(May 11, 2017) As autonomous and driverless vehicles take to the roads, drivers, car manufactures, programmers, and insurance companies will face new legal challenges, said Richard C. Balough in a presentation at the 2017 Intellectual Property Litigation Seminar sponsored by DRI.
“Because today’s and tomorrow’s cars are computers that happen to move physically on the roadway, there are subject to performance failures by inadequate design, malware, or hacking,” Mr. Balough told the group of defense and in-house counsel.
The code used in vehicles is copyrighted. However, just like other software, the use and modification of the code is governed by end user license agreements and protected by anti-circumvention measures. Last year, the Copyright Office granted a limited exemption from the Digital Millennium Copyright Act to allow some access. As with all software, the new vehicles must address how updates and bug fixes will be handled and who is liable for failure to make the updates.
Mr. Balough also noted that autonomous and driverless vehicles will be collecting an unprecedented amount of personal data. What data is collected, how it is stored, and how it is used are issues to be resolved. Certainly, Mr. Balough noted, there must be sufficient notification and consent for the collection and use of the data.
As to liability, manufactures, software developers, and vendors will be exposed to claims concerning failure of software, failure to make critical updates, hacking, and failure to warn about known defects, especially those that pose an unreasonable risk to safety.