Copyright Office to Rule on Home Mechanics Exemption

Since automobiles were invented, home mechanics and hobbyists have been tinkering with their cars. While many home mechanics simply want to be able to fix their own cars, hobbyists like to have a hand in modifying them, inside and out — it’s fun, challenging and rewarding to enhance the look and performance of the vehicles they own.

These days, “tinkering” with a car might just as easily involve tweaking its software as it does changing out a physical part. However, the legality of that kind of sophisticated maintenance is being called into question this year as the U.S. Copyright Office considers creating an exemption for home mechanics under the Digital Millennium Copyright Act (DMCA).

Focus on Vehicle Electronic Control Module Software
Under the DMCA, the Copyright Office engages in rulemaking to determine exemptions to anti-circumvention rules. In this case, the copyrighted works are the software of vehicle electronic control modules.

“This is a rulemaking procedure by the Copyright Office, used to make exceptions to the DMCA’s anti-circumvention rules,” says Eric Lalor, patent law attorney and shareholder at Boyle Fredrickson. “These rules ban circumventing technological protection measures that use technology to restrict access to and protect copyrighted works.”

Tweaking software coding to change performance characteristics is uncommon for most home mechanics, Lalor says.

“It is more common to change performance characteristics either by buying add-on modules with embedded software or ‘chips’ that plug into the vehicle’s computer, or by sending the vehicle’s computer to a third party vendor that reprograms it,” he says.

Comment Period
The Copyright Office gave interested parties three chances to file comments before making a ruling. The third and final round for this topic closed May 1, 2015.

According to Lalor, “Two of the biggest brief filers for this vehicle exception are the Electronic Frontier Foundation, which is very active in these types of lobbying efforts, and a group from a law school. A lot of the big OEM (Original Equipment Manufacturer) vehicle manufacturers have filed comments opposing the exception. So the two sides are battling by filing papers arguing against each other’s positions.”

Now that the final round of submissions has closed, the Copyright Office will soon make a decision. “And, nobody knows how it’s going to turn out,” Lalor adds.

Whether or not it is decided that software modifications to vehicles are copyright violations, Lalor advises his clients to keep themselves up to date on IP rulemaking in general.