Living in a state with mandatory annual vehicle inspections, these are obviously the solution. You can put non-compliant parts on your car, swap them out before inspection, find a dodgy shop that will let some things slide, etc. But for the most part it significantly raises the barrier to driving around with a derelict vehicle.
Emissions should be checked with a tailpipe sensor, as they used to do before they started to lazily rely on OBD2. Then digital restrictions on the emissions computers (etc) could then be narrowly scoped to reporting the last time the firmware was flashed. And if someone is still willing to swap that module out and back every year, then just let them. They could also just burn diesel in a 55 gallon drum in their back yard.
That does seem sensible yes, I'm also not particularly interested in preventing people from doing stupid things to their cars if they're that insistent on doing them, it just hurts everyone else.
I guess the problem is how to encourage manufacturers to ensure their emissions functions remain high quality. If the _only_ feedback is customers eventually getting failed inspections and thus higher repair bills eventually, which presumably then leads to them complaining about the cost of the cars maintenance, that's a pretty weak feedback loop compared to direct punishment for producing products that fail emissions checks.
The problem is that once you punish manufacturers more directly they start installing these braindead systems in self defense, after all, if nobody can drive their cars when they're broken then they can't be punished for failing emissions checks.
I guess you could just forbid them from blocking customers at the same time as you punish them, but that's a little unsatisfying.
Maybe just require a way to detect modification or emissions override, and anyone who does that pays the fine if they fail inspection, and for anyone else the manufacturer pays. They'd presumably be begging people to install modifications so they can hand off any fines...
> Maybe just require a way to detect modification or emissions override, and anyone who does that pays the fine if they fail inspection, and for anyone else the manufacturer pays. They'd presumably be begging people to install modifications so they can hand off any fines...
For passenger vehicles (including diesel pickup trucks but not diesel semi tractors), after you buy it, if you make modifications to it, you the owner are now responsible for it. Also note that the diesel pickup truck is classified as a passenger vehicle rather than a commercial vehicle and so needs to meet the standards of a passenger vehicle.
However... where it gets interesting is when you switch to commercial and industrial equipment. In these cases, the manufacture is always responsible unless they go out of their way to lock it down.
For example, if you made a farm tractor and could adjust the software to change the fuel air mixture to optimize it for certain altitudes (farming at 5000 feet has different tuning than farming at sea level) then if it was possible for the person using it to change that... you, the manufacture are still responsible for any things with emissions. For industrial equipment, you need to lock it down to the point where the person doing it is knowingly violating warranties and regulations.
... And then you've got John Deere with its DRM on the firmware to make sure that farmers don't modify them to go racing ( https://youtu.be/hK-WO9SzVcs ) and get the company in trouble (and the EPA is less of an issue than someone modifying the settings for a combine and getting killed).
> Products claims over defective industrial machines are subject to many of the common defenses in products cases, including comparative fault of the user or a third party (CACI No. 1207A and 1207B), misuse or modification (CACI No. 1245), and more.
> These claims may also become a target for the sophisticated user defense, in which a Defendant accused of failing to warn argues they are not liable because the Plaintiff is a sophisticated user who, because of their position, training, experience, knowledge, and / or skill, knew or should have known about a product’s risk of harm (CACI No. 1244).
> Overcoming such a defense requires assessment of what a user knew or should have known at the time of an accident. More importantly, Plaintiffs’ attorneys should anticipate such a defense when bringing a products liability claim over a Defendant’s failure to warn, and explore other alternatives for proving defects based on defective design or manufacturing, if supported by the facts, and especially if a Plaintiff may qualify as a sophisticated user.
> 1. The [product] was [misused/ [or] modified] after it left [name of defendant]’s possession; and
> 2. The [misuse/ [or] modification] was so highly extraordinary that it was not reasonably foreseeable to [name of defendant], and therefore should be considered as the sole cause of [name of plaintiff]’s harm.
Can one claim that changing the fuel settings on a tractor is extraordinary that it can't be reasonably foreseen? If not, then John Deere is still responsible unless they take every possible action to prevent it from happening.
I was curious about the legal justification for your claim, so I read your main source (biren.com). It seems like you're taking what is a possible defense against a product liability claim (CACI 1245), and pulling it out of context. But rather, for that to even apply, there still has to be a fundamental design defect in the product.
So if there is a safety interlock controlled by software, which the end user then disables by replacing the software, and then someone gets hurt - even though the manufacturer could have reasonably foreseen the modification, the manufacturer still isn't liable because their (removed) safety interlock code wasn't defective in the first place.
But regardless of the current state of the law, a new law that prohibited companies from prohibiting modifications to software on devices they sell would obviously affect that. The thing your citing is California jury instructions, that are presumably a distillation of case law. So rather than even needing to be amended by a legislature, they would be implicitly adjusted with the passage of a right to repair law.
Emissions should be checked with a tailpipe sensor, as they used to do before they started to lazily rely on OBD2. Then digital restrictions on the emissions computers (etc) could then be narrowly scoped to reporting the last time the firmware was flashed. And if someone is still willing to swap that module out and back every year, then just let them. They could also just burn diesel in a 55 gallon drum in their back yard.