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Jul 2015
21
July 21, 2015

Will Software Copyright Protection Control the Future Development of Vehicles?


Regulations put in place in the late 1990s by the Library of Congress to protect creativity in the then-fledgling computer software and electronics markets are creating widespread chaos today in the automotive and agricultural motor vehicle industries.

Section 1201 of the Digital Millennium Copyright Act (DMCA) of 1998 allows entities to incorporate technological protection measures (TPMs) in software as part of a digital rights management protection program to prevent the unauthorized reproduction or modification of copyrighted materials. TPMs are currently used by motor vehicle manufacturers and suppliers to protect innovative software based technologies. However, vehicle aftermarket manufacturers, car enthusiasts, scientists, researchers and consumer protection agencies advocate for the creation of an exemption to the DMCA protections to allow access and modification of copyright protected source code and software.

In view of current technology requirements, the DMCA includes a provision requiring the U.S. Copyright Office to conduct a review every three years to determine whether any exemptions to the DMCA’s anti-circumvention provisions should be created. It is an uphill task to establish an exemption. The proponent of an exemption must prove that a DMCA anti-circumvention provision creates an adverse effect to an end user’s ability to make a noninfringing use of the exempted technology. The last two reviews created DMCA exemptions in the smartphone and video game console industries that allow end users and related technology service providers to “jailbreak” the source code and software in each industry.

As part of the 2015 review, the U.S. Copyright Office is evaluating proposed exemptions to the DMCA as applied to motor vehicles. The first exemption would allow circumvention of vehicle TPMs for the purposes of diagnosis and repair, modification, and aftermarket personalization and improvement of the vehicle. The second exemption would allow circumvention of vehicle TPMs for the purpose of researching the vehicle’s security or safety by the vehicle owner or an authorized or appointed agent.

Industry proponents supporting TPM protections argue that the current DMCA provisions create viable and important consumer protection and safety standards. The existing DMCA provisions ensure that all vehicle owners operate vehicles with software systems designed for optimal vehicle performance, safety and compliance with federal and state regulations. Further, industry proponents suggest an exemption will stifle innovation, as the reward and protection associated with research and development activities will disappear if unrestricted reproduction of the entirety of the copyrighted software is allowed.

Conversely, advocates for unrestricted access to motor vehicle software contend that the research and scholarship provisions of the fair use doctrine grant consumers and researchers a legitimate interest in evaluating the entirety of protected software to confirm that any potential errors and vulnerabilities in the code are removed and resolved. Additionally, advocates suggest that motor vehicle software is functional in nature, as it controls various mechanical and electrical vehicles systems. Since the software is merely functional in nature, the only copyright protectable elements of the software lie in the display interface designed to convey vehicle information to users in a conventional manner, not the entire source code or software program that is protected today by the DMCA.

Challenges to the scope of anti-circumvention provisions of the DMCA in motor vehicle software are fought in arenas beyond the U.S. Copyright Office.  Ford and General Motors have pending federal court copyright infringement actions against companies developing diagnostic tools that interface with copyrighted motor vehicle software and electronic control units (ECUs). Further, two legislative proposals have been raised in Congress to challenge copyright protections resulting from the DMCA. The Unlocking Technology Act of 2015 and the Breaking Down Barriers to Innovation Act of 2015 each offer proposed revisions to the DMCA that would significantly reduce the protections available from the anti-circumvention provisions.

Unlike prior DMCA exemptions involving “jailbreaking” cell phones or evaluating computer code of video games, motor vehicle software and the resulting vehicle functionality are subject to the rules and regulations of both federal and state agencies. As such, it is likely that any exemptions to the DMCA anti-circumvention provisions will be limited in scope to fair use arguments relating to vehicle functions or research to motor vehicles that are not currently subject to federal and state motor vehicle regulations. The U.S. Copyright Office expects to make a decision regarding proposed exemptions to Section 1201 of the DMCA no later than the end of the 2015 calendar year.

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