Dem: Copyright law might have hindered VW emissions detection

Researchers might have uncovered Volkswagen’s deceptive emissions software sooner if not for a portion of copyright law, Sen. Ron Wyden (D-Ore.) wrote in an op-ed this week. 

Wyden and other proponents of more relaxed copyright rules charge that the law currently discourages researchers and others from tinkering with software embedded in cars, because that study has the potential to bring an infringement lawsuit from manufacturers. 

{mosads}Last month’s revelation that Volkswagen used software in millions of vehicles to cheat on emissions tests has given more ammunition to proponents who believe exceptions are needed. Researchers eventually uncovered the problem with road tests rather than a probe of the software. 

“The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future,” Wyden wrote in a Wall Street Journal op-ed.   

Wyden is urging the Copyright Office to make a number of exceptions to the Digital Millennium Copyright Act (DMCA) — a section of which currently allows copyright holders to take “technological protection measures” to bar anyone from tinkering with copyrighted work. 

“Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA,” he wrote. 

That copyright provision was written into the law as a backstop against infringement. Along with potentially large fines, it was meant to allow copyright holders to put up digital walls to discourage the distribution of pirated content. 

It was also the section of law that previously prevented customers from unlocking their mobile phones from a wireless carrier. A law was passed a few years back to carve out a permanent exception. 

A number of technology advocates have called for the Copyright Office during its current review to make a similar exception for researchers and others to tinker with software in vehicles. They point to the Volkswagen scandal and contributions from a pair of researchers who identified a flaw in Chrysler vehicles that allowed the cars to be hacked. 

The Environmental Protection Agency (EPA) has opposed those exceptions. In July, it told the Copyright Office that, in practice, the exception could lead to people modifying their vehicle software to flout Clean Air Act regulations. 

“In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so,” Wyden shot back in his op-ed. 

He called for the Copyright Office to make other exceptions for medical devices and said carve-outs will become increasingly important in a world of connected devices. He has sponsored legislation to expand the number of exemptions under the provision. 

“Today coffee makers, thermostats, hot-water heaters, blow driers, watches, fireplaces and cars are all increasingly controlled by software. Their owners should be able to examine these devices’ software—which is often as important as the hardware,” he wrote.