Modern automobiles are operated by dozens of computers, known as Electronic Control Units or ECUs, which control almost all of the main functions in a vehicle, including engine control, fuel efficiency, and breaking. The operating code of the ECUs is protected intellectual property under the copyright law. ECU operating codes are protected by additional codes, or technological protection measures (“TPMs”), which prevent users from copying or tampering with the underlying software.
Last year, the Electronic Frontier Foundation (the “EFF”) requested an exemption to the Digital Millennium Copyright Act (“DMCA”) to circumvent TPMs protecting ECU computer programs for the purposes of diagnosis, repair, and modification of vehicles. Proponents argued an exemption was necessary to allow users to diagnose and repair automobiles and to make modifications, such as enhancing a vehicle’s suspension or installing a gear with a different radius. EFF also argued that an exemption allowing consumers access to ECU software is especially appropriate to address potentially harmful malfunctions and to counter the rise of vehicle hacking. The EFF argued that absent an exemption, vehicle owners would have to take their cars to authorized repair shops or purchase expensive manufacturer-authorized tools to diagnose and repair their vehicles.
The proposed exemption was also supported by the National Telecommunications and Information Agency, on the basis that such an exemption would allow users to continue the longstanding practice of working on their own vehicles, but proposed a delay in implementation to allow the relevant agencies to consider and prepare for the new rule. These agencies, it argued, could address concerns about the exemption in the exercise of their respective regulatory authorities.
Many from the automobile industry opposed the exemption, including the Association of Global Automakers, the Auto Alliance, Eaton Corporation, GM, and the Motor & Equipment Manufacturers Association. They argued that the proposed exemption posed serious public health, safety and environmental concerns. Users might, for example, circumvent automobile TPMs to avoid restrictions on vehicle emissions imposed by federal and state law. They also expressed concerns about potential liability from a consumer’s tampering with an automobile’s ECU, resulting in personal injury or property damage. The Department of Transportation, the Environmental Protection Agency, and California’s Air Resources Board also responded with varying degrees of concern about the potential impact of the requested exemption.
Despite this opposition, the proposed exemption was granted and made effective as of October 28, 2015 under section 117 of the Copyright Act, which permits the owner of a copy of a computer program to make certain copies and adaptations of the program. The exact text of the exemption, as it was passed, is:
“Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and 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 provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation.”
The Copyright Office responded to the potential safety and environmental concerns by limiting the exemption in a number of ways. First, the Copyright Office specifically excluded circumvention of computer programs in ECUs that are chiefly designed to operate vehicle entertainment and telematics systems due to insufficient evidence demonstrating a need to access such ECUs, and out of concern that such circumvention might enable unauthorized access to creative or proprietary content. Second, the Copyright Office excluded circumvention “on behalf of” vehicle owners, thereby prohibiting third parties to engage in circumvention activities on behalf of others. Third, the exemption also excludes acts of circumvention that would violate any other law, including regulations promulgated by the Department of Transportation or the Environmental Protection Agency. Last, because of the concerns raised by several government agencies, the Office concluded that the exemption would not become operative until October 28, 2016, to provide any interested agencies an opportunity to consider and prepare for its implementation.
As of today, consumers are authorized to bypass their vehicles’ TPMs and—to borrow a term from the wireless world—jailbreak their vehicles’ ECUs for purposes of “diagnosis, repair, or modification.” While tech-savvy consumers are applauding this exemption, vehicle manufacturers should carefully assess the accompanying legal risks and determine the steps necessary to limit any resulting liability. This exemption raises a significate number of products liability and intellectual property issues, both of which pose a high risk of litigation, especially in light of the fact that this is a new area of law.