Feds Grant Exemption to Copyright Law, Allowing You to Lawfully Service Your Own Car

Photo by Joe Plocki.

On Tuesday, October 27, the U.S. Copyright Office granted an exemption to the Digital Millennium Copyright Act (“DMCA”) that will allow vehicle owners to circumvent portions of the act in order to effect diagnoses, repairs or modifications to vehicles without fear of prosecution.

You might be asking yourself the question as to why a law designed to protect Mickey Mouse well into the 21st century would have anything to do with repairing your own vehicle. The DMCA was passed by Congress in 1998, going into effect almost immediately, around the same time the Sonny Bono Copyright Extension Act also flew through Congress. During an era when this country’s corporations have been casting off the actual manufacturing of hard goods in the name of “intellectual property,” protecting those idea assets became their number one priority with lawmakers.

But with the DMCA passing through Congress with essentially no opposition, those businesses got to write the laws without having to worry about their far-reaching effects. The DMCA criminalized creating any kind of tool, technique, technology or service designed to circumvent digital copyright protections, often known as “DRM” for digital rights management, whether or not any of them are ever used to violate copyright. In addition, any individual circumventing DRM technology—or possibly even attempting to develop a method to circumvent it—can also be held criminally liable, again whether or not he actually violates copyright. The law is thought to be so overreaching that researchers have canceled conferences just discussing the subject for fear of those discussions violating the law.

First-time offenders can expect a fine up to $500,000 and up to five years in jail. If the offender is convicted a second time, both the fine and the prison time double. In addition to creating these harsh penalties, Congress also extended copyright protection up to 99 years (That’s the Mickey Mouse part, as Disney lobbied hard for both acts, particularly given the likelihood that without the extension, Steamboat Willie, the original Mickey Mouse short, would have passed into the public domain in 2003.).

So, how does the DMCA affect you, the car guy? If the only cars you ever wrench with were developed before the advent of modern electronic engine controls and the conquest of your car by the computer chip, then you had nothing to worry about. However, with so much software controlling so many primary operating functions of a modern car, and with the law so very broad in its scope and harsh in its punishments, some attempts to diagnose, repair or modify a vehicle may include circumventing the digital rights management portion of the software. And, until Tuesday’s exemption, if you had done that, you would have been violating the law.

Let’s say you are diagnosing an engine problem. In the old days, it was pretty much fuel, fire or air. Today, a modern engine-control unit (“ECU”) may also send out instructions to an electric water pump or it may read sensors related to wheel speed or braking pressure. It very likely analyzes air temperature and other conditions for optimizing air flow, ignition timing and fuel delivery, making thousands of calculations per second. And that software code is copyrighted. So, while you may own the car, the actual physical components of the ECU, the throttle body, the fuel injectors, the wires and everything else associated with the car, you don’t own the software. And, under the DMCA, attempting to undermine any portion of that system may be considered a violation of the law, even if all you want is to smooth out a rough idle or, say, open up the top end of the engine at the track.

But, as anyone who has ever really “gone under the hood” and tried his hand at diagnosing or modifying a modern car, the right way to do it involves getting at that code. Let’s take that water pump for instance. If you’ve modified your engine, you may want to beef up the cooling, but modifying the software to talk to the ECU-controlled, on-demand electric water pump was a big no-no, legally speaking, before this exemption.

Do you recall that hackers remotely taking over a Jeep some months ago and running it off the road from a thousand miles away? Researchers and engineers attempting to develop protections for that sort of work without the express consent of the automaker would be in violation of the DMCA. Only the most fervent believer in the sanctity of intellectual property would not consider that an overreach.

Against vehement opposition from automakers (and the Environmental Protection Agency) who claimed that safety and emissions would be compromised (along with their expensive, often exclusive diagnostic tools required by their franchised dealer partners), the supporters for exemption included such a broad coalition as SEMA, the Electronic Frontier Foundation (“EFF”) and even the American Automobile Association, all arguing in the name of common sense.

The EFF noted that the recent Volkswagen scandal centered around emissions-control software with a “cheat” mode could very likely have been discovered earlier had the software not been protected by copyright. The EFF previously pointed out that the DMCA was originally written to protect creative works, such as books, photographs, movies and recorded music, not to prevent the shade tree mechanic or independent shop from working on a car.

The exemption, which was granted to private vehicle owners—including farmers and commercial vehicle owners—and researchers, is more vague when it comes to independent shops. It also does not allow for actual copyright violations, such as copying an automaker’s or supplier’s code and passing it off as your own. The exemption also does not include the in-car entertainment system or what would seem like anything related to the original intent of the DMCA.

The Library of Congress grants such exemptions every three years or so, which seems kind of slow given the pace of technology advancement in recent years, but with such a law as the DMCA on the books, we may have to take what we can get. Along with the automobile exemptions, the LOC also granted us the right to monkey with our smart TVs, video games, smart phones and even pacemakers.

For the full legal ruling, got to the Library of Congress’s web site.

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