RICHMOND, VA (CN) – Gary Thaxton has owned an independent auto repair shop in downtown Richmond, Virginia, since 1975. He’s seen thousands of cars come in and out of his garage, but newer models, with complex computer systems that he lacks the software and hardware to fix, pose a problem for the businessman.
“Once we get the car done we have to send it to the dealership to get it programmed,” he said of the computer modules he has to replace on things like transmissions and air bags that use proprietary systems owned by the car companies.
“You’ve got to tow the vehicle, it troubles the customer … It’s not an overwhelming problem, but when it happens it’s a pain the butt.”
The Electronic Frontier Foundation, an advocacy group that focuses on technology issues, along with supporters of the independent auto repair industry, are hoping to change that, or at least make it easier.
Signed in 1996, the Digital Millennium Copyright Act allows copyright holders and companies the right to maintain these barriers. It’s the same law that allows content owners to request videos be pulled from YouTube if they violate a copyright.
What most people don’t realize that it is a wide-ranging law that covers many modern conveniences.
Every three years the U.S. Copyright Office opens up the law to public comment and gives companies, advocacy groups and interested citizens the chance to request new exceptions to the law.
The Electronic Frontier Foundation has participated in this triennial process since 1999 and it has had many successes when it comes to changing the law – creating new exceptions for the use of copyrighted video for educational, documentary, and satirical purposes. But now, as the 2018 comment period opens up, they’re hoping to get another exemption which would allow independent repair shops, and third party companies, the right to make changes and repairs to the software on products they already own.
“If you own a device with software in it – from a watch to a car – you should be able to repair it and modify it without liability under the law,” said Mitch Stoltz, senior staff attorney at the foundation.
As the rules stand now, automobile manufacturers own the copyright on software that is pre-installed on new cars. This means car owners, or independent repair shops like Thaxton’s, must work with dealerships or one of the manufacturer’s approved third-party repair companies, who purchases a license from the automaker to perform “authorized” repairs.
According to the Auto Care Association, a group that advocates for indie repair shops, this limitation hurts the free market and allows auto manufacturers to violate a previously agreed upon agreement, the so-called “right to repair.”
The Motor Vehicle Owners’ Right to Repair Act is the name for related proposed bills that languished for several years in the U.S. Congress and several state legislatures until Massachusetts voters overwhelmingly voters to support their state’s initiative in 2012.
In the wake of that vote, vehicle manufacturers agreed to make parts and technology available nationwide as to avoid having to litigate court-by-court in every state.
But a gray area remains where the agreement overlaps with the Digital Millennium Copyright Act.
The Auto Care Association wants the Copyright Office to create an exception to allow the deal to work as intended.
“The manufacturers want to control where you get [your car] repaired,” said Aaron Lowe, senior vice president of the Auto Care Association’s Government Affairs team. “There’s many ways they can make it available to independent repair shops, but then it’s no longer an independent market.”
That’s where businesses like Gary Runey’s comes in. He’s a programmer for C & K Auto Parts, in Richmond, and has developed a small business by paying for the license for software and tools and then traveling to independent repair shops, offering to fix or upgrade their technology.
Runey says everything he does complies with the current Digital Millennium Copyright Act.
“There’s nothing difficult about getting access to [the programming], it’s just the money,” Runey said. His company has thrived under the old rules, offering a service that is usually too costly for small shops, but he sees good and bad in the association’s requested exceptions to the rule.
“With every aspect of a part, the manufacturers spend a lot on design: software, mechanical,” he said. “But the advantage would be people who want to tune their parts; people looking to change performance.”
At the same time, he said, if the exception is adopted a company “could make their own circuit board with the part already programmed and sell it as such. I could see where that would be beneficial for them.”
It’s this access that the Electronic Frontier Foundation and Auto Care Association want to see expand — and Lowe is confident there’s a history of auto manufacturers allowing the public to toy with their designs.
“Often times, when we take things apart from the manufacturer we find better options and solutions,” Lowe said.
But auto shops who have tried to side-step the copyright have faced legal trouble. In 2015, Dorman Products Inc. was sued by General Motors in federal court in Detroit after the independent parts maker created unauthorized copies of GM’s proprietary software. A federal judge ruled in General Motors’ favor.
“They’re using the DMCA to prevent the manufacture of competing parts — software driven parts,” Lowe said. “If you can prevent a consumer from copying the software for a part they already have, then you control where they get parts for the car. It’s like signing a licensing agreement.”
Stoltz said this is why the Electronic Frontier Foundation got involved; they see the current rule as a slippery slope that allows for all kinds of possible negative outcomes for consumers.
“It allows [companies] to have a monopoly blackout, blocking third party applications or parts, or having control over those third party apps and parts or even planned obsolescence,” he said.
“This is a law that reaches into stuff that you already own and restricts what you can do with it,” Stoltz added. “If you buy it, you own it. You can modify it, give it away, throw it away, as it exists.”
As for Thaxton, he loves the idea of seeing some competition entering the programming side of the auto repair market.
“Right now, the dealership has you by the nuts, they can charge you whatever they want,” he said. “I’d be in favor of having an independent option to get the price down to a more reasonable amount.”