Car Owners Win Legal Right To Tinker With Their Auto's Software

This is a momentous decision because the meaning of words like 'sale' and 'ownership' have come under attack as software increasingly manages the performance of everything from smartphones to automobiles, with tech firms attempting to retain the rights to the underlying code.

If you can't operate your device because you refuse to pay for a 'voluntary' upgrade or the company changes the terms of your deal, then who really owns it?  JL

Barry Meier and Jad Mouawad report in the New York Times:

The decision was one of many changes to a federal copyright law, including allowing people to “jailbreak” their mobile phones and reprogram older video games.

Car owners in the United States can soon play Volkswagen engineer, courtesy of the federal government.

Last month, officials gave auto enthusiasts who want to beef up their car’s performance the right to tinker with vehicle software without incurring the legal wrath of carmakers. The decision was one of many changes to a federal copyright law, including allowing people to “jailbreak” their mobile phones and reprogram older video games.

Digital-rights activists have applauded the changes, which are scheduled to take effect next year. But environmental regulators and carmakers have warned that the decision opens a new front in a cat-and-mouse game with car lovers who soup up their engines — perhaps violating emissions standards.

Volkswagen has admitted using deceptive software on a corporate scale to evade emissions limits on some of its diesel cars. But long before the VW scandal, individual car owners turned to aftermarket components or software fixes to increase engine performance in ways that could produce more pollution.

“It has been going on forever,” said Mike Norris, who runs a company near Indianapolis that legally customizes cars. “Hot rod guys don’t want to be known as tree-huggers.” To avoid detection, experts say, tinkerers reprogram car software settings or use “defeat devices” to try to fool emissions testing equipment.

The practice was so widespread nearly a decade ago that the Environmental Protection Agency outlawed a defeat device known as an oxygen sensor simulator. Such units made it look as if a car’s catalytic converter was working properly, even if it was disconnected.

More recently, Edge Products, a maker of auto components in Ogden, Utah, agreed to pay a $500,000 fine in 2013 for selling devices that let owners of diesel pickup trucks to disconnect an emissions-control component without activating a warning light. The environmental impact of the devices, which were sold under the Edge Racing brand name, was significant. Federal regulators said the more than 9,000 pickup trucks equipped with the unit emitted excess pollution equal to the amount generated by 422 new long-haul trucks operating for 29 years.

Practices like these can be taken to extremes. For instance, there is “coal rolling” — the practice of modifying diesel pickup trucks to intentionally belch clouds of black smoke, often from upright exhaust pipes that look like chrome-plated smokestacks. An employee of Parleys Diesel Performance, a company in St. George, Utah, that makes the towering, customized exhaust pipes, said, “It is not the goal of our company to help people blast out black smoke.”

The pipes themselves are perfectly legal. The smoke is created by modifying the car to increase the amount of fuel going to a vehicle’s engine without increasing air intake.

Today’s cars contain sophisticated engine control software that determines how a vehicle’s engine operates, including fuel efficiency and exhaust emissions. In Volkswagen’s case, software could detect when a car was being tested for emissions and activate its pollution controls, then deactivate them when the car was being driven normally.

Carmakers and companies that supply emissions-testing equipment have long been on the lookout for tinkerers. Mr. Norris, the Indiana car customizer, said that auto companies began using special techniques about a decade ago to detect if a car’s factory-installed software had been altered. Altered software, he said, could give the carmakers a reason to void the warranty.

One emissions-testing company, Opus Systems, uses a patented method to identify cars equipped with devices built to fool state inspection equipment. “Our method is meant to catch

meant to catch fraud by individual car owners,” said Lothar Geilen, the chief executive of Opus, which supplies emissions-testing equipment to 22 states.

The latest avenue for engine tinkering was opened last month when the Library of Congress, which oversees the United States Copyright Office, approved several new exemptions to the Digital Millennium Copyright Act, a far-reaching 1998 statute that was meant to bring copyright law into the digital era. Every three years, federal officials review potential exemptions to the rule.

As part of the latest three-year review, the Electronic Frontier Foundation, an advocacy group based in San Francisco, filed petitions seeking changes to parts of the laws that prohibited consumers from unlocking software “access controls” on certain products. Two of the petitions dealt directly with vehicle software, including software used to control a car’s engine and emissions-control units.

Kit Walsh, a lawyer with the Electronic Frontier Foundation, said the group believed that researchers and car owners needed access to vehicle software not only to make repairs or to adjust a car’s performance, but also to improve security. To demonstrate security vulnerabilities in automotive software, two security experts, Charlie Miller and Chris Valasek, recently performed an experiment in which they remotely hacked into a Jeep Cherokee and took control from the driver.

Mr. Walsh said many companies that make auto components supported the changes to the law. One such company, Derive Systems of Sanford, Fla., reprograms engine computers in ways that it says improve fuel efficiency while reducing emissions.

The E.P.A. also warned that the exemption could result in more pollution. “Based on the information E.P.A. has obtained in the context of enforcement activities, the majority of modifications to engine software are being performed to increase power and/or boost fuel economy,” the agency said in a letter to the Copyright Office opposing the change. “These kinds of modifications will often increase emissions.”

The auto industry, including Volkswagen, also opposed the change, saying it could compromise vehicle safety, given the increasingly complex software systems being used to control cars and alert drivers to hazards.

Mr. Walsh said that independent researchers might well have detected Volkswagen’s fraud earlier if they had had access to its software. He also said he did not believe that car owners would abuse their new rights. “People have tinkered with cars in ways that is both good and bad for the environment,” he said.

Despite the change to the copyright law, it remains illegal to alter engine performance in any way that evades emissions standards. Violators can face fines of up to $3,750 for each defeat device and up to $37,500 for each noncompliant vehicle.