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Is Copyright Law Protecting Corporate Cheaters Like Volkswagen?

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By Casey C. Sullivan, Esq. on September 30, 2015 10:40 AM

If you wanted to know how your Model T was working, you would open the hood. If you want to see what's going on in your car today, you can still look under the hood -- but you can't look into the dozens of software programs that make you automobile go vroom. That private, encrypted software is protected by the Digital Millennium Copyright Act, which makes it illegal to circumvent measures meant to keep proprietary software private.

Now, those IP protections are coming under fire, following revelations that Volkswagen installed secret software to evade emissions tests and violate pollution regulations. Had inspectors been able to peak under the digital hood, they may have spotted the deception earlier.

Cheating, but Proprietary, Software

Environmental and public safety laws are only effective if they can be enforced. If one suspects asbestos in the ceiling or heavy metals in mine runoff, private parties can test for compliance directly.

That's not the case with proprietary software, like the kind used by Volkswagen to cheat emissions tests. Under section 1201 of the DMCA, "no person shall circumvent a technological measure that effectively controls access" to a protected work, such as proprietary software. Exceptions exist to the prohibition exist. Law enforcement, for example, can legally bypass encryption, but government inspectors do very little routine inspection. The kinds of groups that discovered Volkswagen's fraud -- schools and nonprofits -- aren't covered by the exception and violating 1201 can be a criminal offense.

As Columbia Law professor Eben Moglen has said, "Proprietary software is an unsafe building material. You can't inspect it." And it's becoming increasingly more common. Not only are cars full of proprietary software, but so is your lawnmower and even your fridge. Code that can't be inspected could increase the risk that corporations will use it to circumvent the law, giving rise to what The New York Times's Zeynep Tufekci dubbed "the Internet of Cheating Things."

Reform or the Norm?

The Volkswagen fraud might give IP reform advocates the boost they need. The U.S. Copyright Office is currently holding rulemaking proceedings to consider current and further exemptions to section 1201. Groups like the Electronic Frontier Foundation have submitted comments calling for changes to how car software is protected under the DMCA, hoping to open up proprietary car code to greater scrutiny.

Removing the DMCA protections wouldn't be simple, however. Weakening prohibitions against unauthorized access could remove an important protection against competitors and hackers, for example -- and hackers have tinkered with taking over a car's software system before. The EPA has opposed changes, saying they could let drivers, instead of car manufacturers, hack their way around environmental controls.

Still, if administrative rulemaking doesn't result in changes to section 1201, legislation might. Two Democratic congress members have introduced the Breaking Down Barriers to Innovation Act which would expand exemptions to the DMCA's protections.

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