Embedded software offers new challenges

LAS VEGAS (March 16, 2017) — Computer technology is improving the comfort and performance of the newest automobiles, but it also is creating a legal dilemma for the aftermarket.

Aftermarket parts manufacturers, and even auto shops, could run afoul of copyright law when trying to modify software in a vehicle, according to a panel of automotive and legal experts at the Automotive Aftermarket Parts Expo in Las Vegas last November.

New vehicles are coming loaded with embedded software. Mechanically driven parts are now being driven by software — which provides both benefits and challenges, according to the panel.

The panel stressed that there is a difference between embedded software that runs the functions of the vehicle and telematics, which are the data the car creates.

"We don't really think of our cars as super computers," said Michael Keely, senior vice president of product for Dorman Products Inc.

"Today's vehicle has about 100 million lines of code in it. If you think of other technologically advanced devices—the military's next generation fighter has 40 million lines of code; the PC you use, with the operating system and Office suite, probably has about 70 million lines of code.

"So the car really is the most technologically advanced thing you interface with on a daily basis," he said.

Mr. Keely gave the example of a full-size General Motors SUV platform that in 2000 contained nine modules to communicate across one network; in 2015 there were 70.

"This proliferation is just going to accelerate. It's not going to slow down," Mr. Keely said.

The legal tangle comes when parts manufacturers and repairers try to circumvent software in the vehicle parts.

The federal Digital Millennium Copyright Act (DMCA) makes it illegal to circumvent technological measures used to prevent unauthorized access to copyrighted works, including videos, video games, computer programs, etc.

The 1998 law originally was created to prevent people from pirating movie videos, said Kyle Wien, co-founder of iFixit, an online repair database. But he said the law was written in such an overly broad fashion that the regulation now applies to a variety of software products.

"Vehicle repair and tinkering is just one of the many areas that the law has blundered into in an attempt to prevent piracy and copyright infringement," said Kit Walsh, staff attorney for the Electronic Frontier Foundation (EFF), a nonprofit that fights laws that it believes infringes on civil liberties.

However, Section 1201 of the Act instructs the Librarian of Congress to hold rulemaking proceedings every three years to evaluate and adopt exemptions to the law.

Last October, the Librarian of Congress reviewed and allowed for an exemption related to vehicle diagnosis, repair and modification, effective for three years before it comes up for review.

"So at the moment, for the next roughly two years, the legal landscape is a little bit different than it has been because there now are exemptions to the anti-trafficking ban that let you do diagnosis, repair and modification on your own vehicle," Ms. Walsh said.

However, the legal specter regarding software copyright still hangs

over the aftermarket.

Mr. Keely claimed that restricted access to code places puts the automotive repair industry at a competitive disadvantage.

"The OEs want to limit access to the software on these vehicles," Mr. Keely said. "And make no mistake about it: It's about selling parts and controlling the repair. That's what it comes down to.

"Less access puts the aftermarket at a disadvantage. If the OEs get their way, customers are going to have one option for repair. They won't have the choices they have today," he said.

"Telematics gets the headlines. But this is real," Mr. Keely said, adding: "There are regulatory and legislative solutions to this. We got to make our voices heard.... If we don't find a solution to this, the aftermarket is going to look a lot different in the next 15 to 20 years."

Mr. Keely predicted that if OEMs control the rights to the embedded software, aftermarket parts manufacturers won't be able to replicate OE parts, distributors won't be able to sell those parts, and service shops will be limited on what parts they can fix and replace.

"This threat is here. It's here today. It's not one for the future," Mr. Keely said, noting that window switches and lift motors, transmission control modules and instrument clusters all run on embedded software on some late model vehicles.

Copyrights on embedded software could inhibit parts manufacturers, such as Dorman, from remanufacturing auto parts.

"The OE will tell you that you can't (remanufacture) because when you rebuild this product, you have to have an effective way to test it and to test it you have to test around a common software calibration.

"But the minute you change the software on the device to a common configuration, (the OEMs will) tell you that you violate their copyright," he said.

"So what if the aftermarket sells blanks? How likely is it that the repair facility is going to buy that part, install it, and then tow the car to the (OEM) dealership for programming? Never going to happen," Mr. Keely said.

"In my opinion, we need the OEs to recognize when you buy a part, you have the right to the software that's in it. We need them to work with us on an effective licensing arrangements, or we need the developer tools," he said, claiming that in some other industries the OEMs work with the aftermarket to provide access to embedded software.

Ms. Walsh noted that 1201 DMCA is a serious concern for people in many industries who are trying to innovate on and repair products with enabled devices. She claimed it takes away rights to do reverse engineering.

She noted the EFF had fought for and won the right to unlock or "jailbreak" gaming devices for the preservation of video games, to use movie clips for making documentary films and now for some forms of vehicle tinkering and repairs, as well as security research.

She noted that the exemption the Librarian of Congress granted isn't as broad as her organization wanted.

"You are not allowed to work on the telematics or entertainment systems of the car....," she warned. "It has to be done by the authorized owner of the vehicle, so it's a DIY exemption. It's not an exemption for your mechanic to do repairs, which is something we fought about with the copyright office, but they didn't grant it."

Currently the EFF is involved in a lawsuit against the government — Green vs. U.S. Department of Justice in the U.S. District Court of the District of Columbia — regarding the alleged harms of this law, ranging from its impact on the research space where people can't look, read or talk about technology all the way up to the expressive spaces, such as documentary films, she said.

She noted that things the DMCA outlaws without the traditional protections for free speech may violate the U.S. Constitution.

"If it's successful, then the broadest form of relief that we're asking for is for the law to be struck down," she said.

To reach this reporter: [email protected]; 330-865-6127; Twitter: @ kmccar.