ECU Flash rev limiter etc

[Cormanus]

Warnings: (1) this is a long post; and (2) I have no legal qualification.

rdprdp01, I apologise if I'm being pedantic; but, having spent some time on the material so usefully provided by Whoops, it does not seem to me not quite as clear as you suggest that ECU flashing is legal in the USA subject only to laws of states and municipalities. The Feds have a big part to play. What appears to me to be the case is that:

1. an ECU contains software that is governed by US federal copyright law;
   
2. the copyright law makes it illegal to modify an ECU except to the extent of any exemption;
   
3. such an exemption is contained in Section 201.40 paragraph (b) of the relevant federal legislation which is modified from time to time by a ruling issued by the Librarian of Congress;
   
4. the exemption as currently stated makes it legal to circumvent copyright law, "... when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle or vessel function ..." and illegal then to modify an ECU in such a way as would put the vehicle in breach of and federal, state or municipal law. 
   

Copyright law the world over is hellishly complicated, so tread with care.

Those not interested in detail, read no further.

The latest statement of the exemptions to copyright law governing ECUs can be found in paragraphs (13) and (14) on page 85448 of the Federal Register / Vol. 89, No. 208 of October 28, 2024 (thanks Whoops) and are as follows:

(13) Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle or marine vessel such as a personal automobile or boat, commercial vehicle or vessel, or mechanized agricultural vehicle or vessel, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle or vessel function, where such circumvention is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. Eligibility for this exemption is not a safe harbor from, or defense to, liability under other applicable laws, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency.

(14) Computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle or marine vessel such as a personal automobile or boat, commercial vehicle or vessel, or mechanized agricultural vehicle or vessel, except for programs accessed through a separate subscription service, to allow vehicle or vessel owners and lessees, or those acting on their behalf, to access, store, and share operational data, including diagnostic and telematics data, where such circumvention is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. Eligibility for this exemption is not a safe harbor from, or defense to, liability under other applicable laws, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency.

The Federal Register is extremely helpful in setting out a discussion of the reasons the Librarian of Congress made the relevant amendment. The 2015 determination was clear that accessing ECUs was limited to 'lawful owners' and any third party access, other than that authorised by the copyright owner, was illegal. That changed, but it's worth pondering the following from the reasons published on p.54022 of the 2018 determination:

Regarding motor vehicles, the recommended exemption removes the requirement that circumvention be ‘‘undertaken by the authorized owner’’ of the vehicle, instead providing that it apply where such items are ‘‘lawfully acquired.’’ This change responds to proponents’ concerns that the language of the existing exemption improperly excludes other users with a legitimate interest in engaging in noninfringing diagnosis, repair, or modification activities. The Acting Register expressed no view on whether particular types of third-party assistance may or may not implicate the anti-trafficking provisions. Those provisions, found in section 1201(a)(2) and (b), are unchanged and must be separately analyzed to determine whether third-party assistance would be permissible.

The emphasis is mine.

I've seen nothing in later determinations that clarifies this, but it seems to me caution would suggest anyone providing third-party assistance in flashing ECUs do some due diligence about whether they will find themselves in breach of copyright law. I guess third party providers can take comfort from the fact that the current exemption appears to allow third-party assistance; but, if it were me offering such a service commercially, I'd want some advice.