What do John Deere tractors and McDonald’s ice cream machines have in common? You might think they are both green, but that is only true for Shamrock Shakes.¹ Anything else? Both require a certified repair person when they break down.

The reason for this similarity depends on whom you talk to. One side sees it as a necessity. Companies like John Deere and McDonald’s feel obligated to ensure that complicated machines are repaired safely under sanitary and consistent conditions to maintain quality standards. Others view such control as corporate overreach reducing access to items purchased lawfully. A battle between those ideologies is raging across the country.

The right to repair is a movement founded on the concept that owners should be able to choose how to repair their broken machines.² Sure, owners can tinker with their toys, but the right to repair is about something more. It is about unlocking information, parts, and tools necessary to fix what you own.

The problem is determining who owns what. Many corporations, like John Deere and McDonald’s, assert they own items beyond the bare metal, such as the underlying software, data, and associated analytics derived from those products.³ Manufacturers also want to own post-sale restrictions so their products are used as intended. This article will explore the complex tug-of-war between consumers and producers for the right to control these tangible and intangible items.

SELF-SERVICE IN SOFT SERVE

Analyzing the stakes over milkshakes illustrates this issue. People love McDonald’s ice cream — so much so that persistent complaints about its availability prompted the U.S. Federal Trade Commission to investigate why McDonald’s ice cream machines are so frequently unavailable.⁴ There is even a website called mcbroken.com tracking which restaurants have working ice cream machines. The reason, it appears, involves the right to repair.

The standard McDonald’s ice cream machine⁵ has been described as “very, very, very finicky”⁶ and much like “an Italian sports car;” it is highly engineered yet temperamental.⁷ This is why McDonald’s franchisees must seek diagnoses and repairs from a network of certified technicians,⁸ which created a bottleneck prolonging downtime even when solutions were simple. A startup called Kytch saw this bottleneck as an opportunity and developed a workaround to diagnose problems without certified technicians, allowing store managers to identify and resolve issues on their own. In response, McDonald’s sent a memo to franchisees warning them that using the Kytch device will void the machines’ warranties by granting unauthorized access to confidential data and “creat[ing] a potential very serious safety risk.”⁹ Kytch allegedly lost numerous customers as a result and filed lawsuits against McDonald’s and the McFlurry machine maker.¹⁰

The $900 million lawsuit against McDonald’s probes some common right-to-repair themes.¹¹ One claim alleges that McDonald’s should be liable for causing Kytch’s lost sales by falsely stating Kytch’s device posed a safety risk.¹² Another asserts that McDonald’s intentionally interfered with Kytch’s business expectancy by threatening to void machine warranties even though it had no legal right to do so under the Magnuson-Moss Warranty Act.¹³ All of this, according to Kytch, was because McDonald’s had a “lucrative scheme” to grant the manufacturer a repair monopoly in exchange for an exclusive partnership.¹⁴ Readers may want to check the docket in a few years to see how this all shakes out (pun intended).

THE TRUE COST OF REPAIR

Similar disputes are pockmarking the American economy. As referenced previously, John Deere is accused of “swindling” farmers by restricting the ability to access and alter software installed on equipment lawfully purchased from the company.¹⁵ Crop yields depend on fragile weather conditions, making any equipment downtime potentially catastrophic to agriculture businesses. In the farmer’s view, maintenance and repair of modern equipment requires accessing software, and without Deere’s tools or proprietary information, those farming machines cannot be repaired efficiently.¹⁶ Meanwhile, consumers are clashing with manufacturers over items like smart phones,¹⁷ home appliances,¹⁸ and medical equipment¹⁹ due to licensing restrictions and products designed to inhibit repair.

Concerns are broader than mere individual complaints. Many see restrictions on repair as anticompetitive, thereby harming the overall economy. Those critics assert that blocking repair options drives up prices and suffocates competition.²⁰ Environmentalists are pushing the right to repair, arguing that improved access will alleviate electronic waste when it is easier to fix, rather than replace, broken devices.²¹

This is not a one-sided debate. There are legitimate reasons for restricting unfettered access to proprietary materials. Cybersecurity, safety, and protecting investments should be top of mind for manufacturers and consumers alike. McDonald’s, John Deere, and their customers want secure and safe products that continuously push innovation. Those values are not mutually exclusive with repair per se, but from the manufacturer’s perspective, consumers need to follow guidance for usage and data access even if it means locking out portions of the product or requiring the use of certified technicians. For example, releasing technical information may open access for criminals to bypass security, resulting in a data breach or intellectual property theft.²² Those guardrails are in place to ensure products are used for their intended purpose. Incorrect usage could have dangerous consequences like deactivating safety features.

TIME FOR READERS TO DECIDE

Litigation implicating the right to repair may take years to resolve and will likely result in inconsistent judgments. Proponents should explore legislation as a more straightforward solution. With that in mind, should Michigan adopt a law codifying the right to repair and, if so, to what extent?

Other states and federal proposals shed some light on this complicated topic:

• Massachusetts led the way in 2012 by requiring auto manufacturers to share diagnostic data with independent repair shops.²³ That law was amended in 2020 to require automakers to make diagnostic and repair information previously only accessible to dealers and their authorized repair technicians available to vehicle owners and independent repair facilities.
• Legislators in Arkansas, among other states, have introduced right-to-repair bills for farming equipment.²⁴
• U.S. Sen. Jon Tester (D-Mont.) introduced a similar federal bill targeting agricultural equipment.²⁵
• Beyond agriculture, U.S. Rep. Joe Morelle (D-N.Y.) recently introduced the Fair Repair Act, which would require all manufacturers of electronic equipment to “make documentation, parts, and tools available to independent repair providers in a timely manner and on fair and reasonable terms.”²⁶

Michigan’s active proposal, introduced in November 2021, is solely focused on farming equipment.²⁷ If passed, it will require farm equipment manufacturers to “make available” to “any independent repair provider or to the owner” all “documentation, parts, and tools, including any updates to information or embedded software” under “fair and reasonable terms.”²⁸ Section 2(c) of the measure expressly excludes motor vehicles and consumer electronic devices.²⁹

That legislation should take care of John Deere tractors, but not smartphones or home appliances. One would assume McDonald’s ice cream machines also fall outside its scope. If you are a Michigan voter looking for repair-friendly phones and more frequent shakes, the best bet is a broadening of the bill pending in the state legislature or adoption of the federal Fair Repair Act.