Fight over Right to Repair will heat up in 2018: NMA E-Newsletter #470

You bought, you own it! That’s what most of us think anyway when we buy a car. We should be able to do what we want with it, whether modifying the engine for better performance or taking it to our favorite mechanic to have it repaired. Many car owners, however, might be surprised to find that they actually don’t own every part of their vehicle.

Increasingly, automakers have utilized embedded software to take the place of mechanical functions. Automakers consider this code to be intellectual property protected by the 1996 Digital Millennium Copyright Act (DMCA). Access to the software can only be given by permission. The embedded programming can control brakes, emissions, ignitions, transmissions and even windshield wipers.

Vehicle owners cannot just have any mechanic (themselves included) make adjustments to the factory coding. You either have to take your car back to the dealer or have it serviced by an approved/authorized third-party repair shop.

According to the Auto Care Association (ACA), the advocacy association for indie repair shops, this limitation hurts the free market. ACA’s Aaron Lowe notes, “The manufacturers want to control where you get your car repaired. There are many ways they can make it available to independent shops, but then it’s no longer an independent market.”

Richmond, VA independent auto shop owner Gary Thaxton said he would love to see some competition entering the programming side of the auto repair market. “Right now the dealership has you by the …, they can charge whatever they want.” He added, “I would be in favor of having an independent option to get the price down to a more reasonable amount.”

The right to repair and property rights seems to be clashing with intellectual property rights. The website questions whether the DMCA should even cover manufactured equipment.

U.S. patent law protects consumers’ right to repair their motor vehicle themselves, or choose a trusted technician to perform the work for them. Cleaning, repairing and refurbishing parts or replacing worn or broken parts has always been considered permissible under the law. Congress passed the DMCA to provide IP protections for expressive works, such as movies or music – not enable original equipment manufacturers to design systems that prevent replacement of functional software and parts. While unattended, DMCA is being used to stifle competition in the vehicle repair industry. Congress and the U.S. Copyright Office must take immediate action to clarify that vehicle owners and authorized third parties can continue to access embedded software for purposes of repair and maintenance.

Every three years the U.S. Copyright Office solicits public comments with suggested exceptions to the DMCA. As the 2017/2018 comment period opened up the Electronic Frontier Foundation (EFF) joined forces with the Auto Care Association to ask the copyright office to provide an exemption allowing independent repair shops, and third party companies authorization to access and fix factory-embedded coding with the vehicle owner’s permission.

In December, the EFF logged their preliminary comments with the patent office and has been successful on advocating for other DMCA exemptions since 1999. The Copyright Office asks that all written reply comments from supporters of a proposed exemption and parties that neither support nor oppose a proposed exemption are due March 14, 2018.

The right to repair goes further than just cars. The Owners’ Rights Initiative represents a broad coalition of stakeholders who have interest in protecting ownership rights around the world.

If owners don’t have the right to alter their property as they wish within the confines of existing regulations while also accepting that factory warranties could be affected, then the idea of product ownership begins to lose meaning. The battle on this front, particularly as it relates to vehicle repair, will continue long past 2018.

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