On April 25, 2023, Colorado’s Democratic Governor Jared Polis signed the Consumer Repair Bill of Rights Act (the “Act”) into law. The Act is the first right to repair law for farms in the United States and requires manufacturers to provide resources so farms can repair farm equipment themselves.

There has been a growing conversation in recent years about planned obsolescence in hardware, where companies intentionally design a product with an artificially limited useful life or frail design so that it becomes obsolete after a pre-determined period, as well as about companies restricting consumer access to proprietary information necessary to repair hardware. These factors have led some to push for rights to repair requiring companies to provide information necessary for consumers to make repairs or bans on planned obsolescence. In the agricultural space, modern farm equipment is as complex as any other technology and often requires proprietary information from manufacturers to repair. Without right to repair protections, farms have relied on representatives of manufacturers or dealers to repair broken equipment, which can result in long delays that impact farm productivity.

Key Provisions of the Consumer Repair Bill of Rights Act

Section 3 of the Act requires original equipment manufacturers to make available to independent repair providers and owners of the manufacturer’s equipment the following information: documentation, parts, embedded software, embedded software for agricultural equipment, firmware, or tools, or with owner authorization, “data.”

The manufacturer must provide this information with fair and reasonable terms and costs, which cannot discourage or disincentivize repairs to be made by an owner or independent repair provider. The definitions of “equipment,” “agricultural equipment,” and “data” are important in interpreting the scope of the Act.

• “Equipment” includes a powered wheelchair or agricultural equipment.
• “Agricultural equipment” includes a tractor, trailer, combine, sprayer, tillage implement, baler, and other equipment used to plant, cultivate, or harvest agricultural products or ranch, and attachments and repair parts for any of such equipment. “Agricultural equipment” does not include a self-propelled vehicle designed primarily for the transportation of individuals or property on a street or highway, a powersports vehicle, an aircraft, or equipment designed and used primarily for irrigation purposes.
• “Data” means transmitted or compiled information arising from the operation of an owner’s agricultural equipment or its parts.

For equipment that contains an electronic security lock or other security-related function, a manufacturer must make available to independent repair providers and owners (also with fair and reasonable terms and costs) the types of information needed to reset the lock or function when disabled in the course of providing services. The manufacturer can use appropriate secure release systems.

Protections for Manufacturers and Dealers

The above requirements do not apply, and the manufacturer does not need to provide such information in the following circumstances:

• If the manufacturer would need to divulge a trade secret, except that the manufacturer cannot refuse to provide required information if the information itself is a trade secret; or
• A manufacturer can withhold information regarding a component of, design of, functionality of, or process of developing a part, embedded software, embedded software for agricultural equipment, firmware, or a tool if the information is a trade secret and usability to provide services is not diminished.

The Act provides certain protections for manufacturers and dealers. Manufacturers and dealers are not liable for faulty or otherwise improper repairs provided by independent repair providers or owners. A manufacturer that provides data to an independent repair provider in compliance with the Act is not responsible or liable to the owner, the independent repair provider, or any other person for any action that the independent repair provider or any other person takes while using or relying on the data.

Section 4 of the Act clarifies that nothing in the Act authorizes an independent repair provider or owner to:

• Make any modification to agricultural equipment that deactivates a safety notification system, except as necessary to provide services;
• Access any function of a tool that enables the provider or owner to change the settings for a piece of agricultural equipment in a manner that brings the equipment out of compliance with the law, except as necessary to provide services;
• Evade emissions, copyright, trademark, or patent laws; or
• Engage in any other illegal equipment modification activities.

Contractual provisions that waive or limit the manufacturer’s obligations under the Act that are entered into after January 1, 2023, are void and unenforceable.

However, if a manufacturer enters into or is covered under a nationwide memorandum of understanding (“MOU”) regarding a right to repair agricultural equipment, then the MOU governs, except if compliance with the MOU would deny the owner any rights under the Act. A manufacturer that enters into an MOU must still comply with the Act.

An MOU is a voluntary agreement between manufacturers (and sometimes independent repair providers as well) wherein manufacturers agree to provide certain standardized information and tools to independent repair providers and owners to allow them to make repairs themselves. An MOU allows parties in a particular industry to set uniform standards for self-repair in that industry. The Act simply clarifies that it does not affect the effectiveness of an MOU unless the MOU conflicts with or violates the Act.

Section 5 of the Act states that the Act will be repealed if Congress enacts federal legislation establishing a right to repair agricultural equipment.

Next Steps for Farms

Colorado farms should no longer accept long wait times to have farm equipment serviced and should exercise their rights under the Act by requesting information necessary to repair their equipment and reset electronic security locks. This can include proprietary information and, if the information is itself a trade secret, trade secrets.

Farms and independent repair providers will remain responsible for their own faulty or improper repairs and cannot recover from manufacturers if they rely on information provided under the Act. They should continue to exercise caution and diligence in performing their own repairs.

Farms should be careful not to run afoul of the listed items in Section 4 of the Act - disabling safety notifications, bringing equipment out of compliance with the law, evading emissions or intellectual property laws, or engaging in any illegal modifications. However, most of these items are already illegal under other laws, and Section 4 does not impose additional restrictions. If a farm is a party to or covered by an MOU,

it should review the terms of the MOU to ensure it understands where the terms may diverge from the Act.

Next Steps for Manufacturers

Manufacturers that make and/or sell farm products for use in Colorado should be proactive in developing their self-repair resource policies to provide farms with the information required by the Act. Given the current political environment and the likelihood of other states or Congress developing their own right to repair laws, manufacturers should also consider providing self-repair information to farms outside of Colorado to get ahead of future requirements and have the necessary operations established.

Manufacturers should also assess whether the information covered by the Act is sensitive, proprietary information and if they should take the next steps to protect such information. Manufacturers should be able to avoid sharing trade secrets except if the covered information is itself a trade secret. Additionally, trade secrets regarding a component, design, functionality, or process of developing a part of the subject equipment can remain protected if the owner is sufficiently able to repair equipment without requiring the disclosure of such trade secrets from the manufacturer.

Manufacturers concerned about trade secrets should consider their options, and if a manufacturer is unsure of whether it must disclose certain proprietary information under the Act, it should consult with an attorney to assist in determining whether or not to disclose the information. Manufacturers should also consider whether to impose confidentiality requirements on owners or independent repair providers to protect sensitive information shared under the Act.

Bottom Line

Colorado’s right to repair law for agricultural equipment is the first in what may be a wave of similar legislation. Farms and manufacturers should understand their rights and obligations under the Act. Manufacturers should consider establishing nationwide self-repair resources in anticipation of future legislation and should consult with their corporate and intellectual property attorneys to determine what proprietary information they need to disclose.