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Driving change: copyright, car modding, and the right to repair in the digital age

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Driving change: copyright, car modding, and the right to repair in the digital age

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DRIVING CHANGE: COPYRIGHT, CAR MODDING, AND THE RIGHT TO REPAIR IN
THE DIGITAL AGE

by

Michelle C Forelle

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
COMMUNICATION

December 2019

Copyright 2019 Michelle C Forelle

Partially funded by the International Balzan Prize Foundation

ii
Acknowledgements

When I first arrived at USC to begin my graduate studies, my knowledge of cars was pretty
scant, and my opinion of them dim. I could never have imagined then that I would wind up
writing my dissertation about cars and car culture. This dissertation has been a bit of a wild ride
(pun intended), but I have been incredibly lucky to have the support of a number of wildly
generous, intelligent, and compassionate people along the way.
That I was able to find a home for a dissertation that is variously about the law, culture, and
technology speaks to how remarkable the Communication department at the University of
Southern California has been to me. As my advisor, Manuel Castells has been my champion
from the beginning. It was through him that I was connected to the generous support of the
International Balzan Prize Foundation, who partially funded much of the travel for this
dissertation. But beyond that, from Manuel I have learned that being a scholar is not only about
being rigorous and disciplined, but also about being passionate and principled. I am grateful to
emerge from his tutelage as both a scholar and an advocate. Thank you, Manuel, for your support
and your care.
My dissertation committee members have been two of the most formative and supportive
faculty relationships I have had the honor to enjoy. As a student in Christina Dunbar-Hester’s
graduate course on STS for Communication and Media Studies, and later as her teaching
assistant for an undergraduate Communication and Technology class, working with Christina
completely shifted how I thought about my place in the field of communication—it felt like I had
finally found my home. Aram Sinnreich has been not only an immensely important intellectual
guide for me, helping me make sense of how to frame my legal studies work for a
iii
communication audience, but he has also been an incredibly generous mentor and source of
moral support.
The faculty at USC Annenberg have been a wealth of knowledge and guidance over the last
six years, for which I am deeply grateful. Mike Ananny opened new avenues of critical thought
on networks and publics to me and has always pushed me to be a better scholar than I thought I
could be, and I will carry those high expectations for myself in the years to come. I cannot thank
Chris Smith enough for making the time to lead our little reading group on the often difficult
canon of critical cultural studies. Colin MacClay and Mark Lloyd always kept their office doors
open and resulting in some of the most fun and compelling conversations I had at USC. I was
lucky enough to TA under both Josh Kun and Taj Frazier, who showed me how to make a large
lecture hall feel personal and rigorous and engaging. Finally, I do not have the words to thank the
administrative staff at Annenberg, without whom all would be lost; thank you to Pauline
Martinez, Sarah Holterman, Jordan Gary, Billie Shotlow, Christine Lloreda, and especially to
Anne-Marie Campain, who held my hand through many an anxiety-ridden journey through the
USC system.
I am forever indebted to the community of fellow scholars I found in the doctoral program at
USC. First and foremost was my cohort, whose diversity of opinion, methodological training,
and theoretical specialty have shown me how wonderous and varied our field, and our world, can
be. I am especially grateful for Cat Duffy, Nathalie Marechal, James Lee, and Sam Chan, whose
friendships carried me through the rough patches in my intellectual trajectory. Finally, a very
special thank you to Sarah Myers West, with whom I have been lucky to collaborate on a few
projects and with whom I look forward to collaborating with more in future years.
iv
During my last year on USC’s campus, I joined a vibrant group of graduate students to put
together Annenberg’s first graduate student conference—thank you Clare O’Connor, Courtney
Cox, Perry Johnson, Soledad Altrudi, Frances Corry, Andrea Alarcon, Sulafa Zidani, Tyler
Quick, Paulina Lanz, and Philana Payton, for the comradery and for teaching me so many new
things about cultural studies. I was also honored to have led a dissertation writing group with
many of these people, so an extra thank you to them for keeping me honest about my work and
allowing me to get to know theirs.
Before this was a dissertation, this project was a collection of ideas that a number of people
and institutions encouraged and helped me develop. My time as a media research intern at
Common Cause in Washington, D.C. impressed upon me the importance of producing research
that activists and policymakers could use. Likewise, my summer internship at the Berkman
Center at Harvard University inspired me to bring a communication theory approach to
understanding the law. A very early version of chapter one of this dissertation was presented at
the International Communication Association’s annual national conference in 2016, and the
warm response it received there motivated me to expand it into a larger project. Likewise,
presenting an early version of chapter three at the Society for the Social Studies of Science in
2016 helped me figure out how to develop my approach to the field.
I am exceptionally grateful to the communities of mechanics, hackers, tinkerers, and activists
who share their time, stories, and occasionally their food and their homes with me in order to
help me with my research. When I started this project, I could not have imagined how generous
so many people would be with a researcher they had only just met. I hope that this project does
justice to the passion you have toward your cars and your communities.
v
I could not have completed a project of this scale without the emotional support of my
friends and family. Jean Bentley and Vivian Chong helped me find myself time and time again
when I felt I’d gotten lost in the data. My parents Sara and Maurice were kind enough to always
ask how my work was going without judgment or pressure—thank you for teaching me it’s ok to
work at my own pace. My brother David was wonderful for reminding me to go watch the good
movies! I could not have survived the last few years with as much grace as I have managed
without the steadfast support and sardonic sense of humor of my beloved sister Sofia.
I often joked that I chose this dissertation topic based on my love for the Fast and the
Furious movie franchise, but really that was my way of saying that my dissertation was inspired
by the man who introduced them to me - my patient, smart, generous, and kind husband Patrick
Davison. There are no words to describe how eternally grateful I am for your unrelenting support
and love, so I guess I’ll just have to spend forever repaying it in kind. And to my son Felix, who
was born during the course of this project, I can only give my most simple, but infinitely
profound, thanks.
vi
Table of Contents
Acknowledgements
ii
Abstract vii
Introduction 1
Chapter 1: Legal arguments in the 2015 DMCA anticircumvention exemptions
proceedings
20
Chapter 2: Individual comments in the 2015 DMCA anticircumvention exemptions
proceedings
50
Chapter 3: Legal attitudes in car porting culture 73
Conclusion: Whither car porting in the age of ubiquitous computing? 102
Appendices 117
Works cited 119

vii
Abstract

At the turn of the twentieth century, cars were seen as mechanical marvels changing the
shape of American life. At the turn of the twenty-first century, cars had become digital marvels
as well, with the potential to change the shape of American law. Today, luxury vehicles can have
as many as 80 ECUs working together in a complex network, and a modern high-end passenger
car powertrain can contain more than 2 megabytes of embedded flash memory (Mössinger,
2010). By some predictions, there will be 250 million connected cars on the road by 2020
(“Gartner Says By 2020, a Quarter Billion Connected Vehicles Will Enable New In-Vehicle
Services and Automated Driving Capabilities,” 2015).
This dissertation understands automotive software as a site where competing legal regimes
collide, using it as a site from which to explore the constructions of legality that are emerging
from this conflict. By turning to the everyday life of copyright as it applies to automotive
software, this dissertation reveals how the day-to-day practices around this technology suggest
more equitable and sustainable ways to reimagine the purpose of intellectual property law and
the rights of personal ownership.
This dissertation begins, in chapter one, with an in-depth examination of the Digital
Millennium Copyright Act’s (DMCA) 2015 Section 1201 anticircumvention proceedings. This
analysis reveals how both sides of the exemption battle largely made their respective cases based
on an economic approach to intellectual property. Chapter two extends this analysis into the
thousands of public comments submitted by individuals in support of the proposed 2015
exemption, which reveal common themes regarding the basis for and functions of ownership
rights, including the role of government in defending (or impinging upon) these rights, the power
viii
of industry to restrict them, and their importance to the idea of American freedom. Finally,
chapter three explores whether, and to what extent, these themes are found in car culture in
everyday life. Over the course of a year, I conducted a multi-sited ethnography of the various
subsections of car culture that interact directly with automotive software. Among these groups I
analyze not only how they organize the practices of actively modding, tuning, and porting cars,
but also the stories they tell about why such activities are important. I uncover a complicated
relationship of legal gray area, mapped out in the space between corporate giants, government
regulators, and competing third-party professionals.
In the end, this dissertation reveals the ambivalent understanding of intellectual and personal
property rights that exist in contemporary American car culture. On the one hand, car porting
culture has retained many aspects of the traditional libertarian politics of American car culture: a
mistrust of governmental authority, and prioritization of individuality and freedom. On the other
hand, many threads of American programmer culture, particularly a strong sense that information
wants to be free, are increasingly prevalent. The way car porters navigate the intersection of
these two ideologies, and the legality of copyright that they build from this intersection, has
implications for how copyright law does, and could, work today and in the increasingly digital
future.

1
INTRODUCTION

American English abounds with automotive metaphors. When we’re working hard, we’re
putting the “pedal to the metal,” getting “tires on the road,” “running on all cylinders.” When we
need to switch topics, we “shift gears” or “slam the brakes.” When we offer an unwanted
opinion, we’re “backseat drivers.” The ubiquity of car-related metaphors is just one indication of
how central cars are to American life. Notably, all those metaphors refer to the mechanical
functionality of cars. However, the modern car is no longer just a mechanical object;
increasingly, cars are as much computational artifacts as they are mechanical ones.
The integration of software into consumer vehicles has not been a frictionless change. Car
owners now find themselves accountable not only to laws that traditionally applied to cars - road
safety regulations, air pollution control rules, and so on - but now also to laws that apply to
software.
In 1998, the United States passed the Digital Millennium Copyright Act (DMCA) by a
unanimous vote. In response to the entertainment industry’s growing concerns about content
piracy, the bill included a section, Section 1201, prohibiting the circumvention of any
technological protection measures (TPMs) used to prevent unauthorized access to a copyrighted
work. Encrypted DVDs are an archetypal case of the kind of technology protected by Section
1201, and there have been high profile prosecutions for those that sought to work around TPMs
like region code (Universal City Studios, Inc. v. Reimerdes, 2000). It also granted limited
exceptions to this prohibition, particularly for institutions for whom the circumvention of TPMs
would be considered fair use – for example, law enforcement, nonprofit libraries, and encryption
researchers. However, the broadest exception was the establishment of an ongoing administrative
2
rulemaking proceeding to determine additional exceptions. During this process, which takes
place under the purview of the Library of Congress (which houses the US Copyright Office), the
public presents arguments for and against granting specific classes of copyrighted works
exemptions from the anti-circumvention rules. These exemptions are only applicable for three
years, at which point the process begins over again; classes that had previously been granted
exemptions are very likely, but not guaranteed, to obtain exemption in the next round of
evaluations.
The cyclical nature of these proceedings provides a window into the evolving and expanding
world of software in daily life. In 2000, during the first round of proceedings, the Library of
Congress only granted exemptions to software and hardware related personal computers, the
traditional home of computer programs. In 2003, exemptions regarding ebooks and video game
consoles were also granted. In 2006, audiovisual works were included in the exemptions, along
with the firmware used to connect wireless telephone handsets to wireless networks. The 2010
exemptions also included software applications on wireless telephone handsets; a similar
exemption was granted in 2012 that included both wireless telephone handsets and portable all-
purpose mobile computing devices. In this short history, then, we can see an expansion of the
applications of software, from personal computers to electronic books to wireless telephones. In
2015, the Section 1201 exemption process acknowledged a new class of works to be accorded an
exemption, one that, at first sight, may seem a surprising place to find not just software, but
rigidly applied TPMs to protect that software: cars.
This dissertation understands automotive software as a site where competing legal regimes
collide, using it as a site from which to explore the constructions of legality that are emerging
from this conflict. It is about how the social and cultural practices around technology can
3
challenge the law not only in its enforcement, but by reframing the fundamental principles it
relies on. Here, practices around automotive software call into question the basic principles of
intellectual property that have been at play in the United States since before its founding. While
the original intention behind intellectual property laws was to balance the interests of authors and
the public, today intellectual property law is being wielded as a shield by corporations looking to
retain control over their products as a means of protecting their profits, at the expense of the
personal property rights of individuals. By turning to the everyday life of copyright as it applies
to automotive software, this dissertation reveals how the day-to-day practices around this
technology suggest more equitable and sustainable ways to reimagine the purpose of intellectual
property law and the rights of personal ownership.
Copyright in the United States
Foundations
Although this dissertation focuses on a relatively new US intellectual property law - the 1998
Digital Millennium Copyright Act - much of its analysis is reliant on the fact that intellectual
property has a long history in American political thought and discourse, and is thus profoundly
woven into American culture. In fact, intellectual property protections were written into the very
Constitution itself, in Article I, Section 8, clause 8: “The Congress shall have Power…to
promote the Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries.” This clause
authorizes Congress to create laws that will incentivize the creation and distribution of new
works.
In spite of this long history, the phrase “intellectual property” was only first used in the late
1960s (Lemley, 2016, p. 895; cited in Vaidhyanathan, 2003, pp. 11–12) For many scholars, the
4
rise of this phrase to describe copyright has been highly problematic (Boyle, 1997). Unlike other
forms of property - for example, real property or personal property - copyright is not a single
right, but is better thought of as a bundle of limited rights. Copyright gives a creator the right to:
make copies, create derivative works, sell or distribute the work, perform the work, sue in case of
the infringement of any of those previous rights, or authorize others to exercise them—all for a
limited term. Some copyright scholars argue that by referring to copyright as “intellectual
property,” people begin thinking the copyrights function in the way that other property rights do.
Copyright scholar Siva Vaidhyanathan notes some concerns about the very name “copyright”
itself:
Part of the problem with understanding the nature of copyright is that the word right is embedded in it.
When Americans read the word right, the adjective inalienable tends to jump in front of it. However,
copyrights would be more accurately described as “copy privileges.” According to American habits of
political thought, right preceded the state; privileges emanate from the state. Copyright is a ‘deal’ that the
American people, through its Congress, made with the writers and publishers of books. Authors and
publishers would get a limited monopoly for a short period of time, and the public would get access to
those protected works and free use of the facts, data, and ideas within them. (21)
Vaidhyanathan’s analysis highlights the two contradictory experiences of copyright, the one
structured by the intent of the Founding Fathers, which sees copyright as yet another form of
check and balance, and this exists alongside the contemporary and everyday experience of
copyright, where linguistic associations and high-profile legal conflicts have created a common
sense, and less precise, notion of copyright.
According to the writings of the Founding Fathers, copyright originally represented an
uneasy balance between protecting the interests of creators, who want their works protected in
order to profit off them (and thus justify the initial investment in their creation), and the interests
of the public, who need access to creative works in order to be educated and to educate (and thus
5
function as an effective basis for a strong democracy). However, over the years, copyright
legislation has been updated in ways that many scholars and critics argue prioritize the interests
of creators over the public.
One of the most problematic expansions has been the length of the terms to which copyright
applies. While originally, copyright terms lasted only fourteen years, those terms gradually
increased over the decades: 28 years (Copyright Act of 1831) to 56 years (Copyright Act of
1909) to life of the author plus 50 years (Copyright Act of 1976). With the passage of the
Copyright Term Extension Act of 1998, copyright terms now last the life of the author plus 70
years, or, for corporate authorship, 120 years after creation or 95 years after publication,
whichever ends sooner. Critics argue that these terms are excessively long, amounting to an
“almost perpetual monopoly over creative works” that “starves the public domain of raw
material” (Vaidhyanathan, 2003, p. 186).
Another issue is not directly about copyright itself, but how it gets protected. Section 1201 of
the DMCA does not establish any new rights for copyright holders. Instead, it outlaws certain
means of accessing copyrighted works, namely, by circumventing the protective measures they
may come encased in. Because this law does not take into account whether a user is
circumventing a TPM in order to make noninfringing use of the content protected by it, many
legal scholars argue that Section 1201 unconstitutionally blocks free speech (Walsh, 2016).
While there I such scholarship on intellectual property generally and copyright specifically,
for my purposes, it is most important to highly how the historical establishment of copyright in
US law puts assumptions about personal economic gain and public benefit at odds (Johns, 2011).
This is a conflict which we will see borne out again, not only in the general language around
6
copyright, but in terms specific to cars—objects which import their own histories of property and
public impact.
Copyright and software
In the early years of software, there was a great deal of disagreement over what kind of
intellectual property protections would apply to this new form of expression. The Copyright
Office began accepting the registration of computer programs for copyright in 1964. Over the
next 12 years, the Copyright Office registered some 1200 programs, most of them owned by
major computer companies like IBM (Samuelson, 1984, p. 693). However, the courts were
unclear on how and to what extent copyright could be used to protect software. In the absence of
clear policies, during the 1970s and early 1980s, most software vendors turned to trade secret
law to protect their code (M. A. Lemley, Menell, Merges, Samuelson, & Carver, 2011, p. 50).
As early as the mid-1950s, Congress had been considering the need to update US copyright
law - the last major Copyright Act had been passed almost 50 years prior, in 1909. In 1955,
Congress allocated funds for the Copyright Office and the Library of Congress to conduct studies
in order to recommend how copyright law should be updated. Twelve years later, in 1967, this
research continued, only now it was clear to Congress that any new copyright law would need to
address the question of whether intellectual property law, and in particular copyright, should be
applicable to computer code. It wasn’t until 1974, however, that Congress passed a bill which
included a provision establishing a commission to investigate that question. This commission,
called the National Commission on New Technology Uses of Copyrighted Works (CONTU),
was given three years to conduct its studies and present its recommendations to Congress
(National Commission on New Technological Uses of Copyrighted Works, 1978). In the end,
CONTU concluded that computer programs in machine-readable form should be considered
7
eligible for copyright protections. Congress adopted their recommendations, almost to the letter,
1

in their 1980 amendments to the 1976 Copyright Act. These amendments extended copyright
protections to software but included some notable restrictions on those rights, namely that
owners of a copy of a computer program have the right to modify them and make archival
copies.
Government, however, was not the only group working on the legal challenges created by
software. At the same time as these statutes were being debated, programming culture was
developing its own solutions to the problem of ownership of code. Early programming culture in
the Bay Area during the 1960s was relatively open and collaborative (S. Levy, 2001). The
hardware for the first personal computers came bundled with “free” software, which users were
able to modify and share with each other; the software was made free in order to entice people to
buy the hardware (M. A. Lemley et al., 2011, p. 49). As personal computing grew - particularly
as it changed from a hobby into an enterprise tool - proprietary systems began popping up,
challenging the community’s longstanding traditions of sharing information and other resources.
A flashpoint in the community came in the form of an angry letter to the hobbyist community
from a software developer named Bill Gates, in which he railed against the community’s
practices of sharing code as undermining the investments that programmers make in developing
that code (Gates, 1976).
Following this, software culture split into two camps with regards to intellectual property.
One camp, represented by Bill Gates, leaned on the principles at the foundation of copyright to
protect the monetary incentive of creators, in order to advocate for tight control over both code

1
There were some minor changes from CONTU’s recommended language in the final
language of the law, which will be discussed in more detail in the following chapter.
8
and software. In addition, those that supported proprietary software worked to develop ever more
robust methods of preventing access to code or copying programs—precursors to the TPMs that
form the heart of Section 1201 of the DMCA. Over the decades, the proprietary software camp
was incredibly successful at securing profits from protected programs. Microsoft and Apple both
became some of the most powerful companies in the world and Gates has been lauded at
different times as the world’s richest individual.
The second camp continued to develop a vision for the future of software in which code
would be shared freely. Spearheaded by Richard Stallman, who founded the Free Software
Foundation in 1984, this group was committed to a future where software would be free as in
speech, not as in beer, meaning that it should be free to be run as desired, studied and
understood, redistributed, and improved upon (Naughton, 2000, p. 197; Vaidhyanathan, 2003,
pp. 155–156). This was both a matter of principle and a practical matter: Stallman believed that
trapping too much code in proprietary systems would hinder the development of good software
(Vaidhyanathan, 2003, p. 154). In order to protect software produced by free software supporters,
Stallman created a para-legal system that would function on top of existing copyright law. Rather
than giving authors a monopoly over the copying and distribution of their works, this new system
(called the GNU General Public License, or GPL) was a way to grant users the right to copy,
modify, and distribute code (E. G. Coleman, 2012, p. 69).
Researchers studying the free software movement have revealed how the construction of
legality within the movement unmasks some of the central tensions within contemporary
neoliberalism. As Cindy A. Cohn and James Grimmelmann note, programmers are particularly
apt studies of the law because of the similarities between computer code and legal codes; both
are “subtle, rule-oriented, specialized, and remarkably complicated dialects” (Grimmelmann &
9
Cohn, 2003, p. 20). Anthropologist Gabriella Coleman explored this parallel in her book Coding
Freedom (2012), in which she followed the Debian development community - which programs
and maintains one of the largest free software operating systems - as they struggled to make
sense of and respond to legal cases that called into question the status of computer code as a
copyrightable object versus a form of expression. For Debian developers, the copyrightability of
computer code was in direct conflict with the freedom of speech guaranteed by the Constitution.
However, even this critique of neoliberalism continued to enshrine a self-interested and rational
liberal subject whose individual autonomy and private property were to be valued above all (E.
G. Coleman, 2012). The result of these decades of struggle over the legal definition and
protection of software has made it so that legal activism over intellectual property is the special
domain of many serious computer programmers. Not only do free software advocates and so-
called hackers often pay special attention to the legal status of intellectual property, they bring a
specific tradition of legal argumentation to their advocacy. This exists in distinction, and
oftentimes contradiction, to the strategies of legal engagement in many other communities,
including car porters.
Software piracy and the DMCA
Over the centuries, debates about copyright infringement focused on the attempt to eradicate
piracy, that is, the unauthorized copying and distribution of content. The concern about piracy
persisted into the end of the 20
th
century, as the advent of digital storage and distribution media
like CDs and DVDs made copying easier and more widely accessible. However, these are not the
only practices that the DMCA has been used to curb. Legal scholars have characterized the
DMCA as inelegant, ambiguous, and confusing (Grimmelmann & Cohn, 2003, p. 20). Corporate
interests have used these faults to argue its applicability to issues beyond piracy. In principle,
10
Section 1201 of the DMCA was written to protect creative content like DVDs and CDs from
unauthorized copying by stopping people from bypassing the TPMs on those DVDs and CDs. As
written, however, Section 1201 can apply much more broadly—in fact, as written, the section
does not even take into account why a user would try to circumvent TPMs in the first place.
Thus, the section treats would-be pirates looking to copy the content as punitively as it treats,
say, a car owner seeking to bypass the TPMs on his car’s engine software in order to make
simple repairs to that engine. Digital rights activists claim that the over-broadness of the DMCA
renders it unconstitutional. In 2016, advocacy group the Electronic Frontier Foundation (EFF)
took this charge one step further and sued the federal government, alleging that, because section
1201 does not take into account the possibility that users are engaging in noninfringing uses of
the protected content, the section impinges on free speech (Walsh, 2016).
2
The case is ongoing as
of the writing of this dissertation.
A major consequence of the vagueness and intractability of the DMCA is that, for the most
part, the average user or potential creator has little understanding of how the law works. One
recent study by Patricia Aufderheide, Aram Sinnreich, and Joseph Graf (2018) focused on the
awareness and usage of DMCA exemptions by creative professionals in audiovisual field. It
found that while the majority of working practitioners were aware of the DMCA’s restrictions on
the use of TPM-protected creative works, only half were aware of the exemptions provided by
the triennial proceedings, and even fewer - only 17% - reported making use of those exemptions

2
More specifically, the EFF asserts that the triennial exemption process is effectively a
speech-licensing regime, and as such, must be held to stricter standards than it is currently.
However, the EFF’s larger point is that section 1201 chills protected and noninfringing speech,
and is thus unconstitutional.
11
for their work (Aufderheide, Sinnreich, & Graf, 2018). The authors suggest that this is evidence
that the DMCA exemptions, while intended to act as a check on corporate control over creative
expressions, is actually falling short of that goal: “Many creators in exempted categories are
unaware of their rights, and this lack of awareness is contributing to a measurable chilling effect”
(Aufderheide et al., 2018, p. 4363). These results are worrying because one might hope that
practitioners who are used to working within the limits of US copyright law would be informed
about their full rights under those laws. If even these practitioners are underinformed, then what
levels of awareness can we hope to find in communities - like car porters - to whom copyright
has only recently started to apply?
In his in-depth investigation of the gap between the letter of the DMCA and consumer
expectations, Krzysztof Bebenek writes, “[r]ather than actively complying with the DMCA’s
abstruse provisions or possibly accepting the narrow range of interactions that DRM
technologies typically allow, many copyright consumers seem to have a different lodestar—their
own beliefs and intuitions about the kinds of interactions with copyrighted works that are
desirable, appropriate, or natural” (Bebenek, 2011, p. 1458). However, he reaches this conclusion
not be analyzing user statements or practices, but through a thorough review of relevant literature
and a negative analysis of the arguments put forward by industry representatives in the 2015
exemptions proceedings—a weakness he acknowledges by suggesting that copyright scholarship
needs “a synthesis of empirical accounts of user behavior” (Bebenek, 2011, p. 1487). This
dissertation provides a first step in that direction, working from a close reading of legal texts
toward a fieldwork-based exploration of the impact of the DMCA on the everyday practices of
car porters, and the attitudes toward the DMCA, copyright, and the changing nature of ownership
within those communities.
12
Car culture in America
The car has a long history in the American imagination, and has meant many different things
over the decades (Gartman, 2004). The social meaning of the car has gone through many cycles
of interpretive flexibility, closure, and stabilization (Pinch & Bijker, 2012), and continues to play
an iconic role in American culture. Immaculately produced car commercials feature during each
year's Super Bowl. NASCAR and other racing events remain a massive porting industry. And
one of the largest and longest running contemporary Hollywood franchises, The Fast and The
Furious, is based on the adventures of sexy cop/outlaw car racers. All of these contemporary
examples also draw from a long history of American car culture, and its heavy involvement in a
mid-twentieth century version of the American dream.
Users have been modifying their cars since their invention (Kline & Pinch, 1996). At first,
this was often a practical matter. With so few cars on the road, often repairing a car meant
constructing the needed replacement parts yourself (Borg, 2007). Furthermore, with so few
models of car to choose from, consumers who wanted specific features (functional and cosmetic)
frequently had to design and install those features themselves: for example, farmers at the turn of
the century who needed their cars to haul produce would construct and attach their own trailers
to the same kinds of Model-Ts that city motorists were be modifying for racing (Kline & Pinch,
1996).
Today, car modification cultures abound. While scholars seem to agree that there are some
characteristics that can broadly be identified as an “American car culture” - shaped largely by
laws, markets, and events happening on the national scale - in many ways these descriptions
flatten the incredible diversity of car culture at the regional, state, or neighborhood scale. Local
car cultures vary widely across the US, shaped by the racial, ethnic, class, age, and gendered
13
attributes of specific communities, as well as by the particular geographies of their locales, the
economic peculiarities of the region, and the specifics of city and state governments. In many
communities, particular forms of car culture work as an analogue to national or ethnic identities,
with certain models, forms of modification, or ways of driving signifying membership in one
group or another (Bright, 1998; Kwon, 2004).
Some of the most-studied forms of car modding cultures are notably distinct from the
cultures of car porting examined in this dissertation. Hot-rodding
3
and antique car restoration, in
particular, are car subcultures that generally focus on car models old enough to not contain any
computerized elements.
4
In their passion for older vehicles, these communities represent

3
There are competing definitions of “hot-rodding.” In its broadest interpretation, hot-
rodding is any act of improving something, not just cars. Most hot-rodders themselves, though,
considering hot-rodding to be the practice of stripping older cars of superfluous parts in order to
make them run lean, and then styling them to make them run mean - it is as much a question of
technology as it is of attitude and aesthetics (“What Is Hot Rodding? | SEMA,” 2012)
4
However, this is slowly changing. According to the Antique Automobile Club of
American, to be considered “antique,” a car must only be 25 years old (although different state
laws may set this bar at 50 years or more). This means that cars manufactured in the 1980s, many
of which contained computerized elements, are now considered antiques.
One informant on this project discussed the cycle of interest (and, thus, availability of
aftermarket parts) in cars. At first, when a new car model comes out, there is a rash of interest
and activity as aftermarket parts manufacturers compete to capture the car enthusiasts buying this
new car. After a few years, interest lulls, as the model is no longer shiny and new, but nor is it
old enough to warrant a comeback. Many years later, some models will get rediscovered, and
14
“collective attacks on the most distinct characteristic of mass culture: standardized, mass-
produced consumer goods designed to become obsolete and be discarded” (Borhek, 1989, p. 97).
In Coding Freedom, Gabriella Coleman argues that software programmers are particularly
apt legal thinkers because “the skills, mental dispositions, and forms of reasoning necessary to
read and analyze a formal, rule-based system like the law parallel the operations necessary to
code software” (2012, p. 163). Car mechanics share many of these qualities, but differ in
important ways. While programmers are working with texts, much in the same way lawyers do,
mechanics are working with physical systems. Whether mechanics, car modders, and other
members of American car culture approach legal tinkering (G. Coleman, 2009) with the same
methodical zeal as programmers do is one question this dissertation seeks to explore.
Theoretical frameworks
The car is not only a potent symbol of American life, but has also been used by academics
over the years as a symbol, alternatingly, of freedom and control, of technological determinism
and social constructivism. Writing about the automatic seat belt fasteners popular in cars in the
1980s, Bruno Latour complained that this mechanism forced his compliance with car safety
regulations—for Latour (1994), the car was an artifact actively enforcing the law, an example of
the moral capabilities of non-human actors. For Tarleton Gillespie (2006), the car is the opposite,

maybe even valued as antiques - at this point, aftermarket parts producers start manufacturing
parts for these models again, further feeding interest in them. This informant suggested that, as
older software-embedded cars are now starting to reach that last phase of the cycle, this could be
an interesting space to see what kinds of knowledge of those systems survived the intervening
years, what about those systems winds up being prized by antique enthusiasts, and what kinds of
parts get produced to cater to that market.
15
a prime example of a technology designed to invite tinkering and expand consumer choice. Even
Gordon Moore (1965), most famously of Moore’s Law,
5
used automated cars as one of his prime
examples of the future of computing, under the assumptions that not only would the car still be
around in the decades to come, but that those futures cars would inevitably be computerized.
Clearly, then, scholars from across disciplines have found the car a worthy lens through which to
study technological change and the social and cultural impact of that change. This dissertation
continues the multidisciplinary tradition of studying the car by building off of the approaches to
the study of law, legality, and legal systems found in anthropology, sociology, science and
technology studies, and communication and media studies. I explore each of these fields below;
in doing so, I do not mean to imply that the approaches found in these disciplines are rigid or
clearly distinct. Indeed, many of the scholars I discuss work across these disciplines. However,
there are some important differences in what subjects each discipline privileges and how they
understand the flows of power.
Within anthropology and sociology, an influential approach to studying legal systems is the
law and society tradition, also known as the social construction of law, which studies how “social
networks, organizational resources, and local cultures shape both the written content and
behavioral enactment of legality” (Ewick & Silbey, 1998, p. 18). Work in this vein reveals how
the law is not a sphere aside for everyday life, but a part of it, influencing even the most
mundane decisions people make daily (Sarat & Kearns, 1993). Anthropologists and sociologists
examining the construction of the law or its impact on communities also offer some of the most

5
Moore’s Law is the idea that technology is developing so quickly that engineers will be able to
double the number of transistors on a circuit every two years. It is often used as shorthand for the
exponential rate of technological development.
16
pointed political critiques of the legal philosophies at stake in those conflicts (E. G. Coleman,
2012; Kelty, 2014). In particular, Karen Levy’s (2014) more recent work investigating the use of
surveillance technologies in long-haul trucking guided my own approach to fieldwork.
A methodological difference that sets this dissertation aside from the law and society
tradition is in its choice of subject. Rather than identify a community, social movement, or
subculture for analysis, this dissertation focuses on a specific technological artifact - automotive
software - and follows this artifact to find and study its users. This approach is informed by the
field of science and technology studies, specifically the threads of research that examine the role
users play in establishing, reifying, challenging, and reimagining the meanings of technological
artifacts (Kline & Pinch, 1996; Pinch & Bijker, 2012). Jonathan Sterne’s (Sterne, 2012) work on
the development of the mp3 standard provided a particularly useful example of how to write a
contemporary history in this vein. Additionally, I have taken cues from work in this field that
focuses on the co-constitutive role of law and technology (Jasanoff, 1995); Christina Dunbar-
Hester’s (2013) examination of the discourses employed in broadband allocation debates in
particular informed how I looked at the arguments used in my own case studies.
Finally, as a communication scholar myself, this dissertation is fundamentally a
communication studies project. Communication and media studies provide a wealth of critical
tools with which to approach the study of the law, particularly in how to understand flows of
power, both via communication technologies and about communication technologies. Manuel
Castell’s work foundational work Communication Power (2009) provided a crucial framework
for considering the nature of power (and resistance) in global digital communication networks.
Many scholars have built off those volumes to specifically interrogate the legal and regulatory
structures that govern digital and networked technologies, and how those technologies in turn
17
regulate social and cultural practices, which includes the construction of legality (Gillespie,
2009; Lessig, 2006; Vaidhyanathan, 2003). Jennifer Petersen’s (2015) work on the legal
philosophies and cultural ideologies that have informed the US courts’ approach to the
ontological status of computer code was especially influential to this work, as was Deborah
Halbert’s (2015) research into the cultural assumptions that inform public opinion on copyright.
Methodology
This is a mixed methods dissertation, combining textual analysis (close reading and large-
scale analysis, in two separate chapters) with multi-sited fieldwork and interviews. The premise
of this dissertation is that, in order to understand the impact and implications of legal regimes
that seek to regulate technology, we must understand how those laws work, how they are taken to
work by the interest groups seeking to shore them up or tear them down, and how they are
understood to work by the communities actually affected by them. I believe a mixed methods
approach thus provides us these multiple angles. Because each chapter employs a different
method, I have included a more detailed discussion of my methodology in each chapter.
Chapter outline
This dissertation begins, in chapter one, with an in-depth examination of the Digital
Millennium Copyright Act’s (DMCA) 2015 Section 1201 anticircumvention proceedings. This
chapter provides an overview of the history of copyright law as it applies to software, including a
history of Section 1201 of the DMCA. I then analyze the legal arguments put forward by digital
rights and right-to-repair activists and automotive industry representatives fighting for and
against a proposed exemption to the law that would allow for the circumvention of technological
protection measures (TPMs) on automotive software. In particular, I focus on how proponents
and opponents of this exemption frame the rights of ownership where those rights conflict with
18
US intellectual property law. These comments reveal how both sides of the exemption battle
largely made their respective cases based on an economic approach to intellectual property, both
out of necessity (due to the legal precedence of the proceedings) and out of self-interest (in the
case of the industry reps). As a result, the public interest principles that were originally part of
the intention of copyright, as per the Founding Fathers, was largely lost.
Chapter two extends this analysis into the thousands of public comments submitted by
individuals in support of the proposed 2015 exemption. As part of their activism in support of
this exemption, the Digital Right to Repair Coalition (or DRRC, an advocacy group that included
the Electronic Frontier Foundation and iFixit, a free online repair manual) put together a website
that allowed individuals to submit their comments in support of the exemption, which the DRRC
compiled and filed en masse to the Copyright Office. Through this website, they were able to
gather over 2000 comments. While most commenters simply added their names and contact
information to the DRRC’s form letter, nearly 200 commenters added their own arguments to
their submissions. I analyzed these additions for common themes and frames regarding the basis
for and functions of ownership rights, including the role of government in defending (or
impinging upon) these rights, the power of industry to restrict them, and their importance to the
idea of American freedom. The result is a discourse that captures the underlying values of laws
rather than specifics about precedent interpretation. In this way, we can read the comments and
proceedings as a record of the larger ideological structures of contemporary beliefs about
property. And while many of these arguments harken back to an early American sense of liberty
or freedom, this is joined by frequent refrains of economic libertarianism and the absolute rights
of the individual.
19
Finally, chapter three explores whether, and to what extent, these themes are found in car
culture in everyday life. Over the course of a year, I conducted a multi-sited ethnography of the
various subsections of car culture that interact directly with automotive software. Specifically, I
wanted to learn how communities that exist at the intersection of traditional American car culture
and hacking culture value the control they wield over their cars, and how (if at all) the
computerization of cars is changing those values. This fieldwork included travel to and
conversations with such communities as car hackers, performance racers, security researchers,
and aftermarket tool developers. Among these groups I analyze not only how they organize the
practices of actively modding, tuning, and porting cars, but also the stories they tell about why
such activities are important. I uncover a complicated relationship of legal gray area, mapped out
in the space between corporate giants, government regulators, and competing third-party
professionals. And woven among these are right to repair and free information advocates, who
bring their own, often starkly different traditions of thought to the space of automotive software.
In the end, this dissertation reveals the ambivalent understanding of intellectual and personal
property rights that exist in contemporary American car culture. On the one hand, car porting
culture has retained many aspects of the traditional libertarian politics of American car culture: a
mistrust of governmental authority, and prioritization of individuality and freedom. On the other
hand, many threads of American programmer culture, particularly a strong sense that information
wants to be free, are increasingly prevalent. The way car porters navigate the intersection of
these two ideologies, and the legality of copyright that they build from this intersection, has
implications for how copyright law does, and could, work today and in the increasingly digital
future.

20
CHAPTER 1: LEGAL ARGUMENTS IN THE 2015 DMCA ANTICIRCUMVENTION
EXEMPTIONS PROCEEDINGS

Every three years, the United States Library of Congress offers the general public the
opportunity to participate in the process of establishing limits on the control copyright holders
can exercise over their content. This process was established not by the Copyright Act of 1976,
the main copyright law in the US, but by the Digital Millennium Copyright Act (DMCA), a 1998
law written specifically to address the changing nature of copyright in the digital era. In an
acknowledgement that they may not be able to foresee all the technological advancements the
future might hold, the writers of the DMCA included a triennial review process to address where
new devices or practices might deserve new protections – or, more specifically, where users and
organizations might deserve an exemption from copyright law in order to take advantage of the
possibilities for innovation that new technologies might offer.
The cyclical nature of these proceedings provides a valuable window into the evolving
conflict between intellectual property rights and personal property rights. These exemptions
proceedings are complex, occurring over multiple stages of proposals, comments, and rebuttals
that take place over the course of over a year. As a process of the federal government, all these
stages are meticulously captured and the resulting texts made public. Consequently, the process
provides a rich archive of arguments both for and against the proposed exemptions.
This chapter examines the arguments presented by legal experts during the 2015 cycle of
exemption hearings for Section 1201 of the Digital Millennium Copyright Act. By focusing first
on the legal arguments, I trace the logics which have guided US law governing the
copyrightability of software. These logics inform how the laws have been interpreted and
21
enforced formally by federal agencies, how advocacy organizations have tried to defend against
them, and how the general public has learned to work within (or around) them. In the end, I
reveal that the dominant themes in these debates frame the conflict as a primarily economic one,
ignoring the cultural impact these legal logics are having on everyday life. The dominance of this
economic frame precludes other ways of resolving the conflict between the interests of authors
and those of the public. Instead, I argue, the courts should consider other values when
determining future policy - such as education, self-reliance, sustainability, and other forms of the
public good - and in so doing, shift the terms of the debate among the public.
The Digital Millennium Copyright Act of 1998
The second half of the twentieth century saw the development of a number of technologies
that facilitated easy copying - from photocopying machines to cassette tapes, and eventually to
the Internet. Content industries like the film, music, and publishing responded to these threats by
pushing for aggressive regimes of regulation (Lessig, 2006, p. 173). The culmination of much of
this effort was the Digital Millennium Copyright Act of 1998 (DMCA), which passed by
Congress in a unanimous vote. Legal expert Jessica Litman described the drafting of the DMCA
as the result of “multilateral, interindustry negotiation” in which “[c]opyright owners secured
new rights defined in language designed to prevent the discovery of loopholes, and granted a
diverse roster of powerful players narrow, detailed, and incomprehensibly drawn exceptions”
(2017, p. 25). The Act was immediately met with strong objections from copyright scholars,
digital rights advocates, and independent artists.
One of the most controversial provisions in the bill was Section 1201, commonly known as
the anti-circumvention provision. This section creates a set of restrictions around copy protection
and access control technologies - two classes of technology which have a lot of overlap, but are
22
still distinct. Access controls limit access to copyrighted content to users with authorization,
often in the form of a license key. Copy protections prevent users from making unauthorized
copies or otherwise infringing on the exclusive rights granted by copyright (Perzanowski, 2007,
pp. 2–3). This distinction is important, as the section treats these technologies differently: it
prohibits the circumvention of copy protection and allows the circumvention of access controls,
while prohibiting the trafficking of tools that allow the circumvention of either. These
prohibitions exist whether the reasons for attempting the circumvention of these technologies are
copyright-infringing or not.
6
However, these technologies are usually conflated under the general
heading of “technological protection mechanisms,” or TPMs.
The Section 1201 Triennial Exemption Process
While Congress did provide some statutory exemptions (exemptions written into the law
itself, rather than as the result of some regulatory proceeding) for educational, law enforcement,
or reverse-engineering purposes, these exceptions were narrowly drawn, and did not include
other traditional defenses against accusations of copyright infringement, such as fair use.
However, the broadest exception was the establishment of an ongoing administrative rulemaking
proceeding to determine additional exceptions, known as Section 1201. During this process,
which takes place under the purview of the Library of Congress (which houses the US Copyright

6
Section 1201 does include narrow exemptions for law enforcement, broadcasters,
libraries, and reverse engineering. However, the portion of the bill that prohibits the development
of tools for circumvention does not include an exemption for tools to be used by those parties -
except for software engineers engaging in reverse engineering, ironically the one group most
likely to be able to develop those tools themselves. Librarians and law enforcement are
seemingly expected to develop such tools in-house (Litman, 2017, p. 116).
23
Office), the public presents arguments for and against granting specific classes of copyrighted
works exemptions from the anti-circumvention rules. These exemptions are only applicable for
three years, at which point the process begins over again; classes that had previously been
granted exemptions are very likely, but not guaranteed, to obtain exemption in the next round of
evaluations.
The original proposed text of the bill did not include the triennial process - this was added by
the House Committee on Commerce during their review. The committee stated that the process
was being included as a failsafe, out of a concern that the development of digital technologies
might otherwise leave consumers locked out of otherwise lawful access to copyrighted work
(105th Congress, 1998, p. 36). However, research into the background and history of the triennial
process concluded that the procedure actually works to weaken the role of courts, and thus the
role of fair use, in a world with digital media; in practice “the rulemaking procedure does not
appear to be an earnest attempt to provide meaningful relief to adversely affected noninfringing
users” (Herman & Gandy, 2006, p. 124; see also, Aufderheide et al., 2018). Indeed, researchers
see the shift from an administrative to a judicial process could be seen as another example of
how courts are being removed from fair use considerations entirely (Herman & Gandy, 2006;
Jackson, 2000). In the House Committee hearings about the language of the DMCA, “witnesses
all but explicitly agreed that the act was designed from the very beginning to benefit the
copyright industries (and, after substantial amendment, perhaps not harm other industries too
badly) at the public’s expense” (Herman & Gandy, 2006, p. 133). If, as Sheila Jasanoff (1995)
argues, legal proceedings are often where understandings of fundamental social and technical
concepts are constructed and propagated, then understanding the power dynamics at play in these
proceedings is all the more crucial. Given its history, it is incumbent on us to approach any
24
applications of the DMCA, particularly those that are purportedly aimed at engaging with the
public, with a critical eye.
The 2015 Exemption Cycle
The triennial review process was first used in 2000 and has continued every three years since.
The first cycle in 2000 resulted in two granted exemptions: 1) compilations consisting of lists of
websites blocked by filtering software applications; and 2) literary works, including computer
programs and databases, protected by access control mechanisms that fail to permit access
because of malfunction, damage, or obsoleteness. The second exemption explicitly categorized
“computer programs and databases” as “literary works,” and thus subject to copyright. This made
it clear that the exemption process would have to tussle not just with content traditionally
addressed by copyright – creative works like movies, music, and books – but also materials not
commonly thought of as subject to copyright, namely, computer programs.
By 2015, the sixth iteration of this cycle, the Copyright Office received petitions for 30
proposed petitions. While the purview of the exemption proceedings had been expanding with
every cycle, the 2015 proceedings represented a remarkably wide assortment of petitions,
ranging from requesting access to data compilations on medical devices to the use of alternative
feedstock in 3D printers to facilitating local gameplay of video games in obsolete formats. The
increasingly broad range of devices and uses that these proceedings attempt to encompass is an
indication of the increasing ubiquity of computer programs in everyday life, and a sign also that
copyright may no longer be expansive or flexible enough to address questions of control and
access to these devices and uses.
The Library of Congress (LOC) initiated the process by announcing that it is preparing to
conduct proceedings and requesting written comments from interested parties on which classes
25
of works should be exempted, and why. The LOC then used these comments to develop a list of
proposed classes, which it published and again requested comments from the public. During this
commenting period, supporters responded to the proposed classes (1
st
round of Comments), then
opponents submitted their arguments (2
nd
Round of Comments), to which the proponents may
make their final rebuttals (Reply Comments). Public hearings are also held, after which the LOC
published specific questions for the hearing participants, and received responses. Finally, the
LOC, in consultation with the Register of Copyrights, published a ruling outlining their
evaluation of the arguments for and against the exemption of these classes of work, and a final
determination on which classes were to be exempted or not.
During the initial request for petitions for proposed exemptions, forty-four public proposals
in total were received, from 12 individual applicants (who proposed 13 classes for exemption in
total) and 15 organizations (who proposed 29 classes for exemption in total). All of the
organizations save one either was a law-related nonprofit, or worked with a law-related nonprofit
(usually university law clinics) or private law firms to help write their petitions. By contrast, only
one of the individual petitioners worked with a lawyer to draft their petition. Of the forty-four
proposals, three of them, submitted by the Electronic Frontier Foundation (EFF) and the
University of Southern California Intellectual Property & Technology Law Clinic (USC IPT), put
forward vehicle software as a class of works that deserved exemption for the purposes to
diagnosis, repair, modification, or personalization:

Electronic Frontier Foundation (EFF):
• Proposed class: ‘Lawfully-obtained computer programs that control or are intended
to control the functioning of a motorized land vehicle, including firmware and
26
firmware updates, where circumvention is undertaken by or on behalf of the lawful
owner of such a vehicle for the purpose of lawful aftermarket personalization,
improvement, or repair.’ (2014a, p. 1)
Intellectual Property & Technology Law Clinic, University of Southern California (USC IPT)
• Proposed class: ‘allows farmers to circumvent … TPMs for the purpose of
modifying their own agricultural machinery to improve efficiency and/or
functionality.’ (2014b, p. 1)
• Proposed class: ‘allows farmers to circumvent … TPMs for the purpose of
diagnosing and/or repairing their own agricultural machinery.’ (2014a, p. 1)

The LOC used these comments to develop Class 21, Vehicle Software— Diagnosis, Repair, or
Modification.
Over the next three stages of the proceedings – the initial (supporting) comments, the second
(opposing) round of comments, and the reply (supporting and neutral) comments – the LOC
received submissions from 20 organizations (14 in support or neutral, 6 opposing) and 2599
individuals (2582 of which were submitted through the website of the advocacy organization
Digital Right to Repair; only one in opposition)
7
in regard to Class 21. Most of the organizations
to submit comments were themselves law-related nonprofits or university law clinics, had the
resources to partner with one, or were able to hire private legal representation to help them draft
their comments. Most of the individuals to submit comments, on the other hand, had little to no
legal training. This disparity in legal know-how had an impact on the evidence the LOC used to

7
This number also includes four individuals whose comments were included as
appendices in the Electronic Frontier Foundation’s petition.
27
support their reasoning: in their reports, the LOC heavily references the work of the EFF and
USC IPT, but only uses the testimony of two individuals, Craig Smith (founder of the car
hacking community Open Garages) and Kyle Wiens (co-founder of repair organization iFixit).
Nowhere does the LOC refer to the written submission of any individual commenter, in spite of
receiving nearly 2600 individual submissions.
This gap between the legally trained and untrained submissions is an early indication of the
approaches to copyright, software, and ownership given weight during these proceedings. While
the Section 1201 exemptions process is technically a public process, open to anyone who wants
to participate, commenters who are not themselves lawyers with extensive experience with
intellectual property law are at a distinct disadvantage. This means that those who are most likely
to be affected by a given exemption, or lack of one, are also the least likely to be heard in the
debate over whether an exemption is warranted.
Section 117
In the arguments for and against this exemption we can see a fundamental conflict between
intellectual property rights and personal property rights. In asserting whether the uses affected by
this prohibition are noninfringing, advocates had to persuade the Copyright Office first that car
owners can rightfully claim certain personal property rights on the software in question, and that
this is where the personal property rights of car owners can and should restrict the intellectual
property rights of car manufacturers. In asserting whether these technological control measures
are causing an “adverse impact” on noninfringing uses, advocates further had to contend that
certain restrictions on those personal property rights were detrimental, which requires
determining what rights owners should enjoy in the first place. All told, the debate over Class 21
28
is an important lens into the fight over what ownership of digital property can and should mean,
both to users and to manufacturers.
To be granted an exemption, proponents needed to satisfy two requirements: 1) to prove that
"the uses affected by the prohibition on circumvention are likely to be noninfringing”; and 2) that
the TPMs in question were currently causing, or would soon cause, an adverse impact on those
uses (U.S. Copyright Office, Library of Congress, 2014a, p. 55690). This chapter examines how
the concept of ownership became a battleground for this particular exemption, as an argument
for both the noninfringing nature of the practices car owners were seeking to engage in, and that
the damage caused by the inability to engage in those practices (the adverse impact of the TPMs)
is a harm worth government intervention.
One way proponents argued that these practices were not infringing was to argue that car
owners are rightful owners of a copy of the software on their cars, and are thus entitled to certain
freedoms.
8
These freedoms are provided by Section 117 of the US Copyright Act, which places
limits on copyright as it applies to software. It allows owners of a copy of a computer program to
make additional copies or adaptations of that program, provided that those actions fulfill certain
requirements:

8
The other argument proponents used to argue that these practices were noninfringing
was that the practices were a fair use of the copyrighted material in question. Fair use is a set of
exceptions to the power copyright holders wield over their content, giving the public the right to
use copyrighted material for such purposes as education, satire, and remix, to name a few
popular instances. While arguing fair use was generally successful in these proceedings, fair use
does not hinge on the ownership rights of the user, and is thus outside the scope of this chapter.
29
1) that such a new copy or adaptation is created as an essential step in the utilization of the computer
program in conjunction with a machine and that it is used in no other manner, or
2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed
in the event that continued possession of the computer program should cease to be rightful (17 U.S.C. §
117)
As such, to apply Section 117 successfully, you have to prove both ownership of a copy and, if
you’re not invoking the archival purposes provision, that your use of that copy can be considered
an “essential step” in using the program. However, defining ownership over a copy of a
computer program and what is essential about using it have been difficult challenges for US
courts over the decades, resulting in case precedent that many argue is vague at best and
contradictory at worst (Jackson, 2000; Perzanowski, 2007). As a result, advocates attempting to
use Section 117 to argue nonfringement, and opponents trying to argue against it, have also had
to argue for their interpretation of that precedent. To understand how proponents and opponents
wield Section 117, first we must understand its legislative and judicial history.
Section 117 - History
Since the 1950s, Congress had been trying to develop and pass a complete revision of
existing copyright law, which had been passed in 1909, long before many of the new
technologies that were frustrating copyright experts at the time (Litman, 2017). In the absence of
a law that explicitly dealt with the copyrightability of computer programs, the Copyright Office
agreed to start accepting computer programs in 1964, as an administrative decision rather than a
judicial holding – meaning that the Office made the decision to apply copyright to computer
programs on its own (as an administrative office) rather than waiting for the courts to rule on it
(Samuelson, 1984, p. 692). By 1967, in the process of advancing a new copyright bill, it became
apparent that the copyright problems presented by new computing technologies were not
30
adequately addressed in the draft bills before them (National Commission on New Technological
Uses of Copyrighted Works, 1978, p. 3).
9
To address these problems, in 1975, Congress
established the National Commission on New Technological Uses of Copyrighted Works
(CONTU), which worked from 1975 to 1978 to study and report on possible changes to
copyright law necessitated by advancements in computing and photocopying technology. In the
meantime, Congress passed the Copyright Revision Act of 1976 on October 19, 1976. In it, they
acknowledged that questions about computers and photocopiers had not yet been resolved, and
thus included Section 117 as a placeholder until CONTU could deliver their final
recommendation.
Over those three years, CONTU - comprised of officials representing copyright owners,
copyright users, and the public - conducted a series of investigations, hearings, and meetings
with computing and photocopying industry leaders, computer science scholars, information
technology professional societies, and consumer and public interest organizations, among others.
Interestingly, the commission’s original remit from Congress never specifically mentioned the
question of the copyrightability of computer programs - at the time, most legislators and
copyright owners were more concerned with who controlled the right to encode a copyrighted

9
While Congress may not have been concerned with the copyrightability of computer
programs until 1967, the In her 1984 article “CONTU Revisited: The Case against Copyright
Protection for Computer Programs in Machine-Readable Form,” notable copyright scholar
Pamela Samuelson unearthed an alternate history that places that date much earlier: “Cary, the
Deputy Register of Copyrights in 1964, reports that the issue [of the copyrightability of computer
programs] first arose in 1961 when an aviation company deposited a copy of a computer tape for
registration with the Copyright Office” (1984, p. 692).
31
work such as a book into electronic form. However, Congress’ mandate to CONTU was written
broadly enough that the commission, seeing the issue as timely and relevant, decided to take the
question on (Samuelson, 1984).
Ultimately, the CONTU commissioners unanimously agreed that computer programs did
indeed deserve some form of legal protection. In their report, they concluded that “copyright
protection for computer programs is desirable,” (National Commission on New Technological
Uses of Copyrighted Works, 1978, p. 11), although some commissioners did not agree copyright
was the appropriate tool for that protection (Samuelson, 1984). In 1980, the commission’s final
recommendations were adopted with almost no changes as a replacement for the placeholder
language of Section 117. In 1998, Congress further amended Section 117 via the Digital
Millennium Copyright Act, through which they added sections (c) and (d), which cover machine
maintenance and repair and provide technical definitions for “maintenance” and “repair”.
Fundamentally, Section 117 establishes what owners of a copy of a computer program may
do with that copy. For some legal scholars, the word “owner” is somewhat of a sticking point.
The original language in CONTU’s suggested amendment phrased it as “rightful possessor,”
noting in their report that the commission intended Section 117 rights to apply no only to those
who had acquired a title to a copy of a computer program (the strict definition of “owner”), but
also to lessors, licensors, and vendors of copies of programs (Kreiss, 1991, p. 1537). However,
when Congress adopted the amendment, one of the few alterations they made was changing
“rightful possessor” to “owner,” but without leaving any notes explaining why they chose to
make that change. Without that guidance, the courts and legal scholars have struggled to interpret
who, precisely, Congress meant Section 117 to apply to (Kreiss, 1991).
32
Whether licensees are owners of a copy of a computer program for the purposes of Section
117 remains a hotly debated issue in the courts. As regards the question of who can be
considered an “owner” for the purposes of modifying a copy of a computer program, there are
two cases that are of particular interest: Krause v. Titleserv, Inc. (2005) and Vernor v. Autodesk,
Inc. (2010). In Krause v. Titleserv, an ex-employee sued his former employer, Titleserv, for
copyright infringement for making changes to computer programs he had written for them, after
he had left their employment. Krause argued this constituted copyright infringement because
Titleserv were not owners, but licensees, of the program he had written for them. Titleserv
defended their actions by arguing that they were owners of copies of the computer program
Krause had written, and were thus allowed to make adaptations of their copy of a computer
program under Section 117(a)(1). The Second Circuit Court of Appeals found for Titleserv,
concluding that Titleserv enjoyed sufficient incidents of ownership to make it an owner of a copy
for the purposes of Section 117(a) (Krause v. Titleserve Inc III, 2005). Specifically, Krause had
granted Titleserv the right to possess and use copies of those programs indefinitely, and to be
able to discard or destroy them at will (rather than reserving those rights for himself under
copyright), and thus Titleserv experienced enough of the rights of ownership to be considered an
owner of those copies.
Complicating this finding is Vernor v. Autodesk (2010). In this case, an online software
reseller attempting to resell four copies of Autodesk software, preemptively sued Autodesk (after
Autodesk threatened to sue him) to ask the courts to clarify his right to resell the software. After
Vernor won in the district court, Autodesk appealed, and won upon appeal in the Ninth Circuit
court. The Ninth Circuit concluded that “a software user is a licensee rather than an owner of a
copy where the copyright owner: 1) specifies that the user is granted a license; 2) significantly
33
restricts the user’s ability to transfer the software; and 3) imposes notable use restrictions”
(Vernor v. Autodesk Inc., 2010). Many legal scholars worried that what the decision basically
said was that copyright owners simply needed to include “the right ‘magic words’” (“Vernor v.
Autodesk,” 2011) - that is, just add specific language to license agreements - to make users
licensees instead of owners, and thus restrict users’ rights to resell or modify software. Some
suggested that the decision in Vernor indicated that “license restrictions on transfer and use of
software are likely to be more prevalent and powerful” (Halpern, Kapgan, & Yu, 2011, p. 5).
When CONTU was conducting their investigation, personal computing was still an emerging
industry. At the time, there was little mass market for computer programs outside of business
enterprise software. While the commission attempted to be as forward-thinking as possible, it is
difficult to imagine that they could have foreseen a future where software is embedded on
everything from mobile phones to toothbrushes. Consequently, it is worth asking to what extent
it is possible to interpret CONTU’s intentions for the copyrightability of software given the
radically different context that software functions in today.
Section 117 – Application in section 1201 hearings
Section 117 has been a part of anti-circumvention hearing arguments since the first cycle in
2000, where activists advocated for exempting DVDs from Section 1201 (Library of Congress,
2000). However, arguments for this exemption only referred to Section 117(a)(2), which is
specific to making copies for archival purposes. For the most part, over the years, this has largely
been how Section 117 has been used in exemption arguments—focusing, at least in some way,
on the right to make personal copies of the copyrighted material in question in order to create an
archive.
34
An early exception to this trend came up in the second round of exemption proceedings. In
2003, a company called Static Control Components (SCC) submitted a late petition for a
proposed class for exemption. The Copyright Office accepted this late petition, which proposed
three classes of works for exemption:
1. Computer programs embedded in computer printers and toner cartridges and that control the
interoperation and functions of the printer and toner cartridge
2. Computer programs embedded in a machine or product and which cannot be copied during the ordinary
operation or use of the machine or product
3. Computer programs embedded in a machine or product and that control the operation of a machine or
product connected thereto, but that do not otherwise control the performance, display or reproduction of
copyrighted works that have an independent economic significance (Static Control Components, 2003, p.
1)
SCC was a company that developed and manufactured third-party ink and toner cartridges for
printers, among them Lexmark printers. At the time, many printers would only accept cartridges
produced by certain manufacturers. The printers would scan cartridges for a key that would
signal to the printer that it had come from an approved manufacturer. To manufacture their
competing cartridges, SCC had to reverse engineer those programs in order to figure out what the
keys were. At the time of the exemption proceedings, SCC was involved in a lawsuit with
Lexmark, having been sued by them for copyright infringement for circumventing the
protections on those computer programs.
10
Although SCC did not invoke Section 117 in their

10
The case was decided on March 3, 2003, during the reply comment period. The judge
decided for Lexmark, agreeing that SCC had engaged in copyright infringement. SCC appealed
35
initial petition, it came up during the hearings and in the reply comments. However, the
discussions around Section 117 in the hearings did not hinge on whether SCC was or was not a
rightful owner of a copy of the program in question—there appeared to be general agreement
that they were. Instead, petitioners debated whether a 1201 exemption was even applicable to
consumer products like printers. In the end, the Copyright Office concluded that SCC’s practices
were proposing these exemptions was already protected by another provision in Section 1201,
which specifically protects reverse engineering, and thus did not require the separate protection
of an exemption.
Whether users could be considered owners or just licensees of software, and thus able (or
not) to enjoy the protections of Section 117, came up during the 2006 in reference to the
proposed class for allowing consumers to “unlock” their wireless devices (meaning, to allow
users to connect their cellular phones to whatever network they chose, rather than the network
proscribed by the phone’s original provider). However, this concern was only brought up briefly,
as there seemed to again be general agreement that cellphone owners were rightful owners of a
copy of the software in question.
In 2010
11
, this general agreement no longer held. While in 2006 there had been no opposing
arguments against the exemption for cellphone unlocking, in 2010 this exemption was hotly

the decision, and won their appeal on October 26, 2004, with the appellate court determining that
SCC had not violated the DMCA.
11
Although this exemption process is meant to be a triennial process, in 2009 the
Copyright Office issued themselves an extension, leaving the 2006 rules in place. The final rules
for the 2009 cycle were published in 2010 instead.
36
contested.
12
In their brief opposing the renewal of this exemption, Virgin Mobile argued that
“software that is purchased with contractual limitations on its use is not sold, but is licensed”
(Register of Copyrights, 2010, p. 122). Apple made a similar counterargument against the
proposal for an exemption for cellphone “jailbreaking” (bypassing software protections to allow
users to download whatever apps they want on their smartphones). In both cases, both
proponents and opponents of the exemptions cited Krause v. Titleserv, but interpreted the court’s
findings in the case very differently. Proponents used Krause’s argument that enough incidents
of ownerships (such as the ability to use the device forever, or to dispose of it at will) to argue
that mobile phone purchasers were also owners of a copy of the phone’s firmware. Opponents,
on the other hand, leaned on the part of the court’s decision in Krause where the court said
modifications under Section 117 are permitted only insofar as they do not harm the interests of
the copyright holder and are used as was intended when the program was originally created
(Section 1201 Rulemaking Hearing Before the Copyright Office Panel: California Hearing,
2009). The Copyright Office granted both classes their exemptions, but without coming down on
either side regarding an interpretation of Krause, instead granting the exemption based on the
strength of proponents’ arguments of fair use. The Office concluded that Krause was based on a
very different set of circumstances, so it could not provide clear guidance in these situations.
Generally, the Office acknowledged that the law determining whether users are owners or

12
To be fair, this agreement may not actually have existed in 2006, but any arguments
against it were not entered into the Copyright Office’s records. It should be noted that CTIA -
The Wireless Association (a trade association and TracFone Wireless, Inc. both submitted
opposing arguments, but submitted them so late in the process that the Copyright Office refused
to admit them.
37
licensees of software for the purposes of Section 117 is an issue that was still in flux, and that the
Copyright Office was not the venue to adjudicate that issue. By 2012, case law regarding Section
117 had advanced, but according to the Copyright Office, remained “inconsistent” (Library of
Congress, 2012, p. 65265).
Section 117 in the 2015 proceedings
In the 2015 cycle, three major tensions regarding Section 117 arose in the comments
submitted by legal experts: 1) who can be considered the owner of a copy of the software in cars;
2) what is meant by “an essential step in the utilization” of car software; and 3) how to balance
the supposed interests of the public (for environmental protection and on-road safety) with the
rights of private ownership.
Who is an owner?
In most of the first round comments, that a car owner or farmer also owned a copy of the
software on their vehicles was the default assumption, rather than an issue up for debate. Where
commenters did attempt to acknowledge this argument, they found the distinction between
owning the vehicle and owning the software difficult to make. Instead, the first-round
commenters without formal legal training relied on the argument that the application of Section
1201 to car software was in fact an overextension of copyright law, because repair and
modification are not instances of piracy. For these commenters, the harm of the DMCA was an
issue of mission-creep.
Farm Hack, an organization of farmers who build and modify their own tools, for the most
part argued that applying the DMCA to this situation was inappropriate, as repairing that
equipment is not a question of piracy. The statement did not make a distinction between the
38
software and the physical equipment, and consistently used possessive pronouns throughout:
“their property,” “their tools,” and so on.
13
iFixit made a slightly different argument:
“You can buy a car, but you don’t own the software in its computers. That’s proprietary; it’s copyrighted;
and it belongs to its manufacturers. But if people buy a car, they own it. They should be able to modify the
software or tweak parameters as they see fit—to crawl into that ECU and take control of it.” (iFixit, 2015,
p. 2)
For iFixit, ownership of the car comes with certain rights regarding the use of the car, including
the right to repair and modify its function. While the manufacturer may rightly claim copyright
over the software, those intellectual property rights are superseded by the car owner’s ownership
rights, because that is how car owners make the most use of their cars; without access to the
software, the car is unusable.
For proponents, these ownership rights were partially a question of practicality. The Auto
Care Association (ACA) and the Automotive Parts Remanufactures Association (APRA) pointed
out that the software that runs car engines is “functionally integrated with and, as a practical
matter, inseparable from physical engine parts” (p. 2). The University of Southern California
Intellectual Property & Technology Law Clinic (USC IPT) echoed much of this reasoning, in
that because the machinery in question requires software in order to function, then most owners

13
There was, however, one exception that indicates at least some internal conflict about
ownership rights: earlier in their statement, Farm Hack seemed to acknowledge that the
computers and software on farm equipment may not strictly belong to the farmers: “It should not
be illegal for a farmer to bypass digital locks restricting access to the computers (ECU/TCU) in
their equipment in order to modify and repair farm machinery” (Farm Hack, 2015). The
computers exist in their equipment, but they are not their computers.
39
(USC IPT focused on farmers) “do not distinguish between the software and the physical
machine” (USC Intellectual Property & Technology Law Clinic, 2015, p. 9). For these
commenters, how vehicle owners experience the software - not as a separate product, but as an
“inseparable” part of the mechanical components - indicates that the ability to access software
should be treated the same as the ability to access the mechanical components: exempted from
copyright control.
The EFF, who were the most experienced petitioners to submit comments for this class,
pointed out that this reasoning had some support in the courts, pointing to the court’s
acknowledgement of the experiential nature of ownership in Krause v. Titleserv, Inc. (2005):
[W]hile vehicle owners do not have explicit title in the ECU firmware, they do have indicia of ownership.
When purchasing the vehicle, they possess a copy of the software inside, and they retain the ability to
transfer and dispose of the software freely along with the vehicle. The manufacturer does not retain rights
to repossess the copy. (Electronic Frontier Foundation, 2015, p. 13)
The ACA and the APRA put forward a similar analysis of the implications of Vernor, namely
that vehicle owners may freely resell their vehicles, because vehicle manufacturers do not restrict
that right through any license (Auto Care Association & Automotive Parts Remanufacturers
Association, 2015, p. 7). By emphasizing these approaches to assessing ownership, proponents
argued that, while the strictest technical definition of ownership is the passage of title from one
party to another, in practice ownership is often more about the degree of autonomy and control
the buyer feels they have over their property.
Opponents, on the other hand, seemed to argue that the impression vehicle owners have that
they own their cars was false; that in fact, they were subject to implied licenses even if they
never signed any written ones. In the second round of comments, opponents vociferously
disagreed with the assertion that car owners and farmers were in fact owners of a copy of the
40
software, claiming moreover that none of the proponents had provided compelling evidence that
they were (Auto Alliance, 2015; General Motors LLC, 2015). In a way, the observation that
proponents lacked such evidence was strictly accurate. Proponents’ arguments that car owners
are owners of a copy of car software is premised on the lack of evidence to the contrary; in their
comments, the EFF includes a handful of examples of the only licenses they could find, all
specific to entertainment- or navigation-related programs found in cars, rather than specific to
engine software. For the EFF, this demonstrated that car companies are clearly capable of
making car buyers sign some kind of license agreement, choosing to do so for some parts of car
software but not others - thus, car companies cannot claim that they mean an implicit license
agreement. For opponents of the exemption, these written licenses were examples that an
implicit licensor-licensee relationship is established with car buyers. John Deere went one step
further, essentially claiming that the absence of a written license was evidence of an implied
license: “In the absence of an express written license in conjunction with the purchase of the
vehicle, the vehicle owner receives an implied license for the life of the vehicle to operate the
vehicle” (John Deere, 2015, p. 6). For the opponents, ownership is not a question of experience,
but a formal legal agreement, rigidly governed by the law. It’s worth remembering here,
however, that the design and enforcement of these laws is often heavily influenced by corporate
interests (Herman & Gandy, 2006; Litman, 2017). It is little surprise, then, that corporate
opponents would insist on this interpretation.
What is an essential step?
Most commenters also included arguments to address questions that came up if the Copyright
Office determined that car owners were owners of a copy. Specifically, they moved on to
addressing 117(a)(1), which allows for the making of copies and adaptations provided that “such
41
a new copy or adaptation is created as an essential step in the utilization of the computer
program” (17 U.S.C. § 117(A)(1)).
The EFF conceded that many of the activities that this exemption would allow were “not
essential to using the vehicle software for routine driving purposes” (Electronic Frontier
Foundation, 2015, p. 15). However, they pointed out, the CONTU report recommending the
addition of Section 117 to the Copyright Act was clear that Section 117 was intended to cover
the addition of new features to existing programs (Electronic Frontier Foundation, 2015, p. 10).
The courts, taking note of this intention, had already allowed that “a copy made for the express
purpose of adding new features and capabilities that do not implicate a copyright holder’s rights
qualifies as an essential step” as far as Section 117 protections are concerned (Electronic Frontier
Foundation, 2015, p. 15).
The American Automobile Association (AAA) saw tinkering as a fundamental aspect of car
ownership, writing that “[v]ehicles are not ‘computing devices’ to AAA’s members,” and that a
prohibition on the ability to tinker with their cars would “overturn long-standing fundamental
expectations of car ownership”. Opponents asserted, in no uncertain terms, that the activities
described by proponents were not “essential steps” to using an automobile (Association of
Global Automakers, 2015, p. 6). However, they provided no evidence to the contrary, simply
arguing that proponents had not made a strong enough case themselves, and relying on their own
argument to be obvious on its face.
Establishing adverse effects
Convincing the Library of Congress that the uses for which people would circumvent
TPMs were noninfringing was just one step in receiving an exemption. To satisfy the
requirements, proponents also had to show that not allowing this circumvention would cause an
42
adverse impact. Furthermore, proponents had to also demonstrate that the TPM used on the class
of works in question was the cause of the claimed adverse impact (U.S. Copyright Office,
Library of Congress, 2014a, p. 55690). The burden of proof falls entirely on those seeking the
exemption, and there is great emphasis on being able to show likelihood, not plausibility,
meaning that the proponent “must prove by a preponderance of evidence that the harm alleged is
more likely than not” (U.S. Copyright Office, Library of Congress, 2014a, p. 55689). However,
the text of the law provides little guidance on what evidence would be considered sufficient for
establishing an adverse impact (Perzanowski, 2007, p. 7).
In past proceedings, the Copyright Register required proponents of an exemption to produce
a preponderance of evidence to prove that the impact of the circumvention prohibition on a given
class of works was not simply a mere inconvenience or an isolated harm, but indeed a substantial
adverse effect (Perzanowski, 2007, p. 7). The existence of possible alternatives to circumvention,
even where those alternatives cost consumers additional money, was often enough to reject
claims of adverse effects.
Proponents often framed the adverse effects of the inability to circumvent TPMs to
access vehicle software as an economic blow to consumers and the larger US economy. The EFF
argued that this prohibition was harming people’s ability to make a living: “The freedom to
reverse engineer vehicle software is essential to the livelihood of thousands of Americans”
(Electronic Frontier Foundation, 2015, p. 20). For USC IPT, who was specifically petitioning on
behalf of farmers, these economic considerations were critical. The inability to make repairs or
modifications on their own was impacting farmers’ ability to fix their equipment in a timely
fashion (which costs them money), to fix their equipment on their own or using a repair shop of
their choice (which costs them money), to take steps to prevent damage to their equipment
43
(which costs them money), or to increase engine power (which costs them money). These
concerns were also echoed in the comment submitted by Kyle Wiens, founder of iFixit, a repair
advocacy organization (Wiens submitted a comment individually, in addition to officially as part
of iFixit). This framing is in line with the Library of Congress’ - and US law in general’s -
tendency to see the value of copyright in economic, rather than cultural terms (Arewa, 2006;
Sinnreich, 2019, p. 99).
However, proponents did point out the effects the prohibition was having on culture by
highlighting how it was affecting the everyday life of some users, outside of their business
interests. The EFF referenced specific communities who were affected by the ban, giving the
examples of ecomodders and hypermilers who tweak the software in pursuit of increased fuel
efficiency, and people who adjust their cars to function more efficiently at high altitudes. They
also argued that adverse effects can be not just about how it impedes working on engines for
interoperability, but also working on engines for fun (Electronic Frontier Foundation, 2015, p.
22). This suggests that, for the EFF, the adverse effects the Library of Congress must consider go
beyond simply economic considerations - its impact on culture must also be taken into account.
The impact of the anti-circumvention provision on culture was most strongly argued by iFixit
and its founder, Kyle Wiens. In their comments, they frame repair and modification as cultural
practices that are fundamental to farming and car ownership in America. Wiens focused
specifically on the impact the provision was having on farmers, noting that the proprietary nature
of much modern farming equipment posed a particular challenge to the “fiercely independent”
nature of farmers. iFixit’s comments focus on car owners interested in modifying their cars “[t]o
make the car faster. Or more fuel efficient. Or more powerful,”, not because they’re trying to
44
save money, but because “[t]hey can’t resist” the urge to tinker. Granting the exemption is about
protecting car owners’ “enjoyment” and “spirit of exploration” (iFixit, 2015, p. 2).
In their rebuttals, opponents either ignored or reframed cultural considerations as purely
economic concerns. Opponents primarily argued that these claimed adverse impacts did not exist
due to the fact that alternatives to circumvention exist and are “readily available,” as a result of a
Memorandum of Understanding (MOU) signed by auto manufacturers in 2014.
14
This MOU
included a “Right to Repair” agreement, in which all signatories agreed to provide access to
diagnostic and repair information to owners and independent repair facilities upon “fair and
reasonable terms” (Memorandum of Understanding: R2R Agreement, 2014), where “fair and
reasonable” are to be determined by the manufacturers themselves. The mere existence of these
alternatives, regardless of their true price accessibility, is proof enough to the exemption
opponents that there is no substantial adverse effect.
What’s more, General Motors argues, there is no significant number of individuals who
desire or would make use of this exemption. Although they acknowledge the researchers,
hobbyists, blogs and message boards that the EFF cited in their comments, these communities
are too small to support the argument that the prohibition has “‘distinct, verifiable, and
measurable impacts’ occurring in the marketplace” (General Motors LLC, 2015, p. 20). This
statement makes it clear that the cultural impacts of the provision are only valid insofar as they
can be seen economically.
Balancing public interest and private rights

14
John Deere and other farm equipment manufacturers were not parties to the MOU, but
in their opposing comment, John Deere made a similar argument that alternatives to
circumvention exist because John Deere sells software and devices for diagnostics and repair.
45
After rebutting all the arguments proponents had made to satisfy the Register’s requirements,
opponents almost universally turned to a final argument against the proposed exemption: that
regardless of whether car owners also owned a copy of the software, or whether their uses of that
software were essential and noninfringing, or whether the protections in place were in fact
harming any legitimate uses, at the end of the day those TPMs must remain in place,
uncircumvented, for the good of public safety and environmental protection. Opponents asserted
that rejecting this exemption is in the public’s best interest, because all manufacturers are trying
to do is make sure they’re complying with environmental (emissions, fuel standards, etc.) and
safety regulations.
The question of whether some activities could be called an “essential step,” for some
commenters, overlapped with considerations of public safety. In their comment opposing the
exemption, General Motors pointed out that the courts in Krause had said that the addition of
new features and capabilities could be considered an essential step because those modifications
made the software “helpful or worth using” (Krause v. Titleserve Inc III, 2005, quoted by
General Motors LLC, 2015, p. 13;). However, the implications the exemption had on safety,
security, and regulatory compliance “has the opposite effect from making the software helpful or
worth using” (General Motors LLC, 2015, p. 13).
In response to these arguments, proponents countered that copyright law was never meant to
do that work. Maintaining safety, security, and environmental standards was the purview of other
agencies and other regulations - in fact, most of the modifications that opponents were concerned
might happen were already considered illegal under existing laws. As the AAA put it, while
making a car go faster isn’t necessarily what these exceptions to copyright were originally about
46
“preventing a car from going faster has nothing whatever to do with copyright or DMCA
protection” (AAA, 2015, p. 3).
The Register of Copyright’s Recommendations
After reviewing the arguments for and against the exemption, the Register of Copyrights
issued its recommendations to the Copyright Office. In it, the Register concluded that “the
overall record supports proponents’ claim that reproducing and altering the computer programs
on ECUs for purposes of facilitating diagnosis, repair and modification of vehicles may
constitute a non-infringing activity…under the exception set forth in section 117” (Register of
Copyrights, 2015, p. 234). Proponents had satisfied both the requirements of the exemption
process: they had established that car owners are owners of a copy of the software on their
vehicles, and that the reproduction and alteration of that software was in fact an essential step of
its diagnosis, repair, and modification. For the first question, the Register applied the tests from
both Krause and Vernor, and that the record provided by proponents supported the conclusion
that vehicle owners own the vehicle engine control computer programs (Register of Copyrights,
2015, p. 238). For the second, the Register found that the uses proponents described were
consistent with one of CONTU’s stated intentions for section 117, namely that it support “the
right to add features to the program that were not present at the time of rightful acquisition”
(National Commission on New Technological Uses of Copyrighted Works, 1978, p. 13 quoted in
Register of Copyrights, 2015, p. 238); furthermore, that Krause supported the addition of new
features not just to keep the program functional, but to “improve functionality” (Krause v.
Titleserve Inc III, 2005, p. 126 quoted in Register of Copyrights, 2015, p. 239).
However, the Register was stymied by a third question, which was how to balance car
owners’ rights to circumvent the protections on their software with other government agencies’
47
interests in protecting vehicle safety, regulating vehicle emissions, and promoting cybersecurity.
The Register noted the concerns expressed by the Department of Transportation, the
Environmental Protection Agency, and the California Air Resources Board, all of whom
submitted letters expressing their reservations about the exemption. To accommodate these
concerns, the Register, for the first time in the history of the exemptions process, suggested that
the exemption include a twelve-month delay to allow other agencies to respond. The Copyright
Office adopted these suggestions without any changes or further comments.
Finally, the Register and the Copyright Office made it clear in their final reports that
although the exemption would allow owners to make repairs or modifications on their own
vehicles, the development, sale, and distribution of tools for circumventing was still prohibited.
This had little to do with any analysis the offices offered, and everything to do with the limited
power the Copyright Office has in the exemptions proceedings. The part of Section 1201 that
establishes the exemptions proceedings also explicitly prohibits the Copyright Office from
granting any exemptions for trafficking circumvention tools. To their credit, the Copyright
Office acknowledged that without an exemption for the creation and sharing of tools, few people
would be able to take advantage of the exemption - doing so would require a would-be car porter
to have fairly advanced coding knowledge – but admitted that changing this would require a
legislative act to rewrite this part of the DMCA (Library of Congress, 2015) .
What is “essential”?
The 2015 cycle reveals some fundamental weaknesses and unresolved tensions in how the
exemption process in particular, but also the US legal system in general, attempts to strike the
balance of copyright. These proceedings reproduce the problematic conceptualization of
copyright as primarily an economic concern. Predictably, opponents to the exemption - all of
48
whom were vehicle or vehicle parts manufacturers, or organizations that represented them -
relied heavily on the argument that granting the exemption would impact their bottom line.
Of course, the financial needs of authors has been part of the purpose of copyright since the
beginning. When the writers of the US Constitution were discussing the usefulness of copyright,
James Madison, who introduced the issue to the Constitutional Convention, championed it as an
effective way of protecting the livelihoods of individual authors while protecting the public
interest in the free circulation of ideas. For Madison, these protections encouraged Americans to
continue creating new works, which was necessary if America was to be both culturally
competitive and functional as a democracy (Donner, 1992; Vaidhyanathan, 2003).
Others in the Constitutional Convention, most notably Thomas Jefferson, were wary of these
protections, concerned that they would be used to consolidate power and create artificial
monopolies (Vaidhyanathan, 2003, p. 22). The arguments put forward by the exemption
opponents in this case study seem to prove Jefferson and his colleagues right. The corporations
fought to protect their profits, but rarely justified it by saying that those profits were necessary
for them to continue investing in the development of new devices that would serve the public
good. Where the drafters of the Constitution had seen the protection of profits as a means to the
ends of a thriving public sphere, the corporations arguing in these exemptions proceedings saw
profits as a rightful ends in themselves. The economic frame also facilitated the paternalistic
argument made by opponents that pitted the public interest (represented by governmental
regulation compliance) against the interests of private individuals. Placing these interests in
opposition closes the consideration a third interest: that of a common good achieved through the
free circulation of ideas.
49
This idea of a common good could be achieved through a consideration of what is meant by
an “essential step in the utilization of [a] computer program in conjunction with a machine”. If
the economic frame has been overprivileged throughout these proceedings, then an embrace of a
cultural frame would ask what American car owners consider “essential” about how they use
their cars. As discussed earlier in this dissertation, many car subcultures see their ability to repair
and modify their cars as essential to constructing a unique local identity, asserting one’s
mechanical competence and self-reliance, and resisting the standardization of modern consumer
culture. Limiting a definition of “essential” to the specific mechanical functioning of a device
ignores how those functions also create cultural meaning.
The following chapter will shift from the arguments put forward by legally trained experts
representing organizations to consider what part these frames played in the comments submitted
by individual commenters - laypeople with little or no legal training. These comments are an
important window into the cultural logics behind (car) ownership and copyright, and how the
tension between them is being rationalized in practice.

50
CHAPTER 2: INDIVIDUAL COMMENTS IN THE 2015 DMCA ANTICIRCUMVENTION
EXEMPTIONS PROCEEDINGS

These days it is difficult to find common home appliances, medical devices, kitchen gadgets,
or even children’s toys that do not have some kind of computer in them running some kind of
software. As more and more consumer products come with computer programs integrated into
their basic functions, consumers are finding their everyday practices have become a battleground
of two basic but nonetheless conflicting regimes of property: personal property and intellectual
property. In 2015, consumer vehicles were the flashpoint around which this conflict was publicly
debated, with auto manufacturers on one side fighting to protect their intellectual property rights
over the software on the cars they sold, and consumers on the other side arguing for the right to
repair and modify the cars they bought. To a certain extent, this was a battle between the formal,
expert interpretations of copyright utilized by powerful corporations protecting their capital and
the mundane, nonexpert interpretations of copyright used by everyday individuals to protect their
culture.
In her article, “The Everyday Lives of Copyright,” Debora Halbert argues that
“understanding how people who are not legal scholars frame the use of copyright as they discuss
sharing, owning, and controlling the copy is a good place to begin to develop a sense for the
everyday life of copyright law” (2015, p. 121). Developing such a sense is crucial for advancing
copyright law that better reflects its uses and protects the interests of citizens, rather than
corporations. Halbert analyzed the comments sections of websites where users were discussing a
number of copyright conflicts that involved the appropriation, distribution, or copying of creative
works online. In these discussions, she found that understandings of how intellectual property
51
law gets applied in digital contexts in the United States varied widely across different
circumstances - actions that were deemed immoral piracy in some situations were considered
justifiable rebellions against the law in others. These contradictions, Halbert concludes, clearly
indicate that copyright law needs to be updated in order to function effectively in a digital world.
I extend on this work by examining individual attitudes toward copyright, ownership, and
private property not in creative works online but in other digital media - namely, in the policy
fight over control for the software used to run cars. The policy in question was a regulatory
exemption to Section 1201 of the Digital Millennium Copyright Act (DMCA). The DMCA was a
massive copyright law that included, among other things, a section that prohibited the
circumvention of any technological protection measures used to limit access to copyrighted
material. This section, Section 1201, also included a triennial process by which the Copyright
Office could determine whether there were specific classes of works whose legitimate uses this
prohibition was constraining. Because this process is open to the public, the Section 1201
proceedings amass reams of public comments, which can be analyzed to provide insight into the
everyday life of copyright. In this chapter, I analyze the corpus of individual comments
submitted to the Copyright Office in 2015 in response to specific proposed class that would
remove the anti-circumvention prohibition for car software to allow for repair, maintenance, and
modification (Class 21: Vehicle Software - Diagnosis, Repair, or Modification). I find that
individual commenters justify their support of this exemption by drawing from a fundamentally
neoliberal ideology that conceptualizes ownership through a market logic, rather than using
frameworks of expression, common good, or other more communitarian logics.
Public comments: history and efficacy
52
During the development of Section 1201 of the DMCA, Congress struggled to balance the
interests of copyright owners and the general public. Generally speaking, copyright owners came
out far ahead of the general public in the final text of the law (Aufderheide et al., 2018; Lessig,
2004; Litman, 2017; Perzanowski & Schultz, 2016; Vaidhyanathan, 2003). However,
acknowledging that the law would have to be flexible enough to meet the needs of technologies
and technological practices that they could scarcely begin to imagine, Congress also included a
requirement for a triennial rulemaking process to determine possible exemptions to Section
1201. Although the text does not specify how this process had to work, the Copyright Office
interpreted Congress’ intention for the exemption process to require a notice-and-comment
approach, meaning that the Copyright Office would solicit public comments on their proposed
exemptions (Singh, 2011, p. 542). While Congress stated that this process was meant to function
as a means by which the public could tell the Copyright Office about how the Section 1201
prohibitions were affecting their noninfringing uses of copyrighted works, scholarship on public
commenting in rulemaking processes suggests that this supposed lever of the public’s power is in
fact ineffective at influencing federal regulations and policies.
Notice and comment rulemaking processes were established in 1946 with the enactment of
the Administrative Procedure Act (APA). Congress passed the act in order to provide the public
with a means of engaging in federal regulatory processes, as an attempt to make these processes
more open and to balance the influence that industry had. As per the APA, federal agencies must
provide the public with advance notice and provide the opportunity for the public to submit
comments prior to finalizing a legally binding rule (Mendelson, 2011, p. 1356; 5 U.S.
Code § 553). This process is important, policy experts argue, for three reasons: (1) it helps ensure
that governmental institutions are responsive and accountable to its citizens; (2) it creates venues
53
for individuals and groups to its citizens; (2) it creates venues for individuals and groups to
influence decisions that affect them; and (3) it provides stability to the democratic system” (
McGregor, 2006, p. 210, citing Ashford & Rest, 1999). Given that the majority of US federal
regulations are subject to this notice and commenting process, many scholars argue that they are
a site that requires close and critical study (Cuellar, 2005, pp. 428–429; Mendelson, 2011).
In practice, public comments have widely varying levels of impact on rulemaking processes.
Researchers have generally concluded that public comments are, by and large, not very effective
in influencing policy. Studies comparing final rules that agencies produce to the comments they
received during the rulemaking process show that mass-commenting campaigns, particularly
regarding high-profile pieces of legislation, appear to have little effect on the finished text of the
regulation (Golden, 1998; Kim, 1995; West, 2004). On the other hand, Shapiro (2008) found
that agencies deliberating on rules of low political salience that are highly complex can be
influenced by a high volume of comments. However, these cases seem to be the exception to the
rule.
In many of the rulemakings that received large volumes of comments, a substantial portion of
these comments wound up being form letters, where an advocacy group would reach out to their
members to submit comments and would provide them with the language to include in their
letter. Regarding the submission of large numbers of form comments specifically, McGregor
concludes that “the effectiveness of such participation is questionable” (2006, p. 223), at least
insofar as federal agency rule making procedures go. Experts have expressed similar concerns
about the efficacy of online platforms. While many people thought that making commenting
easier by putting it online would increase meaningful citizen participation with rulemaking
processes, there are concerns that these commenting portals are instead overwhelming federal
54
agencies with comments that provide little or no substantial new information (Shulman, 2009, p.
46). Some researchers are particularly concerned about the perceived quality of these comments,
as “technology-enabled commenting often leads to increased participation that only expresses
opinions or preferences without elaboration or deliberation” (Farina, Newhart, Cardie, Cosley, &
Initiative, 2011, p. 10671). Agencies are instead far more likely to listen to sophisticated
commenters who have a more detailed understanding of the technical issues in question and the
procedural steps of agency rulemaking, which usually winds up being those with institutional
expertise and power (Cuellar, 2005).
So why are individual public comments so often ineffective? Because often, federal agencies
are looking for specific information or answers to specific questions to guide them in their rule
making.
15
Commenters are often laypeople unfamiliar with the notice and comment process,
which means that they may miss an agency’s announcement of the questions relevant to the
rulemaking, and may rely more heavily on personal experience with and emotional responses to
a given rule rather than factual arguments. According to federal agency personnel, the value of
public comments is not in their quantity - federal agencies do not assess public comments as
another kind of voting mechanism. Rather, says Stuart W. Shulman, “the public comment
process is intended to elicit new information and identify issues not already raised, whether by
internal agency processes or via previous public input opportunities” (Shulman, 2009, p. 34).
Form letters in particular provide no new information, but work instead to deluge agencies,

15
This is partially a self-protecting concern. Rule changes are particularly open to
judicial challenge if they seem to go beyond a “logical outgrowth” of the content of the proposed
rule, thus incentivizing agencies to stick to the technical issues in the comments. Responding to
values-focused comments leaves federal agencies vulnerable. See (Mendelson, 2011)
55
which researchers report has lead agency staff to deride and even resent form letters (Cuellar,
2005; Mendelson, 2011; Schlosberg, Zavestoski, & Shulman, 2009). As a result, federal agencies
ignore comments they see as overly value-focused.
However, federal agencies’ dismissal of comments that are seen to be purely value-based is
rooted in the assumption that the decisions these agencies are making are purely technical. On
the contrary, as Mendelson points out, these determinations are actually deeply value-laden
themselves - for example, deciding whether higher energy bills are an appropriate price to pay
for reduced pollution (Mendelson, 2011, p. 1371), or, as in the case presented in this chapter,
whether protecting intellectual property is more important than allowing consumers to repair or
modify their vehicles.
This insistence on purely technical evidence in proceedings is pronounced in the DMCA
Section 1201 process. As many legal scholars have pointed out, the Copyright Office’s narrow
interpretation of their Section 1201 mandate can seem formidable to would-be commenters with
no legal training. Mark Gray notes how, over the years, the classes of works granted an
exemption have gotten more and more specific, in ways that can be very difficult for laypeople
to understand (Gray, 2014, p. 792). Not only does this create confusion around how these
exemptions can be applied, it also can be a deterrent to future participation in the process,
making it hard for the public to understand what kind of proposed class of works might get taken
seriously by the Copyright Office. Gray observes that individual participation in these
proceedings had steadily decreased from 2000 to 2012. While in 2000, the Copyright Office
received 235 individual submissions, in 2012 they received only five from individuals not
represented by lawyers, which were dismissed for “insufficient factual or legal analysis” (U.S.
Copyright Office, 2012, p. 160, cited by Gray, 2014, p. 794).
56
Increasingly, scholars have been critical of this narrow focus on technical knowledge as a
way of determining the worth of comments. Mendelson argues that federal agencies should value
public comments, particularly when they are submitted in large numbers, if only as a signal that a
given rulemaking should be given further investigation and consideration by an agency (2011, p.
1346). For Mendelson, public comments provide a unique and useful window into public
opinion, offering regulators more nuanced insights than voting or polling, two other common
avenues of public engagement, do. I take this provocation a step further: if public comments are
a site where the public communicates its values to the government, then these comments are also
a site where cultural beliefs and conceptions get articulated.
The 2015 section 1201 commenting cycle
With the exception of a handful of public hearings that occurred late in the process, the
majority of the Section 1201 notice-and-comment proceedings happened online, with the
Copyright Office periodically posting its official notices (as PDF copies of its relevant sections
of the Federal Register) and accepting comment submissions on its government website. For
individuals engaging in this process, then, the process may have seemed dry and alienating; there
were few opportunities to engage in person, and most updates from the Copyright Office came in
the form of sporadically published and highly formal regulatory documents. The entire process,
from the first Notice of Inquiry (published September 17, 2014) to the publication of the final
rule (October 28, 2015), took over a year to complete - a typical timeframe for these
proceedings.
16

16
All Section 1201 exemptions proceedings except one have taken roughly a year to
complete, except for the 2009 cycle, which took 21 months from start to finish. There does not
appear to be a written record stating why the 2009 cycle was extended for so long.
57
During the 2015 Section 1201 proceedings, the Copyright Office invited public participation
in five rounds, only one of which occurred in person. The petition round (September 17, 2014 -
November 3, 2014) was for members of the public to submit proposals for exemptions (U.S.
Copyright Office, Library of Congress, 2014a, p. 55692). The Register of Copyrights then
examined the petitions and from them derived a list of proposed exemptions that it would
consider. It published this list, as well as the specific questions it had for each proposed class,
through the Federal Register, and posted it on the Copyright Office’s website. During the first
round of written comments (December 12, 2014 - February 6, 2015) the Office invited comments
from proponents of the exemptions, as well as those who neither supported nor opposed the
exemptions but did want to offer pertinent information about a given proposal. The second round
of written comments (February 7, 2015 - March 27, 2015) was for members of the public who
opposed an exemption; in these comments, opponents could both submit their own evidence in
opposition, as well as argue against the previous round of supporting comments. The final round
of written comments (March 28, 2015 - May 1, 2015) was for reply comments, in which
proponents and those who neither supported nor opposed an exemption to respond to points
made in earlier rounds of comments (U.S. Copyright Office, Library of Congress, 2014b, p.
73858). The only in-person opportunity the Copyright Office offered for discussing the proposed
classes were public hearings held in Los Angeles and Washington, DC on May 19-21, 2015 and
May 26-29, 2015, respectively. While admission to the hearings was open to the public, the
people testifying in these hearings were directly invited by the Copyright Office, who for the
most part were representatives of advocacy or industry organizations. Very few individuals were
invited to testify on their own part.
58
In order to submit a comment during the written comment rounds, individuals had to access a
specific page on the Copyright Office’s official government website. Digital rights advocates
characterized the site as “almost impossible to use” (Digital Right to Repair, n.d.). They pointed
out that comments could only be submitted as an uploaded text document in a limited number for
file formats, which was a two-step process (writing and saving the comment in a text editor, and
then uploading it to the website), rather than a one-step process like through a form page on the
agency’s website. Additionally, the design of the submission process made it difficult to submit a
comment for more than one exemption.
To encourage more individual comments in support of the exemptions, a group of
organizations worked together to launch an easy-to-use platform (Digital Right to Repair, n.d.) to
gather and submit individual comments for the first round of reply comments in late January.
Calling themselves the Digital Right to Repair Coalition, this group included organizations from
the digital rights realm (Electronic Frontier Foundation, or EFF), repair advocacy (iFixit), as well
as repair and reuse industry organizations like The Wireless Alliance and the International
Association of Medical Equipment Remarketers and Servicers.
17
Although the Digital Right to
Repair Coalition as an organization did not submit comments to the Copyright Office, a handful

17
The full list of Coalition members, according to a post by founding member iFixit,
was: “The Electronic Frontier Foundation (EFF), iFixit, The Wireless Alliance, the Service
Industry Association, the Basel Action Network, Electronics TakeBack Coalition, Silicon Valley
Toxics Coalition, Fix the DMCA, Continuant, Association of Service and Computer Dealers
International (ASCDI), International Association of Medical Equipment Remarketers and
Servicers (IAMERS), PC Rebuilders and Recyclers (PCRR), Reuse Alliance, Public Knowledge,
Fixit Clinic, Fixer’s Collective, and dozens of repair companies.” (Wiens, 2015b))
59
of members submitted comments on their own. It was these members - namely, iFixit and the
Electronic Frontier Foundation - who were also eventually invited to testify at the hearings held
by the Copyright Office in late May.
In the run-up to the deadline for the first round of comments, coalition members worked to
get the word out about the rulemaking proceedings and their comment-gathering website. For
many (if not most) commenters, the coalition’s publicizing activities were likely the portals
through which they came to the comment-gathering site. Thus, it is important to examine the
rhetoric they used to frame the conflict, as may have influenced how people were thinking about
the issue as they went to submit their comments. In these communications, coalition members
stressed certain ways of framing this conflict over others, most frequently utilizing economic
frames to make their argument. On their own website (now defunct), the coalition released a
statement of principles, which framed the right to repair, unequivocally, as an economic right that
consumers (rather than citizens) deserved; asserting, for example, that “A free, independent
market for repair and reuse is more efficient, more competitive, and better for consumers.”
Coalition members also leaned on this economic framing in op-eds they published.
This framing of repair rights as market-oriented in nature is perhaps unsurprising. For one,
many of the organizations involved in the coalition were industry associations—like the Service
Industry Organization, Association of Service and Computer Dealers International, and PC
Rebuilders and Recyclers—responsible for advocating for policies that would support the
economic health of their respective industries. For another, seasoned DMCA exemption
petitioners, particularly those with legal expertise, knew that the Copyright Office and US
copyright law in general favors arguments of economic harm over cultural harm in their
considerations (see previous chapter for a discussion on how advocates argued for the “adverse
60
impacts” that the DMCA prohibitions had on user communities). However, as the following
section will argue, when individual commenters adopt these frames and apply them to cultural
sensibilities, what happens is an overbroad application of market logics to forms of cultural
production in ways that turn individuals and citizens first and foremost into consumers.
Themes found in individual public comments
The Digital Right to Repair Coalition’s (DRRC) comment submission website described the
issue as “the next big battleground in technology” which is “fundamentally redefining
ownership.” It features an animated slideshow titled “Why We Need to Fix the DMCA,” which
was supplied by the Fix the DMCA, a movement aimed at encouraging Congress to amend the
DMCA. It provides a brief explainer on how digital rights management technologies work and
how the anti-circumvention provision of the DMCA applies to them.
18
It uses cellphone
unlocking as an example of a user practice that violates the DMCA, but is not piracy: “You’re
simply modifying a device you’ve purchased to use it in a different way.” The slideshow explains

18
The slideshow also discussed the safe harbor provision of the DMCA, describing it as
an uncontroversial way to “police online infringement” without the need to go to court. It is
surprising to see it characterized so benignly here, given that the safe harbor provisions of the
DMCA have absolutely been controversial to digital rights activists, particularly in the way they
circumvent the courts. Many advocates point out that this circumvention means that instances of
fair use often get lumped in with genuine infringement. What’s more, in an effort to hold up their
end of the safe harbor bargain, most ISPs have turned to automating the takedown of allegedly
infringing content, again without considering whether the content could be considered fair use.
For more on the controversy surrounding the safe harbor provision, see Lessig, 2004; Seltzer,
2010; and Sinnreich, 2013
61
that this prohibition is a problem because tinkering is critical to making our digital devices
“better and more durable,” and that it leads to “untold amounts of innovation.” Finally, it
explains how, even though the DMCA allows for exemptions, these exemptions do not cover
tools or services, rendering the exemptions “useless.” After this slideshow, the site exhorts its
readers to “Stand up for your right to modify the things you buy.”
Below all this was a link to a page where individuals could submit comments for the DRRC
to give to the Copyright Office. On this page, the DRRC included a form letter that commenters
could edit to their liking. The text read as follows:
Most people would never suspect that repairing or tinkering with their own car or tractor could be
illegal. These days, though, many manufacturers now put digital locks on the embedded software that
operates our increasingly sophisticated, computer-controlled vehicles. Current law prohibits any person,
including the vehicle's lawful owner, from tampering with those locks for any purpose. That's silly.
Americans should have an unfettered right to repair and modify their own vehicles.
Copyright was designed to encourage creativity and fuel innovation. But it's being abused to do
exactly the opposite. Every single day, copyright law is twisted to stifle creativity, limit consumer choice,
dismantle property rights, and chip away at our digital freedoms. I should have the right to remix, modify,
and repair the things that I own. As electronics are integrated into every kind of product, please consider the
needs of consumers as well as rights holders.
Thank you for your consideration.
The website and prepared text already contain a number of themes which may have primed
commenters to consider the issue within certain frames: the right to repair and modify as
fundamentally “American”; these rights as critical to innovation and creativity; a distrust of the
government and corporations; that ownership rights should not be hampered in any way; and that
ownership is premised on market transactions and thus is a fundamentally market-based subject
62
position. The remainder of this chapter will consider how these frames were taken up and
elaborated on by individual commenters.
All told, the site gathered over 40,000 comments for all the different proposed exemptions,
2,284
19
of which were submitted to the first round of comments in support of the exemption for
the diagnosis, repair and modification of car software. IFixit submitted these comments to the
Copyright Office’s website, which required that each comment be submitted individually, a
process which took over 11 hours (Bluff, 2015). The Copyright Office compiled them into a
single document, accessible through a link on their website. I downloaded this corpus and
analyzed it using a grounded theory approach to coding (Glaser & Strauss, 1967). Grounded
theory method encourages researchers to persistently interact with their data, moving back and
forth between data and analysis so as to allow for thematic patterns within the corpus to emerge
organically (Bryant & Charmaz, 2007, p. 1). The comments were coded using MaxQDA coding
software. I present the most compelling and prevalent themes below.
American identity and innovation
The DRRC’s form comment framed this conflict as a specifically American one, saying that
“Americans should have an unfettered right to repair and modify their own vehicles.” Given that
this form letter was part of the regulatory proceedings of an American federal agency, this is
unsurprising. However, for many commenters, this conflict was more than just technically
American as a US administrative procedure - the questions it raised struck at the very heart of

19
Actually, only 2,283 comments were in support of the exemption. One comment
submitted through this process (which, again, was the first round of comments meant only for
those who supported or were neutral about the exemptions) was in opposition to the exemption.
It has been removed from consideration in this chapter.
63
what being American meant to them. As one commenter put it, “Making this illegal challenges
the roots this country was built on.” (Joseph Knobbe, p1217). In their comments, these
individuals ascribed a number of values to the “American-ness” at stake in the right to repair and
modify their cars. By invoking this “legal vernacular,” commenters invoked the concept of US
citizenship as a short-hand for a free and robust marketplace made possible by innovation and
consumer choice (Conti, 2017).
Many commenters approached this conflict as occurring between US citizens and their
government. They saw the government’s interference in what they could do with their property
as essentially un-American, largely because they perceived that the government was doing so at
the behest of big business. Rather than acting with their constituents’ interests in mind, elected
officials work toward the benefit of their corporate donors: “they take the side of the folks that
paid to put them in place, the large corporations that have agendas to monopolize business
sectors and maximize profits” (Adrian Gill, p46). This collusion is counter to the ideals the
country was founded on; as one commenter put it:
The Founding Fathers are spinning in their graves (perhaps a new power source?) over the plutocracy that
our Republic has become. Senators and Congressmen, bought and paid for by the Auto Industry, Motion
Picture and Recording Industries to pass the anti-American DMCA, making me a criminal if I attempt to
fix the annoying seizure-inducing flashing white circle on the built-in GPS display (Donald Campbell,
p647)
In these comments, American values are seen as functioning separately from, and at times
counter to, the way the government worked, in large part because commenters saw the
government as captured by corporate interests.
The theme of corporate interests as fundamentally antithetical to American values was one of
the most common themes found throughout the comments. American freedom is threatened
64
when corporate control benefits the rich: “SINCE WHEN DID THE LAND OF THE FREE
BECOME "THE LAND OF THE CORPORA TELY CONTROLLED SYSTEMA TIC
DESTRUCTION OF RIGHTS TO EMPOWER LAWYERS, CROWNIES [sic], AND THE
SUPERWEALTHY” (Charles Jost, p396). Lobbying in particular was seen as undermining the
democratic process: “We need to promote competition to keep down the cost of repairs instead of
caving in to and allowing the consolidation of total control to large mega businesses with their
lobbyists” (Bryce Grundahl, p355). Many commenters identified specific corporate practices that
limit choice are counter to American values. This included particular design practices like lock-in
and planned obsolescence: “Vendor lock-in and other measures of self-protection are un-
American” (Adam Riggall, p34); “This is unfriendly and predatory behavior that essentially
demands I spend money on their newer products when the old product still does what I need!!!!!”
(David Brader, p571).
Part of the reasons these corporate practices were antithetical to so many commenters’
construction of American values is because of how they work to restrict creativity and
innovation, which for many are central to the American identity: “It is absolutely unconscionable
that a country built on freedom of creativity would stifle that creativity for a few dollars” (Karl
Wighaman, p1291). The drive for innovation and self-education is part of what makes America
great:
The thing that made the USA so great between 1850--1950 was that, as a nation(a world too) humans were
solving important issues through hacking, tinkering, experimentation and innovation. IP and DMCA have
stymied this in the past 30 years. Please allow end users the right to own, modify, improve and expand our
technologies and equipment. It will permit the USA to remain an engine of innovation. (Daniel Wendlek,
p553)

65
I have a passion for Self Education. Many great Americans such as Benjamin Franklin, Thomas Edison and
the Wright brothers(in my humble opinion) would be classified in this category of person. I ask you, what
would the world look like if these gentlemen were forced to suppress their desire for knowledge and
understanding in the way things operate? (Frank Schabell, p796)
In these comments, innovation and creativity were often framed as ends in themselves, rather
than a means towards something. In other words, innovation itself is a value, with no
consideration of what people are innovating—an uncritical approach of valorizing innovation for
innovation’s sake that is not uncommon in mainstream American culture today (Lepore, 2014).
More commonly, commenters invoking the values of innovation or creativity also asserted
that innovation and creativity are important specifically because they are good for the economy.
Innovation is worth protecting because it drives markets and supports industry: “If the focus of
copyright law is only to constrain the way in which consumers can use the items they purchase,
then it will cut off the oxygen to cultural organism that takes existing ideas, iterates on them and
invents wholly new concepts. These concept have the potential to transform entire industries”
(Zachary Garver, p2304); “Working on cars has spurred interest in technology in millions of
people and created a multi-billion dollar aftermarket repair parts market” (Peter Gottlieb, p1748).
The prevalence of this argument begins to hint toward a market logic threaded through many of
these comments, which I will explore in more detail in the next section of this chapter.
Finally, commenters relying on “American” values to make their argument saw the right to
repair as itself an American value: “Because, really, modding your vehicle is one of those iconic
American things and YOU ARE REPRESSING IT. STOP IT” (Adlai M Collado, p43). A number
of commenters specifically connected it to rights enshrined in the Constitution. Two in particular
mentioned described it as central to their ‘pursuit of happiness’: “As a free American I believe
that I have the unalienable right to the "Pursuit of Happiness" and as for me, that is researching,
66
disassembling and repairing the things that I own” (Frank Schabell, p796); “DRM and copyright
abuse shackles the third leg of John Locke's "LIfe, LIberty, and Property" best known in the
"Life, Liberty, and Pursuit of Happiness" form used in the Declaration of Independence” (Alex
Putnam, p87).
What emerges in these comments is a conception of American identity that is fundamentally
premised on the freedom to innovate, often for economic gain, so long as it is not for corporate
gain. We begin to see a fierce defense of individual autonomy, seen as a birthright of American
citizens.
Personal property
There were two particular phrases that appeared, nearly verbatim, again and again in the
individual comments: “do with what I please/wish” and “I bought it/paid for it, therefore I own
it”. Whereas the previous section explored how commenters constructed a conceptualization of
“American-ness” as anti-institutional, pro-innovation, and driven by the pursuit of profit, this
section examines how commenters built an understanding of personal property and property
rights fundamentally based in a market logic. Here, we see how personal property rights are
about the individual’s right to do as they please with their property, and how this right is based
on the fact that individuals have paid for these objects.
This conceptualization of personal property rights is a central aspect of American political
ideology. As Schultz and Perzanowski observe, in the US, personal property is generally thought
of as “bestowing an absolute right to an individual owner of a tangible thing” (Perzanowski &
Schultz, 2016, p. 20). An “absolute right” approach to personal property rights is at the heart of
67
American neoliberal ideology.
20
Neoliberalism, writes David Harvey, “is in the first instance a
theory of political economic practices that proposes that human well-being can best be advanced
by liberating individual entrepreneurial freedoms and skills within an institutional framework
characterized by strong private property rights, free markets, and free trade” (2005, p. 2). As an
ideology, it prioritizes market logics and exchanges ahead of other forms of ethics or morality,
and seeks to “bring all human action into the domain of the market” (Harvey, 2005, p. 3).
Some commenters noted that should be are some constraints on personal property rights,
such as “the usual vehicle and traffic laws” (Jerald Vinikoff, p1065). In fact, many commenters
acknowledged the utility and importance of intellectual property rights protections - with
limitations: “I understand the need for manufacturers to protect their intellectual property, but
that must be balanced with the consumer's ability to make things work as they see fit, not as they
were made to be used” (Chris Meyer, p433). These comments echoed the anti-corporate
sentiments discussed above; the rights of corporations to protect their innovations ends where
they infringe upon consumers’ right to innovate themselves: “Copyright has a place, but it's reach
and abuse has crossed a line where innovation and creativity are hindered” (Nathan Kinkade,
p1643); “It is one thing to protect the legitimate rights of inventors and copyrighters, and another
to stifle further understanding, invention, and simply the right to use, repair or modify my own
property” (J Hauer, p1093). One commenter noted that a big reason this is a problem is because
consumers rarely have the option to purchase devices that come without software already loaded
on them: “While content creators have a justifiable interest in protecting their are, and

20
Technically, private property rights are at the heart of neoliberal ideology, of which
personal property rights are just one form (the others being real property, intangible property,
and intellectual property).
68
corporations have a legitimte [sic] interest in protecting their trade secrets in no way should they
be allowed to create a hostage class of consumers who no longer have little or no opportunity to
buy products w/o software, but are turned into rightless licensees instead of empowered and
(full) owners of the products they buy” (Jim Nadolny, p1106). For these commenters, there may
be some good reasons for placing some minor limitations on personal property.
However, for a much larger number of commenters, personal property rights were absolute -
as they put it, if they own something, they should be able to use it as they see fit. This being a
central characteristic of a free country, this right should not be abridged either by government
policy or by corporate practices: “As a free consumer in the United States, ownership should not
come with strings attached” (Rich West, p1835); “Very simply, in a free country where I am free
to own property and other material goods, I should also be free to privately use these goods as I,
not the government or some other corporate body, sees fit” (Bronson Picket, p337). The ability to
repair, modify, or dispose of property is the definition of ownership: “Ownership should mean I
have the right to modify or dispose of my possession [sic] as I see fit” (Charles Pugh, p397).
Honoring these rights is not just a matter of necessity, but a sign that of respect: “People are not
animals to be herded and controlled. They're to be treated with respect, which means respecting
their right to own and modify anything they please, having legally paid for it, and therefore
legally owning it” (Adrian Gill, p47). For one commenter, his right to do as he wished with his
property even superseded any other law: “I will do whatever I want with my property even it is
legal or not as I earned it and no one gave it to me for free!” (David K., p593).
The right to repair, maintain, and modify property because “I earned it and no one gave it to
me for free” was, above all other themes, the most common refrain among commenters.
Individuals deserve strong personal property rights that include the right to repair, maintain, and
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modify that property because they have paid to purchase it. Some commenters put this in terms
of the amount of money they paid for their devices:
If I fork out $22,000.00 for an item I want to be able to mold it to my needs and have it work they way I
need it to. (Kathryn Christensen, p1299)
It’s my car, I paid a great deal of money for it, so I should be able to do what I want with it. (Adrian Gill,
p46)
Please allow me to actually take ownership of these devices that I have invested obscene amounts of money
in by giving me the freedom to extend their lives and to remove the bloatware that I have no interest in
owning or using if I like. (RONNIE D RIDDELL, p1911)
i paid 30k for a car an ou [sic] people are willing to shoot/jail/arrest/fine me not to touch it's computer?
(tony lucas, p2195)
Imagine the surprise when I discovered that after all that money I paid for a new car, apparently, I do not
have the right to examine the software instructions that run it. So, who exactly 'owns' my car. (Donald
Campbell, p647)
Others discussed it as a matter of how hard they had worked to earn the money they used to buy
them:
When we buy iDevices, computers, gaming consoles, eReaders, smart watches and smart TV's, we work
hard and pay for them, so legally they are our property to fix, hack, jailbreak or resale. So I believe it is
only in goodwill and the idea of freedom that we should be able to tinker with whatever devices we own or
pay for. (Matthew Fitzgerald, p1503)
I work hard for my money ... When I pay for a product, it should be 100% mine, to do as I want. Having
even a portion of that product taken away, is equivalent to taking part of my hard earned money. (0raz10
Terrano, p1)
When we buy iDevices, computers, gaming consoles, eReaders, smart watches and smart TV's, we work
hard and pay for them, so legally they are our property to fix, hack, jailbreak or resale. (Matthew
Fitzgerald, p1503)
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In both these cases - it being an issue of money or of labor - commenters are making ownership
contingent upon a financial transaction. Some commenters were very clear about this (as David
K. Above was), effectively arguing that you cannot claim ownership over anything given to you
for free: “Until the day comes when Apple gives them out for free, what i purchase and pay for is
MINE and no one else’s” (stephen rogalla, p2059); “If companies provide cars or game consoles
free of charge they should retain the right to control them and what we do with them. Anything I
purchase should be my decision what I do with it” (Thomas Evans, p2139).
In these comments we see that many commenters see ownership through market logics. One
can only be said to own something if one has exchanged money for that object. It is important to
recall that commenters were primed for this approach to property by many of the
communications they may have encountered before coming to submissions page, including the
DR2R’s official website and the informational slideshow at the top of the comment-submission
page. Still, the commenters did not simply parrot those rhetorics, but expanded on them,
reiterating again and again an aggressively neoliberal conceptualization of the roots and extent of
private property in the US.
This narrow insistence on ownership as a market transaction is worrying in that it eschews
other, more communal possible ways of imagining the justification for private property - and
thus for developing more effective strategies for protecting individual rights in the face of
corporate attempts at control. In particular, it seems to suggest the limits of the more optimistic
takes on how digital technology would revolutionize cultures of creation, sharing, and social
change. This chapter indicates that the collaborative practices that scholars like Yochai Benkler
observed in different networked digital contexts may not exist, or at least face significant
challenges, when the networked, digital devices in question are no longer personal computers
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used for surfing the Internet (Benkler, 2006). That is, once more familiar and mundane consumer
devices become software-enabled, the logics that motivated collaborative work online simply do
not port over; long-established conceptualizations of ownership based in market logics take
precedence, and leave little room for imagining nonmarket possibilities. This is the challenge that
activists face in trying to advocate for the freedom to repair and modify devices, that the law
faces in trying to reconcile personal and intellectual property rights regimes: if you can only
think about these concepts in terms of the market, you have already lost.
Looking to cultures of car modification for alternatives
While market-oriented understandings of ownership may have dominated both the publicity
around the public comments and the public comments themselves, these were not the only
frames supporters used. In his Wired magazine op-ed “WTF! It Should Not Be Illegal to Hack
Your Own Car’s Computer,” iFixit founder Kyle Wiens opens by recounting his motivations for
working on his own car: “For me, tinkering and repairing are primal human instincts: part of the
drive to explore the materials at hand, to make them better, and to make them whole again”
(Wiens, 2015a). Although he does seem to suggest, later in the article, that buying a car is a
necessary precursor to claiming ownership over it (again defining ownership as strictly a
consequence of market consumption), throughout the article he describes the relationship
between owner and property more like a creative or expressive relationship, where the ability to
repair and modify is linked to curiosity, pleasure, and technical mastery.
And it was not just the activists who expressed these sentiments. On January 29, 2015 – only
a week before the first round of public comments closed – Wiens, Parker Higgins (a copyright
activist from the EFF), and Sherwin Siy (an activist from the non-profit organization Public
Knowledge) held a question-and-answer session on the massively popular “Ask Me Anything”
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forum on the social media website Reddit (“r/IAmA - We are iFixit and EFF and it’s time to fix
the DMCA. Let’s take back our right to bypass DRM and unlock our phones. AMA,” 2015).
This Q&A was upvoted by over 14,000 readers (the closest figure I could find to indicate
audience size), and gathered over 800 comments. Many users asked about the basic mechanics of
the DMCA, the car repair exemption, and the consequences thereof. Throughout, Wiens,
Higgins, and Siy advocated for the exemption using the lenses of innovation and fairness,
making it more about how applying copyright to restrict car repair and modification flies in the
face of common sense.
These themes more closely parallel the logics behind coding and tinkering that scholars like
Gabriella Coleman have traced in hacker and F/OSS (free and open source software)
communities, communities which are often fundamentally opposed to most neoliberal
conceptualizations of ownership (E. G. Coleman, 2012). In the next chapter, I will show how
these two approaches - market logics and hacker - to personal property, intellectual property, and
the rights of ownership collide and combine in the everyday life of car modification cultures.
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CHAPTER 3: LEGAL ATTITUDES IN CAR PORTING CULTURE

I’m on a plane flying from the Pacific Northwest to Midwestern capital, to attend, for my first
time, the Performance Racing Industry (PRI) annual trade show. The flight is completely full,
and I realize that I am one of only a handful of women on the flight: the overwhelming majority
of my fellow flyers are white men, and what’s more, a surprising number seem to know each
other , despite clearly having arrived at the gate separately. As I settle into my seat, I notice that
the three men across the aisle from me are all reading PRI promotional materials. I lean over
and ask if they’re in route to the trade show as well. We get to talking, and I tell them a bit about
my research, saying that I’m interested in talking to people about their views on certain legal
issues. One of the men chuckles. “You’re going to the right place,” he says, somewhat smugly,
“cos you’re going to be talking to a lot of outlaws.”

In this chapter, I will show how, despite how the court’s prioritization of the economic
aspects of automotive software, an examination of the everyday life of this technological artifact
reveals a wide range of cultural meanings beyond just monetary value. Further, for people who
interact directly with automotive software - a wide-ranging group engaging in a diverse set of
practices, who I will refer to in the aggregate as “car porters” - the way this technology functions
and the meanings they create from it are co-constitutive. That is, by repairing or maintaining the
software on their cars, car porters assert their identities - as outlaws, hackers, and so on - and
these identities then shape what they choose to do with their software. Finally, the inability of the
current legal regime to accommodate the realities of this hybrid technology has special
consequences for those who make automotive software an important feature of their life. For
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those that value forms of deep engagement with these devices, for any number of reasons, there
is an institutionally imposed condition of testing, teasing, or ignoring strict legality.
To understand these specific legal and social conditions, I focus on the practices and cultures
that directly interface with automotive software. Automotive software is a nearly ubiquitous
technology. Any car manufactured after the year 1996 must, by law, contain some computerized
components that allow for the monitoring of emissions. For the majority of people who interact
with car software, those interactions are highly mediated; every time you drive your car, you are
interacting with car software, but via other mechanisms like the steering wheel, gas pedal, or
radio dial. Interfacing with car software directly happens much less commonly, but doing so
takes a wide variety of different forms. Mechanics repairing or replacing engine parts interface
with the software in order to diagnose the problem, and to reboot the system once it has been
addressed. Hobbyists interface directly with the software in order to recalibrate the system after
they have tweaked their cars or added new parts.
21
Aftermarket product manufacturers interface
with the software by reverse engineering it in order to develop their products. Car hackers plug
into their cars to figure out how to build add-ons of their own.
I refer to this large and diverse field of people who interact directly with automotive software
as “car porters,” in order to distinguish them from those who simply come into contact with it
through day-to-day driving. The term car porters refers to the action of sending and receiving
data through a car’s information ports (usually the OBD-II port, although there are others), as

21
Many car hobbyists do not directly interact with their car’s software themselves;
usually, a hobbyist will buy the parts they want on their car, but take it to a professional for
installation. I specifically included only those hobbyists I spoke to who discussed running
diagnostics or installing new parts on their cars themselves.
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well as the processes of rewriting the software onto the firmware in these systems. These
practices of porting are essential to the repair and modification work that many car enthusiasts
undertake in order to maintain and customize their vehicles. I should emphasize that “car
porters” is not a term that any of my informants would use to self-describe, and in fact, part of
my need for coining a new term is that the people who work with automotive software do not
constitute a single culture or community. There are large differences between, say, professional
mechanics using industry-approved tools and the DIY hackers cobbling together their own
systems from scratch. The term car porters, then is meant to capture a set of people relative to a
common set of technologies, rather than a coherent set of practices, backgrounds, or identities.
This chapter proceeds in two parts. The first part includes a brief history of automotive
software before continuing to an exploration of modern car porting practices. The second part
analyzes attitudes among car porters toward ownership and information, particularly the ways
that forms of ownership are exercised over information, and the role that the circulation of
information plays within this culture.
Methodology: Meeting the “car porters”
My fieldwork required identifying people who organized around a particular set of
technologies. Other, similar, ethnographic projects have followed specific communities that were
organized around, or eventually got involved in, specific legislative and regulatory battles
relating to information and communication technologies: for example, the Debian open source
community protesting the arrest of two programmers (E. G. Coleman, 2012), and community
radio activists agitating for low-power FM spectrum licenses (Dunbar-Hester, 2014), among
others. In these projects, the researchers found a community of people organized around a
particular technology who came together to fight a particular political fight. While I originally
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designed this project such that I might do the same with those fighting for a DMCA exemption
for car software, as my research progressed, it became clear that car software enthusiasts had not
come together in the same way; there was no organized group within the community
spearheading this battle, but rather an amorphous collection of individuals contributing to efforts
by activists outside the community.
Thus, I shifted my focus from the legal battle itself to the cultural beliefs relating to the legal
principles at play in that battle, by the users of the technologies affected by that battle. In other
words, I shifted to looking at the people whose interactions with automotive software would be
affected by the debates happening during the DMCA anticircumvention exemption proceedings.
This is not a single community or culture: it includes the people who develop circumvention
tools for commercial use, the people who buy them, and the people who find their own ways to
circumvent TPMs. Rather than looking at the conditions of a particular set of subjects, my
project now was looking at the formation of a culture within a system (Marcus, 1995)—a project
well-suited, then, for a multi-sited ethnographic approach.
Multi-sited ethnography is a particularly useful methodological approach for researchers
seeking to examine the cultural meanings that get constructed around modern technological
artifacts. Contemporary technologies can present particular challenges to researchers seeking to
understand their design and use, because rarely do they exist in easily bounded spaces and times:
rather, “contemporary technologies seem to ‘happen’ as simultaneous occurrences in a broad
range of design and use sites that may be more or less connected” (Henriksen, 2002, p. 43). By
studying multiple sites, I was able to juxtapose the different attitudes, practices, and debates
taking place over this technology and its regulation through copyright law.
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The technological practices I am interested in - the repair and modification of car software -
are not limited to a single geographic site or easily circumscribed community. To truly
understand how these technological practices represent a larger battle between two legal regimes,
I needed to explore the breadth of different places and people undertaking them. To accomplish
this, over the course of a year - from summer 2017 to summer 2018 - I worked to gather and
engage with the culture of the repair and modification of car software from a variety of
viewpoints from a diverse set of research sites. I focused specifically on people who were
directly manipulating car software, rather than casting a broader net for anyone who generally
interacted with this technology, an umbrella that could potentially include any car owner. Thus, I
wound up targeting: hobbyists who had modified their car’s software parameters; manufacturers
and developers for aftermarket tools that can read and write over engine programs; professional
mechanics whose work included diagnostic reading of program outputs; and self-identified
hackers who tinkered with stock programs and aftermarket parts. This distributed, multi-site
approach allowed me to engage with this globally ubiquitous technology in the many spaces
where people were actually interacting with it on an everyday basis, thus providing me a fuller
picture of the tensions that exist in its use, and its status as a regulated object.
Over the year during which I conducted my fieldwork, I made approximately 16 trips to nine
different cities in five different states, including the one where I lived. Some of these were one-
time visits: to an informant’s home in the Midwest, a repair advocacy organization’s home office,
a multi-billion-dollar industry trade show, and a multi-day information security conference.
Other were repeat visits, including to a hacker garage in the Pacific Northwest, and a biweekly
car show an hour from my home. In addition to this fieldwork, I conducted 22 unstructured
interviews with respondents (see Appendix A). Most of these interviews took place face-to-face
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with respondents I had met in person; the remainder happened over the phone with respondents
recruited through online car modding communities or through referrals from other informants.
Finally, I supplemented this data with other sources about car modification, including online
discussion forums, articles about the car modding community, and blog posts and videos
produced by car modders themselves.
Complications and limitations
My focus for this chapter was to try to capture as diverse a set of practices for engaging
directly with automotive software as possible. While I believe I was able to achieve a diversity of
practices, my sampling procedures resulted in a racially and ethnically homogenous informant
pool.
One reason for this had to do with the relative newness of car software and the costs
associated with newer cars. By focusing specifically on people working with car software, I
basically narrowed my possible informant pool down to people working on cars manufactured
after the 1980s.
22
This limitation had some race- and class-based implications: on an initial
fieldwork trip to a Chicano-American car meet in Los Angeles, I noted that all the cars shown
there were pre-1970. One car owner told me that older cars were more popular among this
community because most people showing cars there had had them handed down from family and
friends for cheap or for free. What’s more, at least in California, older cars are cheaper to insure,
and are not regulated by emissions-control laws. Cars that run software, then, are simply more
expensive in a number of ways; thus, by deciding not to include purely analog cars in my
analysis, I was also making the choice to focus on a specific economic segment over another.

22
Although the law did not require software for tracking emissions until the 1996 model
year, computerized components were common in cars for many years before that.
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In the case of both my larger research sites - the industry trade show and the information
security conference - this homogeneity would have been difficult to avoid. At the town hall
meetings I attended at both events, organizers reported that attendance at those events was
historically, and had remained, overwhelmingly white and male. While both events’ organizers
discussed this as an ongoing problem they were trying to address, there were still many ways that
both events could have been seen as unfriendly to women, queer people, or people of color. For
example, vendors at the industry trade show still made frequent use of scantily clad female
models for showing off their wares, and many sold merchandise that featured Confederate flags.
In the case of my individual interviews, this homogeneity was the result of my decision to
rely on snowball sampling. On the one hand, using snowball sampling – previous informants’
social connections to meet new possible informants – can help a researcher build trust with their
informants more quickly—after all, they’ve been vouched for. On the other hand, it can often
mean that the researcher is limited to a particular social segment of the culture or population in
question. In my case, because my initial contacts with car porters were with white male
hobbyists that had become community leaders in the activism for the 2015 DMCA exemptions
cycle, my informant pool wound up being a little more heavily populated with other white males
who were also fairly active in the community.
Within these largely white, male spaces, my own whiteness, queerness, and cis-presentation
affected the data I was able to gather. My background research into car culture, as well as my
personal experiences with it prior to my fieldwork, indicated that these spaces could often be
culturally and politically conservative. As a non-binary queer person, I had to consider how my
gender presentation might affect my ability to connect with my interlocutors, particularly given
that, at some of my field sites, I rarely had the opportunity to interview the same person twice.
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My ability to establish rapport quickly was key. Thus, I made the conscious choice to dress and
otherwise present in ways in which I might be interpreted as a cis woman, but if asked I would
not efface my gender or sexual identity—the issue, in the end, never came up.
However, even presenting as a cis-woman came with its complications, all the more so when
I got pregnant in the middle of my fieldwork. On the one hand, being a cis-woman in these male-
dominated spaces was frequently a boon. It was often assumed that, as a younger woman, I
would have little knowledge of the technologies we were talking about. This functioned as an
invitation for my participants to walk me through their practices (both technical and legal) at a
very basic level, thus providing me some insights into how they understood the systems they
were interacting with. Because I was not seen as any threat to their expertise, nor, as a white
person, a racial Other, it was particularly easy to build rapport. I experienced this sense of
appearing harmless even more strongly when I entered field sites while I was visibly pregnant. I
found ways to use this to my advantage: I often found that many of my informants enjoyed the
opportunity to show off their knowledge or their projects with me. Still, it meant I had to take
some of their bravado with a grain of salt.
A brief overview of computers in cars
In order to understand the practices and stakes for the communities that have sprung up
around car software, it is crucial to first understand the design and regulatory history behind this
technology. The history of car software reveals that the introduction of electronic components
into car engines was the result not of consumer demand, but of regulatory pressure, specifically
from the Environmental Protection Agency (EPA) and its state-level counterparts attempting to
address the increase in air pollution in urban areas around the US. It is common knowledge
among car people that the dual demands for higher fuel economy and more stringent air quality
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standards remain the prevailing design motivations for engine designers and auto manufacturers
even today.
Electrical components appear in cars as early as the 1910s, as manufacturers began to do
away with cumbersome and dangerous crank-starting engines and opting for electric ignitions. In
1925 the electric cigarette lighter was introduced, and by the 1930s, the first in-car radios were
on the market (O’Brien, n.d.). Electronic components, on the other hand – systems that use
electricity to store and manipulate information – had to wait until the late 1960s until circuit
boards were small and hardy enough to be integrated into car engines, although they remained
experimental. In the early 1970s, facing the dual pressures of the oil crisis and resulting gas
shortages, and the introduction of air quality standards, the automobile industry pushed the
development of computers to boost the fuel efficiency of car engines (Robinson, 1976).
Prior to this, engine combustion was controlled mechanically via a carburetor: a small
floating device in the carburetor would regulate the amount of fuel it would receive, after which
the fuel and air would be mixed and delivered to the engine cylinders. This simple mechanism
could only take into account two variables – engine speed and intake manifold vacuum
(Robinson, 1976, p. 414). However, there are multiple additional variables that needed to be
calculated to determine the ideal air-fuel ratio and thus maximize fuel efficiency (Our Motoring
Correspondent, 1969). Car manufacturers needed to find a new system that could instantaneously
manage two parallel processes: 1) measuring the numerous variables that affect fuel efficiency,
and 2) executing real-time calculations of those ever-changing variables.
And so engine designers began to experiment with simple computer systems, eventually
developing the electronic fuel injection system. Rather than rely on carburetors to mechanically
gauge and then produce the needed air-fuel mixture, electronic fuel injection systems monitor
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engine conditions via electronic sensors, and send those measurements to a simple computer to
calculate the precise amount of fuel required, a process that must happen multiple times each
second. The needed fuel is then atomized through a small nozzle under high pressure and
delivered directly to the engine cylinder. This was the first computer with any kind of scanning
capability to be integrated into a car’s design. It first appeared in the Volkswagen 1600 in 1968,
but quickly gained popularity and was considered a standard engine feature by the early 1980s
(Stepler, 1998).
Ideally, in order to fine-tune fuel injection systems, mechanics needed the ability to access
these computers in real time. In 1975, Datsun released their 280Z model, which included an
electronic fuel injection system as well as on-board computer that allowed users to execute
diagnostic programs of the fuel injection system while the engine was running. Such systems for
real-time diagnostics were soon found in most vehicles, although for many years, every
manufacturer’s system was developed in-house, and thus worked differently from other
manufacturers’ systems.
The implementation of a standard communication protocol for these computerized systems
revolutionized the auto industry. The California Air Resources Board (CARB) recognized that
these systems could be an effective way to access information about vehicle emissions, but that
the diversity of system protocols meant that state testers would need dozens of different
proprietary scanning tools. To streamline the testing process, CARB required that all new cars
starting with the 1988 model year include a standardized real-time diagnostics system, called the
On-Board Diagnostics system, or OBD.
23
However, this first standard only covered some

23
Although the decisions of the California Air Resources Board technically only applied
in the state of California, the size of the California car market made CARB a remarkably
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emissions-related components, thus making it an imperfect tool for helping enforce air quality
standards. Consequently, CARB developed another, more comprehensive standard - OBD-II -
that it required starting in the 1994 model year, and for all cars by the 1996 model year. This new
standard, CARB argued, would allow mechanics to use a single universal scan tool to access
engine operating data on all California cars, which would facilitate accurate diagnosis and timely
repair, in addition to enhancing the effectiveness of the state’s Smog Check program (California
Air Resources Board, 1989).
The OBD-II standard has not changed much since 1996, although what it is being used to
track has. Early electronic fuel injection systems were relatively simple systems; however, as it
became clear that computerizing engine components was an effective means for boosting engine
efficiency, car companies began adding computers to more and more engine processes. These
processes are controlled by engine control units, or ECUs. ECUs gather data from sensors around
the car and uses that data to perform millions of calculations a second to determine the most
effective way to run the engine in order to meet the desired parameters. As ECUs proliferated in
cars, automotive engineers developed a protocol by which these various computers could
communicate quickly and accurately with each other, called the controller area network, or CAN
bus. In modern cars, computerized elements have expanded beyond engine control systems to
features like automatic lighting, lock functions, heating and air conditioning as well as more
advanced elements like infotainment modules and microprocessor-controlled antitheft systems.

powerful influence on national vehicular standards. As a result, CARB decisions were often
taken up by the Environmental Protection Agency as federal standards as well, although a deeper
dive into the dynamics between these two agencies has yet to be written - perhaps a topic for
future research?
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Today, luxury vehicles can have as many as 80 ECUs working together in a complex network,
and a modern high-end passenger car powertrain can contain more than 2 megabytes of
embedded flash memory (Mössinger, 2010).
Increasingly, manufacturers are protecting these systems using different kinds of
technological protection measures (TPM); however, there the lack of a clear definition on what
constitutes a TPM. If you consider physical barriers to access, car manufacturers have been using
analog design strategies to frustrate DIY hobbyists and independent mechanics since the early
days of cars. In the 1970s, as car manufacturers struggled to meet new federal car emissions
standards, they began placing caps on top of the carburetors in their engines to thwart owners
looking to boost their engine’s power at the expense of fuel and emissions efficiency (Donut
Media, 2018). Once fuel systems began to switch over from mechanical carburetors to electronic
fuel injection systems, the technological protection measures became electronic as well.
Electronic TPMs usually come in one of two types. The first, and most common, according
to my informants, is requiring a key in order to access the software, much like how PC software
packages require you to enter a license number to access the software. Less common is the use of
encryption. In many ways, encrypting the software is a less ideal way of restricting access
because of the computing power that encryption requires; car software systems are complex
enough, and run lean enough, that requiring any additional computing power for something non-
functional like encryption can be a major drain on the car’s ECUs.
So it these trends, motivated by regulators and forced into widespread technical adoption that
shape the computational interactions with cars even today. For the communities that care about
car software, their practices must fit alongside both this legal and technical logic.

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Repairing and modifying cars running computer software
“Repair and modification” is a large umbrella that can refer to a large variety of practices,
which have varying degrees of interaction with the actual software on the car. Grouping the two
together also has interesting legal and cultural consequences. In many spaces, “repair” can carry
a greater moral valence, as fixing broken things carries a broad positive connotation.
“Modification,” however, can evoke images of frivolity for those outside of car porters or car
culture at large, with some of the most visible instances of car modification being the most
extreme—ostentatious additions like vinyl siding or spoilers, or engines tweaked to run loud and
dirty on purpose.
24
These two spheres of activity, however, play overlapping roles in the lives of
many of the car porters I met. And as ever more systems of cars are governed by software, the
skills and equipment required for either are usually the same.
Running diagnostics and making repairs
Typically, most car owners are alerted to the need for repair by the check engine light on the
dashboard. The first step of repair here is diagnosis, during which the owner or mechanic
identifies precisely which systems on the car are malfunctioning and thus triggering the check

24
A couple of my informants bemoaned the (to them) inexplicably popular practice of
“rolling coal,” which is when someone modifies their car (usually a pickup truck) to run
especially loud and emit dark, foul-smelling clouds of smoke from its tailpipe. I was told that
they do this to “stick it to hippy-dippy, eco-friendly types,” or rather, to rebel against the current
trend of “green” products and lifestyles. Astonishingly, some of the people who seemed most
exasperated with this practice were the same informants who told me they didn’t believe in
climate change; rolling coal was obnoxious not because it was particularly harmful for air quality
or the environment, but simply because it was rude.
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engine light. This is where the standardization of the OBD-II port comes in handy; the first step
to diagnosis is to plug in a scanner into the OBD-II port to receive and translate the error
message from the car’s computer. When you plug a scanner into the OBD-II port on your car,
your car’s computer returns a code indicating what the error or malfunction is. Many of these
codes are generic, set by the Society of Automotive Engineers, who make the code books for
these generic codes publicly available. However, if the manufacturer of the car feels that those
generic codes do not cover the necessary possibilities, they may include a number of proprietary
codes as well.
For many mechanics and tinkerers, half the battle in car repair is understanding the data you
get from your OBD-II port, in great part because most car manufacturers charge a lot of money
for the code books or scanning tools that define and explain the proprietary manufacturer codes
you might receive. In most cases, every make and model of car will require its own code book or
specific tool, each of which could cost tens of thousands of dollars—a steep price that can add up
quickly, especially for independent garages who do not specialize in specific types of cars.
While there is a thriving community of car hobbyists who work to reverse-engineer those
codes in order to make them available to other hobbyists online, that work takes time—and
according to some of my informants, is getting more and more difficult, both due to the
increasing complexity of vehicle computer systems, and to the manufacturers’ attempts to guard
their proprietary codes. Often this reverse-engineering is accomplished by sending test messages
to the CANbus to figure out whether this code or another would trip the desired system in the
car. As more and more functions get integrated onto the CANbus, reverse-engineering through
using trial-and-error method gets more and more time consuming.
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Of course, using the OBD-II scanner is only accurate insofar as the car’s computers are
accurate. Occasionally, it is the computer itself that is the problem, and in such cases, the error
message the computer sends might itself be an error. One informant told me a story of such a
situation, where someone came into his garage looking to fix what appeared to be a broken
driver’s side power window - it would not roll down. He plugged in a diagnostic tool capable of
actuating the window, but in spite of showing that the window had supposedly been actuated, the
window remained resolutely up. The security researchers at the garage that day were able to
reverse engineer this particular packet. By observing the network traffic around the window-
opening packet, the researchers discovered that another, unrelated module was interfering with
the window packet’s ability to be heard over the network. They replaced the module and the
window started working again.
25

Most repairs do not require the person working on the car to interface with its software
beyond simply reading the data output in order to make a diagnosis, but many of my informants
indicated that this might be changing. While the above example of the broken diagnostic
computer was framed as an extremely unusual situation, a number of the people I spoke to talked
about steps the car manufacturers (most commonly referred to as OEMs, or “original equipment

25
At the time, this action existed in a legal grey area with regards to the DMCA. As of
the 2015 exemptions proceedings, third parties were prohibited from bypassing TPMs on the
behalf of car owners, as was done here. However, there is an exemption in the DMCA for
security researchers undertaking “good faith” research. It is impossible to tell whether the
individuals in this circumstance would have been considered security researchers or just third-
party actors by the courts. The fuzziness of these lines is another indication of how many
commonplace interactions with car software fall through the cracks of the DMCA.
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manufacturers”) are taking to make it so everyday repairs require diving into the software—and
thus, require OEM-approved tools for doing so. One informant mentioned that newer models of
Ferrari were designed so that the car’s spoiler had to be removed in order to do a mundane oil
change. While this sounds like nothing more than an obnoxious additional step, my informant
noted that Ferrari had made it so that the car’s computer needed to be rebooted once the spoiler
had been re-attached in order for the car to recognize that the spoiler was there.
Cars have never been simple machines to repair. Even the earliest automobiles (perhaps
especially the earliest automobiles) required intensive routine maintenance and were prone to
breaking even during short drives (Borg, 2007, pp. 15–16). What my conversations with car
porters reveals is that, although new vehicle systems promise convenience and ease-of-use for
driving, vehicle maintenance and repair remain complex, often challenging, practices. Car repair
is not simply about knowing how to fix or replace broken parts: it is a multi-step process of
diagnosis, intervention, and recalibration, where each of those steps itself requires multiple
operations. While many car porters celebrate the standardization and accessibility that the
computerization of cars has offered, it is also clear that with the integration of software, and thus
the interference of copyright law, many of these steps now face challenges where they never
have before.
Modding the modern car
When car manufacturers determine the factory settings for most of their consumer vehicles,
what they’re aiming for is a balance of fuel efficiency and reliability. For many car owners,
however, that balance can be unsatisfying - they would prefer power over efficiency, perhaps
even at the expense of reliability. Some car enthusiasts turn this into a hobby, taking factory-
produced cars and remaking them in the owner’s desired vision. This is often for racing, either
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formally on tracks or informally (and illegally) on streets, but also includes practices like
hypermiling, which is the attempt to make a car even more fuel efficient, as well as recalibrating
cars for use in different climates or road environments. This is usually accomplished by
swapping out or adding aftermarket parts, that is, parts often developed by third parties to be
added after the car has come off the factory line. There is a booming market in aftermarket car
parts; the global automotive aftermarket reached a value of roughly $1 trillion in 2018, and is
projected to expand to over $1.42 trillion by 2024 (Inc, 2018).
For car culture at large, even outside car porters, a deep engagement with the technology
often takes the form of tuning. Tuning is the practice of modifying a vehicle in response to the
owner’s needs and desires. While this includes modifications to the car’s appearance, for the
most part this refers to modifications to a car’s performance. Three forms of tuning are common
among car porters: chipping, piggybacking, and flashing. Chipping is described as the practice of
replacing the physical computer chips in an engine. Often, an engine’s chips are read-only,
meaning that the programming on them cannot be altered. In these cases, the only option
someone looking to modify their engine’s processes has is to replace the physical chip itself. In
some cases, those read-only computer chips are glued into their sockets. In such situations, a car
porter may choose to piggyback, which is adding a chip whose programming overrides, in whole
or in part, that of the existing chips. Flashing (or reflashing - the terms are used interchangeably)
is the practice of overwriting the existing programming on a rewriteable chip. In all three cases,
it is most common that a car owner will purchase a ready-made chip or reflashing program from
an aftermarket manufacturer. Although rare, some very technically competent car porters will
scrap the entire factory stock system and replace it with their own, as one informant from the
hacker garage in the Pacific Northwest had. However, as this requires removing and replacing all
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the wiring to all the sensors in a car (and there can be anywhere from 60 to 200 sensors in
today’s newer models) this is prohibitively expensive and time-consuming for most car porters.
As these practices show, it can be difficult to draw the line between where the “car” ends and
the “software” begins in modern consumer vehicles, and it is also difficult to define what it
means to “repair or modify” the car versus the car’s software—and calls into question whether
that distinction even exists. That these artifacts are not easily categorized as either simply car or
software has implications for how they are received by the communities of practice in which
they exist. The remainder of the chapter explores those communities’ approach to automotive
software, revealing two different approaches to intellectual property that coexist among car
people: a strongly proprietary approach prevalent among mechanics and aftermarket
manufacturers; and a more open and communitarian approach common among car hobbyists and
hackers.
The Proprietary Car
Sitting in James’s living room, James and Leo are watching YouTube. James and Leo are big fans
of this YouTube channel, in which this amateur machinist finds broken down old machines that
had long gotten fused together or otherwise stuck, and makes them work again. As they watch,
James fiddles on his laptop. He shows me what he’ s working on—a custom data capture and
analysis program for a tuner friend in Texas. James explains that developing a program like that
for a specific model of car requires reverse-engineering the data that car sends over its CANbus.
Given that tuning is such an enormous business, I wonder out loud whether the original
equipment manufacturers (OEMs) approve of reverse-engineering—after all, you can’t build
aftermarket parts without reverse-engineering first, and a robust market of aftermarket parts
means more people are likely to buy that model in the first place. James scoffs, telling me that to
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his knowledge, no one doing reverse-engineering is doing so with the blessings of the OEM. Leo
nods in agreement, opining that those people just “dance in the grey”.

As I traveled across the country talking to mechanics, hobbyists, amateur racers, I often came
across the attitude my flightmate expressed on the way to the Midwest, and that James and Leo
expressed in the home: people who work with cars are outlaws who revel in toeing the line of the
law. It became clear that this is a central tenet of car culture: the idea that one’s car is a symbol
of, and proxy of, one’s freedom. However, for different subgroups within car culture broadly
writ, that freedom was defined differently. For car people who were making money off their
manipulations of car software - mechanics, tuners, aftermarket parts manufacturers and
distributors - this was often framed as a freedom from larger systems: radical self-sufficiency, in
defiance of the laws and even social norms. Upon closer inspection, though, these attitudes begin
to resemble modern libertarian political philosophy, complete with all the internal contradictions
often found therein. That is, government regulation is fundamentally illegitimate and to be
circumvented however possible. However, market regulation is acceptable, even when it places
significant barriers to access and ability.
The government versus the industry (versus the people)
Among this group, there is little familiarity about the threat of government intervention vis a
vis copyright law. Rather, car people are overwhelming aware of, and unhappy about, the ever-
present threat of the Environmental Protection Agency (EPA). As one reverse engineer put it:
“No one here is more afraid of copyright than of the EPA.” This is because of the strict federal
emissions control laws the EPA has put in place to address air quality standards. Most car porters
are seeking to boost the speed or power of their cars’ engines, but doing so often requires
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modifying the engine so it runs less lean, meaning that these drivers sacrifice fuel efficiency (and
thus emissions efficiency) for engine power—thus pitting their goals against those of the EPA.
Additionally, individual states and even city localities can have their own additional emissions
regulations. Ignoring or going against the EPA’s regulatory restrictions can have real
consequences for car owners, mechanics, and aftermarket parts manufacturers. For example,
individual drivers who fail their smog tests may not be allowed to register their vehicles with
their state’s DMV. Aftermarket product manufacturers can face hefty fines. In September 2018,
the EPA and the Department of Justice settled with Derive Systems, who had been selling
products that defeated automotive emissions control systems; Derive Systems agreed to pay a
$300,000 civil penalty and spend $6.25 million on ensuring future compliance with EPA rules
(Environmental Protection Agency, 2018).
26

For some individuals, the EPA’s power to interfere with how people built, modified, or drove
their cars was unacceptable. I met a number of people who told me, point blank, that they did not
believe climate change was real, and others who told me that the effects of cars on climate
change was at the very least overblown. The indirect adverse impacts that cars might have on
others - including not only climate change, but also more relatively uncontroversial issues like

26
There were very few cases of an OEM taking legal action against an individual or even
an aftermarket manufacturer, and even when those cases happen, they are long, protracted, and
thus easy to lose track of. For example, in 2015, General Motors (GM) sued two automotive
parts suppliers - Dorman Products and Electronics Remanufacturing Company - for selling
aftermarket vehicle control modules that GM claimed contained unauthorized copies of their
ECU software. The case was dismissed in 2016, brought again in 2017, and dismissed yet again
in 2018.
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air quality, societal over-reliance on fossil fuels, or noise pollution - were a secondary
consideration. For these car porters, those concerns did not justify the government restricting an
individual’s control over their personal property.
These same attitudes did not apply to car porters’ relationship to the automobile
manufacturing industry. Rather than being framed as the enemy, car manufacturers were often
referred to as tolerable tyrants, who made rules you did not have to like but you could not fight.
Professional mechanics embodied this ambivalence to an extreme, complaining about the cost of
the OEM’s diagnostic and repair equipment, and the training necessary to use that equipment,
while also defending those costs as a necessary gatekeeping mechanism. Making these tools and
databases cheaper or free would mean that less competent mechanics would just mess up
people’s cars, thus creating more work and trouble for the more competent mechanics that
frustrated owners would inevitably turn to afterwards. What’s more, putting diagnostic and repair
information online would mean those frustrated owners would come in thinking they knew all
the answers, making a good mechanic’s work even harder. The restrictions an OEM might put on
the accessibility of information or parts was justified because even as it made their jobs harder, it
also helped protect them.
The difference in attitudes toward the government versus the OEMs could also be explained
by the frequency with which car porters experience negative interactions with either institution.
Car porters are frustrated by the OEMs decisions and policies on a daily basis simply through the
action of working on their cars—the frustration becomes part of the background noise of life as a
car porter. Interactions with the government, on the other hand, are much more infrequent and
dramatic, as typically the only time a car porter directly interacts with a government mechanism
is during their yearly smog check, which is a pass-or-fail situation. Although the existence of
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emissions control regulations is an ever-present influence on the decisions a car porter might
make with their car, it gets refracted through that singular event, thus concentrating the
frustration into one place and time. With the OEMs, where the frustration is a daily occurrence, it
is easier to be inured to it.
Thus, many in car culture see an economic relationship as more acceptable than a
government one. For them, it is ok when a manufacturer impinges on their ability to work on
their car, perhaps because they see their relationship with that manufacturer as a voluntary one—
they chose to buy that car from that company, so they may as well put up with whatever strings
come attached. Being subject to the government, on the other hand, is automatic; you cannot opt
out. The assumption at the core of these attitudes is that voting with your dollar will always be
more effective than voting as a citizen.
Intellectual property as an acceptable profit mechanism
Few car people were familiar with the impact of the DMCA exemptions proceedings
examined in the previous two chapters. However, many car people did say they were familiar
with the effect that copyright was having on car culture, but from a different direction.
Intellectual property battles were not uncommon among independent developers and aftermarket
parts manufacturers. In fact, when describing my project to potential interlocutors as “an
examination of the impact of copyright on car culture,” most assumed that these intra-industry
conflicts was what I would be investigating. The Specialty Equipment Manufacturing
Association (SEMA), the main trade association for the aftermarket parts industry and their
consumers, frequently offers educational panels on patent and trademarks, and holds special
workshops on intellectual property issues in the export market. However, as multiple informants
told me, copyright is less of a concern than patent or trademark are.
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For professional car porters, there is often a hesitation to share knowledge for two main
reasons. The first is that some people were hoping to market any innovations they develop, rather
than share it for free. While the formal aftermarket parts industry is enormous, there also seemed
to be a booming informal market of individual or small-batch custom product sales. The
anecdote at the beginning of this section is one example: James was known for developing and
selling custom parts and services, many of which he made by hand in the basement of his home.
The second is a general fear of being sued by the OEMs. Regardless of where one stood,
professional car porters - that is, those who made a living interacting with car software - always
saw themselves as potential targets for the OEMs. One employee of an aftermarket company
assured me that, while the OEMs might come after their company, they would never go after the
end users. However, another informant told me that his fellow tuners (end users of the
aftermarket products made by my previous informant) were afraid of being sued by the OEMs if
they spoke up to protest the DMCA. The threat of receiving a cease and desist letter from an
OEM came up frequently, although this fear seemed to come not through personal experience or
even from secondhand experience, but from “friend of a friend” stories or even more vague
sources.
In spite of these threats, professional car porters were also insistent on telling me that,
regardless of the law or how hard OEMs made it to reverse engineer their systems, they would
always keep trying. This attitude is a combination of the cultural sense of rebellion common
among car porters and the fact that most car porters know that the OEMs would not come after
them anyway, because at the end of the day, the OEMs still want them to buy their cars. This is a
very safe kind of rebellion, where the risks are low but the payoffs high.
The Open Car
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After caving into his friends’ insistence that he show off his highly modified car , Sean slowly
backs his wet Subaru WRX inside the small garage. Sean is slightly older than most of the crowd
there - I peg him as late 30s or early 40s - but he’s wearing the kind of t-shirt I remember being
popular among my guy friends in high school: the four main male character for the Mario
franchise, posed to look like the band Queen from the “Bohemian Rhapsody” music video.
Sean’s car evinces the same kind of playfulness. He’s modified or replaced every light to take
LED instead of incandescent; added more cameras in addition to the factory-installed backup
camera; installed a DVR to record from their feeds. Most interestingly, he installed a ham radio
system and put in a set of speakers behind the grill at the front of his car . He uses that system to
make announcements along the routes during the bike ride events he helps manage. When I ask
how common mods like this are, one of the other guys erupts into giggles, saying that these mods
are not common at all, these are very unique mods. Sean is generally patient with my other
questions, but seems to get a bit defensive when I ask him why he’s added this mod or another .
“Why?” doesn’t seem like the right question to ask, because “why” isn’t important. “Because he
could” seemed to be enough, and because it seemed cool.
Two months later , I’m back at the garage, standing under a car that was put up on the
collective’s brand-new lifts. What started as an excuse for John to show off the lift and Nate to
show off his car has become a full-blown troubleshooting session, as John and Nate search
together for the source of a mysterious rattling Nate has been noticing. Diagnosing issues on
Nate’s car can be tricky, as he had taken the radical step of replacing his car’s entire factory-
made CAN bus system with a CAN bus system of his own making, so he can’t rely on the same
diagnostic codes and methods that most cars use. As John and Nate poke and prod different parts
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of the engine, John remarks, somewhat proudly, that “this is what 80% of work is like here, just
dicking around.”

These two vignettes from the same hacker-oriented garage collective in the Pacific Northwest
serve to illustrate another side of working with car software, one that finds its roots not just in
commercial American car culture, but also in American coding and hacking cultures as well.
These attitudes were most often found among people who were hobbyist car modders, rather
than professional mechanics or commercial parts makers. Frequently, these individuals also came
to their hobby from a background in computer science or programming, and often had day jobs
working with computers. Ethnographic work in hacker cultures has highlighted how these
communities often prioritize a commitment to sharing knowledge (E. G. Coleman, 2012; Kelty,
2008). It was somewhat unsurprising, then, to find many of those same priorities shared by car
people who also identified as hackers and programmers.
However, open source projects have technical aspects that make sharing knowledge easy in a
way that car projects do not. Eric, a software developer who refurbishes and sells cars on the
side, pointed out that collaborating on a coding problem is much easier than doing so with a car
because a car can only exist in a single place at a single time. Even when a community comes
together to troubleshoot an issue with an engine they must do so on the basis of pictures
uploaded by the car’s owner. Code, on the other hand, can be worked on by multiple people
asynchronously and remotely. This not only changes the speed at which the relevant systems can
be diagnosed, reverse engineered, or tested, it also constrains the ways in which groups organize.
Because of the technical and cultural mandate to meet in physical space, the same type of
distributed online collaborations that have historically been characteristic of free software
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hackers are less common among car porters. Here, the “garage” plays a larger role than the IRC
channel.
The prevalence of knowledge-sharing online venues
Many of the hobbyists I spoke to mentioned that model-specific online forums had been their
particular entry point into car culture, and more than one had started a forum of their own. In
fact, there is a great deal of general know-how about cars shared online: how-to videos, step-by-
step DIY manuals, blogs meticulously recording personal projects, and so on. This became a bit
of common advice: just google your question and you’ll find the answer. These online resources
are not just about sharing knowledge on processes - many of the more popular online tutorials for
how to diagnose one’s car explicitly advise hobbyists to google the diagnostic codes.
This kind of knowledge sharing has long been a facet of American car culture. For example,
early auto mechanics working at the turn of the century would often submit repair tips, shop
floor plans, and tool lists to magazines that circulated among small shop owners (Borg, 2007). In
keeping with this history, many of my informants seemed to assume that any information they
might need would be online. This belies a larger assumption that this information should be
online, or rather, has every right to be shared online; and what’s more, that this information
would come from fellow community members, rather than from the OEMs themselves, and thus
would have been obtained by circumventing the OEMs protections and intentions.
Openness and modifiability as a sign of product quality
All this speaks to hobbyists’ faith in their community to figure stuff out, an expectation that
this is a community that takes the initiative to get around TPMs, and also a community that will
then share that information. In fact, this faith in the community’s ability to figure out how
something worked in many ways also became a mark of the quality of a product: if there was
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little or no information about a car’s computer systems online - that is, if community could not
crack it - then it was a sign of a problem with that product. As one hobbyist put it: “I’m not
gonna buy this car if it’s not modifiable, so if it is like closed-source, then I’m like nah…no one
has figured out how to crack it, then I don’t buy it.”
Certain makes and models of cars were particularly popular among hobbyists because they
were easier to modify. Some people assumed that these cars were easier to modify because the
OEMs had designed them to be easier to modify, recognizing that there was a robust market for
people specifically looking for cars they could mod; Subarus and Mustangs come up frequently
as car models where the companies had made smart decisions to court the modding
demographic.
In other cases, modifiability was the result of consumer ingenuity. One hobbyist explained
his love of 1998 Mitsubishi Eclipses as partially due to their aesthetic appeal, and partially due to
how many ways people had found to modify them. By design, he told me, ’98 Mitsubishi
Eclipses were actually difficult to modify, as Mitsubishi had started hard-coding the ECU rather
than using removable e-prom chips. With the older e-prom chip ECUs, if an Eclipse owner had
wanted to swap out the stock chips for aftermarket chips programmed with different engine
parameters, it was a pretty simple matter to remove and replace them. What ’98 Eclipse fans had
discovered was that, if one could source an ECU from a 1995 Mitsubishi Eclipse, one could
replace the ’98 ECU for the ’95 ECU, and the ’95 ECU was compatible enough with the ’98
machine that it would work. Thus, you could get the looks of the ’98 Mitsubishi Eclipse with the
modifiability of the ’95 ECU.
Ambivalence about the value of intellectual property rights
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In spite of many of these commitments to information sharing, when confronted with the
details of the DMCA, many hobbyists with backgrounds in programming expressed ambivalence
about the rules. On the one hand, they felt strongly that they should be able to fix their own cars.
On the other, they understood why OEMs would fight to maintain control over the code: as
programmers, they understood the investment that goes into developing good code, and what
could happen to a company’s reputation if a modified car got into an accident. When I asked
them how they might rewrite the law themselves, hobbyists were universally stumped as to how
to balance these competing interests.
Conclusion
Different subgroups of car porters interpreted the importance of property and ownership in
ways that sometimes appeared contradictory. Car porters coming from more traditional parts of
car culture, such as mechanics, performance racers, and aftermarket parts manufacturers, were
more likely to think of their ownership rights over their cars as in conflict with the goals of the
government—to do what they want with the car is to thumb their nose at federal agencies and
their regulations. Repairing and modifying their cars was an exercise of individual freedom in
the sense of one’s right to buy, install, and run whatever one wanted. For the government to
restrict those consumption practices was immoral. By basing these values in one’s rights as a
consumer, oddly, these car porters often wound up aligning themselves with the OEMs whose
decisions could have just as much, if not more, impact on their daily practices.
Car porters coming from computer coding backgrounds, on the other hand, integrated
many of the values from coding and hacking cultures into their car repair and modification
practices. Most notably of these was the commitment to the freedom of information – that is, the
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freedom to seek and share technical know-how – and a general mistrust of legal systems that
work to constrict the flow of information.
However, whether they came to automotive software from a background in automotive
mechanics or software programming, car porters seemed to recognize the values they all had in
common; as one car hacker put it, they both “share an interest in privacy and feeling that people
should be able to fix their own shit.” The sense of the importance of the ability to repair and
modify their own property was common enough among car porters, and fundamental enough to
their practices and attitudes, that I argue it should be considered an “essential” part of car
ownership.

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CONCLUSION: WHITHER CAR PORTING IN THE AGE OF UBIQUITOUS COMPUTING?

It’s early November and the rain in Seattle seems to have kept many people home from this
month’s car hacking meetup at the hacking collective’s garage in the outskirts of the city. The
half dozen of us that have made it out are sitting in the garage’s lofted hangout space, littered
about on the couches and scattered folding chairs. Eventually one of the first-time visitors picks
up a dongle sitting on the coffee table and asks the garage manager , John, about it. It came from
a new car insurance service, one that had been aggressively marketing itself recently, partially
by offering free samples of its hardware. According to the company, the dongles work by
plugging into a car’s OBD-II port and gathering data on miles driven, so that you are only
charged insurance based on how much you drive. This means the dongles have some way of
connecting to the Internet: in this instance, by using prepaid SIM cards (the same as you have in
your cell phone). The hackers here had been collecting the free dongle samples in order to
harvest those prepaid SIM cards for use on their own projects. While the group agreed that there
were some serious security concerns about letting an insurance company track your every move,
they also agreed that there were obviously ways of tricking the trackers—OBD-II port data was
easy enough to spoof. Of course, they all agreed, nodding and winking exaggeratedly at each
other and at me, doing so would be illegal, technically…

The anecdote above serves as an apt encapsulation of the stakes of this dissertation: a
community of technically capable hobbyists discussing the possibilities that future technologies
hold, and aware of the legal structures that regulate those technologies, but unconcerned by the
penalties they might possibly incur for bypassing the law in order to put the tech to their own
uses. What I saw over and over was that this position was influenced by two convictions. The
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first conviction was practical, that legal punishments were things that might happen to other
people, friends of friends, but would never really be levied on them, that they wouldn’t be
“caught.”
27
For as much as car porters resented the role of the EPA as an enforcer, it seemed like
a resentment on principle, rather than because there was any fear of personal repercussions.
The other conviction that I saw repeated in various ways was the belief that various
foundations of the copyright law protecting car software were simply illegitimate. Or, if they
were legitimate, were less legitimate than the foundations of economic liberty or personal
property freedom. These were the underlying premises that guided car porters day-to-day
actions, their cultural stories, and their approach to formal legal battles.
This is what gets recorded, albeit in a distorted, cumbersome way, in the records and
comments of the DMCA exemption process. This process itself was set up to handle the uneasy
gaps and exceptions in an abstract and sweeping code of law. But while the process is in some
ways open ended, it is still designed to reach concrete, limited changes to an unbending
copyright law. The everyday life of automotive software suggests that the social reality of
copyright is actually much more ambivalent.
Empirical work for this dissertation started with a watershed moment in this longer legal
battle: the 2015 iteration of the Digital Millennium Copyright Act’s triennial anticircumvention
exemptions proceedings. As a public process of notice and comment within a federal regulatory

27
Aftermarket parts manufacturers were the exception here, but only when they were
talking about their work in a professional capacity—after all, it is much easier for the EPA to
target the manufacturers, as they are relatively few in number, and are all known to the EPA.
However, when talking about their personal car porting practices, even aftermarket
manufacturers spoke as if they’d never get caught.
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agency, these proceedings provided a wealth of texts - agency announcements, public comments,
expert testimonies, and so on - that represented the legal logics that animated activists fighting
for, and corporations fighting against, making automotive software more accessible. These texts
revealed that the courts favored arguments about the economic value of the exemption (or
rejection of the exemption) for automotive software, rather than considering the cultural value
surrounding the use of this technology. This prioritization of an economic frame foreclosed the
consideration of a “public good” approach to resolving the conflict between intellectual and
personal property.
As part of their submission to these proceedings, the Digital Right to Repair Coalition
(DRRC) launched a website where individuals could submit their comments in support of the
exemption, which the DRRC then compiled and submitted to the Copyright Office en masse. In
addition to signing their names to the DRRC’s form letter, commenters could add their own
opinions and arguments to the form. In the end, over 2,200 individuals signed in support of the
automotive software exemption, with nearly 200 of them also adding their own commentary.
This commentary provides a window into popular understandings of this conflict over who has
the right to access car software. In these comments, we see popular conceptualizations of
property that again foreground an economic framing - the idea that one has rights over property
because one has paid money for it.
However, commenting on an arcane legal proceeding through a website abstracts individuals
several steps away from the technology of car software itself. To truly understand how the
shifting legal status of automotive software was affecting the practices of people who work with
it, it was necessary to examine it in its everyday life. The social life of automotive software and
copyright can be best understood in conversation with the people who interact directly with that
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technology, a population I term car porters, which includes hobbyists and hackers, tuners and
mechanics, performance racers and the aftermarket parts industry that serves them, to name a
few. By exploring the everyday life of automotive software in the face of legal challenges to its
accessibility, I reveal that although car porters share in common a commitment to controlling
their cars, even in the face of legal or technological obstacles, there exists an ambivalence among
these individuals (and sometimes even within the individuals themselves) as to the proper role of
intellectual property in everyday life. Property, specifically private property, is an almost
universal logic for the porters I met, many of whom acceded to or embraced larger corporations’
control over software. At the same time, many car porters also held various commitments to the
free flow of information, from google searches of technical diagrams to copied and modified
source code.
Ultimately, what I discovered was how US intellectual property law obligates that debates
over ownership be made through the lens of economic considerations, an approach which
perpetuates a neoliberal conception ownership that is fundamentally based on the individual right
to engage in market transactions. This framing does not necessarily mean that corporate interests
always win—after all, the auto industry failed in their attempt to block the 2015 exemptions. But
even as they lose parts of the conceptual battle, corporate interests are still capable of winning
the logistical ones. The 2015 exemption was granted, but only with the stringent limitations I
mention in chapter 1.
Further, the case of repair offered a unique wedge into the legal conception of property. Cars
are particularly iconic images of American culture – some have called them the ultimate symbols
of liberal freedom (Gartman, 2004; Vinsel, 2011) – and as possibly the most popular mechanical
object of the 20
th
century, have been the primary driver of an imagined life of repair, of the
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position of the auto-mechanic, of the autonomy of changing one’s own tire on a cross country
roadtrip. This unique quality of the relationship between car culture and repair is important, at
least in part, because the DMCA exemption process is driven by specific and limited classes of
exemptions. The process assumes that copyright is valid and present by default. And so as other
technologies meet the same set of legal challenges, it remains to be seen whether other legal
advocates will be able to import the same aura of repair-as-ownership that cars brought to the
table.
Moving forward
One of the perils any fieldwork-based project faces is convenience sampling. Often
researchers rely on previous informants to refer them to future ones, meaning that their
experience of a community may be limited to a specific social segment of the whole community.
My entree into this community came via the digital rights activists who had publicly campaigned
for the exemption for automotive software during the 2015 proceedings; as it so happened,
nearly all of these individuals were white men. By relying on snowball sampling from there -
those activists referred me to their friends, who referred me to their friends, and so on - most of
my informant pool also turned out white and male, a circumstance I note in this dissertation but
was not able to analyze sufficiently. In future work I intend to dig into the raced and gendered
aspects of these spaces and practices by applying what Duneier (2011) calls “inconvenience
sampling”—seeking out parts of the community in question who might provide competing
interpretations of the phenomenon the researcher seeks to understand. One way to do this would
be to narrow my focus to car porting practices in specific geographic areas, to understand how
local culture influences interactions with car software. For example, there is a thriving subculture
of modifying import cars among Asian-American youths in Los Angeles, one in which the forms
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of customization an individual undertakes are seen as closely tied to their identity as Asian, and
usually as male (Kwon, 2004). To what degree do the ethnic, racial, and gendered elements of
this subculture shape their approach to manipulating the software on their cars, and, even more,
their conceptualizations of their ownership of that software?
Future work will also explore the online forums mentioned in chapter 3 in greater depth. A
challenge will be determining which of these forums to focus on, as there are a wide variety of
sites that focus on car culture broadly writ, as well as a nearly endless list of sites that are make-
or model-specific. Including an analysis of these online communities might help establish a
stronger bridge between the themes found in the comments submitted by individuals during the
DMCA proceedings through the online portal (chapter 2) and those found in in-person
communities of car porters (chapter 3). It would also shed more light on how networked
communication technologies have opened opportunities for car porters to share their work and
collaborate on projects in new way. Finally, I would be curious to see to what degree other social
movements premised on access to information appear on these spaces. For example, do
participants on these forums ever discuss the fight for net neutrality, which could affect their
ability to run these discussion sites at all? Is there any concern within these groups about other
sections of the DMCA, in particular Section 512, which allows copyright holders to request the
removal of online user-generated content they suspect includes copyright-infringing material?
Theoretical implications
What the legal system has been trying to do is treat car software as a technology that neatly
falls into a single category - software - so that the legal system can more easily recognize, and
thus regulate, it. By declaring this technology as purely software, the legal system asserts its
authority to treat it like any other kind of intellectual property. In the United States, the current
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intellectual property rights regime is strongly influenced by economic considerations; thus,
treating something as a form of intellectual property essentially means that the courts can
continue to apply a purely economic framing to the question of who owns it and what that
ownership means. However, this approach has struggled, if not outright failed, for a number of
reasons.
First, as many scholars have noted over the decades, is that the application of intellectual
property law to software as a general category has been contested since the very beginning. Years
before CONTU tendered their recommendation to include software in the 1976 update to the US
Copyright Act, then-Harvard Law professor Stephen Breyer (who became a Supreme Court
Justice in 1994) wrote “The Uneasy Case for Copyright: A study of copyright in books,
photocopies, and computer programs” (1970), wherein he expressed deep skepticism of the
appropriateness of copyright as a mechanism to protect software. Writing just a few years after
the 1976 Copyright Act, intellectual property scholar Pamela Samuelson (1984) argued that
CONTU had critically misunderstood both the technical function of machine-readable computer
code and some fundamental aspects of copyright tradition when it made its recommendations,
and that it would be more effective to develop a new form of intellectual property law
specifically for computer code than to try to bend copyright to fit:
After all, copyright as a form of legal protection for writings was created to deal with the consequences of
the invention of the printing press, which made it possible, for the first time, to make multiple copies of a
writing in a relatively short period of time. Similarly, patent law was responsive to the technological
necessities of the Industrial Revolution. Given that the computer and its programs may have propelled us
into a Post-Industrial or Information Revolution, it is time to think about what kind of intellectual property
computer programs are, and to design a form of legal protection appropriate to their characteristics. (1984,
p. 671)
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In a later article, Samuelson (2010) writes that while Breyer was right to be skeptical of this
decision given the state of the software industry in the 1970s, in the years to follow, the growth
of that industry seemed to justify it. However, she continues, recent technological developments
are calling this decision back into question, including the increasing ubiquity of software-
embedded consumer products and the now widespread use of TPMs to regulate the use of such
products.
Second, digital rights advocates and right to repair activists have also been pointing out that
intellectual property law is wildly mis-applied in this specific case, because the application of
intellectual property law to automotive software ignores the way that this technology actually
functions. The car cannot work without the software, the software is pointless without the car—
they are functionally inextricable. The kind of software that the courts and the legislature had in
mind when drafting copyright law was largely software that runs on personal computers. In the
context of personal computers, software is much more varied and up to consumer choice:
consumers can run multiple different kinds of programs on the same machine. Cars, on the other
hand, are much more limited, for the most part only running the software supplied by the
manufacturer. Consumers might tweak that software, but only the most ambitious and skilled
programmers go so far as to replace it completely. As such, any attempts to regulate the software
without acknowledging the technological context of the cars within which that software runs are
fundamentally flawed.
Through investigating my initial research question, this dissertation contributes a new angle
for consideration: that the application of intellectual property law to automotive software ignores
the social reality of the technology. Building off the arguments from activists that the
technological context of automotive software must be taken into account, I argue that, further,
110
the social and cultural contexts of the communities of use around automotive software are critical
to writing and enforcing equitable intellectual property laws. For many, cars and car software
represent a vanguard of technologies that will introduce new complications to the current regime
of copyright and intellectual property. The centrality of cars to so many facets of American life
give them a cultural weight which just might be capable of counterbalancing the decades of legal
inertia gathered by the DMCA.
However, over the course of this project, I also revealed how contemporary neoliberalism
intersects with ubiquitous computing technologies. Current trends in consumer technologies are
slowly turning all consumer interactions with technology into an interaction with software: the
world is slowly becoming electronic. There is a unique connection between neoliberalism as an
ideological tradition and this drive toward ubiquitous computing. Without studying communities
of practice, we may miss how they connect and reinforce each other. In the case of car culture,
we see a confluence of circumstances that maintain this status quo, while at the same time
containing the possibility of resisting it. On the one hand, car porters have grudgingly accepted
the legal grey space that the tolerable tyrants of industry have forced them to inhabit: a system
where formally approved options are limited, but where the auto manufacturers turn a blind eye
to workarounds. It is a culture that prizes individuality and freedom, but views both concepts as
fundamentally intertwined: you are free because you can assert your individuality. On the other
hand, this is a culture premised on the sharing of information, collaboration and mutual
assistance.
Policy implications
The end result of the 2015 DMCA anticircumvention proceedings was a mixed bag. Overall,
the Copyright Office declared that the rightful owners of a copy of automotive software were
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allowed to circumvent the TPMs on that software for the purposes of repairing or modifying their
vehicles. However, the exemption came with two notable restrictions. First, those repairs and
modifications could not be undertaken by a third party on behalf of the rightful owner, meaning
that you could not legally hire a repairperson to do this work for you in case you are not yourself
technically proficient enough to do it yourself. Second, it remained illegal to develop, sell, or
otherwise disseminate tools that would help people circumvent TPMs in order to make repairs or
modifications. In the following cycle of these triennial proceedings, in 2018, advocates pushed
for the exemption to be broadened to allow for repair shops and tool development. The result was
that the Copyright Office partially acquiesced: rightful owners could hire a third party to do the
work for them, but the creation of tools to assist with this is still prohibited.
My research for the legal analysis chapters of this dissertation began in 2016, one year after
the 2015 triennial DMCA anticircumvention exemption proceedings. The fieldwork for the
ethnographic chapters was conducted over the course of a year from 2017 to 2018, ending just
months before the exemptions for the 2018 cycle of these proceedings were announced. For the
2018 proceedings, the Copyright Office offered applicants a streamlined process to re-apply for
exemptions that had been granted in the previous proceeding, in hopes of cutting down the
workload for both applicants and the Copyright Office.
28
The new streamlined process simply
required that proponents of a 2015 exemption submit a short paragraph explaining why the loss
of the exemption would impact users’ ability to make non-infringing uses of the copyrighted
works in question, and attesting that there has been “not material change in the facts, law, or
other circumstances set forth in the prior rulemaking period” (US Copyright Office, n.d.). The

28
See Chapter 1 for a brief discussion of how burdensome the exemption application
process has been traditionally.
112
Copyright Office received five petitions requesting a renewal of Class 21, which it passed with
minimal comments.
If advocates wanted to tweak the exemption, however, they would need to submit a new
petition that would undergo the same processes as in previous years. Four separate petitions were
filed requesting exemptions similar to the 2015 Class 21 exemption, but with some significant
expansions, which the Copyright Office organized into four categories:
1) Removing the current limitation prohibiting circumvention of TPMs to access computer programs primarily
designed for the control of vehicle telematics and entertainment systems;
2) expanding the exemption to apply to other types of software-enabled devices, including appliances,
computers, toys, and other Internet of Things devices;
3) extending the exemption to allow circumvention by third-party service providers, and in particular,
independent vehicle repair shops, for purposes of diagnosis, repair, and lawful modification; and
4) allowing the acquisition, use, and dissemination of circumvention tools in furtherance of diagnosis, repair,
and modification. (US Copyright Office, 2018, p. 54021)
In the end, the Copyright Office only passed some of the requested expansions. In Class 7(1) - an
expansion of the renewed exemption of Class 21, addressing motorized land vehicles - it
removed the language in the 2015 exemption that had specifically excluded telematics and
entertainment systems, and inserted new language that allows third parties (i.e., repair shops) to
do repairs or modifications on behalf of the owner (addressing categories 1 and 3). The
Copyright Office also approved a new exemption, Class 7(2), which applies to “Computer
programs that are contained in and control the functioning of a lawfully acquired smartphone or
home appliance or home system, such as a refrigerator, thermostat, HVAC or electrical system”
(US Copyright Office, 2018, p. 54023), which addressed categories 2 and 3.
The careful list of applicable devices the Copyright Office included in of Class 7(2) struck
many advocates as missing the point. What activists had been agitating for was a new exemption
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broad enough to encompass the myriad new devices that now come software-enabled; the
Copyright Office’s new rule is limited, very particularly, to smartphones, home appliances, and
home systems. It is unclear to what extent these categories apply to consumer devices like smart
toothbrushes, coffeemakers, fitness devices, and so on.
What’s more, the Copyright Office declined to address the concerns put forward in category
4 - the ability to develop, manufacture, sell, share, or buy tools that would assist in
circumvention. The law still prohibits “trafficking” in (that is, manufacturing and disseminating)
products and services designed for the purpose of circumvention. In theory this means that all
people doing repairs must come up with the tools on their own - they can’t buy them from other
people because those other people would be liable for copyright infringement. Unfortunately, this
is not something that can be solved via the exemption process of the DMCA, as the exemption
process does not give the Copyright Office the power to exempt these practices. Rewriting or
repealing that part of the DMCA would be the only way to open the path for this kind of tooling.
Impending automotive technologies show that the freedom to develop such tools will be
crucial for car owners’ control over their vehicles. Already, insurance companies have begun to
develop dongles that consumers can plug into their cars that allow the companies to track their
driving behaviors, ostensibly to reward safe drivers. However, security researchers have been
sounding the alarm on these devices, as they present serious security vulnerabilities (Brewster,
2015). As the DMCA is currently written, programmers who might be interested in creating
products to protect against these vulnerabilities might be chilled from doing so, as they would
need to circumvent TPMs in order to develop these products. Additionally, some car companies
have begun considering hard-coding access control measures into the chips themselves as a way
of thwarting would-be circumventers. My security-minded interlocutors pointed out that taking
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the step to hard-code these measures is somewhat extreme, as once the chips are hard-coded,
there is little anyone can do to change the programming on them, thus severely hampering, if not
completely prohibiting, software rewrites and reflashing. This is a problem not just for DIY
repairers and car modders, but for vehicle resale in general, as this means you cannot change the
security protocols in a car if you sell it to someone else.
These problems will become exacerbated even more as cars become increasingly connected
to the network. By some predictions, there will be 250 million connected cars on the road by
2020 (“Gartner Says By 2020, a Quarter Billion Connected Vehicles Will Enable New In-
Vehicle Services and Automated Driving Capabilities,” 2015). Many of these connected car
systems communicate engine information - such as oil levels and brake pad status - directly from
the car to the OEM. OEMs then use this data to push messages to the car’s owner alerting them
to maintenance services their cars need; many also then offer to book an appointment at the
nearest dealership. As OEMs use these networks to gather more and more data from cars on the
road, there are some concerns that that data - which travels via a different network than the one
that communicates with the OBD-II port - will only be available to OEMs and their dealerships,
leaving independent repair shops and DIY hobbyists at a significant disadvantage (Kessler,
2017).
Consumer vehicles are also unlikely to be the only part of the consumer electronics industry
that will have to face these questions. While this dissertation focuses very specifically on
automotive software, the activists who spearheaded the 2015 DMCA anticircumvention
exemption campaign readily admitted that they saw automotive software as the vanguard in the
larger battle to come over software-embedded consumer electronics.
115
This dissertation reveals the ambivalent attitudes toward the intellectual property rights
regime that exists among everyday users of a specific software-embedded consumer technology:
the car. I argue that while a libertarian approach to ownership remains prevalent within cultures
of car repair and modification - particularly within communities that see car software as a part of
their livelihood - there are other ideological threads within this broader culture that suggest
alternative approaches. These approaches, combined with a critical attention to the politics of
automotive software (and other embedded technologies), could be used to develop more
equitable regulations.
One compelling alternative is the argument that software is not just a product, but a
knowledge object that must be conserved, made available, and passed on. In his book, Piracy,
Adrian Johns (2011) describes how jazz and opera enthusiasts argued that their piracy was
morally allowable because record companies were sitting on recordings that were culturally
important but not deemed profitable enough to press. These pirates declared that record
companies were “betraying a public trust” and neglecting their “custodial responsibility” (Johns,
2011, p. 439). Perhaps it’s time to reframe the battle over car software in terms of the automotive
industry’s obligations to the public; indeed, this is an argument that has already been put forward
by librarians and archivists (Doctorow, Walsh, Wiens, Miranda, & Zieminski, 2018).
Indigenous scholars and activists have put forward another powerful possibility. They note
that global intellectual property rights regimes were developed at a time where indigenous
knowledge was devalued; as a result, many types of local knowledge (including, for example,
folklore) were not protected within these regimes (Arewa, 2006, p. 162). While these arguments
generally refer to knowledge within indigenous communities, such as crafts and designs,
agriculture, and music (Nwokeabia, 2001), the repair and modification of cars is also a kind of
116
local knowledge. What happens if the arguments for protecting typically overlooked forms of
knowledge are applied to the local uses and reuses of software?
There is no doubt that American consumer culture is careening deeper and deeper into the
digital age. As such, it is incumbent on us as researchers to dive deeper as well, to explore the
cultural and legal implications of these new technologies on the ground, if we want to have any
hope of influencing more effective and more equitable policies for regulating these technologies
moving forward.

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Appendix A: Unstructured interviews
Participant Location Date
Kit Walsh, EFF San Francisco, CA 29 June 2017
“Jason” Glendale, CA 28 July 2017
“Brad” Glendale, CA 5 August 2017
Craig Smith, OpenGarages Phone interview 9 August 2017
“James” Phone interview 11 August 2017
Kyle Wiens & Julia Bluff, iFixit San Luis Obispo, CA 15 August 2017
“James” Phone interview 24 August 2017
“Jeff” Malibu, CA 27 August 2017
Craig Smith, OpenGarages Phone interview 5 September 2017
Craig Smith, OpenGarages Seattle, WA 7 October 2017
“John” Seattle, WA 4 November 2017
“Terry” Phone interview 16 November 2017
“Stan” Phone interview 3 December 2017
“Terry” Seattle, WA 3 December 2017
“Eric” Seattle, WA 4 December 2017
“Stewart” Seattle, WA 5 December 2017
“John” and “Clementine” Seattle, WA 5 December 2017
“James” Indianapolis, IN 7 December 2017
“Leo” Indianapolis, IN 7 December 2017
“James” Cincinatti, OH 5 April 2018
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“Alex” Los Angeles, CA 6 August 2018
“Drew” Las Vegas, NV 11 August 2018

119
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Asset Metadata

Creator Forelle, Michelle C. (author)

Core Title Driving change: copyright, car modding, and the right to repair in the digital age

School Annenberg School for Communication

Degree Doctor of Philosophy

Degree Program Communication

Publication Date 11/21/2019

Defense Date 11/21/2019

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag automobiles,automotive technology,cars,copyright,Digital Millennium Copyright Act,intellectual property,OAI-PMH Harvest,repair,repair studies

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Castells, Manuel (committee chair), Dunbar-Hester, Christina (committee member), Sinnreich, Aram (committee member)

Creator Email forelle@usc.edu,mcforelle@gmail.com

Permanent Link (DOI) https://doi.org/10.25549/usctheses-c89-238196

Unique identifier UC11673986

Identifier etd-ForelleMic-7948.pdf (filename),usctheses-c89-238196 (legacy record id)

Legacy Identifier etd-ForelleMic-7948.pdf

Dmrecord 238196

Document Type Dissertation

Rights Forelle, Michelle C.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Access Conditions The author retains rights to his/her dissertation, thesis or other graduate work according to U.S. copyright law. Electronic access is being provided by the USC Libraries in agreement with the a...

Repository Name University of Southern California Digital Library

Repository Location USC Digital Library, University of Southern California, University Park Campus MC 2810, 3434 South Grand Avenue, 2nd Floor, Los Angeles, California 90089-2810, USA