Volkswagen Followup, DMCA, and Two Cassandras

“’Intelligent public policy, as we all have learned since the early 20th century, is to require elevators to be inspectable, and to require manufacturers of elevators to build them so they can be inspected,’” said Dr. Eben Moglen of the Columbia University School of Law.

Yves at Naked Capitalism provided this NYT article in her Links and it is a good read detailing what is wrong with today’s policy. Big business has again exhibited its irrational exuberance with a “trust me” approach to secrecy while it rakes in $billions. The deliberate failure of Volkswagen to follow the nation’s, and for that matter the world’s, rule of law is another stunning example of business placing itself above the law. While “poisoning your customers may well land you in jail,”; we have yet to see the government take a hard stance with those such as Volkswagen and TBTF’s deliberate and planned fraud neither of which were mistakes. To some degree, GM’s ignition switch was deliberate malfeasance as management also failed to take action on a safety issue. The time for fines is long past as these business giants pay their fines and then go on to commit another crime in the name of “it’s just business.”

“Proprietary software is an unsafe building material,” Dr. Eben Moglen had said five years ago before this discovery of fraud. “You can’t inspect it.” The same as relying upon TBTF/investment firms and the peanut butter manufacturer to do their own policing, the EPA relied upon Volkswagen to do its own testing of its product. In each case, the market failed to police itself.

Again Dr Mogen; “’If Volkswagen knew that every customer who buys a vehicle would have a right to read the source code of all the software in the vehicle, they would never even consider the cheat, because the certainty of getting caught would terrify them.’” Except Congress by passing the DMCA and the agencies in place to monitor the activities of business have blocked the efforts of independent researchers and simple consumers.

Instead of years going by since the 1998 Digital Millennium Copyright Act was signed into law by President Clinton, independent researchers and even consumers could have uncovered the Volkswagen emissions cheat much sooner if they were allowed to “understand how the device or software works and whether it is trustworthy.” However, the law specifically states independent researchers must obtain the permission of the automaker or manufacturer before they can research the device and in this case they were blocked from doing so. Alarmingly, the EPA and government supports such a stance by the industry even with instances involving safety and security. The Toyota acceleration and the hacking into vehicles and stopping them come to mind. Volkswagen was aided by the EPA in its emission fraud.

Kit Walsh of the Electronics Frontier Foundation writes “the EPA wrote to the Copyright Office to oppose the exemptions we’re (EFF) seeking. In doing this, the EPA is asking the Copyright Office to leave copyright law in place as a barrier to a wide range of activities that are perfectly legal under environmental regulations: ecomodding that actually improves emissions and fuel economy, modification of vehicles for off-road racing, or activities that have nothing to do with pollution.” The EPA’s response was to the Librarian of Congress in an effort to block the Electronics Frontier Foundation efforts to conduct independent research.

Kit adds “we’ve now learned that, according to the Environmental Protection Agency, Volkswagen had already programmed an entire fleet of vehicles to conceal how much pollution they generated, resulting in a real, quantifiable impact on the environment and human health.” This is no longer an ~500,000 vehicles involved in the earlier recall, it has growth 20 fold to be millions of vehicles polluting.


“Researchers Could Have Uncovered Volkswagen’s Emissions Cheat If Not Hindered by the DMCA” Kit Walsh, Electronics Frontier Foundation; Sepember 21, 2015

Volkswagen’s Diesel Fraud Makes Critic of Secret Code a Prophet, Jim Dwyer, NYT

Naked Capitalism Links, Yves Smith, September 27, 2015