Is Fixing Your Car Copyright Infringement?

System-Mechanic-California

(Photo: T.Voekler (Own work) [CC BY-SA 3.0 ], via Wikimedia Commons)

At one time in the not-so-distant past, a car was a relatively simple machine. Owners could easily do a lot of the repair and maintenance work themselves. Technological advancements have changed all that. Today, cars rely on a complex cyber-network that controls everything from steering, acceleration and braking to opening and closing doors and windows.

Throwing a monkey wrench into this development is the fact that a computer program is a form of intellectual property that is protected by copyright. Among other things, this means that only the copyright owner – not the car owner or his mechanic — may make modifications to the computer programs that are installed in the car. It also means the car manufacturer may take measures to prevent owners from “tinkering” with the computers that are installed in their cars. To protect the rights of copyright owners, Congress has enacted an anti-circumvention statute that prohibits even a lawful owner of a product in which a copyrighted work is embedded from disabling those measures. The statute is enforceable both civilly and criminally, and the penalty can be as much as a half million dollar fine and 5 years in prison for a first offense.

Reverse engineering is permitted for the purpose of “identifying and analyzing those elements of the program that are necessary to achieve interoperability of an independently created computer program with other programs.” This would not apply to most auto mechanics and do-it-yourselfers.

As scary as all this may sound, though, the anti-circumvention law is not really as big a problem for auto mechanics as some have imagined it to be. It doesn’t mean you can’t do any repair work on a car at all. Copyright law only protects intellectual property. It generally does not protect the physical property in which the intellectual property is embedded. Destroying a book, for example, does not violate the copyright owner’s rights, nor does it have the effect of destroying the copyright. By the same token, totaling a car, or replacing a headlight or a brake pad on it, would not infringe the copyright in the computer program. The copyright owner’s exclusive right to make modifications (“derivative works”) is limited to the computer program itself, not the entire car.

Software licensing is the bigger threat to consumers and independent mechanics. General Motors already requires purchasers to sign license agreements for use of GM’s telematics and infotainment systems. In theory, it could do the same thing with respect to all of the computerized components that are needed to make your car run. Licenses may be drafted to prohibit sub-licensing and assignments. That could be a real problem for a car owner who wants to sell his car, or who wants to allow a friend or family member to drive it.

Whether a car manufacturer would find it beneficial to include such terms is not known. It is very possible, though, that car companies could begin requiring buyers to enter into licensing agreements that condition a driver’s use of the software upon an agreement to only bring the car to a manufacturer-authorized technician for service.

Car companies have quite a bit of bargaining power in this respect. Cars have become inoperable without the necessary software. The power to prevent buyers from allowing others to drive the car, or to sell the car, or to have anyone but a dealer or a manufacturer-authorized service technician repair it, gives big car companies considerable leverage to insist on whatever terms they would like in purchase agreements.

The issue is complicated by consumer protection and safety concerns. If copyright limitations are lifted so that car buyers can modify the programming, then buyers of used cars could end up purchasing cars with altered programming. Some such alterations could be dangerous, yet not readily apparent — such as a disabled airbag.

For this and other reasons, it is difficult to predict what the Copyright Office will do. It is currently reviewing comments. A decision is expected in July.

Unfortunately, the source of the Copyright Office’s rule-making authority in this instance is limited to the anti-circumvention statute. It does not have the power to issue a rule preventing car manufacturers from dictating onerous software licensing terms to customers.

Congressional action to clarify this aspect of the law and to protect consumers and small businesses could be helpful.

Authors Guild v. Google: Is Fair Use Fair?

Google

On November 14, 2013, U.S. Circuit Court judge Denny Chin (sitting by designation in the U.S. district court for the southern district of New York) concluded 8 years of copyright infringement litigation with an order dramatically expanding the “fair use” defense. Seemingly somewhat out-of-sync with the Napster decision a few years ago, the order permits Google to continue to freely copy the entire contents of millions of copyright-protected books and distribute them, or at least significant portions of them, to the public free of charge, without either getting permission from the authors or paying them royalties for their works.

The Google Books project may well be the greatest boon to researchers there has ever been. In the old days, you would need to make a lot of telephone calls and perhaps drive a long distance to a library to track down, say, an exact quotation from a particular nineteenth century physics textbook. With Google, you simply type the name of the text and a few key words into a search bar, and within seconds a link to a copy of the page of the book on which the quotation you seek appears on your screen. Follow the link and the quotation, along with a considerable amount of additional text from the book, instantly appears on your screen. It is a researcher’s dream come true. But what about the rights of authors? Is it fair to them to allow people to read unauthorized copies of their books without having to pay for them? Certainly there can be no  complaint about works that are so old as to have entered the public domain. But what about books that are still protected by copyright?

The Copyright Act prohibits the reproduction of copyright protected books. 17 U.S.C. § 106(1) (2013). It also prohibits the distribution of books that are protected by copyright.  17 U.S.C. § 106(3) (2013). And it prohibits the unauthorized display of protected works. 17 U.S.C. § 106(5) (2013). As part of its “Library Project,” Google digitally scanned millions of books in the Library of Congress, the New York Public Library and several university libraries, and then made them available to the public to view and download for free. Not having obtained permission from the authors and publishers of these books, Google committed millions of violations of each of these laws. The upshot was a class action copyright infringement lawsuit by the Authors Guild on behalf of book authors everywhere.

After more than eight years of litigation, a U.S. district court judge determined that Google had indeed infringed the copyrights of scores of books authors, but refused to hold the company liable for it. Instead, the judge ruled that the massive copying and distribution program upon which Google had embarked came within the “fair use” defense to copyright infringement.

The “fair use” doctrine permits limited use of copyrighted works under some circumstances, in the interest of fostering the development of arts and science.  Because of it, no permission is needed to copy small amounts of  a book for the purpose of criticism, comment, news reporting, teaching, scholarship or research. What Google did went far beyond that, though. Google’s activities involved copying, distributing, and in some cases displaying the entire contents of copyright protected books without permission.

The company was able to secure a favorable ruling by invoking the four-prong “fair use” test set out in the Copyright Act. Under 17 U.S.C. § 107 (2013), an infringing use of copyright protected work is permitted “fair use” if the following factors, on balance, favor unauthorized use of the work:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The judge found that, on balance, the factors weighed in favor of Google’s massive copying and distribution project. He emphasized the great benefit to the public of having access to a large number of works all at the same time. He rejected the authors’ argument that Google’s scans serve as a market replacement for the books, depriving authors of payment for their work. “Google does not sell its scans,” he noted.

Of course, this ignores the fact that the purpose of copyright is not simply to prevent others from profiting, but to ensure authors a fair return for their labor. According to the judge, though, Google Books actually helps authors sell their books because “patrons use Google Books to identify books to purchase.”

Do people really use Google search to locate nonfiction books to buy? Or do they only read so much of the text as they want or need at that particular moment, thereby alleviating the need to buy the whole book? And does having all the text of a book available for free online remove, or at least decrease, the incentive for libraries to acquire copies for the use of their patrons?

Well, but the judge has this to say:

“[Google Books] has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books…. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books.”

Creating a searchable index of books clearly is a transformative use. As such, it should easily fall squarely within the “fair use” doctrine. Had Google simply created an index that displayed a list of books in which the search terms appear, without displaying the actual text of these books, there would be no question that the creation of the indexing system would have been a fair use. Enabling users to also read entire pages from the books — and in some cases, the entire book — after identifying and locating them, without anybody having to actually pay anything for a copy of the book is a different story.

Predictably, librarians, Internet surfers and Google officials are thrilled with the decision. Authors, not so much. An appeal is almost certain, although all indications are that the Second Circuit probably will affirm the decision.

You can read a copy of Judge Chin’s ruling here:

http://publishersweekly.com/binary-data/ARTICLE_ATTACHMENT/file/000/001/1887-2.pdf