DMCA Exemption Granted in Wake of Volkswagen Emissions Scandal

News recently broke that Volkswagen released an estimated 11 million diesel-powered vehicles worldwide equipped with software capable of evading emissions testing. Some argued that Volkswagen’s obfuscation would have been more easily detected if the vehicle software was not protected under the Digital Millennium Copyright Act (DMCA). The DMCA prohibits those outside of the vehicle manufacturing process from accessing the technological protection measures inside the vehicle software. This prevents individuals from determining whether a software modification—such as Volkswagen’s—has occurred by making it a copyright violation for individuals to circumvent the software. Thus, proponents of the exemption claim that allowing individual vehicle owners to access the software could allow for detection of this type of error.

The Volkswagen story came to light at a particularly opportune time. The Librarian of Congress recently approved an exemption to the provision of the DMCA that prohibits circumvention of technological protection measures in automobiles. When the ruling takes effect in a year, it will no longer be a violation for car owners to examine the software in their own vehicles for the limited purposes of “diagnosis, repair, or modification.” Prior to the Volkswagen disclosure, the EPA sent the Copyright Office a statement of its opposition to the exemption, fearing the exemption would increase the risk that vehicle software could be modified by car owners in ways that increase emissions and violate the Clean Air Act. The Volkswagen emissions scandal shows that while there are certainly risks in allowing individuals to engage in performance-affecting alterations, the bigger threat may actually be posed by the large auto companies capable of manufacturing vehicles with built-in software modifications

 

The Library of Congress decision can be found here:

https://s3.amazonaws.com/public-inspection.federalregister.gov/2015-27212.pdf

For more information on the effect of the ruling on auto software, visit:

http://arstechnica.com/tech-policy/2015/10/us-regulators-grant-dmca-exemption-legalizing-vehicle-software-tinkering/

By: Janet Olsen, ’17

USC Gould School of Law
©2017 USC Intellectual Property and Technology Law Clinic