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Marketplace Morning Report

A story of dirty emissions … and copyright law

Molly Wood Sep 28, 2015
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Squirreled away in something called the Digital Millennium Copyright Act of 1998 is fine print that makes it risky to dig around under the hood of a new car and find out what makes it tick, explains Kit Walsh of the Electronic Frontier Foundation.

“The modern automobile is controlled by about 100 different computers running software created by the automakers or third parties that they contract with,” Walsh said. “And they typically will lock down that software so that you can’t even look at it, let alone modify it as a user.”

So, imagine you’re an engineering graduate student or a consumer advocate or a curious mechanic, and you want to examine that software code: for instance, to check out what’s coming out of the tailpipe, or if the airbags are safe, or if some hacker with a smartphone can take control of the dashboard and crash your car into a wall.

Walsh says you might think twice about breaking the lock, circumventing the encryption and revealing what you find. “Congress made it unlawful to circumvent the encryption that protects access to that work,” he said.

Attorney Scott Vernick leads the data security and privacy practice at Philadelphia law firm Fox Rothschild LLP. He says automakers do have a legitimate concern in trying to protect their copyrighted intellectual property. They don’t want cyber thieves or unscrupulous competitors stealing their software and trade secrets.

“Piracy is a huge issue,” Vernick said. “And no one wants to make it easy for them — particularly in light of the amount of industrial espionage and cyber hacking that’s going on today.”

But Vernick agreed with the Electronic Frontier Foundation and consumer advocates that independent researchers looking for pollution or safety or security problems should be shielded when they access that software.

The Electronic Frontier Foundation, meanwhile, has petitioned the Library of Congress, which has jurisdiction over these matters, to exempt software in automobiles from the copyright protections in the DMCA. A decision is expected in October.

And several efforts are proceeding through Congress to amend or overhaul the DMCA to allow for independent research without fear of legal penalties and prosecution for copyright violation. Sen. Ron Wyden (D-Oregon) has sponsored one such bill with Rep. Jared Polis (D-Colorado), called the Breaking Down Barriers to Innovation Act.

In light of recent revelations of safety and emissions problems with automobiles from multiple manufacturers, Wyden says the DMCA as it stands now “is a textbook case of some of the limitations and pitfalls of overly restrictive copyright law.”

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