Do We Own Our Vehicles? General Motors Says No.

[Danal]

They can't be expected to maintain an altered vehicle.

Yes, they can. By federal law. The Moss-Magnuson act, and a couple of others.

A fascinating thing about these laws: They explicitly state that, to deny a warranty, the manufacturer must prove (in court) that the 'modification' is a direct cause of the failure, problem, or issue for which they are attempting to deny coverage. And, if they fail to so prove, the law contains provisions for the court to order them to pay all of the consumer's costs, and so on and so forth. One of the strongest consumer laws in the US.

Were it not for these laws, auto-parts stores would not exist; motor oil could not be sold (by anybody but the manufacturer or their designee), etc. In fact, the whole 3rd party auto parts and modifications industry depends on these laws. And therefore, that whole industry will defend them if they are ever challenged.

 

[green1]

In fact, the whole 3rd party auto parts and modifications industry depends on these laws. And therefore, that whole industry will defend them if they are ever challenged.

Which is why the manufacturers love the DMCA so much, they long ago gave up fighting the current "right to repair" laws (not that they didn't try, but they've pretty much exhausted all avenues on those), but they've now found a new law to get the same result. This will go through the courts again until either servicing your own vehicle becomes illegal, or common sense breaks out again.

I hope for the latter, but I fear the former as it's the defacto standard right now.

 

[deonb]

Germany for example. I owned a $20k software and when the manufacturer said I can't sell the software, I reminded them of the law and then quickly became silent and nodded. Copyright protection still applies. There are laws that do not allow you to duplicate it and give it out. And yes, why would anyone bother to sell in Germany LOL

You didn't sell the software. You resold your right to use it.

i think you're specifically referring to the Oracle and SAP case in 2012 where an EU court ruled it is legal for a user to resell a license, as long as they destroy all copies of that software. That doesn't mean you owned the software to do with as you please. For that matter - you don't even fully own the license. The court also ruled you can't take a software license that covers multiple products and/or seats, and resell only a part of that license.

 

[FlasherZ]

I don't understand why this conversation is here. This hardware/software model has been in existence for over 50 years. You own the hardware, you own a right to use (a/k/a "license") the software on it, unless you create the software yourself - in which case you own the software and its rights. This hasn't changed in the last few years, it's just that cars have adopted software versus using mechanical controls.

Most consumer goods are using this model - you own your TV but not the embedded OS, you own your clock radio but not the embedded firmware, you own your Apple watch (or will) but don't own the apps or operating system that runs it, you own your refrigerator but not the firmware that controls the ice maker.

So what's the furor here? From the point of view of a customer, no, you don't own the entirety of what you buy when it has software. You have a world-wide, irrevocable, perpetual license to use the software on the device by default. If you disclaim that license, then you have no right to use the software - and if that means the device doesn't operate? You still own the metal. I guess you could scrap it.

It's like having a computer without software. You do own it. But good luck producing any value out of it. (Please leave open source out, it's still a license that binds you to terms, you don't own open source, either, unless you develop it.)

By the way, even right-to-repair laws exclude software -- they're considered trade secrets:

Massachusetts' law:

Section 3. Nothing in this chapter shall be construed to require a manufacturer to divulge a trade secret.

Massachusetts' definition:

“Trade secret”, anything tangible or intangible or electronically stored or kept which constitutes, represents, evidences or records intellectual property including secret or confidentially held designs, processes, procedures, formulas, inventions or improvements, or secret or confidentially held scientific, technical, merchandising, production, financial, business or management information, or anything within the definition in 18 U.S.C. 1839(3).

18 USC 1839(3):

(3) the term “trade secret” means all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if—
(A) the owner thereof has taken reasonable measures to keep such information secret; and
(B) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by, the public

So anyone who thinks that even right-to-repair gives them rights to software code is mistaken. The manufacturer might be required to allow independent shops to install the software, and the DMCA will protect that software from reverse-engineering, but the idea that you then own rights to the code - other than a license to use - is silly.

 

[AudubonB]

I am absolutely not qualified to respond to the main body of this thread, but I do have an observation that might be salient.

Within the past week, General Motors received a huge victory in that the courts upheld its argument that, by virtue of its recent bankruptcy, GM is not liable for damages incurred in the faulty ignition switch fiasco, as that was a pre-bankruptcy event (there are, I know, some variants here, but bear with me).

Now, if US bankruptcy clears the deck of an "old" corporation so that the "new" corporation can have an existence, are there parallel clearances: that is, if the liability side of the ledger has been swept, has not also the asset side? It sure-as-heck is the case with shareholders' equity! What about with intangible assets? With goodwill? With patents? With trade secrets?

And if not, WHY NOT?????

 

[green1]

In bankruptcy assets are used to cover debt in one form or other, assets are not wiped out, though they are sometimes sold to cover portions of debt, only debt (and liability is somewhat a form of debt) are wiped out.

In this case the assets (including software) were maintained by the "new" company to help cover the debt owed to holders of outstanding shares.

 

[neroden]

When you buy a computer, at least in the US, you don't own the software.

(US only)

Actually, you do own it -- the specific *copy* of it -- just like you own a book. That much is undisputed in any serious court hearing. In order to really not own it, you would have to actually sign a lease, obligating you to return it at some point.

Owning it is quite different from owning the "copyright" or the "patent rights", etc. To use a funny parallel example, it's quite possible to own land without owning the right to build buildings on the land, without owning the right to hunt on the land, etc. etc. etc. You can own the land and have lost most of your rights over it through easements and various other actions.

The right to copy software which you own for purposes of running it is protected by law, too. (There was contrary law, but most of this law is based on bad Supreme Court precedent which claims that software in RAM is "fixed in a medium of expression", which it isn't. The whole line of reasoning will have to be tossed because it's contrary to fact.)

There's some very disputed law in the middle of this area. The corporations will claim that you don't have the right to modify it, but when it actually goes to the courts, it usually seems that you are permitted to modify for personal use, though not for profit.

What you definitely don't have the right to do, according to the courts, is to redistribute copies. And of course the software distributor is within their rights to make the software totally obfusticated, so that any modification you make must be made by machine-code hacking.

The situation is quite convoluted. With patents it's even messier because pure software patents are all invalid (for multiple reasons, confirmed repeatedly by the Supreme Court), but the Federal Circuit and the patent office keep wanting to issue and enforce them... that IS going to need to change, and very fast, because it's causing nothing but trouble for all of American industry.

- - - Updated - - -

So anyone who thinks that even right-to-repair gives them rights to software code is mistaken. The manufacturer might be required to allow independent shops to install the software, and the DMCA will protect that software from reverse-engineering, but the idea that you then own rights to the code - other than a license to use - is silly.

...actually reverse engineering is protected by law. It's an actual legal right. Anyway.

Regarding trade secrets, any code which is distributed inside a mass-produced, mass-distributed device has not been kept secret. Period. That would be like claiming something was secret when it was plastered on every wall. That's the object code, mind you.

The DMCA is yet another matter. The "anti-circumvention" provisions are either a nullity (if you take the literal meaning of "effectively") or unconstitutional (if you take the DVD companies' fascist interpretation of "effectively" to mean "ineffectively").

 

[FlasherZ]

Case citation for the DMCA declared unconstitutional? Or is that your personal opinion?

Reverse-engineering is legal indeed by the DMCA, for the purposes of interoperability only, *and* the DMCA also says you must "lawfully obtain the right to use a copy of a computer program"; i.e., obtain a license legally.

If you can offer a case citation that declares that just because a company ships code on a production device, that it has eliminated all rights to trade secret claims for anything related to the product, I would appreciate it. I concede that you have given up trade secret protection for the explicit object code. In StorageTek, for example, fault status codes were declared not to be a trade secret only because prior to their anti-circumvention measures, the information was available in the public domain through standard maintenance mechanisms. By shipping a product with code, you inherently give a right to copy the program into memory for execution to the machine owner provided it aligns with the original specifications of the device; however, you don't give up protection of engineering trade secrets for items internal to the methods used.

 

[Danal]

The MA law's clause "...confidentially held..." is quite interesting. I do not have citation, at the same time, it would seem impossible to "confidentially" hold something that you hand to me. For example, in another thread, someone mentioned the specifications of a connector as being "engineering specification" and there was some conflation with such a specification being the same as "trade secret". However, once a given physical thing, like a connector, is shipped in a product, it is no longer confidential. Anyone who purchases the product can look at it, measure it, look it up in a catalog, etc.

What is the difference between that connector, and object code? The USA has quite a few legal fictions that attempt to make them different, and these fictions largely originated with the twin demons of technological capability to add more obfuscation to code and money poured into the legal system.

A strong parallel IP example is the copyright extensions for Disney. Absolutely wrong, clearly bought.

The legal fiction that somehow bits are different from a other things that are sold... well, that's just bizarre. And this opinion is coming from a person who's made his living with "IP" all his life... !

 

[jrickard]

Most of this discussion of rights is theoretical. But the concept of right to repair is not. The interesting thing about the Massachussetts law, aside from Tesla attempting to ONLY make their service.teslamotors.com site available there, is that it passed with an 85% margin.

There is NO case law supporting the concept that the DMCA covers vehicle software at all or that your activities to "circumvent" the copy protection would apply. The DMCA is overbroad, and their have been a number of instances where car makers threatened companies and individuals with lawsuits - quite successfully. The recipients of the cease and desist letters almost always cave on this one.

I doubt there will ever actually BE a court case on this. It is more effective as a threat than it is quite at low. No automaker is actually going to bring an action because that opens up the possibility that they could LOSE that case - which would tend to confirm that DMCA does NOT apply to vehicle software. In other words, a blue elephant gun. It is very effective at preventing blue elephants. As long as no one ever questions the existence of blue elephants or the need for such a gun, it is nearly 100% effective.

The EFF has filed for two classes of declared EXEMPTIONS to the DMCA. If adopted, and I at this point am virtually certain they will be, the threat of prosecution/litigation under DMCA will be REMOVED from the automakers arsenal. No more blue elephant gun and no more threats - at least under that legal THEORY.

The expenses of litigation are such that for many individuals, any threat of legal action is terrifying. In that event, anyone can get you to do anything they want with a letter.

Here is a different response we have used several times to excellent effect. "That would make an extremely interesting legal case and probably generate very favorable publicity for our tiny firm. So let's talk about venue....".

Oddly, the only response to that we get is "We'll get back to you....." followed by utter silence, or we just never get a further reply.

They do NOT actually want to test a case under DMCA. They just want ot use it to threaten those smaller than themselves - a brutish bully tactic by corporates totally devoid of any ethics.

The EFF's proposal would eliminate this chilling effect.

But there remains a larger battle for right to modify and repair.

Jack Rickard
EVTV Motor Verks - Custom Electric Car Conversion Instructional Videos

 

[FlasherZ]

It's very simple - "right to repair" gets you the ability to diagnose which part is bad, purchase said part, replace said part, and then perform integration steps like FW pushes, etc. 17 USC 117(d)(2) defines repair as "the restoring of the machine to the state of working in accordance with its original specifications...."

Massachusetts made it very clear in the wording that it was not intended to disclose engineering information.

That does not match your definition of "right to repair" or "right to modify", where you are expecting "right to repair" to include things like protocol specs, motor engineering diagrams, connector pin-outs, unless those are specifically needed for Tesla's own service center to do the same repair.

I appreciate that you have a great head for engineering, Jack, and that you want to learn as much as you can about the Tesla so that you can figure out how to adapt that to your creations. However, it is clear: the intent of the Massachusetts "right to repair" law is to permit people to repair their Tesla Model S by using Tesla standard repair techniques. It explicitly is NOT a weapon that you can use to force Tesla to disclose their protocol specs to further your own projects -- that's just not the intent of the law.

You take a clever attempt at declaring a "right to modify", but there isn't one when it comes to software control. You have the right to modify the hardware that you have purchased, but you have no ownership right to the software. You have rights under copyright law to turn the machine on - to copy a program into the memory of the machine, to the extent that it permits using the product to original specifications (and there is case law to back this up). However, license terms will dictate your ability to use firmware in a Tesla drive unit with your own software.

 

[green1]

It's very simple - "right to repair" gets you the ability to diagnose which part is bad, purchase said part, replace said part, and then perform integration steps like FW pushes, etc. 17 USC 117(d)(2) defines repair as "the restoring of the machine to the state of working in accordance with its original specifications...."

Massachusetts made it very clear in the wording that it was not intended to disclose engineering information.

That does not match your definition of "right to repair" or "right to modify", where you are expecting "right to repair" to include things like protocol specs, motor engineering diagrams, connector pin-outs, unless those are specifically needed for Tesla's own service center to do the same repair.

I appreciate that you have a great head for engineering, Jack, and that you want to learn as much as you can about the Tesla so that you can figure out how to adapt that to your creations. However, it is clear: the intent of the Massachusetts "right to repair" law is to permit people to repair their Tesla Model S by using Tesla standard repair techniques. It explicitly is NOT a weapon that you can use to force Tesla to disclose their protocol specs to further your own projects -- that's just not the intent of the law.

You take a clever attempt at declaring a "right to modify", but there isn't one when it comes to software control. You have the right to modify the hardware that you have purchased, but you have no ownership right to the software. You have rights under copyright law to turn the machine on - to copy a program into the memory of the machine, to the extent that it permits using the product to original specifications (and there is case law to back this up). However, license terms will dictate your ability to use firmware in a Tesla drive unit with your own software.

That's nice and all, but it sounds to me like Tesla is not living up to that particular rule either. you can't "restore <...> the machine to the state of working in accordance with it's original specifications" if Tesla won't sell you the parts, won't let you use their diagnostic software, and won't let you push updated firmware that may be required.

I hack and modify my vehicles. I don't expect any help from Tesla in doing so (though some repair oriented information is usually quite helpful.) but I DO expect Tesla to let me fix my own car when it breaks without having to take it to them to do so.

 

[FlasherZ]

That's nice and all, but it sounds to me like Tesla is not living up to that particular rule either. you can't "restore <...> the machine to the state of working in accordance with it's original specifications" if Tesla won't sell you the parts, won't let you use their diagnostic software, and won't let you push updated firmware that may be required.

I hack and modify my vehicles. I don't expect any help from Tesla in doing so (though some repair oriented information is usually quite helpful.) but I DO expect Tesla to let me fix my own car when it breaks without having to take it to them to do so.

I agree with you that Tesla should be required to 1) allow you to use diagnostics to identify the failing module; 2) sell you parts to replace the indicated failing module; 3) tell you how to install said module; and 4) do the required firmware pushes to integrate the part. I don't believe they're required to provide you with any more information than to do those 4 steps.

That said, I've point out why Massachusetts law doesn't apply to them anyway - they have no franchise agreements with dealers and supply no information to any. But in theory, I'm with you that you should be able to replace the drive unit yourself on these cars. You just don't have a right to Tesla's engineering specifications with regard to the drive unit.

 

[green1]

schematics are also required for some repairs (especially collision repair where you have to figure out what used to be plugged in to a specific, now destroyed, connector) I know this doesn't jive well with the mentality of "nothing that might help reverse engineer" but that doesn't change the fact that those are required for some repairs.

As for not applying to them, it's obvious Tesla thinks it does, or there's no way they would have randomly picked MA as the only place in the world that gets access to schematic data.

 

[FlasherZ]

schematics are also required for some repairs (especially collision repair where you have to figure out what used to be plugged in to a specific, now destroyed, connector) I know this doesn't jive well with the mentality of "nothing that might help reverse engineer" but that doesn't change the fact that those are required for some repairs.

As for not applying to them, it's obvious Tesla thinks it does, or there's no way they would have randomly picked MA as the only place in the world that gets access to schematic data.

...or they know it doesn't apply to them, but figures it's probably better to get ahead of it rather than risk what draconian actions might happen, especially after they won the court case against dealerships there, and have a few more enemies. Their actions do not necessarily concede applicability of the law - it's a very specific law with very specific definitions. Hedging their bets, perhaps.

As for schematics, they don't necessarily have to publish them. They can note that module M152 is plugged into connector C49, which is on harness H14 located under the frunk compartment. Connector gone? Replace harness C49 when you replace module M152. I suppose you can argue that's the definition of a schematic, but I want to make it clear vs. people who assume schematics include technical details of modules and components.

 

[green1]

There's no practical way to describe exact locations and mounting methods of hardware without a drawing that shows you where those go, that IS the definition of a schematic.
We can also get in to the detail level required, should I have to replace a whole wiring harness if one connector is broken? or should I be allowed to replace the connector? what about a 10c spring in the door handle mechanism, should I need a whole new mechanism? If they are allowed to pick any level of ganularity they could simply say "remove and replace automobile" and be done with it.

As for the law, you are really arguing that Tesla has pissed off people ONLY in MA? and that only MA has a risk of passing a brand new law for right to repair? That seems like a HIGHLY unlikely explanation as to why Tesla has chosen to do this in MA and nowhere else. It seems far more likely that their lawyers have advised them to follow the existing law.

 

[FlasherZ]

There's no practical way to describe exact locations and mounting methods of hardware without a drawing that shows you where those go, that IS the definition of a schematic.
We can also get in to the detail level required, should I have to replace a whole wiring harness if one connector is broken? or should I be allowed to replace the connector? what about a 10c spring in the door handle mechanism, should I need a whole new mechanism? If they are allowed to pick any level of ganularity they could simply say "remove and replace automobile" and be done with it.

Yes, they could indeed do this. In fact, that's precisely what most electronics manufacturers call for with regard to product repair - if connector is busted, replace the harness.

My uncle has been a TV repair man - and his father before that - for many decades. He used to have a full electronics bench and was a master of the 'scope. Today, his "repair" techniques, however, are dictated by the manufacturer's instructions for diagnosis and replacement. He replaces modules. He doesn't need the pin-outs, he doesn't need the connector types, he merely uses the service diagnostics to identify the failing module, replaces it, and gets done with it - and that's dictated by the manufacturer.

As for the law, you are really arguing that Tesla has pissed off people ONLY in MA? and that only MA has a risk of passing a brand new law for right to repair? That seems like a HIGHLY unlikely explanation as to why Tesla has chosen to do this in MA and nowhere else. It seems far more likely that their lawyers have advised them to follow the existing law.

Just as you don't know, I don't know, either - you're making assumptions that certain behavior are the result of a specific conclusion Tesla reached. I am not arguing they only pissed off people in MA (citation appreciated for where I said that). I argue that, even though I suggest the law doesn't apply to them because of the definitions of the words "dealer" and "franchise agreement" in the law in question, they may approaching it to "hedge their bets".

 

[qwk]

That said, I've point out why Massachusetts law doesn't apply to them anyway - they have no franchise agreements with dealers and supply no information to any. But in theory, I'm with you that you should be able to replace the drive unit yourself on these cars. You just don't have a right to Tesla's engineering specifications with regard to the drive unit.

Most of the laws that require auto manufacturers to sell through independent dealers, don't apply to Tesla either(since they don't use dealers anywhere), but that hasn't stopped NADA from winning in some states. It's called money, and lots of it will allow any interpretation of the law one likes.

 

[stopcrazypp]

There's no practical way to describe exact locations and mounting methods of hardware without a drawing that shows you where those go, that IS the definition of a schematic.
We can also get in to the detail level required, should I have to replace a whole wiring harness if one connector is broken? or should I be allowed to replace the connector? what about a 10c spring in the door handle mechanism, should I need a whole new mechanism? If they are allowed to pick any level of ganularity they could simply say "remove and replace automobile" and be done with it.

I think the criteria for granularity would simply be that it is the same parts and procedures that a Tesla service technician would follow, no more, no less. Obviously a Tesla service technician would not be following a "remove and replace automobile" procedure, but neither would they necessarily replacing only a single connector in a harness or only a spring in a handle mechanism.

 

[green1]

neither would they necessarily replacing only a single connector in a harness or only a spring in a handle mechanism.

So do you count only what the service centre does? or what Tesla does as a whole?
example, if you have a drive unit problem, the local centre simply swaps it, but Tesla doesn't eat the cost of a new drive unit, they send it back and then Tesla opens it up and fixes it. Elon famously talked about installing a shim worth only a few cents, but the service centre wasn't doing it, they were swapping it, and a drive unit is thousands of dollars. Which of those levels of granularity is acceptable?

As for the wiring connector, actually replacing connectors on wiring harnesses is common practice, because often replacing the whole harness starts with "disassemble entire car" as the wiring is usually put in before the interior whereas crimping a new connector on is a 5 minute or less task.