LEGISLATIVE AND TECHNICAL AFFAIRS
Late to PROM
Catching Up on the Copyright Issues Surrounding Vehicle Software
As the use of electronic control units (ECUs) has developed in modern vehicles, so too has the law governing the protection of the software contained within the ECUs.
Gearheads have been dealing with vehicle software since the early ’80s, when microcontroller chips were installed to facilitate the shift from carburation to electronic fuel-injection technology. Swapping out the chips in these vehicles quickly became a preferred method for improving engine performance.
The software installed on the chips runs calculations using input gathered from various sensors to determine how the mechanical equipment will respond to the data input. Since that time, chip technology has advanced to allow reprogramming of the software stored on the chips. Electronic control units (ECUs) containing chips have proliferated throughout vehicle systems and now control not only the engine but also everything from anti-lock brakes to windshield wipers.
As the use of ECUs has developed in modern vehicles, so too has the law governing the protection of the software contained within the ECUs. Copyright law gives a creator exclusive rights in his or her creative work. It is thought that copyright protection encourages the creation of art and literature by offering a monopoly in creative works for a limited time.
This limited monopoly began as a modest 14–28 years, but lobbying efforts primarily on behalf of the movie and music industries have resulted in that term being extended to the life of the creator plus 70 years or 95–120 years if the creator is a corporation or unknown. For comparison’s sake, consider the term of a patent, which protects useful inventions and lasts for only 20 years. While copyright law once extended only to traditional creative works, such as books, movies and music, computer programs are also protected as “literary works” because they are written in the language of code.
There is much debate surrounding the extent to which computer programs should be copyright protected. It is well accepted that the expression of an idea is protectable by copyright, while the idea itself is not. Further, copyright law was not intended to extend to useful, functional inventions, which fall under the purview of patent law. Nevertheless, courts have developed a body of law under which elements of software can be protected by copyright.
To make certain uses of copyright-protected software, it is necessary to get permission from the copyright owner or rely on certain exceptions to the law, such as the exception for making intermediate copies or the exception for so-called “fair use.” Intermediate copies of software are acceptable when the copy is made as an essential step in the utilization of the software with a machine.
Fair use sometimes allows copyright-protected software to be copied or incorporated into other programs under a four-prong analysis that takes into account the purpose of the use, the amount used, the effect of the use on the market for the copyrighted work, and the nature of the copyrighted work, such as whether it is functional in nature and thus entitled to less protection.
In response to the ease of copying and sharing digitized songs and movies over the internet, copyright law has also developed to protect the ability of creators to control access to copyrighted works.
The Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent access controls, with some exceptions. Reverse engineering, for example, is permitted to achieve interoperability with another program. The U.S. Copyright Office also engages in a rulemaking process every three years to develop exemptions from the DMCA’s anti-circumvention provisions for uses that are not likely to result in copyright infringement.
During last year’s rulemaking process, a petition was filed seeking one of these exemptions to allow for hobbyists to undertake vehicle modifications without running afoul of the DMCA. Once word got out that such an exemption was even necessary in the first place, automotive enthusiasts and journalists became deeply troubled about the unintended consequences of the extension of copyright laws into engine bays. SEMA submitted comments in support of the exemption, which the Copyright Office ultimately adopted. However, the final exemption contained limitations that many found troubling. For example, the Copyright Office stopped short of extending the exemption to access of vehicle entertainment and telematics systems based on the fear that car owners could possibly use those systems to pirate music.
However, cases of automakers enforcing copyrights that may exist within their vast array of ECUs remain few and far between. This may be due to the uncertainty inherent in cases that involve software powering consumer devices. Courts have repeatedly allowed access to and use of software when necessary for full use of the consumer device itself. These cases reflect long-standing American values in property rights and the ability to make full use of one’s personal property.
The pervasiveness of software in consumer products and the complex state of copyright law as it relates to this software has prompted members of Congress to get involved. In October of last year, the U.S. Senate Committee on the Judiciary, through Chairman Charles Grassley (R-IA) and Ranking Member Patrick Leahy (D-VT), requested that the Copyright Office explore the issue further and report back on its findings. The Copyright Office has launched the Software-Enabled Consumer Products Study in response, for which SEMA has submitted comments and participated in a roundtable discussion.
SEMA’s focus in advocating for its members and the hobbyist community in this field has remained centered around the ability to make full and varied use of one’s vehicle. Where copyright law is used to limit the availability or use of aftermarket options, consumers are harmed.
ECUs are now present on every new vehicle sold in the United States, so avoiding the software issue altogether is no longer an option. Going forward, copyright law will need to address the desire for interoperability among physical devices, including those included or installed in vehicles. As every company in the aftermarket knows, there are many options for improving the functionality of mass-produced vehicles. SEMA will continue to voice support for making sure that these options remain legal in a world of vehicles with ever-increasing lines of software code and a body of copyright law trying to keep up.