DETROIT -- The U.S. Copyright Office will likely decide within months whether a law written partly to protect literature and music copyrights in the digital age also prevents car owners and mechanics from making vehicle repairs or diagnoses.
That federal agency, a division of the Library of Congress, held hearings last month and expects supplemental materials from attorneys shortly in its regular three-year review of proposed exemptions to the specific law involved: the Digital Millennium Copyright Act of 1998.
One of several exemptions under review would allow car owners, tinkerers, mechanics and others to bypass technology protection measures and gain access to electronic control units, or software and computer data used to control various systems. The systems involved range from braking and steering to airbag deployment and speed control in modern automobiles.
Consumer advocates and trade associations like the Electronic Frontier Foundation and the Specialty Equipment Market Association support creating an exemption to the digital copyright law.
Their argument: Car enthusiasts and farmers and others should be able to repair, diagnose, customize and upgrade software-controlled machines "in a decades-old tradition of mechanical curiosity and self-reliance."
But companies including General Motors and Deere & Co. have opposed the exemption, as does the Alliance of Automobile Manufacturers. They have argued that the software controls often allow the companies to ensure user safety and comply with federal emission control, fuel economy and other regulations.
Attorneys expect a decision to come by late summer or fall. An exemption, if granted, would be subject to renewal every three years.
"It used to be that the only limitation on what you could do to repair or modify your own car was your level of knowledge," said Matt Mowers, an IP attorney at Detroit area law firm Warner Norcross & Judd LLP, which has several automotive supplier clients and is following the copyright issue.
"Now the car is so much more electronic these days, (and) the new limitation might be whether we can still make sure that software systems are operating as they were designed."
GM, in particular, argues that open access to the software could compromise those protections or put corrupted "vulnerable" software into the automotive consumer market. In addition, GM argues, consumers already have ways to access the software for repairs without skirting copyright law.
"Allowing individuals to access and make modifications to vehicle software risks altering vehicle systems such that they no longer comply with federal regulatory requirements and weakening the complex safety and security framework," the automaker states in comments submitted to the copyright office in March.
"Any adverse safety, performance or compliance issues that result from the affected uses will directly and negatively impact the value of the copyrighted work."
Another issue the copyright office will likely address is whether car and farm equipment buyers own the software within the vehicle or simply have a license to use it. Mowers said making the software open for public access could also discourage important r&d and mean regular software infringement for the automakers.
"If I'm trying to read the tea leaves, it's likely the Library of Congress will take some steps to allow access, but not make any significant precedential decision here," he said. "In some of the previous (exemption) hearings, very few changes were made, but as software becomes to have more applications in our lives, this will likely get more review."
John Rothchild, an associate professor at Wayne State University Law School who teaches copyright law, also said history suggests the office won't create broad new protections for consumers.
"Historically, they (the copyright office) just haven't been very generous with exemptions," he said. "In fact, the last rule-making there to get a lot of attention had to do with unlocking phones. The Copyright Office denied it, and Congress was so incensed they went on to reverse it by statute."
Congress enacted the Unlocking Consumer Choice and Wireless Competition Act after the last copyright office review of the digital copyright act in 2012 limited consumers' ability to change carriers for some smartphones.
Creating a new protection for car owners now, Rothchild said, also doesn't mean it will carry forward through the next three-year review in 2017-18, once the copyright office can see the effects of its previous decisions.
"Each of the exemptions is only good for three years, and the default position when they expire is that there is no exemption," he said. "They may decide after three years of use that it didn't create the uses that were expected.
"A decision this time might be considered on the expertise or opinion of interested parties, and next time a decision might be made more on what available data is out there to work with."