Exemptions to Digital Millennium Copyright Act to Allow Access for Independent Repair Providers
In a victory for motor vehicle suppliers and the independent aftermarket, the Librarian of Congress expanded exemptions to the Digital Millennium Copyright Act (DMCA) that allow greater access to vehicle software by independent repair providers for diagnostic and repair services. The Motor & Equipment Manufacturers Association (MEMA) and two of its divisions, the Automotive Aftermarket Suppliers Association (AASA) and MERA – The Association for Sustainable Manufacturing, had requested these exemptions in the DMCA to protect consumer choice in both automotive replacement components and service.
In a notice published today in the Federal Register, the Acting Director of the U.S. Copyright Office acknowledged MEMA’s comments in support of expanding exemptions for vehicle repair to allow third-party providers to service vehicles on behalf of owners. The existing exemption for vehicle software only applied to vehicle owners and prevented third party service providers from performing diagnostic and repair work.
The new exemption for motorized land vehicles “removes the requirement that circumvention be undertaken by the authorized owner of the vehicle, instead providing that it apply where such items are lawfully acquired.” This could extend to third party service providers, provided they do not violate anti-trafficking provisions of copyrighted software.
In addition, the Copyright Office also removed the language excluding access to computer programs for the control of telematics or entertainment systems, due to the “increasing integration of vehicle computer systems.” However, the Copyright office stated: “While the broadened exemption permits incidental access to a vehicle infotainment system, it provides that such access is allowed only to the extent it is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function” and includes the additional requirement that circumvention may not be “accomplished for the purposes of gaining unauthorized access to other copyrighted works.”
“This is an important issue for MEMA, AASA and MERA, striking at the heart of consumers’ freedom to choose where their vehicles are maintained and how they are repaired,” noted Bill Long, AASA president and COO and executive vice president, government affairs, MEMA. “We are pleased that the U.S. Copyright Office heard the voice of automotive aftermarket suppliers on this critical issue.”
MEMA legal counsel is currently reviewing the notice and is working on a more thorough analysis.
As it did during the sixth triennial review of the DMCA, MEMA asserted in March 2018 that the U.S. Copyright Office can issue a narrowly-tailored exemption for vehicle diagnosis, repair, or modification that better communicates the intent of the current vehicle repair exemption while remaining faithful to existing law.
In the March 2018 comments, MEMA argued that striking a balanced exemption would preserve consumers’ right to choose their automotive repair service provider: “MEMA is confident that the Copyright Office can once again strike an appropriate balance between the rights of vehicle owners and the rights of intellectual property owners. One way to do so would be to define exemption beneficiaries less restrictively, while retaining the other restrictions in the existing exemption for vehicle diagnosis, repair, and modification. Such an exemption would not provide a green light to companies to traffic in products designed to circumvent access and copy controls. It would merely recognize that existing law already authorizes consumers to have their vehicles repaired and serviced by vehicle repair technicians of their choosing and give them a means of doing so.”