John Deere, GM push back against consumer modifications of vehicle software

By Steve Brachmann
July 1, 2015

auto-car-3d-335Who owns the vehicle that gets you through your daily commute? If you take public transportation, then that answer is probably a transportation authority. But what if you use a private vehicle for getting to and from your destinations? Many people lease a vehicle, in which case the dealership technically retains ownership of the automobile. Most people would assume that if a person bought a vehicle outright from the dealership, then complete ownership of that vehicle and all of its component parts would be transferred to the consumer.

However, there are some key players in the automotive industry that are trying to exert certain intellectual property rights that will make car ownership a bit murkier for American consumers. Because these vehicles are using more proprietary software systems than ever before, these automakers are insisting that consumers don’t actually own every element of their vehicle but instead are licensing them from the manufacturer for the life of the vehicle.

We’ve been covering much of the growth in innovative vehicle software systems this year on IPWatchdog ever since autonomous vehicles made such a conspicuous debut at the 2015 Consumer Electronics Show. The past few years have seen an explosion in patenting activities in the global automotive sector, much of it related to telematics, self-driving navigational systems and other functions that are heavily reliant upon software.

Every three years, the U.S. Copyright Office solicits for proposed exemptions to prohibitions against circumvention which have been established by the Digital Millennium Copyright Act (DMCA). Among other things, the DMCA added Section 1201 to Title 17 of the U.S. Code, which governs copyrights. Section 1201 specifically focuses on the circumvention of copyright protection systems and declares that the circumvention of technological measures to control access to a copyrighted work is a violation of U.S. copyright law.

One of the more active areas during this round of public comments collected by the Copyright Office involves the prohibitions against circumvention for Proposed Class 21, which covers vehicle software for diagnosis, repair or modification. A first round of comments saw ten submissions, some from major tech and IP industry organizations such as the Electronic Frontier Foundation (EFF) and the Intellectual Property & Technology Law Clinic at the University of Southern California. EFF noted in its comment that companies like Ford Motor Company (NYSE:F) have used Section 1201 to sue independent diagnostic companies which have defeated encryption practices to access non-copyrightable material like parts specifications or diagnostic codes which are collected by automobile software. Preventing owners from circumventing encryptions on software also subverts a long tradition of vehicle owners tinkering with their cars, preventing that practice from entering the digital age.


The second round of public comments on proposed Section 1201 exemptions drew a coalition of opposition from manufacturers representing diverse members of the American auto industry, including General Motors (NYSE:GM), the Association of Equipment Manufacturers and John Deere (NYSE:DE). The essence of the argument made by car manufacturers against a prohibition exemption focuses on the fact that subverting the electronic control units (ECUs) could have unintended consequences, some of them devastating from a safety standpoint. John Deere cites the possibility that circumventing technological protection measures (TPMs) for gaining access to ECUs could cause software systems to malfunction and create a public safety risk, noting that an agricultural vehicle can weigh over 44,000 pounds. Allowing consumers to go around TPM security measures for vehicle modification might encourage them to install defeat devices to disable emission control technologies. John Deere also suggests that enabling these exemptions could encourage the piracy of copyrighted music or film recordings by tampering with infotainment software systems installed on vehicles. As well, modifying vehicle software to reduce the car’s maximum speed when lending it to a teenager or activate lights when the windshield wipers are turned on, both of which are suggested by John Deere, constitutes commercial activity which goes against non-profit fair use principles used to consider exemptions.

What has proven to be truly contentious in the tech community is the assertion by John Deere that the manufacturer, and not the car owner, is the one who truly owns the vehicle’s software systems. In John Deere’s words: “A vehicle owner does not acquire copyrights for software in the vehicle, and cannot properly be considered an ‘owner’ of the vehicle software.” This sentiment is echoed in comments submitted by General Motors: “Proponents incorrectly conflate ownership of a vehicle with ownership of the underlying computer software in a vehicle.”

This point of view has inspired some grave concerns in the tech community, most of which are expressed fully in a WIRED opinion piece titled We Can’t Let John Deere Destroy the Very Idea of Ownership. The column, penned by Kyle Wiens, co-founder and CEO of global mechanical repair community iFixit, rails against auto manufacturers and their notion that their copyright gives the manufacturer an element of ownership in a vehicle that has been sold to a consumer. “It’s John Deere’s tractor, folks. You’re just driving it,” Wiens writes.

iFixit and others are mainly focusing on the impacts to the farming community of extensive copyright protections for vehicle software. In public comments submitted by Wiens to the U.S. Copyright Office, a story is told of a California farmer who cannot find a way to keep his tractor operational when one of the hydraulic sensors malfunctions. The TPM security measures make it impossible to bypass the sensor and the farmer loses two days of work every time he has to wait for a new part to be delivered. Proponents of the exemption argue that the farmer should have the right to modify every part of a vehicle that has been purchased, noting that the farming community has long had a do-it-yourself mentality when it comes to repairs and modifications.

There are some moderate observers of this conflict who have noted that John Deere et. al. aren’t maintaining ownership of the vehicle but the software systems which improve mechanical operation. The issue is somewhat similar to the jailbreaking of cell phones so that owners could choose a new wireless carrier for a device, a former violation under the DMCA but now a legal option thanks to a law passed by Congress last July. The expansive copyright protections afforded to software under the DMCA, which was passed in 1998, are often leveraged by manufacturers to restrict any modifications to the software’s programming.

In July, the U.S. Copyright Office will announce its decision whether or not to allow any circumvention of TPMs for vehicle software meant for diagnostics, repair or vehicle modification. Unless Congress takes action like they did in the case of jailbroken smartphones, its decision will be enforced for a period of three years until the next round of exemption proposals.

The Author

Steve Brachmann

Steve Brachmann is a writer located in Buffalo, New York. He has worked professionally as a freelancer for more than a decade. He has become a regular contributor to IPWatchdog.com, writing about technology, innovation and is the primary author of the Companies We Follow series. His work has been published by The Buffalo News, The Hamburg Sun, USAToday.com, Chron.com, Motley Fool and OpenLettersMonthly.com. Steve also provides website copy and documents for various business clients.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 13 Comments comments.

  1. Anon July 1, 2015 7:42 am

    I have always had a problem with DMCA type “lock-out” features that lock out even Fair Use exempted use of items.

    There is a reason why copyright protection is longer than patent protection – concomitant with the longer length is the shallower protection.

    To deny even the chance of a Fair Use use is beyond what the Constitution provides – and abridges the rights of others.

    I “get” that digital goods are “problematic” in this regard, since once open to Fair Use, the ability to replicate perfect copies threatens the initial source and rights holder of the goods. But the answer cannot be in the abridgment of rights of others.

    And back to one of the points of this article: the “scrivining” of lease versus buy should be an area that the courts clamp down on. A rose by any other name and all…

  2. Gene Quinn July 1, 2015 9:09 am

    Anon-

    Largely agree with everything you say. No disputing that copyrights last longer because of an alleged fair use. Given all the wanton infringement that goes on without repercussions I can and do understand the desire on the part of content creators not to allow any copying even if they trample on fair use. One area of IP that desperately needs Congressional action is copyright law. But in order to do anything useful from the point of view of content creators (i.e., to attempt to clamp down on willful, intentional and even malicious copyright infringement) Congress will risk a Google protest and hackers who live in the basement maliciously hacking just because they can. A sad state of affairs really.

    -Gene

  3. Anon July 1, 2015 12:42 pm

    The “utility” of any meaningful protection given the modern day ease of replication of anything digital is a very intense conundrum.

  4. Mike July 1, 2015 2:29 pm

    So if John Deere “owns” the software on my tractor can they charge me for software patches and updates. Many tractors will last for 30+ years. Are they willing to support the software for that long? They can’t have it both ways. They can’t refuse to support the software or refuse to take responsibility if a software bug causes problems and prevent the owner of the machine from making repairs. If they want to “own” it then every equipment owner should hold them responsible for all repairs, maintenance, and upgrades related to the software.

  5. Mike July 1, 2015 2:33 pm

    Gene – In the US our rights should not be abridged or violated because others break the law. We should not punish people because the could commit a crime. We only punish them when they do commit a crime.

    We as a country have become lazy. We treat anyone who has the ability to break the law as if they did because we do not want to go after the ones that do.

  6. Gene Quinn July 1, 2015 3:33 pm

    Mike-

    It is impossible to argue with you or to find any flaws in your logic. I agree. What a fine mess we have created. a culture that steals intellectual property is creating a culture that demands tighter protections. It is a vicious cycle and Congress is predictably absent on this important issue.

    -Gene

  7. The Bat Man July 1, 2015 9:13 pm

    Congress is absent because voters want it that way.

  8. Anon July 2, 2015 7:38 am

    Mike, read your “lease” agreement – there is no such clause by which what you want is agreed to.

    Oh wait, where is that “lease” agreement…

    And let me throw into the discussion here that we have yet another example of some larger issue at law attempting to masquerade as a strictly IP issue: “lease” versus sale.

    This is well within the realm of contract law. Let’s not try to create an “IP bandaid” to a gaping wound larger than IP.

  9. Gene Quinn July 2, 2015 12:25 pm

    The Bat Man-

    You really think Congress panders to voters? If that is true why are they destroying the patent system? Patent issues drive zero votes on election day.

    I used to think Congress follows voters until I started observing things up close. Congress panders to donors. Money and access (which are closely related) rule the day.

    -Gene

  10. Andrew Schwerin July 3, 2015 9:31 am

    It’s worth noting here that the legislative history of the DMCA was to prevent piracy of creative media – CD’s, DVD’s, etc. These are products where the content itself – the songs, movies, etc. – drives the consumer demand.

    What we have here is a law being applied well outside of its intended scope. The DMCA is being used by primary manufacturers to prevent tinkering (or “hacking”) the anti-circumvention measures on non-creative content, such as cars, tractors, and inkjet cartridges. In essence, they are controlling the aftermarket for repairs and replacement parts, and this is a market that should be open for competition. I’m not doing it justice here, but read Mike Carrier’s excellent chapter on the topic.

  11. Eric Berend July 4, 2015 3:38 pm

    Outrageous. The irony here is extremely rich. I’m nearly speechless with astonishment.

    We humans must *love* ‘the smell of *hypocrisy* in the morning’. This pablum of “We Can’t Let John Deere Destroy the Very Idea of Ownership” from the very same cabal of patent OWNERSHIP protection destroyers which base their motivations upon software-centric issues?

    How convenient! The ‘keys to the kingdom’ bestowed upon their inclination of the moment? Whimsical arbitrariness at the behest of the Google-empowered!

    Truly, I’m aghast; speechless beyond disbelief.

  12. Eric Berend July 4, 2015 4:33 pm

    Anon (@ #8) –

    Does it look like a duck? Walk like a duck? Squawk like a duck?

    If I’m not mistaken, in estate law, there are not dissimilar considerations that led to the Rule Against Perpetuities. Also, some corollary here to one of the Fed. Circuit Ct. decisions cited (but not commented upon) in this week’s “Federal Circuit review” here on IPWatchdog by Robert Schaffer (thank you, Robert!): ‘G.D. Searle LLC, v. Lupin Pharmaceuticals, Inc.’; where in essence, it appears that Searle tried to pull some new matter out of a continuation-in-part Patent App. and have it re-issued as a divisional Patent App. instead; the court reasoned that Searle wasn’t entitled to have it both ways with their asserted patent rights and the public interest (according to “…a strict application of the plain language of Section 121…”).

    In other words, to state the obvious, in equity and fairness: one cannot ‘have it both ways’. The business arrangement is EITHER a sale OR a lease. The bequeathment of title to the manor house in fee is EITHER absolute OR subject to the ‘mortmain’ (which the Rule Against Perpetuities forbids). The Patent that issued from its Application is EITHER a divisional OR a continuation-in-part arising from an Examiner’s requirements for restriction of the scope of its claims.

  13. Anon July 4, 2015 5:34 pm

    Eric,

    I am not certain what you are railing about. Are you joining my call to clarify the law concerning “lease” and how that term has been “muddied” with shrink wrap (or in the present matter, “vapor wrap”)…? And not sure how any of this implicates a pro-patent position. Not sure where your venom is coming from in your first post, not how you think the Searle case is actually pertinent to the discussion.

    Can you clarify?