government affairs blog
You may be following a story that has gone viral recently that centers around claims by the vehicle manufacturers that car owners should be prevented from working on their own vehicle. The issue in question arose when the Electronic Frontier Foundation (EFF) requested that the Copyright office approve a proposed exemption for the diagnosis and repair of motor vehicles from the Digital Millennium Copyright Act’s (DMCA) prohibition against circumvention of technological protection measures that control access to copyrighted works. According to their website, EFF “champions user privacy, free expression, and innovation through impact litigation, policy analysis, grassroots activism, and technology development.”
It’s interesting that EFF’s exemption request probably would have received little attention, but for opposition comments filed by General Motors (GM) and the Alliance of Automobile Manufacturers. As part of their comments, GM and the Alliance make the case that the car companies own the software on the vehicle and that it is licensed to the car owner. Therefore, any attempt by the car owner to circumvent the software on the car would be considered a violation of the car companies’ copyright. They also make the case that car owners working on their car could endanger the safety of the vehicle and cause the vehicle emissions system to operate out of compliance. The manufacturers state that the exemption is not necessary, pointing to the Memorandum of Understanding (MOU) signed by the Auto Care Association and Coalition for Auto Repair Equality with the car makers that says that manufacturers will make available all of the information that is necessary to repair a vehicle.
Yes, the MOU was intended to ensure that information is available to car owners and shops so that vehicles can be repaired. However, the entire concept behind Right to Repair and the MOU is that the car owner owns the vehicle when they purchase it; and that those same car owners should have the freedom to have that vehicle repaired by whomever they want, including themselves. In fact, one of the hallmarks of Americans’ love affairs with their car is the freedom that it provides, whether it is taking the car on a road trip or being able to work on it in their garage. This concept of ownership goes beyond just what repair information the car companies place on their website -- it is ownership of the entire vehicle.
There is no doubt that technology has changed how vehicles are repaired. Cars are run by computers, and therefore repairing or customizing a vehicle entails changes to the software that control the vehicle systems. However, should the computerization of vehicles change how car owners view their vehicle? We don’t think so. Clearly, car owners should not be encouraged to tamper with their vehicle’s emissions or safety systems (there are laws in place to ensure the integrity of the emissions system), but sometimes innovation that comes from outside the vehicle manufacturer can lead to better safety, improved performance and reduced pollution.
Further, technologies such as telematics systems and new entertainment features provide more opportunities for car owners to customize their driving experience. There is little doubt that the connected car will further enhance a driver’s connection with their car, unless of course the manufacturers determine to stifle innovation through their drive for profits.
The Auto Care Association feels strongly that when a consumer buys a vehicle, they purchase everything -- the body, seats, engine and yes, the software on that vehicle as well. Anything less is not in the best interest of the automotive industry or the U.S. car owner.
You can find a copy of the joint comments filed with the U.S. Copyright Office by the Auto Care Association and Automotive Parts Rebuilders Association here
This will be the first of many blog posts that I, along with my colleagues from the AAIA government affairs team, will write regarding our views on legislative and regulatory initiatives impacting the aftermarket that happen here in Washington, D.C. and around the country. While most of these posts will focus on current or future events, I would like to focus my first blog post for 2013 on one of the most important events that occurred for the aftermarket in 2012.
Clearly, the victory in Massachusetts on Right to Repair was important to the future of our industry since it ensures cost-effective access to the sophisticated tools and information needed to work on late-model computer-controlled vehicles. Further, the success of Right to Repair was, in large part, due to the strong effort by the aftermarket in the commonwealth. Anyone who was closely involved in the Massachusetts Right to Repair battle recognizes the hard work by many individuals from industry that was required to obtain that win against a better funded opponent.
However, I hope that we will not forget what the Right to Repair battle was really about for the Massachusetts car owner: CHOICE. That’s right -- what voters told car companies and politicians by a wide margin, 85-15 percent, is that car owners want themselves, and not the manufacturers, to determine where their vehicle is serviced. I believe that the referendum not only resulted in the enactment of Right to Repair legislation, but also served as a major vote of confidence for the independent repair industry, reflecting on the high quality of service that our industry provides car owners on a day-to-day basis.
So as we look to the future, I hope that the victory in Massachusetts will send a message to the car companies that it is in their best interest to ensure that they are building vehicles that can be repaired and serviced wherever the owner wants. We further hope that car companies will hear this message and attempt to work with the aftermarket in developing peaceful solutions to issues involving car owner choice, such that their customers are not only happy when they leave the showroom, but in the driving experience for the life of that vehicle. I know it’s a long shot -- and we are ready to continue the war if necessary -- but let’s hope 2013 is the beginning of a new era in aftermarket-car company relations!
Much of the news out of the Consumer Electronics Show which took place in Las Vegas last week revolved around an agreement between several automakers and Google to provide telematic solutions for their motor vehicles.
As the Washington Post reported on Friday, Jan. 10, “The growing alliance between Silicon Valley and Detroit has executives in both places excited over the technological and money-making opportunities. But the fast-emerging trend also has raised questions about whether consumers will be able to control the massive trove of personal data that cars are expected to generate in the coming years.” The Post article, which, by the way, was on the front page, further stated: “U.S. laws are vague about who can harness all that information. Can law enforcement use the data to prove that a driver was speeding? Will hackers be able to get personal data from Web-connected cars? Can consumers stop Google from tracking them as it seeks to sell targeted ads?”
The good news is that the media is finally waking up to the fact that telematic systems poses important issues for car owners regarding how much control they have of the information being sent by their vehicle. AAIA and others have been concerned for some time that OE telematic systems will permit the car companies and their dealers to more directly communicate with motorists regarding the repair and maintenance needs of their motor vehicle. AAIA is further concerned that due to the direct contact that telematics provides, that car companies will use this connection to push motorists back to the dealer service bays long after the new car warranty expires. Further, these telematic systems will permit car companies to direct repair and diagnostic data from the vehicle to their dealer service bays before the vehicle has even entered the shop, allowing the dealer technician to better know what might be wrong with the car and order the repair information and parts they will need to fix the car faster and more efficiently than their independent counterparts?
AAIA has taken the position that the motorist needs to be better positioned to control the information being sent by vehicles. Do they want their information sent at all and if so, to the car dealer or the independent, or maybe both? As I have said in the past, there are two issues that are included in that question, one is policy the other is technical. Congress likely will need to look at the privacy issues on motor vehicle to decide how car owners should be empowered to control the information begin sent by their telematic systems; and second, if they choose to send their information to those outside of the car company sanctioned group, how technically can that happen?
AAIA and others in our industry are working on both a policy and a technical proposal that hopefully will ensure that the motorist can control access to their telematic systems and to ensure that entities outside of the car companies can have access to the vehicle’s telematic systems with permission by the car owner. You can read more about this effort in the latest issue of Insider. In the meantime, it is good news that the press is catching on that the new connected vehicle may have more implications than previously thought. Hopefully this attention will generate more discussion of this issue both in Congress and the state capitals over the coming year.
This was a big week in Massachusetts for the motor vehicle aftermarket. After months of wrangling, the state legislature finally passed a measure that will reconcile the two Right to Repair laws that were on the books in the state. Some may be asking, “Didn’t we already settle this issue back in 2012?” The answer is that while the people did vote overwhelmingly, 86-14 percent, to approve a Right to Repair law, that vote actually came after the legislature had already acted on Right to Repair legislation in July of that year. That bill was the result of an agreement reached at the last minute between the Massachusetts Right to Repair coalition, the vehicle manufacturers, and the new car dealers on Right to Repair. The result was two laws and the need to correct the issue, so that the people’s will for a competitive repair industry could be accomplished.
Like the ballot question, the bill enacted by the legislature ensures full access for the independent repair industry to all information, tools and software used by dealers to repair vehicles. The major differences include providing additional time for the manufacturers to comply with requirements that they make all of their diagnostic software available from a cloud using a standardized vehicle interface; different enforcement methodology; and the unfortunate exclusion of motorcycles and heavy duty vehicles from the bill (an action that the legislature took during consideration of the bill).
The final reconciliation bill that recently passed the legislature looks much like the bill that already passed the legislature, with the exception to the fact that heavy duty vehicles were added back into the bill due to the strong lobbying by the heavy duty aftermarket. The bill now goes to the governor, who has 10 days to sign it.
So with this battle nearing completion, what is next for Right to Repair? Working with the Coalition for Auto Repair Equality (CARE), AAIA has been meeting with the manufacturers in an attempt to develop a memorandum of understanding (MOU) that would implement the Massachusetts model around the country. Car companies have been reluctant to sign the document until work on the reconciliation measure was complete in the commonwealth. With that action nearly complete, AAIA and CARE would like an MOU approved as soon as possible so that car owners around the nation can benefit from the action in Massachusetts. Should that action not occur, AAIA is committed to moving state by state, to make sure all consumers have access to a competitive vehicle repair market. However, if we can achieve nationwide implementation of the Massachusetts bill without the cost and time of going through a state by state effort, this seems like the best course.
For now, we are focusing on encouraging the governor to sign the bill. After that, the ball will be in the car companies’ court as to whether we move forward together on implementing Right to Repair or the battles goes on the road to state capitals around the country. Let’s hope they choose the former.
Last week, the Massachusetts legislature’s Joint Committee on Professional Licensure and Consumer Protection held yet another hearing on Right to Repair. While a great many people thought that the issue was settled when the commonwealth’s voters overwhelmingly approved a referendum establishing a requirement that car companies share repair and diagnostic information, tools and software with independent shops and car owners, there is still unfinished business to settle in the long-fought battle over the issue.
As most AAIA members are aware, the Right to Repair Coalition in Massachusetts and the car companies reached an historic agreement on right to repair in late July 2012. That agreement was enacted by the Massachusetts legislature on July 31 of last year in the closing hours of the session and was signed by the governor on Aug. 7. However, the agreement and subsequent enactment of legislation came too late to remove the referendum from the Nov. 6 ballot. Not surprisingly, the referendum was approved by the voters by an 85-15 percent margin, the largest in commonwealth history. So now Massachusetts has two Right to Repair laws which, while similar in purpose, have some differences in scope and in how the requirements are implemented.
Both laws immediately require that independent shops have full and affordable access to the information, tools and software to work on late model vehicles. Both bills further require that car companies maintain all of their information and software in a cloud that an independent shops can obtain using a generic PC, and which utilizes a standardize vehicle interface known as J2534. However, the ballot measure implements this requirement by model 2015 and the bill by model year 2018. The ballot measure also covers motorcycles and trucks, a requirement that was removed from the law that passed the legislature.
One other issue that was raised during the hearing was telematics. Telematics is the ability for a vehicle to send information regarding diagnostics, mileage and GPS wirelessly to the vehicle manufacturer. Absent access to this information, car companies will have the ability to provide services direct to the motorists, providing a competitive advantage to their franchised dealers in communicating directly with motorists regarding the service needs of their vehicle. Obviously, the issue raises competitive flags for many in the aftermarket, including AAIA. Although neither Right to Repair law addresses the need for the aftermarket to have access to telematic system, it is an issue that was discussed during the hearing and will likely be the subject of future conversations between the aftermarket and the car companies.
While the hearing centered on many issues related to the Right to Repair law and the need for reconciliation of the two laws, it also became apparent from the discussion as to how far the Right to Repair issue has come. For years, legislators in Massachusetts debated whether they should be the first in the nation to enact Right to Repair legislation. Now there is a sense of pride over having successfully found a compromise that will become the model for either a national agreement or other state action on this issue. Clearly, the hard work put in by legislators, combined with the strong support by the voters for competition in the repair industry, has established a new benchmark. Hopefully that legacy will continue as the industry tackles future issues, such as telematics.
A few weeks ago, Kathleen Schmatz, AAIA president and CEO, joined the board of the National Automotive Service Task Force (NASTF). Taken in context of years of battling on Right to Repair, this is truly a significant development.
First, a little history. NASTF was born in 1999 due to efforts in Arizona by some aftermarket groups to obtain passage of Right to Repair legislation. The goal of what was called the “Arizona Pilot Project” was to address many of the issues voluntarily instead of by enacting legislation. The pilot project morphed into a national organization as the effort to pass Right to Repair moved to the U.S. Congress in 2001. There is no doubt that NASTF has tackled some important issues including the development of:
- An infrastructure to resolve problems being experienced by independent shops obtaining information from vehicle manufacturers; and,
- A solution to the issue of locksmiths and repair shops obtaining codes to reset vehicle security immobilizer systems.
However, the organization also has, at times, crossed the border into becoming politically involved in efforts to fight Right to Repair, both federally and in the states. I believe that such action was not intended by many of those that participated in the organization, but rather a minority of groups that saw the political advantage of using the efforts of NASTF to lead legislators into determining there was no need for right to repair legislation.
While I have always seen the value of NASTF, I also have thought that the organization would actually be more effective if there was a law behind it that forced the manufacturers to work with the independent aftermarket to ensure the availability of information, software and tools. With passage of the Massachusetts Right to Repair law, that issue is finally settled. Now, NASTF can play an active role in making sure that the implementation of the Massachusetts law is effective in achieving its goals of ensuring that aftermarket shops has the ability to repair late model highly sophisticated vehicle systems. Further, if a national agreement is reached between the aftermarket and the car companies, NASTF will have the opportunity to play a big role in its success as well.
That role, in my opinion, is to ensure that the aftermarket does not have to resort to legal action in Massachusetts to obtain access to information or tools. Such legal action will be time-consuming and expensive for both sides. Instead, it is better for the two sides to work out the issue, with the knowledge that if the manufacturer is not cooperative, the threat of a legal action in Massachusetts is real and could be used by independents. NASTF also could help educate independent shops and technicians on upcoming requirements that car companies make information and diagnostic software available using a standardized vehicle interface and a cloud based system where repair software can be downloaded on a subscription basis.
One of the biggest impediments to NASTF fulfilling its role in Right to Repair implementation is the fact that the vast majority of the industry is not aware that it exists. Therefore, one of the first orders of business will be improving the knowledge of NASTF by the hundreds of thousands of repairs shops around the country. Clearly, reaching a majority of these shops will be quite a challenge. Second, as more of the industry uses NASTF, it will need to have the resources to effectively work to resolve issues where information or tools are difficult to locate or in some cases not available. Nothing could jeopardize the future of NASTF more than the perception by the industry that the organization is ineffective in fulfilling its role of resolving information issues.
So as new board members, look for AAIA to continue its fight for Right to Repair, only now the goal will be ensuring that the legal framework which was created in Massachusetts will work in the everyday world of the independent shop which wants to get that vehicle in the service bay repaired quickly, correctly and at an affordable price.