The car of the future will be autonomous, connected and full of innovative information technology features. We may drive it or let it drive us. We know it will be a computer network on wheels. However, we do not know how open the car of the future will be. Will it be like a desktop PC upon which we can select either Windows or Linux and choose a video card that meets our specific needs, or as closed as a DVD player with region control? In our Article, we examine facts and arguments regarding how open the car can, should and may be, as a matter of technology, economics, public policy, and law. To make our points, we will a tale of two cars: it may be open, it may be closed. It may be the best of cars, it may be the worst of cars. We do not aim for an exact prediction regarding the degree of openness for future cars. Rather, we intend to open a public discussion and assist companies in strategic planning by highlighting the economic and policy interests as well as legal rules regarding the opening or closing of automotive designs. Current law is not holding the open car back. Right–to–repair statutes and competition laws are providing tailwind. Intellectual property laws do not present any insurmountable obstacles to openness. Automotive product and safety rules have not (yet) dictated a path in either direction, open or closed. Onboard diagnostic ports—originally required in the interest of emission control by the California government—have become a gateway to openness and transparency. However, product liability concerns and the phantom menace of cybersecurity could establish road blocks if manufacturers of open cars are held responsible for risks created by third party software or parts. Automakers may be reluctant to open their products further—or may even decide to lock products down—if they are indiscriminately held responsible for cyberattacks and other harm created by open cars. Sector–specific legislation and regulation may be required if courts take a wrong turn in this respect. The law must play its role to help make the open car the best of cars, and this Article takes a crucial first step in that direction by offering guidance to policymakers, judges, and manufacturers.
Lothar Determann and Bruce Perens,
32 Berkeley Tech. L.J. 915