It is no secret there is an enormous amount of software in today’s motor vehicles (close to 100 million lines of software in the average car). This software controls nearly every operational aspect of the vehicle and therefore it is critical that the auto care industry have the ability to interact with these computer modules, whether it is building compatible replacement parts, possessing the ability to perform legal modifications or simply being able to complete a repair. Many readers might recall news stories that John Deere has been locking out owners of their tractors from accessing on-board software, requiring farmers to use only authorized service providers to repair their products. Now, imagine if the vehicle manufacturers had the ability to legally lock out anyone from accessing their software for purposes of repair of their vehicles. Such an action would place them in a very dominant position in competing for the repair and sale of replacement parts.
Industry concern regarding access to software is due to the Digital Millennium Copyright Act (DMCA). Enacted by Congress back in 1998, DMCA was intended to prevent access to software by individuals or companies attempting to make and market illegal copies. Specifically, the Act sought to prevent companies from illegally reproducing video games, music and video content and then selling them in competition with the actual author. However, back in the 1990s, legislators did not fully consider the extent to which software would be found in consumer products—including motor vehicles—and how critical access to that software would be to ensuring competition in the repair of those products. While the circumvention prohibitions that are included in DMCA were not intended to prevent access for the purposes of legal repair, the statute was not entirely clear on this issue. However, the law’s authors did seek to address the unintended consequences of the circumvention prohibition by providing an exemption process whereby, through a rulemaking, the U.S. Copyright Office could exempt for three years a certain class of user that needs access to the software for non-copyright infringing uses.
At the urging of the Auto Care Association, the Copyright Office in 2015 granted an exemption from DMCA for access to computer programs that control motorized land vehicles for purposes of diagnosis, repair and modification of the vehicle. However, the Copyright Office threw the industry a curve when it limited the exemption to solely the vehicle owner. Of course, many car owners depend on repair shops to perform repairs, especially when they relate to working with the extensive amount of software found on today’s vehicles. The auto care industry was further disappointed that the 2015 exemption ruling also excluded access to computer programs for telematics and entertainment systems.
Fast forward to 2017 when the Copyright Office began a new round of exemptions. Because all exemptions expire if they are not renewed, the Auto Care Association petitioned the Copyright Office to continue the exemption available to car owners for access to embedded software. However, we also added a new request that this exemption be expanded to third-party repairers who provide services on behalf of consumers and asked that telematics and entertainment systems no longer be excluded. While the Copyright Office appeared willing to expand the current exemption for the vehicle owner, the expansion to include third parties and to eliminate the telematics and entertainment system exclusion was far more controversial with many groups, including the vehicle manufacturers opposing the expansion.
The Copyright Office undergoes an extensive comment and analysis process in considering the exemptions. However, the arduous process paid off in October 2018, when the Copyright Office agreed with the Auto Care Association and permitted third-party repairers to access vehicle software on behalf of car owners. The Copyright Office further removed language in the original exemption that excluded access to computer programs designed for the control of telematic or entertainment systems. In removing the telematics exclusion, the Copyright Office stated that, “due to increasing integration of vehicle computer systems since the 2015 rulemaking, retaining this limitation may impeded non-infringing uses that can only be accomplished by incidentally accessing these systems.” The Copyright Office was careful to state that the exemption does not extend access to the actual music or other copyrighted works that might be on the entertainment system.
The Copyright Office denied our specific request for companies that sell tools capable of circumventing software for the purposes of repair to be included in the exemption, stating that this could violate the Act’s prohibition on trafficking. This could mean that the tool issue might need to be litigated in the courts or that it could be subject to a future exemption request in three years when the process begins again.
While not perfect, the ruling by the Copyright Office to continue the expansion of the DMCA exemption is a very important step toward preventing any vehicle manufacturer (the ruling applies to any motorized vehicle) from using this Act to lock out access by the independent repair market. Not only does the ruling have practical impacts on the repair industry, but it also sends an important signal to the vehicle manufacturers that they cannot use the increased use of software in vehicles to prevent competition in the repair market.
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