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Ahead of the Curve Auto Supplier Blog

May 01, 2015

Federal Agency Considers Rule Changes That Could Alter the Meaning of Vehicle Ownership

The proliferation of data-driven devices has fueled a high-stakes debate over whether automotive and agricultural manufacturing companies that create and license software should retain ownership and control of source code after consumers take possession of the products. Section 1201 of the Digital Millennium Copyright Act (DMCA) of 1998 allows companies to use technological protection measures (TPMs) as part of a digital rights management program to prevent the unauthorized reproduction or modification of copyrighted materials.
 
The U.S. Copyright Office must conduct a triannual review process to determine whether any exemptions should be added to the DMCA’s anti-circumvention provisions. The last two triannual reviews created DMCA exemptions in the smartphone and video game console industries that allow end users and service providers to “jailbreak” the source code of the devices. As part of the 2015 triannual review, the Copyright Office is reviewing submissions from both automotive and agricultural industry manufacturers, suppliers and the public to determine whether an exemption should be created to allow consumers greater access to software in vehicles.
 
Industry proponents, such as John Deere and General Motors, argue that consumers receive an implied license to the software for the life of the vehicle sufficient to own and operate the vehicle. Creation of an exemption for full access to the software of an Electronic Control Unit (ECU) of a vehicle will create safety and vehicle reliability concerns.
 
Conversely, advocates for unrestricted access to vehicle software contend that the consumer owns the software as part of ownership of the vehicle and the manufacturer does not retain the right to repossess the software and thus, the vehicle. Further, the research and scholarship provisions of the fair use doctrine grant consumers the right to access the software to confirm for safety purposes that any potential errors and vulnerabilities are removed.
 
The Copyright Office is expected to decide in July whether the manufacturers can continue to restrict full access to software. The ruling will likely have widespread ramifications in the industry and in the courts, as Ford, General Motors and John Deere are actively pursuing infringement actions against companies developing diagnostic tools that interface with copyrighted software.
 
The anti-circumvention exemptions created for the smartphone and video game industries caused industry concerns that the purchase of a vehicle entitles the owner to full access to vehicle software, which is even more problematic as the electronics and automotive/agricultural industries continue to merge product offerings in the connected and autonomous technology sectors.

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