IP vs. Auto Safety
posted by Frank Pasquale
Two items of note on this topic recently. First, the NYT reports on NHTSA’s lazy approach to IP overreach by automakers:
For years, the National Highway Traffic Safety Administration has declined to post on its Web site reports from automakers about problems with their cars and about specialized warranty extensions that could save consumers large sums on repairs. . . . The technical service bulletins . . . provide information on unusual problems with vehicles . . . . Special service campaigns are a form of technical service bulletin that often tell dealers of warranty extensions for particular repairs. “Many manufacturers have asserted that technical service bulletin information is copyrighted and will not waive those copyrights,” [said] an agency spokeswoman . . . . “N.H.T.S.A. has a legal obligation to abide by copyright law.”
NHTSA could easily excerpt the gist of bulletins as fair use. Or it could communicate facts in them without using any of the actual language or diagrams they contain. Anyone who has taken a week of copyright knows about the idea/expression or fact/expression dichotomy. But copyfraud obfuscates this obvious workaround.
Second, ongoing legal battles over Toyota’s sudden acceleration incidents may lead to “security measures typically reserved for classified government secrets:”
The fight centers on access to Toyota’s source code, the software that controls sophisticated engine management and other electronics in its vehicles. Plaintiffs’ attorneys believe the code might contain evidence that could bolster their cases. The Japanese auto maker has been fighting to restrict access to the software, saying it needs to protect what it calls the “crown jewel” of its global enterprise.
Toyota said the attorneys should only be allowed to view parts of the code in a highly secure room, the likes of which is used by members of Congress or in trials against terrorists and spies for viewing classified information.
As I note in the piece, this kind of “qualified transparency” will become more and more common in tech disputes. Debates about “channeling” innovation protection (to patent or trade secret law) will increasingly need to take into account how patent law’s disclosure function could help more people understand potentially dangerous products.
April 3, 2011 at 1:38 pm
Posted in: Administrative Law, Consumer Protection Law, Intellectual Property, Privacy (National Security), Technology
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Responses (2)
Bruce Boyden - April 3, 2011 at 4:11 pm
From further on in the NHTSA story, it seems that only a few automakers have actually objected: “But several leading automakers said that either they did not copyright their bulletins or that they would not object to publication by the agency. Those automakers are BMW, Chrysler, General Motors, Honda, Hyundai, Nissan, Subaru and Volvo.” Toyota, Mercedes, and Ford are the ones that either refused to respond or stated various objections to the Times reporter.
A.J. Sutter - April 4, 2011 at 12:15 am
At the risk of seeming to have a knee-jerk tendency (or, as one observer has conjectured, a reaction located somewhere above the knee) to defend Japan against foreign attack, I’ll venture to say that the Toyota proposal may have some justification in its specific context. For one thing, the acceleration issue was fanned-up when the US government owned Toyota’s main competitor; and subsequently, US government researchers cleared the company’s software of being a problem. So there’s plausibly a fishing-expedition quality to these private lawsuits. For another, public disclosure of source code is rarely enlightening to ordinary people.
More generally, you may be overestimating the public disclosure value of patents. Most companies disclose as little as possible, and keep the real “tricks” needed to develop the patented item into a commercial product as trade secrets.
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