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U.S. Copyright Office Proposes to Extend MEMA-Supported DMCA Exemption for Vehicle Repair

Date: November 3, 2020

The U.S. Copyright Office recently issued a notice of proposed rulemaking (NPRM) to renew existing exemptions permitting circumvention of access controls on copyrighted works. The Copyright Office undergoes a triennial review of the Digital Millennial Copyright Act (DMCA) Sec. 1201 exemptions. Over the years, MEMA has advocated for specific exemptions and been successful. This past July, MEMA filed petitions advocating renewal of the current exemptions for vehicle repair and good faith security research.

The Copyright Office’s NPRM recommends renewing the vehicle repair exemption without changes. However, the Alliance for Automotive Innovation (AAI), which represents vehicle manufacturers, raised concerns in their comments regarding the renewal and the petitions submitted by MEMA, Auto Care Association, and Specialty Equipment Marketing Association. Specifically, AAI asserts that allowing third party repair shops to circumvent access controls on vehicle software to provide commercial repair services violates the DMCA’s anti-trafficking provisions. This issue was a significant focus of the previous triennial rulemaking in 2017, during which MEMA successfully argued that circumvention by independent repair shops on behalf of consumers and for the purpose of repair, does not implicate the anti-trafficking provisions and therefore that the exemption should not expressly prohibit such repair services.

In addition to recommending a set of renewed exemptions, the NPRM identified 17 newly proposed exemptions. A couple of proposed exemptions to highlight are:

  • Proposed Class 10:  Computer Programs - Unlocking:  Seeks to extend the current exemption for “unlocking” of computer programs (i.e., connecting a wireless device to an alternative wireless network) to “any other devices with 4G LTE or 5G or other cellular connection capabilities.” While the proposal does not specifically reference vehicles, it would potentially permit the unlocking of devices in motor vehicles that have cellular connection capabilities.
  • Proposed Class 13:  Computer Programs - Security Research:  Seeks to expand the current exemption by, for example, removing some of the limitations contained in the current exemption.

In both proposals, it is worth noting that the Copyright Office considered and rejected similar proposed exemptions during the previous 2017 triennial review rulemaking.

Supporters of any of these new exemptions, or any parties that neither support nor oppose an exemption but merely wish to share pertinent information about the proposed exemptions, may file comments prior to December 14, 2020. Opponents of any of the proposed exemptions may file comments prior to February 9, 2021. A final round of comments will be accepted from supports up until March 10, 2021.

MEMA will evaluate the NPRM and submit comments, as appropriate, to the NPRM. If you would like to learn more about this issue, please contact Leigh Merino.

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