DMCA at Issue After Volkswagen Emissions Scandal

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By Blake Brittain

Sept. 24 — The software anti-circumvention provisions of the Digital Millennium Copyright Act may have delayed watchdogs from discovering Volkswagen's cheating on air pollution emissions tests, the Electronic Frontier Foundation, a nonprofit digital civil liberties advocacy group, said in a Sept. 21 blog post.

Volkswagen AG recently admitted to setting pollution control software in over 500,000 of its diesel-powered vehicles in the U.S. to activate only when the car is undergoing official emissions testing. The company could be fined up to $18 billion.

The blog post argued that independent researchers could have discovered the misconduct earlier had there been an exemption in the DMCA allowing for independent research on vehicle software without violating the DMCA's ban on circumventing technological protection measures that restrict access to copyrighted works electronically. 17 U.S.C. § 1201(a).

Vehicle Software Exemption

Parties can petition the librarian of Congress to add specific exemptions to the anti-circumvention law every three years. 17 U.S.C. § 1201(a)(1)(C).

Earlier this year, EFF petitioned the Library of Congress to allow an exemption to the anti-circumvention provision for “researching the security and safety of vehicles with internal computer systems.”

The Environmental Protection Agency, prior to the scandal, argued in a July 17 letter to the Copyright Office that exempting motor vehicle software from the provision would impede the EPA's enforcement of rules against tampering with vehicle software to allow increased emissions.

“The Agency has taken enforcement action against third-party vendors who sell or install equipment that can ‘bypass, defeat, or render inoperative' software designed to enable vehicles to comply with [Clean Air Act] regulations. EPA can curb this practice more effectively if circumventing TPMs remains prohibited under the DMCA,” the EPA said in the letter.

EFF Staff Attorney Kit Walsh—who wrote the blog post—disagreed with the EPA's reasoning.

“I think the Volkswagen case shows that if independent researchers are able to get access to vehicle code, it's going to make it easier for the EPA to detect these large-scale violations that have a huge effect on the environment,” Walsh told Bloomberg BNA.

Walsh noted that the Volkswagen cheat was designed to defeat specific EPA laboratory conditions, and was initially discovered by independent researchers from West Virginia University, Morgantown, W.Va.

“You are trusting your car with your life, and you should at least be able to investigate how that vehicle works to see if it's living up to the manufacturer's promises,” Walsh said.

Walsh also said that independent research on vehicle software would become even more important in the future, citing independent research indicating that gaps in software protection have left cars vulnerable to the possibility of hackers taking control of them remotely.

“These were exposed only because independent researchers decided to take the risk and look at vehicle software,” Walsh said.

‘After Market Personalization.'

More broadly, the EFF also petitioned the Library of Congress for a DMCA exemption for “after market personalization, improvement, or repair in vehicles with internal computer systems.”

Walsh said that allowing consumers to alter the software in their cars was likely to lead to innovation.

“People have been tinkering with cars for hundreds of years—that's how we got catalytic converters, airbags, and rear view mirrors. It doesn't seem justified to treat vehicle owners presumptively as criminals,” Walsh said.

The EPA argued that this exemption would increase emissions over the long term.

“Based on the information EPA 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. These kinds of modifications will often increase emissions from a vehicle engine,” which would violate the Clean Air Act, the EPA said in its letter to the Library of Congress.

The Library of Congress is expected to rule on both exemptions by the end of October, Walsh said.

To contact the reporter on this story: Blake Brittain in Washington at

To contact the editor responsible for this story: Mike Wilczek at

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