What does it meant to “own” something? If you own something, specifically property, are you able to do with it what you want? Increasingly, that has become a central debate in the 21st century, especially as computer systems become more advanced and coding is closely watched and protected intellectual property. While this debate is most commonly fought over the internet in regards to who owns the rights to copy, distribute, and modify games and play them online afterward, it seems that this debate has spilled over into the diesel industry as well.
Read that last sentence again: a problem of rights ownership that usually affects online and internet games are now spilling over into the automotive industry. Why? Because automobiles now require significant computational power and are interconnected to different electrical and mechanical functions of automobiles, dictating their tuning, emissions, and other responsibilities, both important for the function of the vehicle and in maintain and adhering to strict governmental regulations.
However, the problem with government regulations of automobiles and trucks is that once the vehicle is registered, it is often months to years before the vehicle is needed to be recertified as compliant. In the meantime, the owners are able, and typically do, make modifications to their vehicles to better match and maintain their wants and needs.
The Problem
The problem is that vehicle manufacturers want to use copyright laws, specifically the Digital Millennium Copyright Act or more commonly known as the DMCA, which typically has been used on software and internet services, to stop owners from modifying their engines. The manufacturers that are pushing for this change call themselves the Alliance if Automobile Manufacturers, or the “Auto Alliance” for short, and is composed of BMW Group, FCA US LLC, Ford Motor Company, General Motors Company, Jaguar Land Rover, Mazda, Mercedes- Benz USA, Mitsubishi Motors, Porsche, Toyota, Volkswagen Group of America and Volvo Cars North America. For those wondering, that would be all three major diesel brands and Toyota … though it does appear as if the new Nissan Titan with the Cummins diesel is not a part of this organization, yet.
This is the now the center of a large debate. Within less than 24 hours of the news first breaking, the Alliance released a statement concerning aftermarket parts and personal maintenance and modification:
There may be a misunderstanding here. Attached are our full comments. You’ll see in both the overview and in page 12, we discuss the comprehensive safeguard, a nation-wide Memorandum of Understanding (MOU), that is in place in respect to the aftermarkets part industry. It’s important to note that in addition to the Alliance, the Association of Global Automakers, the Automotive Aftermarket Industry Association and the Coalition for Auto Repair Equality are all a part of the MOU.
Somehow the EFF submission doesn’t mention the agreement – which is surprising since it got so much press coverage at the time.
The bottom line here is that, everything needed to repair and diagnose a car is already available to the aftermarket and any vehicle owner, including modifiers.
The real issue of concern here is that the sophisticated computers in vehicles are so intertwined that they shouldn’t (for security and safety and environmental reasons) be allowed to be tinkered with.
This, of course, did not help soothe the situation and within a short time a petition appeared online to oppose this change, we encourage you to take a minute and sign the petition. It could literally be the difference from you being able to modify and repair your vehicle in the future or not.
The Aftermarket
As of right now, the Auto Alliance claim that they have accounted for aftermarket parts, repair, and maintenance of the vehicles, while still trying to maintain their copyright over their computer and electronic coding. While this seems to be a capitulation to our industry, the truth is that numerous shops and home mechanics will lose the ability to electronically modify their vehicles unless they purchase and use more of the manufacturer’s software.
On one hand, it appears as if the Auto Alliance is trying to clear themselves of responsibility and culpability of government fines and regulations by locking people out of their property, and on the other hand it also appears to be a scheme to sell more product and earn more money. Ultimately, this will hurt the little guy and, if this passes and they need new software and licenses every year to continue to work on and modify electric components of new vehicles, smaller shops may not be able to afford it.
Ultimately we have to ask ourselves, is this acceptable? Is this the country we want to live in? It’s our property, we can do what we want with it. Locking us out of our property and requiring digital keys to access it should be illegal. Take a moment and sign the petition. I know I did.
The Proposition
Short Comment Regarding a Proposed Exemption
Under 17 U.S.C. 1201
(Proposed Class #17)
Item 1. Commenter Information
This Comment is submitted on behalf of The Alliance of Automobile Manufacturers
(“Auto Alliance”), the leading advocacy group for the auto industry. Auto Alliance represents 77% of all car and light truck sales in the United States, including the BMW Group, FCA US LLC, Ford Motor Company, General Motors Company, Jaguar Land Rover, Mazda, MercedesBenz USA, Mitsubishi Motors, Porsche, Toyota, Volkswagen Group of America and Volvo Cars North America. For further details, see http://www.autoalliance.org/.
The Auto Alliance is represented in this proceeding by Mitchell Silberberg & Knupp LLP. Contact points for further information:
Jessica L. Simmons, Attorney, Alliance of Automobile Manufacturers: JSimmons@autoalliance.org
Steven J. Metalitz, Partner, Mitchell Silberberg & Knupp LLP, met@msk.com.
Item 2. Proposed Class Addressed
Proposed Class 17: Jailbreaking—all-purpose mobile computing devices.
Item 3. Statement Regarding Proposed Exemption
Automobiles are inherently mobile, and increasingly they contain equipment that would commonly be considered computing devices. Proponents did not mention in-vehicle telematics systems (or any other aspect of motor vehicle systems) when describing the proposed class, and no commenter has submitted evidence in the record that would support an exemption that covers such systems. Nonetheless, Auto Alliance urges the Copyright Office to ensure that vehicles are not inadvertently swept into the exemption.1
The security implications of action in this proceeding to permit the circumvention of access controls on vehicle electronic control units (“ECUs”) is particularly troubling.
Many of the ECUs embodied in today’s motor vehicles are carefully calibrated to satisfy federal or state regulatory requirements with respect to emissions control, fuel economy, or vehicle safety. Allowing vehicle owners to add and remove programs at whim is highly likely to take vehicles out of compliance with these requirements, rendering the operation or re-sale of the vehicle legally problematic. The decision to employ access controls to hinder unauthorized “tinkering” with these vital computer programs is necessary in order to protect the safety and security of drivers and passengers and to reduce the level of non-compliance with regulatory standards. We urge the Copyright Office to give full consideration to the impacts on critical national energy and environmental goals, as well as motor vehicle safety, in its decision on this proposed exemption. Since the record on this proposal contains no evidence regarding its applicability to or impact on motor vehicles, cars and trucks should be specifically excluded from any exemption that is recommended in this area.
1 Electronic Frontier Foundation, the chief proponent of this proposed class, plays the same role with respect to two other proposed classes (#21 and #22) that explicitly target motor vehicles. Auto Alliance has filed extensive comments in opposition to these two proposed classes, to which we refer the Copyright Office for further details concerning our opposition to this proposed class.