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DMCA may have protected Volkswagen from ‘defeat device’ discovery, claims U.S. senator

Thu 15 Oct 2015

Volkswagen’s deceptive practices over ‘defeat devices’ in its emissions-testing software might have come to light far earlier if its code had not been protected by the Digital Millennium Copyright Act, according to a U.S. senator.

Writing in the Wall Street Journal, Ron Wyden, United States Senator for Oregon since 1996, contends [paywalled] that the DMCA’s blanket protection of business interests impedes researchers and other interested parties from auditing automobile software. In practical terms there is little to stop an able programmer from examining the code, but disclosure of anomalies found there risk prosecution by default.

The existence of Volkswagen’s context-sensitive emissions controls, which reduced pollution when ‘test conditions’ were detected, was eventually deduced by anomalies in automobile exhaust tests under actual driving conditions, rather than examination of the settings of the software itself.

Sen. Wyden wrote: “Independent researchers might have found the problem sooner if not for the threat of lawsuits brought by the company under the DMCA.” He added: “The obstacle thrown up against access to copyrighted software makes it more difficult for researchers and engineers to find similar problems in the future.”

Exceptions have been made to the DMCA since its institution in the late 1990s. In 2010 it was amended to permit individuals to decrypt the content scrambling system in DVDs in order to allow excerpts to be used in documentary films, non-commercial videos and use for academic and teaching purposes. Additionally incursions into video-game protection protocols were allowed for security researchers, and bypassing of dongle-protected programs permitted when the dongle is no longer commercially available.

The Environmental Protection Agency (EPA) responded in July to the contention of technology advocates that the discovery of Volkswagen’s duplicity was only made possible by independent researchers who happened to be able to detect the illegal software modifications without breaching the DMCA. The EPA believe that granting a DMCA exception for this purpose could lead to individuals creating their own ‘defeat devices’ in order to cheat the Clean Air Act regulations. In his opinion piece for WSJ, Sen. Wyden responds “In short, while the EPA is worried about individuals potentially violating the Clean Air Act or other regulations, it should be worried about the companies that are actually doing so.”

Wyden has backed legislation intended to widen the scope of DMCA exemptions for medical devices, claiming that the growth of IoT will require increasing flexibility from the DMCA, writing “Today coffee makers, thermostats, hot-water heaters, blow driers, watches, fireplaces and cars are all increasingly controlled by software. Their owners should be able to examine these devices’ software—which is often as important as the hardware.”

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