Right To Repair & Telematics Data Access – Transport

There is a growing trend in support of “right to
repair” laws requiring manufacturers to make their products
more easily repairable, both by the product’s owners and
independent repair facilities.  These types of laws have been
introduced by lawmakers in more than twenty statehouses, and the European Commission has
announced plans for right to repair rules that would cover phones,
tablets and laptops by 2021. However, right to repair is not
limited to consumer products like phones and laptops. Indeed, its
most significant impact has likely been in the automotive industry,
where Massachusetts passed a
law in 2013 requiring vehicle manufacturers to make the same
diagnostic and repair tools and information available to
independent repair shops as they did to their dealers. The
automotive industry also indicates how the right to repair movement
may develop, and what impacts it may have on manufacturers’
(and their licensors’) intellectual property, as Massachusetts
recently passed a ballot measure expanding its right to repair law
and bringing these issues to the fore.

Last November, the right to repair movement achieved what is
arguably its greatest success when Massachusetts voters
approved a ballot measure requiring vehicle telematics data and
ability to send commands to in-vehicle components be made available
via an open access platform. Prior to the ballot measure,
Massachusetts’ right to repair law explicitly exempted
telematics from the data manufacturers would have to make
available. It also did not require that the diagnostic and repair
tools the manufacturers would have to make available would need the
ability to send commands to in-vehicle components, merely that they
would have the same “diagnostic, repair and wireless
capabilities” made available to dealers. The ballot matter
changed this by, among other things, removing the telematics data
exemption, and mandating that manufacturers equip vehicles with an
open access platform which would:

1. Be standardized across all the manufacturer’s makes and
   models;




2. Allow a vehicle owner to access all mechanical data emanating
   from the vehicle, including telematics data, through a mobile
   application;




3. Allow a vehicle owner to authorize independent repair shops to
   directly access this data for the purpose of maintaining,
   diagnosing, or repairing the owner’s vehicle; and




4. Allow independent repair shops to send commands to in-vehicle
   components as part of this access if needed for purposes of
   maintenance, diagnostics, and repair.

Under the ballot measure, the requirement for an open access
platform commences in model year 2022, and applies to all
manufacturers of motor vehicles sold in Massachusetts, including
heavy duty vehicles having a gross vehicle weight of more than
14,000 pounds, provided that such vehicles use a telematics
system.

The requirements of the new right to repair law present
significant challenges for vehicle manufacturers.  From a
technical standpoint, developing and deploying an access platform
which is standardized across all of a manufacturer’s makes and
models is a daunting challenge, especially given the short
timeframe (model year 2022) for implementation. Additionally, the
new law significantly changes the landscape regarding measures that
manufacturers can take to protect the intellectual property
incorporated into their vehicles. Under prior law, manufacturers
had to make diagnostic, repair and maintenance tools and data
available to independent repair shops, but they could still impose
conditions on that availability so long as the terms provided to
the independent repair shops were fair and reasonable. 
However, under the new law, access to a vehicle’s on-board
diagnostic systems must be provided to vehicle owners and
independent repair shops without requiring any type of
authorization from the manufacturer, unless the authorization is
via a system that is administered by an entity unaffiliated with
the manufacturer, thereby rendering existing methods of protection
through licensing inoperative. Similarly, prior to the new law,
circumvention of technical protection mechanisms, such as
encryption and password protection, used by manufacturers to
prevent unauthorized access to their software and data, would be
prohibited under the digital millennium copyright act. 
However, under the new law, manufacturers are not allowed to
condition access on authorization, thereby rendering existing
methods of protection through technological measures moot. Thus,
the right to repair presents both technical challenges with
compliance and legal challenges for taking measures to prevent that
compliance from operating as a de facto surrender of all
intellectual property rights in automotive data and software.

Due to a legal challenge by the automotive industry, the future
of the Massachusetts law is unclear.  On November 20, the
Alliance for Automotive Innovation filed suit seeking a declaration
that the expanded law is unenforceable. According to the
Alliance’s complaint, the obstacles to maintaining intellectual
property protection posed by the law meant that it conflicts with
or serves as an obstacle to the purposes of, and is therefore
preempted by, copyright law, the anti-circumvention provisions of
the Digital Millennium
Copyright Act, and the Federal Defend Trade
Secrets Act. The Alliance’s complaint also argued that,
because third parties could potentially make changes to a
vehicle’s on-board software through the required open access
platform, the law was also inconsistent with, and therefore
preempted by, the Motor Vehicle Safety Act, Federal Motor Vehicle
Safety Standards, the Clean Air Act, and the Computer Fraud and
Abuse act. The Massachusetts attorney general has responded by
moving to have the suit dismissed. However, the attorney general
has also agreed not to take any enforcement action prior to August
1, 2021. No decision has been issued on the motion to dismiss, and
a trial date has been set for June 14. Accordingly, it is possible
that the expansion will be nullified before it ever has any real
effect.

The Massachusetts right to repair law represents a significant
challenge to the automotive industry and, to the extent its
validity is upheld, will no doubt impact arrangements between
automotive manufacturers and third party providers of telematics,
software and/or data solutions. Additionally, even if the challenge
to Massachusetts’ law is successful, the underlying right to
repair movement will continue, and so the issues raised by the law
are likely to continue being significant, both in Massachusetts and
other jurisdictions in the U.S. and around the world.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.