The question, “Who owns your car?” has traditionally had two possible answers: Either you own it, or whoever holds the loan or the lease owns it. But a third possibility has emerged lately: Your car’s manufacturer owns it. Even if you wrote a check for the full price.
The arrival of headlines such as, “GM says you don’t own your car, you just license it,” is something we should’ve seen coming. It’s a predictable result of how U.S. law governs software copyrights, but it has strange implications for car owners. Sorry, we mean car “owners.”
The law at work here, the Digital Millennium Copyright Act of 1998, contains this line: “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.”
That means a company can put a “digital rights management” lock on any software and extinguish the rights of everybody else to tinker with that program. With embedded code running in far more devices than it was in 1998, the DMCA’s anti-circumvention clause is today much more far-reaching than it was when written.
Congress wasn’t completely off its rocker when it enacted the DMCA: The law also requires the Librarian of Congress to, every three years, consider temporarily exempting products from the anti-circumvention rule if their users can prove they’re hurt by the rule.
We’re now in the sixth go-round of this triennial proceeding, and one of the most contentious of the 27 proposed exemptions would permit breaking DRM on a car, truck or tractor’s software for “lawful diagnosis and repair” or “aftermarket personalization, modification, or other improvement.”
GM Is Not Amused
General Motors objected to that proposal. Its 24-page public comment argued that “the proposed exemption could introduce safety and security issues,” while GM already provides all the software tools mechanics and owners need to diagnose and fix its vehicles.
But GM wasn’t done there, arguing further that “vehicle owners do not own the vehicle software at issue.”
If you read GM’s filing and the supportive comments of the Alliance of Automobile Manufacturers, you’ll see that neither GM nor its trade group said you don’t own your car, only that you don’t own the software in it. So “GM still owns your car” headlines are wrong. It would not be the first time intellectual-property policy got tangled up in the media.
I don’t even find GM’s basic software-ownership argument crazy, given that I accept similar logic on the MacBook I’m typing this on: I own the computer, but not the operating-system software on it.
The catch is, I had to agree to a software-license agreement when I first powered on this computer. Did you have to do any such thing with your car? Did you sign a software license with all the other dealer paperwork?
“If they haven’t written it down anywhere, then it’s completely bunk,” said Sherwin Siy, Public Knowledge vice president for legal affairs.
GM declined to comment, instead pointing me to the Alliance. Spokesman Daniel Gage sent a Q&A document (item two: “Who owns my car? You do.”) and a statement warning that allowing circumvention of car code invited “serious risks to consumer safety and privacy, and clean air protections.”
Hardware Versus Software Tinkering
It’s true that a tinkerer — or, if you’re GM, a “hacker” — could modify the software in a car to make it less safe. But that person could also do the same to the hardware on a car.
Or as security researcher and car tinkerer Craig Smith of Open Garages put it in an email: “The only difference between making modifications to vehicles in the past and that of the present is that now the auto industry can use the copyright law to lock consumers into only going to the manufacturers and their licensed tool distributors.”
Smith and the Electronic Frontier Foundation’s (EFF) Kit Walsh, who each filed petitions in favor of the exemption provision, ticked off various examples of harm caused by car makers’ locks on their code.
For instance, Smith said it’s impossible to put a newer-model engine in an older vehicle without modifying its engine control unit (ECU) software.
Walsh said, “There are repair and diagnosis activities that cannot take place” — either due to the software being off limits or prohibitively expensive to inspect using legal tools. At the same, as the EFF’s filing noted, it’s not that hard to break the DRM on a lot of embedded car systems.
Smith said car hackers are working to develop ways to detect changes to a car’s embedded software — and car manufacturers don’t help that effort by keeping their systems closed.
Meanwhile, the most dangerous processor in a car — the brain of the person behind the wheel — remains open to modification. We seem to be okay with that.
If we could simply decide that software is just another tool to make things work, this discussion would be different. But the law says otherwise. As one of Siy’s colleagues, Public Knowledge policy counsel Raza Panjwani, put it: “This falls into the weird gap of software being special.”