INSIGHTS: EMBEDDED SOFTWARE IN VEHICLE COMPONENTS IS A COMPETITION KILLER
By Guest Columnist Aaron Lowe:
Senior Vice President, Government Affairs, Auto Care Association
U.S. patent law has consistently provided consumers with a choice when it comes to getting their motor vehicle repaired. Cleaning, repairing and refurbishing parts, or replacing worn or broken parts, have historically been considered permissible repair and not examples of infringing reconstruction. Consumers have benefited from this right to repair by having the ability to choose where to have their vehicle serviced and the type of parts used in the repair: whether that be new parts from the vehicle manufacturer or an independent producer, or remanufactured parts, which could also be sourced from either entity.
However, vehicle components are increasingly including embedded software, which in many cases takes the place of mechanical functions. Today’s engines, transmissions, ignitions, brakes, emissions systems, electric windows, air blowers and even windshield wipers are just a few of the systems in which automakers have replaced purely electro-mechanical parts with microprocessors and software controls. In just the last 15 years, the number of computer modules found in new vehicles has gone from around 10 to in some cases, over 100.
While the safety, performance and environmental benefits to these technological advancements are valid, car companies are using copyright law, specifically the Digital Millennium Copyright Act (DMCA), to prevent repair or replacement of these parts. There have been recent examples of automakers preventing repairers from copying software off of one component so that it can be downloaded onto a replacement component that has already been installed on a vehicle. This process is critical to ensure that the components operate properly and safely within the vehicle.
The DMCA was originally enacted to provide protection for expressive works, including video games and movies. The law bans circumvention of access control devices in order to make copies of these protected works. However, car companies are using the DMCA to stifle competition rather than to protect their copyrightable software. The uncertainty of current law and the potential high cost of litigation is having a chilling impact on companies that fill an important role in the vehicle repair market.
While the most recent triennial review process by the U.S. Copyright Office provided an exemption for circumvention of software for purposes of vehicle repair, that exemption is extremely limited, applying only to repairs performed by the consumer on their own vehicle. Therefore, work done by a repair shop or remanufacturer on behalf of the vehicle owner is not covered. Further, the exemption does not take into account the wide range of actions being undertaken by vehicle manufacturers that are impacting the auto care industry and consumers.
Therefore, the auto care industry is recommending that the U.S. Copyright Office and/or Congress take the following actions:
- Affirm that DMCA applies where and only to the extent that the technological measure actually protects a right of a copyright holder in a copyrightable work;
- Affirm that DMCA does not apply where the measure protects non-copyrightable aspects of software or markets for physical objects that the software controls;
- Make exemptions granted in a triennial presumptively permanent.
For additional information, contact Aaron Lowe at firstname.lastname@example.org.
ON THE ECONOMY: SUMMER IN THE CITY
By John Dunham:
Managing Partner, John Dunham & Associates
Hot town, summer in the city, back of my neck getting dirty and gritty. Been down, isn’t it a pity. Doesn’t seem to be a shadow in the city. All around, people looking half dead, walking on the sidewalk, hotter than a match head. So begins the 1966 song written by John Sebastian, Mark Sebastian and Steve Boone and recorded by The Lovin’ Spoonful.
The last month almost makes one believe in the theory of global warming. It has been a long, hot summer here in Brooklyn, and I marvel at the miracle of air conditioning. Air conditioning is a wonderful invention, and has opened up parts of the world to extensive human habitation that only a few decades ago were considered to be horrific. In 1900, prior to the development of air conditioning, Florida was home to just 6-tenths of one percent of the US population. By 1950 this had reached only 1.8 percent, but by 2010 the state was home to over 6 percent of the nation’s people.
According to the Department of Energy, the first home air conditioners were developed in 1929, but only 32 prototype units were from 1930 to 1931. Comprehensive data on the growth of air conditioning between 1930 and 1980 are simply not available; however, by 1980 about 50 percent of homes in the north eastern part of the country had air conditioning. This grew steadily with 65 percent having AC by 1990, 72 percent by 2001 and 85 percent of homes by 2009. In the south, by 1980 nearly 75 percent of homes had air conditioning and 98 percent were air conditioned by 2009. This is a remarkable transformation of the American landscape due to one technological change.
This month, my wife and I had the pleasure to visit the Sullivan County Historical Society museum in Hurleyville, New York, to hear a lecture and see an interesting exhibit on what was called the Borscht Belt. This area in the Catskill Mountains was a popular area for New York City residents, to spend the hot summer months beginning in the latter part of the 1800s and continuing through the 1980s.
The term Borscht Belt, comes from the large number of resorts and facilities that specialized in hosting Jewish patrons during a time when many other facilities in the upper Catskill Mountains (the area around Woodstock) discriminated against people with Jewish backgrounds. During its peak, had over 500 resorts, hotels, bungalow colonies (groupings of cabins), summer camps, and boarding houses, catering primarily to Jewish residents of New York City. This is on top of hundreds of other hotels in the Catskill and Pocono region that were targeted toward other groups of clientele.
Today, the Borscht Belt area is a shell of its former self. There are some hotels and bungalow colonies catering to the religious Orthodox Jewish Community, but the large hotels that were popularized in the movie Dirty Dancing are no longer there, and the area is no longer a major tourist draw.
I often wondered why such an amazing area, full of assets like swimming pools, golf courses, forests, horseback trails, skating rinks, ski slopes, and home to world class entertainment fell so quickly into disrepair. It’s really the same question that economists ask about Detroit, or Argentina, or Timbuktu. Why does an economy that is so vibrant suddenly go into distress and collapse?
Many theories have been cited for the demise of the Borscht Belt. Some are social. As antisemitism declined, Jewish families no longer had to vacation in the Catskills. Some are demographic. The resorts simply did not appeal to the Baby Boom generation. Some are technical. It was too expensive to retrofit the resorts to new fire and building codes. Some are technological. Air travel opened up new destinations for people to vacation. I would argue that in this case, the answer is air conditioning.
During the peak of the Borscht Belt, air conditioning was not common in American homes. My wife tells me stories of her parents and grandparents sleeping on their lawn or in public parks during steamy New York summer nights. During this time, families would depart lock, stock and barrel to the Catskills for the entire summer while dad would work in the City and travel back and forth on the weekend.
This growth in the availability of home air conditioning eliminated the need to decamp to the country for the entire summer, and suddenly these 500 hotels lost their underlying source of revenue. No longer relying on cool air to attract visitors, the hotels invested in resort facilities like skating rinks, large pools, better food and entertainment and golf courses. This became costly for family businesses (many of the big hotels began as farm based boarding houses), and the need to rebuild facilities to add sprinklers, fire doors, and other requirements for modern hotels bankrupted many. They also had to compete with low cost operations in the Caribbean and Florida. Low cost air travel following the deregulation of that industry in 1978, likely was the death blow for the Catskill hotels as now people could get to similar resorts in air conditioned Puerto Rico or Florida for less cost or time than it took to trundle up Route 17 to Liberty or Montecello.
Today, communities in the Borscht Belt resemble the ghost towns of my youth in Colorado. When the gold mines petered out in the Rocky’s so too did towns like Gold Hill, Cripple Creek, Central City and Leadville. All economies are at the mercy of economic and technological change. Today’s boom town can easily become tomorrow’s ghost town. Liberty, New York, home to Grossingers, the hotel made famous in Dirty Dancing has lost 12 percent of its population since 1960 (even though New York’s population has increased by 17 percent). Cripple Creek, Colorado, had over 10,000 inhabitants in 1990 during the gold rush. Today just 1,100 people call the town home. Detroit Michigan was once the 5th largest city in America but today has just 39 percent as many people as it did at its peak.
Economic change is cruel and can take many shapes. The things that make a region like the Catskills, or Detroit or Timbuktu great often go away and never come back. It’s important to ensure that governments understand this and enact policies to encourage people and businesses to locate and stay in a community. Because being down, isn’t it a pity. Doesn’t seem to be a shadow in the city.
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