https://www.mcguirewoods.com/news-resources/publications/us-...
It has similar Misuse or Alteration of Product defense... but...
https://ggrmlawfirm.com/blog/personal-injury/car-customizati...
> A hobbyist who does his or her own customization work often assumes the risk that some part of the work wasn’t completed correctly. Making changes to a car in a way that renders the car unsafe could expose the hobbyist to liability for any resulting injuries. Absent insurance that specifically covers it, the hobbyist could be left bearing all of the cost of the ensuing litigation and compensation to injured parties.
It is the hobbyist that has the liability. So if you change your car's ECU its you that are liable when it gets in a wreck, not the car company for having a faulty product.
For industrial equipment, that doesn't exist. If you can make a change to the industrial equipment and the equipment manufacturer doesn't try to stop you, the equipment manufacturer is likely liable for damages.
There's a powerpoint (awkward to read in a web browser - "Product Liability Law in the Farm Equipment Industry" from agrability.org also as part of a recorded webinar at https://youtu.be/NdN577BbnSY ). 11:33 talks about Strict Liability and 19:24 talks about farm equipment being "reasonably safe". The case studies are also interesting - pay attention at 42:23 where it points out who is paying for the injury.
So put it into the agreement? I don't see how this is an onerous barrier; if companies can force arbitration based on the sales agreement, they should be able to (within reason) dodge liability for the effects of modifications they didn't approve.
> Liability insurance premiums remain a tremendous burden for businesses in many industries. Legislation aimed at limiting liability, enacted just last year, has been declared unconstitutional. Moreover, some U.S. courts are moving toward standards that will actually increase liability, even for businesses not at fault under the traditional legal doctrines.
Secondly, consider who is bound by this agreement? The person who purchased it? or the person who is operating it? Watch the video that I linked - https://youtu.be/NdN577BbnSY . The case study begins at 21:43 with a Massey tractor and a Brush Hog mower. Pay close attention to the design in the guarding claims at 33:48 and the lessons at 43:17.
Product liability for industrial equipment can't just be signed away by the person purchasing it.
Don't get me wrong - I am for right to repair. It has impacts across many areas including national security, food security, and hobbyist interest. But I believe that we need to revisit product liability for industrial equipment when that comes into place... and when self driving cars come out and if you are allowed to load your own software on the car who do you think will be liable for a crash under current law? Who is responsible for showing that the (destroyed) vehicle had software modifications that went beyond the legally allowed changes (emissions, top speed, acceleration, etc...)?
I am for right to repair - I am concerned that the approaches that right to repair is using now ignores existing law and liabilities and will result in a much higher legal costs for manufacturers for repairs that they are forced to allow until the corresponding laws catch up to place the liability for changes to equipment back on the people who make and install those after market changes. And that in turn will cause a limiting of innovation and advancement in those areas and rolling back of other advancements to the point where the manufacturer can reasonably assume liability for changes that the purchaser may make.
If that 3rd party firmware overapplied fertilizer - JD would be liable. If the auto driving feature was modified and ran out into the road and killed someone, JD would be liable.
Product liability for industrial equipment falls in different category than other product liabilities and all industrial equipment (including tractors) are classified as "unreasonably dangerous" and it is the responsibility of the manufacturer to prevent 3rd party modifications that may result in damages that could have been foreseen with the existing setup.
If John Deer allows someone to change the software, then it is foreseeable that anything that is software controlled may be changed and behave in a way that is unintended... and John Deer is liable unless they prevent that software change.
This is not necessary. We can choose to not do this. Also "could have been foreseen" carries a lot of water here. These products shouldn't be unsafe to make minor repairs on any more than they should be unsafe to operate.
https://www.biren.com/blog/2020/september/defective-machiner...
In particular https://www.justia.com/trials-litigation/docs/caci/1200/1245...
> The [misuse/ [or] modification] was so highly extraordinary that it was not reasonably foreseeable to [name of defendant], and therefore should be considered as the sole cause of [name of plaintiff]’s harm.
So, if it was foreseeable that a 3rd party may modify some equipment in some way, the manufacturer must specifically warn the purchaser about "don't do that."
With software, this becomes a much more difficult challenge.
Additionally, https://www.justia.com/trials-litigation/docs/caci/1200/1244...
> [Name of defendant] claims that [he/she/nonbinary pronoun/it] is notresponsible for any harm to [name of plaintiff] based on a failure to warn because [name of plaintiff] is a sophisticated user of the [product]. To succeed on this defense, [name of defendant] must prove that, at the time of the injury, [name of plaintiff], because of [his/her/nonbinary pronoun]particular position, training, experience, knowledge, or skill, knew or should have known of the [product]’s risk, harm, or danger.
So with software, either the user is a sophisticated user and aware of the implications of installing their own patches on the system and what that could do (over fertilize a field because of an incorrect setting on the gps calibration)... or they aren't. If they aren't a sophisticated user of the system, then it should be locked down sufficiently to prevent those changes.
> “The sophisticated user defense concerns warnings. Sophisticated users ‘arecharged with knowing the particular product’s dangers.’ ‘The rationale supporting the defense is that “the failure to provide warnings about risks already known to a sophisticated purchaser usually is not a proximate cause of harm resulting from those risks suffered by the buyer’s employees or downstream purchasers.”
So are we expecting farmers to be software engineers too?