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.

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