Does Tweaking Your Car’s Software Constitute Fair Use? | Vanderbilt Journal of Entertainment & Technology Law

Once every three years, the United States Copyright Office allows for the submission of proposed exemptions to Section 1201 of the Digital Millennium Copyright Act (DMCA). Section 1201 prohibits individuals from circumventing a technological measure that controls access to a protected work even if the reason for doing so is otherwise legal. The exemptions serve to remove a particular work from protected status and thereby allow the public to work around any access-limiting measures that might be put in place within those works.

In November 2014, the Electronic Frontier Foundation (EFF), a nonprofit organization that “champions user privacy, free expression, and innovation,” filed six DMCA exemption requests with the Copyright Office. With one of these requests, the EFF sought an exemption for software within vehicles. According to the EFF filing, “a wide variety of customization, innovation, and repair activities that have traditionally been within the reach of a vehicle owner now depend upon access and modification of [a] computer code.”

Individuals can tweak the software inside their vehicle to achieve a myriad of results. For example, some people have improved their gas mileage by customizing their automobile’s software to best meet the unique environmental conditions, such as altitude, within which the automobile will be mostly used. Other people have set a speed at which the automobile will not exceed when so specified, such as when a valet gets behind the wheel.

From a statutory standpoint, the EFF argues that the exemption from Section 1201 of the DMCA is warranted in that the tweaking of the software within one’s own vehicle constitutes fair use allowed by 17 U.S.C. § 107. The EFF argues that those who tweak their vehicle’s software are reverse engineering. The EFF also makes a consumer choice argument in defending its proposal. When only car manufacturers and their respective dealerships have the authority to tinker with vehicle software, vehicle owners, under current law, cannot seek independent service providers to do so. According to the EFF, “[t]his results in higher prices, longer trips for repair, fewer options, and all the other ills of reduced competition.”

If you feel the urge to join in the effort, the EFF currently features a petition on its website that allows individuals to inform the Copyright Office and the Librarian of Congress that they “support EFF’s petitions for vehicle repair and research exemptions to the Digital Millennium Copyright Act’s anti-circumvention provision.”

Chris Borns

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