How intellectual property law incentivizes cheating

VW was able to manipulate its emission values also because of the US copyright, which was tightened under Bill Clinton

On Sunday, VW CEO Martin Winterkorn, who resigned on Wednesday, admitted that his company had for years fed false emissions data to authorities in the United States because the software installed in its diesel vehicles detected emissions tests and switched to a special test mode that differed significantly from the regular one. The fact that this was possible is also due to US intellectual property law, as the Electronic Frontier Foundation (EFF) shows.

The Digital Millennium Copyright Act (DMCA), which was passed under President Bill Clinton, only allows the inspection of program code if the copyright holder permits it. This not only allows companies to prevent competition for repair and add-on equipment – it also prevents safety defects from becoming public (for example, sudden acceleration without the driver’s intervention or the possibility of remote control by a third party) and incentivizes the use of surreptitious "Features" that customers or authorities are not supposed to know about.

Last year, the EFF applied to the Librarian of Congress for an exemption that would allow independent researchers and investigators to study vehicle software without fear of penalty. Automakers opposed such an exemption, claiming, among other things, that it could lead vehicle owners to manipulate software to exceed emissions limits.

How intellectual property law creates incentives for cheating

VW Golf TDI "Clean Diesel". Photo: Mario Roberto Duran Ortiz. License: CC BY-SA 3.0

This may have played a role in the US Environmental Protection Agency (EPA) opposing such an exemption. Today we know that such manipulation was not done by a few drivers, but by the VW Group. In 11 million cases worldwide. If the DMCA had not existed, then these manipulations had probably been discovered much earlier. It is even more likely that VW did not dare to use the manipulation software without the Clinton copyright, because they feared that the fraud would be discovered.

This also applies to other car manufacturers, who have now also been caught up in the maelstrom of scandal: If they are found to have tampered, they face not only fines (apart from the damage to their image), but also private lawsuits, which in the USA can result in immense damage payments. In the case of BMW, Volvo, Opel, Hyundai and Citroen, Peter Mock of the International Council on Clean Transportation (ICCT) spoke of "first indications", that turned up in laboratory tests. Now further quantities and road tests are to be carried out.

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