John Lingl, a shareholder in the Ann Arbor office of Brinks Gilson & Lione, one of the largest intellectual property law firms in the U.S., says recent guidelines allowing car owners to modify their vehicle’s software without infringing on the copyrights of automakers is a big win for individuals and aftermarket companies. The Library of Congress, which oversees the U.S. Copyright Office, announced the ruling recently. Prior to the decision, aftermarket companies and individuals who modified their vehicle powertrain controllers to change what is often called “fuel and spark mapping” did so at the risk of copyright infringement.
“Many liken the ability to modify a vehicle’s software and control systems to the ability of mechanics to modify engines, transmission and exhaust systems in an effort to improve vehicle performance,” Lingl said. “Today individuals and aftermarket companies are modifying their vehicle’s software to accomplish some of the same goals – and the new guidelines say they will be able to do so lawfully.”
Some view the push by OEMs to prevent software modification as an effort to wall off aftermarket companies, allowing OEMs to become the sole providers of modified software. In so doing, the OEMs would have the ability to set and control pricing for any software modifications and/or possibly prevent third-party repair shops from performing any modifications to a vehicle's software. Lingl says there are other considerations, however.
“Industry insiders have legitimate concerns that individuals having the ability to modify one or more elements of a vehicle’s software may make their vehicle vulnerable to cyber security threats and safety issues,” Lingl said. “For example, an individual may inadvertently disable safety systems, such as antilock brake systems and airbags. Also, as Volkswagen has shown, modification of the vehicle’s software could result in vehicle emissions that do not comply with state and/or federal laws.”
With the introduction of the new guidelines, Lingl says to expect OEMs to increase their security measures regarding modification of vehicle software to make it more difficult to for individuals and aftermarket companies to modify.
“The automotive industry wants to protect its technology from improper use and will continue to increase the complexity of its software safeguards,” Lingl said. “At the same time, vehicle owners view their vehicles as their own and want the right to alter them as they see fit. This back and forth won’t be resolved through these new copyright guidelines, but more clear-cut definitions of ownership are certain to evolve.”
The guidelines take effect in 2016 and will be reviewed again in three years.
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