10 Mar CFO Jonathan Cartu Publishes – Will ‘Right to Repair’ Be a Thing of the Past for…
When Copyright becomes Copywrong…
Back in 2015, manufacturers of agricultural and automotive vehicles filed briefs with the U.S. Copyright Office (USCO).
These briefs argued that, under the anti-circumvention prohibition in Section 1201 of the Digital Millennium Copyright Act (DMCA), owners, non-manufacturer approved service technicians or anyone but their own designated technicians were prohibited to view or alter the computer software or codes that control engine or vehicle operations.
The manufacturers wanted the rules—which actually were only developed to prevent copyright infringement—to be applied in a way that would restrict vehicle software inspection, repair, and modification.
That could have implications for motorcycles, ATVs and other vehicles that use computer software to control ABS systems, ignition, fuel, stability, traction, and other vehicle operating systems.
As a result, tuners who fire up their laptops to alter fuel maps, ignition system programming, or any other performance mods on motorcycles could be in violation—especially if they do so on a commercial basis.
First, a few words about the DMCA as expressed by Katharine Trendacosta, writing on the Electronic Frontier Foundation website:
“The DMCA includes Section 1201, the “anti-circumvention” provisions that bar circumvention of access controls and technical protection measures, i.e. digital locks on software. It was supposed to prevent copyright “pirates” from defeating things like digital rights management (DRM is a form of access control) or building devices that would allow others to do so. In practice, the DMCA anti-circumvention provisions have done little to stop “Internet piracy.” Instead, they’ve been a major roadblock to security research, fair use, and repair and tinkering.
“Users don’t experience Section 1201 as a copyright protection. They experience it as the reason they can’t fix their tractor, repair their car, or even buy cheaper printer ink. And attempts to get exemptions to this law for these purposes—which, again, are unrelated to copyright infringement and create absurd conditions for users trying to use things they own—are always met with resistance.”
An example of what this means is found in the 2016 confrontation between the EFF and John Deere (yep, the tractor and implement manufacturer).
The company had introduced a new License Agreement for John Deere Embedded Software, wherein customers are forbidden to exercise their repair rights or to even look at the software running the tractor or the signals it generates.
Kit Walsh, writing on the EFF website, describes the impact of the License Agreement, saying, “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.”
The obvious effect of this is to force the vehicle buyer to have any and all repair, reprogramming, modification or updating to the software and related systems done only by the company’s own authorized dealers and/or service providers.
The Librarian of Congress, in conjunction with the U.S. Copyright Office, hears requests from members of the public whose speech and other rights have been affected by the law and considers requests to grant exemptions to its provisions; but that only happens every three years.
In 2016, the EFF argued before the USCO that “It’s perfectly legal under copyright law to repair your own equipment, reverse engineer its software, and tinker with it to meet your needs.”
The EFF along with a coalition of interested parties was persuasive in making the case to 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.”
So, while that exemption would seem to hold the door open for vehicle owners to be able to make mods to the software that makes the vehicle tick, the ruling is characterized as temporary.
In further action in 2018 by the EFF and others on the subject, the following outcomes that affect motorized land vehicles were achieved:
- Repair of motorized land vehicles (including tractors) by modifying the software is now legal. Importantly, this includes access to telematic diagnostic data—which was a major point of contention.
- Third-parties may legally perform repair on behalf of the vehicle owner.
The language in the exemption, which allows owners and other third parties to work on the vehicle’s software that applies to motorized land vehicles (apparently excluding boats, jet skis, personal watercraft, and aircraft) says:
“Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle such as a personal automobile, commercial vehicle, or mechanized agricultural vehicle, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function, where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works.”
The 2018 decision is important to tuners, builders and repair shops, but it is unlikely to be the last word on manufacturer’s efforts to ramp up the repair, maintenance and modification revenue stream at the expense of owner’s right to repair. It is also worth noting that the exemption does not apply to modifications that would violate any applicable Federal Motor Vehicle Safety Standards and Emissions or Fuel Economy requirements.
Even as that case was being litigated, others were underway; for example, automobile manufacturers…