They assert that vehicle owners are entitled to use the computer programs in ECUs to diagnose, repair or modify vehicles as a matter of fair use, or under section 117. EFF argues that absent an exemption, vehicle owners must take their cars to authorized repair shops, or purchase expensive manufacturer-authorized tools, to diagnose and repair their vehicles. Before that, only fleets were eligible to purchase a new Civic GX. SFC argued that, under the relevant FLOSS licenses, smart TV owners are authorized to modify the FLOSS applications and to run them without restriction. In addition to their traditional functionality, many modern televisions (“TVs”) have built-in software features that can stream content over the internet, interact with other devices in the home, or run applications. Similarly, IPTC U.S.C. explained that TPMs restricting access to computer programs that run agricultural vehicles and machinery place the livelihoods of farmers and other business owners at risk, because vehicle owners must sometimes wait significant periods of time before their disabled vehicles can be repaired by an authorized technician. The Software Freedom Conservancy (“SFC”) proposed an exemption to permit circumvention of access controls on firmware (i.e., the operating system) of such smart TVs to enable installation of third-party software.

Proposed Class 27: This proposed class would allow circumvention of TPMs protecting computer programs in medical devices designed for attachment to or implantation in patients and in their corresponding monitoring devices, as well as the outputs generated through those programs. Third, the Medical Device Research Coalition (“MDRC”), a group of patients and researchers, filed a petition seeking an exemption to allow the circumvention of TPMs on computer programs on implanted medical devices, such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors, and their corresponding personal monitoring systems. Proposed Class 21: This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle, including personal automobiles, commercial motor vehicles, and agricultural machinery, for purposes of lawful diagnosis and repair, or aftermarket personalization, modification, or other improvement. Proposed Class 22: This proposed class would allow circumvention of TPMs protecting computer programs that control the functioning of a motorized land vehicle for the purpose of researching the security or safety of such vehicles.

The Copyright Office grouped the security-related petitions into three proposed classes. In light of the commenters’ observations, the Copyright Office notified DOT and EPA of the pendency of the rulemaking. The exemption also expressly excludes acts of circumvention that would violate any other law, including regulations promulgated by DOT or EPA. Furthermore, GSS use fully designated Patrol Vehicles with clear company names and logos, which acts as a further deterrent to criminals. The Register concluded that reproducing and altering the computer programs on ECUs for purposes of facilitating diagnosis, repair and modification of vehicles may constitute a noninfringing activity as a matter of fair use and/or under the exception set forth in section 117 of the Copyright Act, which permits the owner of a copy of a computer program to make certain copies and adaptations of the program. In contrast, the methods POST, CONNECT, and PATCH are not necessarily idempotent, and therefore sending an identical POST request multiple times may further modify the state of the server or have further effects, such as sending multiple emails. Proponents explained that circumvention of TPMs protecting copyrighted computer programs in ECUs may be necessary to make noninfringing uses of those programs to diagnose and repair automobiles and agricultural equipment, and to make modifications, such as enhancing a vehicle’s suspension or installing a gear with a different radius.

These internet-enabled TVs are often referred to as “Smart TVs.” Smart TV firmware is often protected by TPMs that prevent owners of those TVs from installing third-party software on them. Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television. SFC also argued that fair use permits reproduction and alteration of proprietary applications to the extent necessary to permit interoperability with lawfully acquired programs. Second, with respect to non-FLOSS proprietary software included in the firmware, secure storage heathrow the Register concluded that modifications to that firmware to enable interoperability with third-party software are likely to constitute a fair use. Opponents also argued that any exemption for software security research should also include an express disclosure requirement, so that the software developer or product manufacturer has sufficient time to correct any flaw before its existence becomes more widely known and thus more susceptible to exploitation by malicious actors. In general, opponents argued that an exemption would not facilitate noninfringing uses, and was unnecessary in any event because vehicle owners have alternative options, such as manufacturer-authorized repair shops and tools.