Right to Jailbreak Auto Software May be a Moot Point

Last month, a good friend of mine — an attorney who works in intellectual property and believes in its value — shared a brief post from BoingBoing by Cory Doctorow criticizing efforts by the auto industry to enforce the copyrights on software, now intrinsic in any contemporary vehicle, in order to limit consumer choice in the marketplace. In this case, Doctorow calls out GM for its efforts to stop the Copyright Office from granting an exception to the DMCA that would allow owners of GM vehicles to jailbreak the software, thus enabling them to perform their own diagnostics and maintenance at home, or to use non-GM-authorized service providers and parts. Such restrictions, increasingly asserted by automakers, are seen as a prime example of industry abusing intellectual property rights as protectionist measures to restrict liberty and limit competition.

Certainly, my pro-IP attorney friend shared the story with the comment that she feels automakers are overreaching; and, in this regard, she is consistent with most copyright advocates as well as the courts, which have generally favored competition when other industries have tried to use DMCA anti-circumvention measures to control the market.  So, in this particular moment in history, the complaint is understandable; though the conversation itself, I believe, raises a much broader and more interesting subject beyond contemporary copyright, begging the question as to exactly what kind of future it is we think we’re building?

In fact, Cory Doctorow himself is one of the more prominent voices presently insisting that those of us who still place considerable value on copyright and IP in general are anachronisms. We are told that we are metaphorically “clinging to the buggy whip industry while automobiles pass us by.”  But in his criticism of restrictions on jailbreaking contemporary cars, I have to ask exactly who’s clinging to the past here? Because the more our automobiles become sophisticated computers on wheels, and most especially if we are serious about migrating toward a future of driverless (or diver-optional) cars, it seems to me these complaints about automakers’ application of copyrights in this case are clinging to rapidly fading concepts of ownership that will naturally continue to change if we are to take the futurists and tech-utopians seriously.

In a future system in which an automobile becomes just one dynamic node in a vast traffic grid that is holistically maintained by software — because that is the only way it could work — not only will individuals not be allowed to service their own cars, but the very idea that a car may be “owned,” as we presently define that term, could be scrapped along with the last internal combustion engine.  As Jaron Lanier suggests in Who Owns the Future, a driverless paradigm may be brought about by public mandate if it can be demonstrated that automobile fatalities and serious injuries can be reduced by a substantial margin. And more recently, articles have been appearing that predict we’ll at least see driverless taxis within a decade or so, while others have examined the environmental benefits of a driverless future.  Combine these factors with certain market realities — like the fact that American millennials will be the first generation to earn less than previous generations and that they concurrently reveal a general comfort with “sharing economy” concepts that erase traditional notions of ownership —  and our long-standing relationship with automobiles as symbols of personal freedom could give way to a driverless future that would necessitate something like a public/private model of personal transportation.

I know this projection is probably unappealing to many Americans today because we do have a unique relationship with our cars, our big open roads, our ability to be our own mechanics, and our sense of liberty.  But that’s exactly why I think the larger question as to what kind of technological future we’re building is far more intriguing than any momentary complaints about an automaker using copyrights to restrict traditional market freedoms in maintenance.  Sure, we can, and probably should, demand the right to jailbreak cars on principle right now, but that principle could become moot faster than we think.

It seems reasonable to assume that if we are to embrace The Internet of Things, that as ordinary functions of our lives are made easier, safer, cheaper, or faster by networked systems, the more the concept of “owning” many types of property is likely to change. In many cases, these predictions seem to imply a return to older models based on monopolistic, semi-regulated, industries.  When I was a kid, nobody owned a telephone. A household got an account with the one phone carrier that served the community, and then leased however many phones as needed from the same company, much as we still lease cable boxes to this day.  So, if we progress toward a future of smart, driverless cars and smart homes, at what point do regulations like building code, consumer and environmental protections, or safety regulations merge with intellectual property to become an intertwined body of law that inherently limits our present sense of personal liberty vis a vis those items we presently call “our stuff?”

Consider the flap from libertarians over the CF lightbulb years ago, or the overreach by Keurig in its attempt to use IP to thwart the sale of off-brand cups for its coffee makers; and then imagine how many components of your home might one day be part of a complex, data-driven network that only works properly if all the compatible units are precisely installed and maintained.  “Your” house  would become  just one little Christmas light on a vast strand of homes and businesses that society cannot afford to let go out. How could such a highly automated and integrated system function without limiting individual choice and potentially threatening competition in the market?  Of course, our adoption of holistic, networked integration of daily life is either unlikely, or it depends on such profound social changes that it is a bit hard to fathom.  But as long as we’re talking about broader principles, let’s talk about those with regard to the technologies and models we’re being told are the future rather than merely react to momentary misapplications in models we believe to be rapidly fading into the past.

By and large, I assume we enjoy the benefits of safety and convenience that come with computer-assisted cars, but now we’re on the leading edge of the question as to whether or not we ultimately want computer-centric cars.  If so, it is probably unavoidable that we must  recalibrate our definitions of ownership if we are going to allow the machines to drive us rather than the other way around.  Thus, I find it a strange contradiction to highlight every example, at this moment in history, that reveals copyright to be a restraint on personal liberty when it is simultaneously claimed to be a restraint on innovation itself.  Because many a predicted innovation may ultimately limit traditional liberties by virtue of paradigmatic change, resulting in fewer consumer choices in various sectors.  A driverless-vehicle paradigm implies a model that is fundamentally communal, which doesn’t have to be a bad thing for society per se, but it is certainly anathema to the American sense of personal liberty with regard to “our” cars.   As such Doctorow’s complaint, while perhaps valid in this moment, appears to rust a little on the page almost as quickly as it can be read.

© 2015 – 2016, David Newhoff. All rights reserved.

Follow IOM on social media:

19 comments

  • Or more prosaic do we really want Bubba’s six fingered cousin messing with the engine management system of the school bus?

  • The less we “own” the simpler life becomes. Why do we need to “own” a car? Most people don’t actually “own” it anyway. Their banks “own” it for a set amount of time. And when that time is up, some people choose to trade in the car that they “own” for a new one.

    A simple solution to this issue is to strictly define ownership as bought and paid for. Allow “owners” full branch access to the code, with all responsibility falling onto the end user once it has been modified. And while car companies might value some proprietary system, there is always going to be competing technologies that severely limit the value in regards to the consumer market for a voice recognition system, or blind spot detector, or whatever. Trying to control that aspect strikes me as an attempt to double dip into the consumer pockets, much like the entertainment industry. Trying to force you to pay for knowledge that should have been part of the purchase price of the vehicle.

    I don’t think we will ever see the idea of “ownership” go away, especially with physical goods. But I see it as becoming a more expensive and less convenient for most, option.

    • excuse me?
      AV- “double dip… much like the entertainment industry”..

      Please, do tell … this should be Interesting…

      • It’s not that complicated. Wanting to get paid multiple times for the same product. By forcing consumers to use a specific service center, under the pretense of technicians being “certified”, they would be able to set prices leaving the consumer little choice in the matter, regardless of their intent to modify the vehicle.

        In regards to the entertainment industry. Content producers want to treat every instance of a digital file as a product. Having no issue with selling infinite copies as if they were originals. Assigning a value to something that ultimately has none. Forcing users to pay multiple times for the convenience of access on multiple platforms. Charging the same price regardless of cost.

        The question becomes, what is access worth, not what is the software, or the data worth. And how many times does one need to pay for that access? How does the license transfer, does the company get paid again? Should they? Imagine you buy a car for $50k, cash. Use it for a while then decide to sell it on. Do you have to do a license transfer of the software? Are you responsible for what happens next(mods, updates changes?).

        Now imagine you buy a movie. When it was in physical form, you sold it to your friend, gave it away, whatever, and that was that. The company who YOU bought if from had no real expectation of compensation for second sale. How would that be enforced? Now say you make a copy. And give that away. How is that different. Should there be any more expectation simply because you could technically still watch the movie? They were not getting another sale regardless. But that is what they would like to do. Charge for ever point of access. Throughout the life of the data.

        It’s a bad system, that serves neither the consumer or the producer.

        I think in the case of software for vehicles, warranty and maintenance is honored on the vehicle, provided it is not altered.

        But then the question arises, how long do they(the manufacturer) have to maintain that version of the software. What happens in 10 years if something fails, is the consumer SOL because of IP? Legacy code gets dropped all of the time. Without a limit on how long it can be considered proprietary, the consumer will ultimately suffer.

      • AV says-
        “In regards to the entertainment industry. Content producers want to treat every instance of a digital file as a product. Having no issue with selling infinite copies as if they were originals. ”

        Oh, you mean like how software makers don’t just sell one copy of an app or OS or whatever?
        SERIOUS-FUCKING-LY I thought we were way past the concept of content vs container…. please go yell at the wall, as I don’t wish to pound nails into your head… it might let the air out..

      • Oh, you mean like how software makers don’t just sell one copy of an app or OS or whatever?
        SERIOUS-FUCKING-LY I thought we were way past the concept of content vs container…. please go yell at the wall, as I don’t wish to pound nails into your head… it might let the air out..

        I know you are slow at this, but c’mon…

        Yes Audionomics it is exactly the same thing. If I buy a software license, then I SELL my copy, it is no different to the company than if I had sold my floppy disc and thus eliminated my access to the software. REGARDLESS of if I still have access.

        What software companies do to prevent this is to tie the license to a specific user, thus limiting the ability to transfer access. Not really that complicated. They ensure that there is only one legitimate access point.

        In any medium, where the end user has the ability to transfer or expand access to the good or service, the creator should have NO expectation of compensation for a particular item beyond first sale. None. That goes for cars, music, movies, furniture, soda, whatever.

        Again, not that complicated.

        The ONLY way to combat this perceived loss in revenue is through license management. That’s it. Controlling access. Which is what has gone over your head pretty much constantly since I started posting here.

        Proprietary software in vehicles is a means of controlling access thus ENSURING they will receive revenue for the life of the vehicle, thus double dipping, just like media creators expect to get paid for YOUR copy of their work, every time it propagates, regardless of the fact that in non digital spaces there can be no expectation of revenue from secondary sales of purchased products. Which is why I also said:

        It’s a bad system, that serves neither the consumer or the producer.

        I think in the case of software for vehicles, warranty and maintenance is honored on the vehicle, provided it is not altered.

        In regards to things like cars, the added service justifies the control over the access. In regards to media, there is no justification and I personally believe they would be better served by revising what they consider to be revenue streams. Straight sales no longer make sense. Public performance seems like the only point of access control where true revenue can be counted. It works for movies, not sure why music is not the same way.

        But then, someone like you would argue that a system like that screws the little guy, ignoring the fact that little guys make content all of the time in an attempt to get noticed, they carve out their niche allowing their works to propagate more freely, building a fan base and thus gaining justification for producing more work.

        I hope that was simplified enough for you.

      • Overlooking the tone of this discussion, I just need to interject that what the automakers are doing has little to do with first-sale doctrine in the digital age as it may or may not apply to entertainment media or other software. As stated in the post, copyright supporters and the courts generally reject the kinds of claims automakers are making here because they are anti-competitive, but the ownership of the IP is not entirely new territory. When you buy a car and have the right to resell that car, you do not buy any of the patents on literally hundreds of components within that car; ditto the license for the software used to control that car. When you sell the car used, the computer and software go with it. Nothing new. The same is true for a DVD. When you buy that copy, you do not buy a distribution right in the film; and no consumer has rationally thought otherwise.

        None of this has much to do with the question of allowing consumers to engage with third parties to analyze data in a vehicle’s computer for the purpose of maintenance.

      • And do us both a favor, if you are not going to make an intelligent counter argument, please don’t bother, I am not in the mood to debate talk over your head all day.

      • I gather with software everything is moving to a subscription model. Games, photo editing, word processing, spreadsheets, and operating systems. You want to run the software then you pay a monthly/yearly fee. And you need to be connected to the internet at all times to verify your subscription.

      • SERIOUS-FUCKING-LY I thought we were way past the concept of content vs container…. please go yell at the wall, as I don’t wish to pound nails into your head… it might let the air out..

        I didn’t set the tone, and I have grown tired of being addressed in this manner, but whatever.

        And to answer your comment:

        None of this has much to do with the question of allowing consumers to engage with third parties to analyze data in a vehicle’s computer for the purpose of maintenance.

        Sure it does. If I put a lift kit on my truck, or a cold air filter, I have potentially modified the performance aspects of my vehicle, thus voiding my warranty(not in all cases, but in some).

        The same could be applied to software. Which is why I suggested this

        A simple solution to this issue is to strictly define ownership as bought and paid for. Allow “owners” full branch access to the code, with all responsibility falling onto the end user once it has been modified.

        There are several good reasons for manufacturers wanting to control the software and several bad ones. What I pointed out was that in either case they are creating a scenario where they continue to get paid multiple times for a product that has been purchased by the consumer.

        And as John Warr said:

        I gather with software everything is moving to a subscription model. Games, photo editing, word processing, spreadsheets, and operating systems. You want to run the software then you pay a monthly/yearly fee. And you need to be connected to the internet at all times to verify your subscription.

        This is essentially what something like this would do in regards to car ownership.

        “Oh you want the latest update that fixes gear change timing issues? You need to bring that in to our service shop. Oh you already updated it yourself? Your transmission warranty is now void.”

      • I didn’t say you set the tone, only that I was setting it aside. I agree with plenty of what you’re saying, but it has little to do with digital first sale and does not support the assertion that entertainment media producers “double dip.” The two are not really analogous. And the larger point of the post is that this particular squabble may become irrelevant very quickly.

      • A driverless-vehicle paradigm implies a model that is fundamentally communal, which doesn’t have to be a bad thing for society per se, but it is certainly anathema to the American sense of personal liberty with regard to “our” cars.

        I understand what you are saying David, but my point in making the comparison is to illustrate the differences in perception in regards to a physical object(the vehicle) and a digital one(the software).

        People are less attached to(and thus see less value) in the digital because of its malleability. Which is the core issue when it comes to copyrighted vehicle software.

        If the car requires the software, then what exactly is the user paying for? The shell? Leather seats, fancy rims? But what good are those things if the user is beholden to the manufacturer to actually use the car. It is an issue of both perception and implementation.

        With straight digital(media/software) or straight physical(CD/car), what the user does and does not “own” can be clearly defined. When you mix the two, there in lies the issue.

        Should we all just go in for a driver less society? Or with the idea that we don’t “own” our cars. If that is the case, shouldn’t price reflect this change in ownership? Would this devalue cars as it has done with other things(like digital media) that are not actually “owned” by the user? And ultimately, does it really matter?

      • Please AV, you know damn well that your “double-dip” comment was a not so subtle …. nevermind… I took the bait..

        Anyhow, it doesn’t apply to the issue (nor is it a real thing in the context which you presented it…that is what I wasn’t going to let slide) .

        Consumers always have the choice of buying another companies car if they aren’t happy with the terms. (isn’t that the whole libertarian etho?).. this constant whining from geeks that they (in a most effeminate and child-like voice /while flapping arms..) “they won’t let me disrupt it, they won’t let me disrupt!” 🙂 is quite annoying when there are actual real problems that need solving instead of making up problems that don’t really exist.. If they want to get upset about something, they should be more upset about the GPS tracking (and permanently logging of/sale) their every move.

        The real mystery is why anyone still listens to Corey Doctorow in the first place. You can just feel the “please like me youngsters!” vibe just oozing from him, in his never-ending quest to try to stay relevant.

    • One question does arise immediately: how does this impact warranties, insurance and other legal obligations? Are auto makers’ warranties void if the software is modified (even trivially?) What about insurance – does tweaking your car’s software invalidate your policy?

      These are hardly abstract questions. An automaker could rightly claim that if the dunderheaded buyer mucks about with system-critical software the maker can no longer be held liable for any damage this may have caused. Similarly insurance companies are not likely to take kindly to random lusers hacking code that may leave them having to pony up some cash.

      Judging by your comment, you seem to endorse such a scenario, but a practical question arises: what exactly is to be the point of the whole exercise if you aren’t going to be able to modify the software anyway without losing all legal protections? (To say nothing of the fact that you could – depending on your jurisdiction – render your car not legal to drive on public highways, if your modifications broke some law or other.)

      Then there’s the big issue: bricking your phone may leave you out of pocket, but ill-considered modifications of your car’s software can get someone killed. Software, as you know very well, is both extremely pliable (requiring little in the way of tools or materials to modify) and easy to break in hard-to-detect ways. A measure of standardisation that emerges from each automaker having complete control over their software means that any bugs detected (and there’s always one more) may be readily identified to exist in all vehicles equipped with a particular software version and patches may be issued and applied through standard channels. Since it is nigh impossible to change software without introducting new vulnerabilities and these will only be exacerbated by numerous independent changes, the scope for potentially fatal (as in, people dying) bugs rises exponentially if anyone can modify the software at their leisure.

      Plus, there is the sociological factor. The people most likely to ‘jailbreak’ cars are the last people you want working on any mission-critical systems.

      • Then there’s the big issue: bricking your phone may leave you out of pocket, but ill-considered modifications of your car’s software can get someone killed.

        Same scenario exists now. If I buy my car outright, and I am not concerned about my warranty, I can change the brake system, engine, transmission, tires, whatever. All of which can be dangerous if done improperly. There are lots of mods that immediately void and warranty or manufacturer culpability.

        Also it is important to consider that manufacturer parts are not infallible, so it would be odd to assume software will be any different.

        I think a set of standards could be put in place, with MOT/Inspection tests implemented to make sure the cars were road legal and safe.

        But the question does remain, how much of a cars systems should be electronic in regards to safety? That I do not know.

      • “If I buy my car outright, and I am not concerned about my warranty, I can change the brake system, engine, transmission, tires, whatever.”

        The key difference being its a lot harder to do that than to change the software. I did mention this point specifically.

        As with the big piracy debate – which you yourself have brought into this conversation – it’s all a question of how easy it is to do something stupid. Most people have neither the tools, nor facilities – to say nothing of skills – to rebuild their vehicle in any substantial way. There’s also a cost involved: cost of the parts (which includes finding ones that fit everything you intend to keep) and cost of the work (this last item may be substantial if you’re looking at anything that will void your warranty). As far as software is concerned, all these natural limitations fly out the window, because you can get it for free and (potentially) install it in five minutes with the help of one of many useful YouTube tutorials (again, I’m extrapolating a plausible future scenario).

        This means that the situation has the potential to blow up rather spectacularly, very quickly.

        “[T]he question does remain, how much of a cars systems should be electronic in regards to safety?”

        Frankly, anything more important than the CD changer is likely to be a safety hazard. Mind you, we’re not talking electronics here, but software. Any part of a car that is controlled by software that may be replaced is a potential hazard vector in the scenario we’re discussing, because the car is a complex system in a chaotic environment.

        “I think a set of standards could be put in place, with MOT/Inspection tests implemented to make sure the cars were road legal and safe.”

        I agree, but the question is: how do you enforce that when any numbskull with a phone can overwrite the software five minutes after passing inspection.

        The sensible thing to do would be to impose some manner of regulation on licensing such software (in a manner akin to how compulsory licenses work in the copyright world).

  • Very interesting! I agree that once our property becomes interconnected, as in the IoT, we will lose a great deal of control over it, so that individual acts of control (like jailbreaking software) won’t matter as much.

  • Pingback: Are Candidates Even Talking About the 21st Century Economy? - The Illusion of MoreThe Illusion of More

Join the discussion.

This site uses Akismet to reduce spam. Learn how your comment data is processed.