DMCA vs. Gearheads: Piracy Under the Shade Tree

by JD Supra Perspectives
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...while any car geek or tinkerer would love unfettered access to the inner workings of their vehicle’s software, this is not the correct venue.

A recent Wired magazine article by Kyle Wiens (co-founder and CEO of iFixit) provided an ominous warning to automobile owners: you don’t own your vehicle, you merely operate it at the manufacturer’s pleasure. This view of ownership lacks any meaningful foundation and only serves to muddy the waters in what is a real challenge for innovative automakers looking to protect their works and for gearheads who just want to work on their cars.

The Digital Millennium Copyright Act (“DMCA”) codified WIPO Copyright Treaty obligations concerning technological measures used to secure copyrighted materials. In particular, the DMCA prevents the circumvention of technological measures that effectively control access to protected works. For example, it is a violation of 17 U.S.C. § 1201 to unscramble a work that was scrambled as a way to control distribution.

The statute provides that the Librarian of Congress will revisit exclusions to these anti-circumvention provisions every three years, in order to control for adverse effects of the law on certain uses. In a recent notice of proposed rulemaking (79 Fed. Reg. 73856, Dec. 12, 2014), the U.S. Copyright Office requested comment on various classes of copyrighted materials, including vehicle software for diagnosis, repair, or modification (class 21) and vehicle software for security and safety research (class 22), which were suggested by the Electronic Frontier Foundation for exclusion.

The Wired article took on comments provided by John Deere, General Motors, and various automotive trade groups in opposition to the proposal, concluding that anyone should be able to freely repair their vehicles even if it means circumventing technological measures. But while any car geek or tinkerer would love unfettered access to the inner workings of their vehicle’s software, this is not the correct venue.

As was evident from the technology on display and keynotes at last week’s SAE World Congress, Detroit is aware and bracing itself for waves of disruptive software technology. Already, companies such as Local Motors are pushing the boundaries of community-developed vehicles. Wiens and others should take advantage of the current automotive renaissance to appeal directly to the manufacturers for access, and should reward manufacturers that pursue an open model accordingly.

As was evident from the technology on display and keynotes at last week’s SAE World Congress, Detroit is aware and bracing itself for waves of disruptive software technology.

While copyright law often has moral underpinnings that can be justified even if there is a market failure, the DMCA provisions regarding circumvention of technological measures lack this moral framework and must hold up to stronger scrutiny. Questioning whether these provisions stand up to scrutiny is so important that the three year review cycle is codified into the DMCA. However, the ability to keep ECU software, vehicle telematics, and other software under an auto manufacturer’s control by way of technological measures must remain protectable under the DMCA.

The Wired piece claims that the ability to modify this software is essential for maintenance and repair of the vehicle, and questions whether one really owns their car absent such ability. But the EFF’s proposal goes well beyond what is needed for vehicle maintenance. GM’s comments, for example, outline the various ways in which EFF’s proposed exclusion is unnecessary. User-accessible diagnostic codes and NASTF-linked technical information are more than sufficient for vehicle repairs. And the Wired piece completely ignores the safety issue that is of paramount concern to the automakers (e.g., ISO 26262).

One might as well ask if it is possible to truly own a car when it is not legal to modify its exhaust for road use...

In this context, the question of ownership is needlessly inflammatory – of course Joe Sixpack owns the Chevy sitting in his driveway. This is so even if he cannot modify the code it runs counter to the DMCA. And it is so even if he cannot modify the car to dodge emissions regulations, a right that Wiens acknowledges vehicle owners should not have. One might as well ask if it is possible to truly own a car when it is not legal to modify its exhaust for road use.

And because Joe Sixpack owns the Chevy in his driveway, he can install a completely different ECU in the vehicle, with completely new software. Just as it is legal to install Windows on your Mac, but not to circumvent protections on either OS, ownership of a vehicle comes with the ability to truly tinker in innovative ways. Seemingly lacking faith in community innovation, EFF’s approach demands that automakers essentially be forced to open up their code, allowing users access to functionality that was never accounted for in the price paid for the vehicle.

Ultimately, a more transparent and open vehicle would benefit many shade tree mechanics. But the way to get there is by building something akin to Linux, not by bullying the existing products into open source.

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[Salvador Bezos is a director in law firm Sterne Kessler's Electronics group where he provides services in the preparation and prosecution of patent applications before the United States Patent & Trademark Office.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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