ECU Flash rev limiter etc

[1973cb750]

I was saying grey due to forum rules not any other law or regulations, honda america has sent me a letter i can’t disclose here but i believe theirs not much they can legally do here besides notify the epa and epa laws are changing

[Whoops]

honda america has sent me a letter i can’t disclose here

Out of curiosity, why not? Did you sign an agreement with them? Otherwise, I can't think of any reason why you would be restricted from disclosing what they would have sent you in an unsolicited communication.

[1973cb750]

honda america has sent me a letter i can’t disclose here

Out of curiosity, why not? Did you sign an agreement with them? Otherwise, I can't think of any reason why you would be restricted from disclosing what they would have sent you in an unsolicited communication.

saying i was infringing on software they owned i had a buddy read it and theirs not much they can do

[Whoops]

honda america has sent me a letter i can’t disclose here

Out of curiosity, why not? Did you sign an agreement with them? Otherwise, I can't think of any reason why you would be restricted from disclosing what they would have sent you in an unsolicited communication.

saying i was infringing on software they owned i had a buddy read it and theirs not much they can do

Sounds like they were just sending out a bully notice. Yep, ignore.

[rdprdp01]

I have followed this Thread closely. Please allow me to contribute:

The legality of ECU flashing is quite clear in the United States: it is up to local municipality or state governments to set standards that govern environmental matters and enforce them. It is permissible in most states to flash an ECU provided that the “flashed” motorcycle can pass whatever emission standards that have been set for that State.  Some States test yearly while others do not.

In the EU, altering a motorcycle's emissions in any way makes it illegal for road use.

A Google search can easily answer the questions about any other country or municipality that interests you.

To answer the question about is it okay discuss ECU flashing on this Forum, please see the Forum’s Code of Conduct Section. The standards are clear and well articulated. In my assessment, most of this Thread meets those standards, which is why it has not been deleted.  Also, I have tremendous respect for every Member which has created a Post on this Thread. Tremendous respect. And I believe I have had a private exchange with each of you which I found rewarding. I am advocate for Free Speech on this Forum provided that it falls within the published guidelines.

As I have shared before,  I see myself as a caretaker or steward of this Forum. I focus my time and resources on keeping the platform stable, secure, and capable of providing an online presence where owners of CB1100 motorcycles can exchange ideals, share experiences, and hopefully develop personal relationships.

I became concerned when the subject of this Thread shifted from ECU flashing to an open discussion of Copyright Law and criticism of Honda America’s handling of what they perceive to be an infringement of the their intellectual property. My concerns are threefold:

1. I alone bear the legal responsibility of anything that happens on this Forum. If a cease-and-desist letter is issued, it will have my name on it. If a lawsuit is filed claiming defamation or a government agency opts to pursue legal remedies to stop an illegal activity, I will be served.

2. I own a business and also am an owner of proprietary software. I rely on and respect intellectual property laws. I also hold a Security Clearance which is required for my business to operate. If I lose that clearance, four generations in my family will suffer. My Security Clearance is placed at risk if anything I do, or anything I am associated with, is called into question.

3. I do not want to be a “Big Borther” that requires all Forum Members’ content to agree with my views of what is appropriate. The vast majority of the content on this Forum I embrace. There are some instances which I find questionable. But that is the nature of all communities and I believe content and opinion diversity are what make things vibrant. I have no inclination whatsoever to change my views or require anyone to mirror my perspective.

Truth be told, I am not as interesting or insightful as most of you!

If you feel so inclined, that is what I ask you to do:

1. You can discuss ECU flashing on this Forum as long as it complies with the Code of Conduct which governs both content and behavior.

2. I would strongly prefer that we avoid intellectual property discussions or those involving legal matters.

3. If anyone wants to promote a product or service, do so in the section of the Forum dedicated to those offers and take full accountability for the potential consquences of any product or service rendered.


I have left the Thread unaltered. However, Cormanus has the final say on editorial matters.

Please consider my input as we explore other topics. There is enough common ground and great stuff to explore. I would hope we could avoid any topics that places this Forum, or me, in the crosshairs. Enjoy your weekend. David

[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.

[Randy B]

The legality of ECU flashing is quite clear in the United States: it is up to local municipality or state governments to set standards that govern environmental matters and enforce them. It is permissible in most states to flash an ECU provided that the “flashed” motorcycle can pass whatever emission standards that have been set for that State.  Some States test yearly while others do not.

I'm not so sure that this is the case anymore. With the passage of HR1 (the one big beautiful bill), it removes individual states authority to regulate emissions by setting their own standards.
Basically C.A.R.B. has been neutered. The EPA is charged with enforcing the clean air act, but I'm unsure how this is going to play out moving forward.
Lee Zeldin has stated and testified that he will be making changes to, or eliminating completely, many existing regulations. As of right now, we don't know what his specific plans are. All we can do at this point is sit back and play "wait and see".

[rdprdp01]

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.

I ended up getting bruised and battered today.  Before I turn to ice cream to help me heal and recover, let me share the last post I will make on this Thread to properly document how I feel and what I think. I will leave it to everyone tracking this Thread to determine what value, if any, can be gleamed from my words:

Here is what I believe to be true:

• If a Member of the Forum wants to flash an ECU, it can be done easily.
  
• In the United States, ECU Flashing services are provided by motorcycle shops and custom tuners. They openly advertise those services.
  
• Honda America is worthy of respect. I admire the work they do and the impact that work has had on motorcycling in general and my life in particular.
  
• Although the EPA and other Federal Agencies set guidelines, policies, and laws, States actually regulate motorcycles through State Registration, and in some States, actual Motorcycle Inspections. There is not a national registry of motorcycles. Each State sets its own policies and enforcement measures. The two states were I have a presence could not be more different. In Texas, your motorcycle must pass a state inspection that includes an online title review; proof of insurance; and a physical inspection of tires, brakes, smog, lights, and a road-worthy assessment prior to receiving a registration tag. In California, all you need is a title, proof of insurance, and a credit card. Ironically, the cost to register a CB1100 in California is three times as much as it costs in Texas.
  
• Cormanus has provided good counsel and you should give it serious consideration.
  

Regarding the legality of it all, many people point to the Digital Millennium Copyright Act (DMCA) as a justification for why a Motorcycle owner can disable or modify an ECU. I am not a lawyer, but I have helped write many patent applications and have some research skills. See what me and a few google searches pulled together this evening:

~~~~~~~

Whether disabling or modifying a vehicle's ECU (Engine Control Unit) is a copyright violation is a complex issue. Here's a breakdown of the key considerations:

1. The Digital Millennium Copyright Act (DMCA) and ECUs:
The DMCA generally prohibits circumventing technological measures (like encryption or access controls) that protect copyrighted works. Vehicle ECU software is considered a copyrighted work.

2. DMCA Exemption for Vehicle Owners:
In 2015, the Copyright Office granted an exemption to the DMCA that allows vehicle owners to modify, diagnose, and repair their factory ECUs.This exemption permits owners to bypass technological control measures for these purposes.

3. Limitations and Considerations:
Third-party modifications: The exemption primarily applies to actions taken by the vehicle owner, not necessarily by third parties. Other laws:

This exemption does not authorize actions that violate other laws, such as regulations from the Department of Transportation or the Environmental Protection Agency (e.g., emissions circumvention).

Safety and environmental concerns: The exemption was initially delayed and has some limitations due to concerns about safety and environmental impact.

Entertainment and telematics systems: The exemption specifically excludes circumvention of vehicle entertainment and telematics systems.

In essence, while the Copyright Office has taken steps to protect vehicle owners' right to tinker with their ECUs.

it's crucial to understand the limitations and potential legal ramifications, including the violation of other regulations and restrictions on third-party access.

~~~~~~~

I believe we have clearly established that ECU Flashing is an acceptable Forum topic.

And I hope my personal opinions are now known, although I do not give them much importance. Now, it is time for ice cream.

[Cormanus]

Ice cream sounds good to me.

[Beardo]

all i can say is my flashed ecm is awesome. that + the power commander was worth it.

The same. It turned, for me, a very frustrating motorcycle to ride, into what should have been released as stock.