfectly legal under copyright law to repair your own equipment, reverse engineer its software, and tinker with it to meet your needs. But where your rights interfere with manufacturers’ ability to extract the most possible value from you, documents like the License Agreement are the go-to method for them to make your rights disappear. Often this happens without your knowledge – what fraction of the software licenses in your life have you actually read? If it’s more than “zero,” you’re in the minority. Even if you did read them, you would have no opportunity to negotiate and often no market alternative to accepting such one-sided terms.
Companies should not be allowed to strip customers of fundamental rights via bogus contracts. Congress took its first step towards recognizing this principle when it passed the Consumer Review Fairness Act this year, protecting your right to post negative reviews even if the subject of the review got you to “agree” that you wouldn’t via a form contract. We have also argued that existing doctrines of state contract law should protect fundamental rights – like speech rights – from surprising terms in bogus contracts such as clickwrap terms.
Ownership of personal property isn’t just for big companies. We will continue to fight to ensure that when you buy something, you can use it, fix it, understand it, and even improve on it. In other words, that you can actually own it.
