Who ownes the tune?

Class is in session.

Okay - things are getting very muddled here. Let's break this down.

<b>The Original Code</b>

What's in the EEC? Computer code. Who owns that? Intellectual property law says that it's owned by the author. So I think its fair to say that Ford owns it, having either hired the software developers as employees to write it, or contracting with an outsourcing entity to write it as a work for hire.

Ford may choose to 'perfect' their rights by filing a copyright for the code, or patenting the code as the 'first to invent' such code. More likely, they'll hold it as a trade secret internally. However, just because they haven't registered or filed doesn't diminish their ownership rights - it just makes them slightly harder to defend.

<b>Infringement</b>

So does that make any changes to the code an infringement of Ford's intellectual property rights? Maybe yes; maybe no.

The Digital Millennium Copyright Act (sec. 1201(f), et seq) specifically permits reverse engineering to achieve interoperability. This grew out of the <i>Sony v. Connectix </i> case, where Connectix created Playstation game cartridges without having access to the Playstation code, and was sued by Sony. The courts held that the Connectix game cartridge was a 'new product', and that the reverse engineering conducted was solely to figure out how to get their game cartridge to work in the player, and was permitted under the law. There's an Atari case that I can't find right now that also applies to Patent law.

So, were I arguing this case on behalf of, say, Superchips, I'd say I reverse engineered the code for compatibility of my 'new product' - the handheld tuner and those little flip-chip boards. This clearly is legal.

Now - if I was Ford, and had a couple of smart software developers in house, I'd recognize that reverse engineering isn't a perfect solution, and I'd recognize that Forded be better off by making sure Superchips (and others) had good code so they had the best resources possible to make new products (i.e. flip-chips) with, so that customers remained happy with their Ford product.

That's why I think there is such a free-flow of code between the two bodies of developers. Superchips gets 'known good code' and Ford gets feedback from what customers go to tuners for and what they want to see in new product. Win-win on both sides.

<b>So, where does that leave us?</b>

I think it's reasonable to conclude that Ford owns the core code in the EEC and (however it was derived) Superchips owns the code that modifies what Ford's code does. There are two distinct piles of software here.

<b>The Tuner</b>

The tuner receives a license to use the Superchips software, based on the Intellectual Property Rights (IPR) owned by Superchips. Remember that under Intellectual Property Law, all rights not granted in a license are reserved to the grantor (or owner) of the IPR.

So I would expect that Superchips tuner software license is licensed to a named user (like, say, Lidio) at a named place (Alternative Auto) for a certain type of use (tuning and modifying Ford computer code) and to leave a copy of the modified computer code in the customer's car.

I also expect the license says that Lidio can only tune for a customer that uses the modified code for personal use and not for resale. This restriction is probably embedded in the program, and written into the modified code in the EEC when the tuning software does its magic, as some sort of comment file.

Even though the customer does not see, know about or read that embedded restriction does not make it any less valid. If you go read some of your Sony music disks, likely you'll find a text file that contains a license in respect of how you use the music disk that I bet you didn't know was there (Sony is famous for this). It's been well litigated that this license is valid and enforceable, and it doesn't really matter what the media for the license might be (inside a CD-ROM or embedded in the EEC-IV). You're stuck with it.

<b>Work for Hire</b>

Therefore, Lidio owns a license from Superchips to use the tuning software on customer cars under a fairly narrow set of circumstances.

You, as a customer, go to Lidio and change the tune in your car. You think it's a "work for hire." Is it?

Probably, but remember that Lidio only has a limited set of rights (via license) under all the rights of Superchips (under ownership). Lidio can't grant to you any more rights than he has to give (or that Superchips allows him to grant).

So Lidio can only give you rights to use the modified tune, and not to resell it. You, as a customer, can commission a "work for hire" from Lidio, but what he delivers to you will be limited in its rights - you get ownership of the modified tune, but it doesn't include rights to resell it. It's a limited ownership concept.

Lidio doesn't own it, either. I suspect Superchips would assert they have some sort of rights to the modification, but not ownership, either.

<b>Who Owns the Tune?</b>

You do, but you have limited rights of usage. That's not in conflict with the concept of 'ownership' as 'use' is often quite different under the law (as any Realtor will tell you). I 'own' my MM, but I can't 'use' it to break the speed laws without penalties.

I would bet that the business model that would be constructed for 'full ownership' of the tune, including rights to resell and modify and copy and so forth would be EXTREMELY expensive, because the creators of the tools that allowed someone to do that know that their window of time to sell their product is very short (since, once a sale is made, that guy gives it to all his friends who were potential customers of the software writers). That means they have to recoup their costs over a much smaller base of customers, so the price goes way, way up.

<b> Open Source?</b>

The Open Source Community believes all software should be free for use, ownership and distribution by everyone. Unfortunately, that means software developers never get paid because there's never any money generated from sales to pay them. This has led to "Monetized Open Source," where software developers charge for software, or give software away and charge for maintenance, or charge for the right to distribute, or to modify, or whatever other rights will make a buck. This just makes ownership and economic issues more complex. It ain't worth going into here.


<b>The Test</b>

I'll be passing out a test now. Please don't copy from your neighbor and turn the test in at the next forum.
 
Speaking of tunes, does anyone here own an XCal2 that actually allows you to change the parameters of your tune???.....not interested in data logging.

SCT has made some noise promising to sell you a product that allows you to change your tune, however the only one that can activate the end user feature is an SCT dealer who might want to charge for this, he also will control what and how much you can play with your tune.

To me this is the equivalent of buying a very expensive color tv. that you can only watch in black and white until you pay a technician to turn on the color for you and he also will control the intensity of the colors.
 
This is the coolest thread I've seen in a long time.

I would say that you bought the tune, to use, twist, make backups (if possible) all you can manage... but you can't sell a copy or make yourself a distributor of it without permissions.

The stuff I design has software that a team of people spend hours creating. You folks ultimately end up with it. Such as, it might be in your flasher relay. It's yours, enjoy! Just don't go finding a way to pull it out and sell it to my competition without a fight. I'd think of tune as not much different than that of a piece of code to blink your turn signals or unlock your door when you push the button.
 
Smokie said:
Speaking of tunes, does anyone here own an XCal2 that actually allows you to change the parameters of your tune???.....not interested in data logging.

SCT has made some noise promising to sell you a product that allows you to change your tune, however the only one that can activate the end user feature is an SCT dealer who might want to charge for this, he also will control what and how much you can play with your tune.

To me this is the equivalent of buying a very expensive color tv. that you can only watch in black and white until you pay a technician to turn on the color for you and he also will control the intensity of the colors.
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If the dealer has the latest and greatest SCT software (Advantage 3), they can program the end user adjustability into their tunes...

I have an XCAL2, that does not allow me to make any alterations. I bought an early unit, before SCT released the software to allow this :rolleyes: Sooner or later, I'll have to figure out how I can get an 'upgraded' tune from Lidio. I guess the next modification I make will necessitate this, as I will probably go with underdrive pulleys.

NOw, this brings us to an interesting point in time. I have a unit. A tuner may email me an updated file, to allow me the functionality originally offered by the product. This could either be a new tune, or the EXACT same tune, with the features turned on... What are the thoughts on this - should one have to pay for either situation?

From what I've heard, some tuners (I have no clue about any of the MM tuners, just speaking in general) are less than forthcoming with their tunes, and refuse to email a file which could then be distributed over the internet, and therefore do not share with anyone. Instead, the tuner would rather the customer return the unit, to be reprogrammed. To me, this is an awful situation.

Showing a lack of faith in the customer makes the customer show a lack of faith in the supplier...
 
See? Custom tunes and how they are sold is just like the beginning of the PC Software era. Everyone is very protective and require everything to be encrypted (.xtr) or use Dongles (chips, also encrypted) so nobody can learn from anybody else.

I'm telling ya, the first tuner that offers a "modest" subscription service to maintain tunes in a database and supports his clients at super reasonable prices will win.

There are just too many computer literate teens out there that with the right mindset will come up with ways to work around any encryption or dongle. It will become Shareware or Freeware and then they will be giving away the source code so others can make it better.

I pay $19/yr for Model Railroading magazine per year and I'd probably pay more for a subscription to a tuner that helps me with my SCT Pro Racer package. I'm not out tuning other cars, just my own. But then, isn't that what we all want to do anyway? Our own?

2 cents and change...

John
 
Nice presentation, Mark, thanks. You said it better than I could.

The SCT ProRacer package has been out for a while, Zack and I have been using it for over a year. This is SCT software which allows you to modify your SCT tune on your HHP, using a PC.

You can load your tune, change a shift point, turn on a fan, whatever you wish, then program that to one of the additional channels in your SCT HPP. Then you can download (flash) that to your EEC and the change is in effect. This is easy, and it's legit with permission from SCT. Just like other computer software, one user per package, and that package can modify any SCT tune, and load it into any SCT HHP.

The fly in the ointment here, is that it is a one way street. There's no way to upload your dyno tune from your EEC into the ProRacer program. So, when I go to a tuner for a dyno tune, and he's done his magic, I don't have any access to that tune unless he copies that to a floppy disc, or, e-mails the file to me for download to my PC. Though I paid for the dyno tune, and now wish to make a minor change in that tune, I cannot do so if the tuner doesn't forward my final tune, despite my license from SCT to accomplish exactly that.

There's the rub, the tuner. If the tuner won't share the product you bought (his services), you can't make any changes without going back to that tuner. If this is the way SCT wanted it to be, why do they license end-users permission to use the ProRacer program in the first place?

I'm fortunate to have access to a professional tuner who will share the file after I paid for his services. Others are not fortunate, and this probably isn't that important to many of us here, but it's the heart of this issue too.

I contend that when I buy a dyno tune, a copy of that final tune is my personal property and I can do what I want with it, within limitations set by the author, SCT. Isn't this lateral concern to the Video/DVD/MP3 markets? I am allowed a personal copy for my own entertainment, once I've paid for that copy. I can let others listen/watch the product, but I am without any permission to distribute additional copies without additional payment. This is fair, IMHO, but the stall here, is still the tuner who won't share. IMHO, check this out first, make sure your tuner will provide the copy you're entitled to, or, do business elsewhere.

BTW, I accept it as a given, that once a copy is delivered to me, and it's modified by me in any way, all expectations of the tuner's craftmanship is null and void.
 
I took an electronic ethics class relating to computer use, and it seems to me as if this issue is very similar to that of software and programming development.

In the professional realm, a programmer paid by a company does not own any of the entities he creates while working for that company. All of his programming work becomes the property of that company. IE, if I develop a game for Blizzard, that game is their intellectual property and copyright, and I have no claim to it.

I would apply the same to tunes, because the tuner is a programmer working under contract with the customer as his employer. Everything he creates while being paid by you is your property.
 
SergntMac said:
Nice presentation, Mark, thanks. You said it better than I could.

The SCT ProRacer package has been out for a while, Zack and I have been using it for over a year. This is SCT software which allows you to modify your SCT tune on your HHP, using a PC.

You can load your tune, change a shift point, turn on a fan, whatever you wish, then program that to one of the additional channels in your SCT HPP. Then you can download (flash) that to your EEC and the change is in effect. This is easy, and it's legit with permission from SCT. Just like other computer software, one user per package, and that package can modify any SCT tune, and load it into any SCT HHP.

The fly in the ointment here, is that it is a one way street. There's no way to upload your dyno tune from your EEC into the ProRacer program. So, when I go to a tuner for a dyno tune, and he's done his magic, I don't have any access to that tune unless he copies that to a floppy disc, or, e-mails the file to me for download to my PC. Though I paid for the dyno tune, and now wish to make a minor change in that tune, I cannot do so if the tuner doesn't forward my final tune, despite my license from SCT to accomplish exactly that.

There's the rub, the tuner. If the tuner won't share the product you bought (his services), you can't make any changes without going back to that tuner. If this is the way SCT wanted it to be, why do they license end-users permission to use the ProRacer program in the first place?

I'm fortunate to have access to a professional tuner who will share the file after I paid for his services. Others are not fortunate, and this probably isn't that important to many of us here, but it's the heart of this issue too.

I contend that when I buy a dyno tune, a copy of that final tune is my personal property and I can do what I want with it, within limitations set by the author, SCT. Isn't this lateral concern to the Video/DVD/MP3 markets? I am allowed a personal copy for my own entertainment, once I've paid for that copy. I can let others listen/watch the product, but I am without any permission to distribute additional copies without additional payment. This is fair, IMHO, but the stall here, is still the tuner who won't share. IMHO, check this out first, make sure your tuner will provide the copy you're entitled to, or, do business elsewhere.

BTW, I accept it as a given, that once a copy is delivered to me, and it's modified by me in any way, all expectations of the tuner's craftmanship is null and void.
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Mac, I had a dyno tune and it was downloaded into my HHP. It is my understanding that it can be uploaded from the HHP to a PC and modified then dowloaded back to the HPP. Is this correct? In your statement above you meant that a dynotune flashed directly to the EEC can't be retrieved and modified, yes? Just trying to clarify and see if I understand correctly.
 
When it comes to tuning and all the various car stuff we do. Its hard to say what’s right about computer tuning and who owns what etc?? All I can say is what I’ve been through and what I’ve worked for… for a very long time.

I’m in no way a software writer or code guy of any kind. I have a great understanding of how the internal cumbustion engine works and what it takes to make it feel right when you touch the gas pedal every day. All the deep core and electrons moving around in there mean nothing to me. All I want to see is software with a great and easy to use interface that does what its supposed to do. When I want this much spark at this point or this much fuel at this point etc, etc.
Because car stuff like what I do to some isn’t taken super seriously, I think some of these laws and rules haven’t really been put to the test at least at my level.

I’m one of those tuners that some of you have referred to. I do not for the most part give out or freely e-mail or distribute my tunes for cars that are relatively stock or mild. I only give customer a copy of their tune if they’ve come to my shop and had a custom tuning session with their car.

The tune that I sell for lets say a mostly stock F-150 or a mostly stock 05 Mustang, Marauders etc. These are the tunes that I design to extract the most out of a car that has very little other mods done to it. This is the tune that is the most generic and common for an enthusiast to purchase as a “first thing to do to his car”. This is the tune that is typically sold the most by chip makers and tuners etc. This is why my self and others are pretty protective of it.
Some car people that mod their car’s… aside from maybe a gear, moderate exhaust and maybe an air box, will never do much more to their daily driven performance car what ever it is. If the base line tune he/she purchases is done right, they really wont need to deviate from that tune for a long time for the most part. Unless some one hands them a line that his tune is better then the other tune, which most people fall for because of the lack of understanding of all of this. I spend a lot of time with these starter tunes, (ask my wife and kids). I even some times buy the car that I take a big interest in, and decide that a tune and the investment is worth it.

Usually beyond that, becomes a true custom tune that requires more of a one on one tuning session. Although there are tuners out there who will take your money and mail you a best guess chip for your rather extensively modded car that eventually leads to what I call “mail order tuning frustrations”.


I have to say that I totally disagree that I should, or any other tuner should give away the tune that is designed for mass public distribution. As the guy who takes the time and effort to do this, I guess this is my perspective of it, and above all its how I make a living.

The customer who comes in for a one on one custom tune… his car and tune are in no way usually sharable with another cars like his for various reasons and combination differnces, so I give him a copy of his tuning file if he ask's for it plain and simple.

But if a guy roles onto my dyno with a stock MM or other Ford’s, and gets the tune that I sell every day for those cars and we do nothing different to the tune then what I normally sell or mail order, then he does not leave with an electronic copy of that file in any way. Only what’s on his chip or flash device when I’m done. This may seem deviant, greedy or just plain not right to some of you. But on this side you look at it very different when your actually devopling the tune and trying to once again, make a living from it.
No offence but when you’re a car lover and performance enthusiast as I still am, but not in the field actually doing this full time as I am, its easy to ask for it for free or to request it to be freely distributed. You simply don’t see the work that us tuners put into it, and not the reward we’re looking for, just a fair fee and compensation.

This is basically how I look at it. If a customer buys a flasher/chip from my competitor and isn’t happy, and then hears that my tune is potentially better or more refined. Why shouldn’t I profit a little from selling him a re-tune or re-flash just like the first tuner/seller guy did. If the other tuners program is no good or not as good as mine… that’s not my problem. I see no way to remedy this other then to charge a fair fee, plain and simple to reflash a hand held with our tune if the hand held was not originally bought from us.

There are plenty of ways to try to sugar coat this, but not on my end when it’s what you do for a living. I see no simple way for end users who want more control other then to simply recomend buying the Pro-Racer type packages from companies like SCT, and learn how to do it your self if you want total or some control of your cars engine management system and not be at the mercy of a independent tuner guy or shop.

For my customer starting about a week ago, the Xcal-2’s come with limited end user adjustments that can be made from the hand held itself. I’ve not converted all my MM and many other files over to the new software to take advantage of this, but most of the N/A tunes I offer are done for those interested in this new feature.


Thanks
 
SergntMac said:
Very good question, John, a real (and very legal) brain twister. Bravo!


Once it's burned into your history and you pay the tuner his "rate", it's your tune. You own it...IMHO.
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You are correct, Sir!!!!!

Unless there is a EULA presented to you or attached with the paperwork accompanying the "tune" then you own it once you pay for it. You own the tune if the tune is sold to you. If it is licensed to you (E.G. Windows XP, MS Office, etc...) then the actual code, etc... is owned by the 3rd party and you are only a licensee.

:coolman:
 
Lidio said:
For my customer starting about a week ago, the Xcal-2’s come with limited end user adjustments that can be made from the hand held itself. I’ve not converted all my MM and many other files over to the new software to take advantage of this, but most of the N/A tunes I offer are done for those interested in this new feature.
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Lidio, which functions have you enabled? What are the options for your existing customers with an Xcal2, to get this functionality?
 
Brutus said:
Mac, I had a dyno tune and it was downloaded into my HHP. It is my understanding that it can be uploaded from the HHP to a PC and modified then dowloaded back to the HPP. Is this correct? In your statement above you meant that a dynotune flashed directly to the EEC can't be retrieved and modified, yes? Just trying to clarify and see if I understand correctly.
Click to expand...
In the scenario you post, no, it's not possible.

I have a flashed EEC, no chip. I have an SCT 9100 HPP, and SCT ProRacer software on a HP laptop. This is how it works for me.

Let us imagine I want to adjust my flashed EEC for a road trip. My EEC program is a file recently modified by a dyno tune and it's perfect. I don't want to change anything. However, with this tune, my OD comes on after 60 MPH, so, I don't have to keep playing with the OD button, or, stare at the green dash light when I jump on any expressway for short trips. For better fuel economy and a leisurely drive OTR, I'll want my OD to come on early, let's say at 45 MPH?

I cannot read my present dyno tune from my EEC, I can only flash over it. If the tuner who performed my last dyno tune gave me a copy of that on a floppy disc, or, e-mailed it to me, it's on my laptop marked as a "master" file. Just like any Excel spreadsheet, all I need to do, is open it, make the changes I want, and rename it with a "save as" command so I do not overwrite the master file. Then I send it to the HHP, via an SCT provided cable, storing that tune in one of the three memory banks available on the HHP, 1, 2 or 3, since bank 0 (zero) is reserved for HHP identification. I would also store another copy of the "master" file without my adjustments, for use when I arrive at my destination.

Now I plug my 9100 HHP into the OBDII port and flash my modified road tune over the dyno tune resident in the EEC, and I'm ready to leave. To restore my original dyno tune once I reach my destination, I simply reflash my "master" program from one of the memory banks over the road tune, until I'm ready to head home. Then I flash again for the road trip, and flash again when I get home.

Everything I'm doing is a one way street. Every step is flashing one program over another program, reprogramming the next device in line. Without having my "master" copy of my latest dyno tune on a disc, or, as a file on my laptop delivered via e-mail, I cannot make this simple change, without writing a whole file from scratch, which isn't something you wish to undertake. BTW #1, I've done this. It took 13 hours of dyno time to run through all the parameters of the EEC, and reset them for a Marauder. IMHO, don't go there...Gasp!

Note: I cannot read my EEC, or, access the dyno tune flashed to the EEC. However, neither can any dealership/service department, if this is any comfort to any owner here.

Note: I cannot read, or, access the registration file stored in bank 0 on the HHP, used to VIN lock the SCT 9100 HHP for use strictly on my MM. However, neither can any dealership/service department, if this is any comfort to any owner here.

BTW #2...Law Enforcement can access certain parameters of the EEC and they have. But, this is another topic we have already covered here, please do a search, thank you.

BTW #3, it's no different with any edition of the SCT chip, or, any products from other tuners, such as Diablo, Hypertech, Jet and so on. This is how they protect themselves from "shareware" like distribution, and I do not disagree, when a physical device such as the 9100 HHP, is the vehicle for duplication. This is a lot like CDRom writers, yes?

I understand this flash process occurs much faster with the Xcal2 HHP, but not much differently. I understand that when you add ProRacer, or, Raptor software, live data logging is better too, but I have not upgraded my stuff to any of this crap yet. I also believe that some features have been unlocked in the softwarec for access by the end user (me and y'all) with newer versions, and the example I used here (to manipulate my OD) may be one of them. But, I haven't sampled this update and it's features myself.

Nonetheless, the access and flexibility you suggest, Brutus, is not possible, IMHO.
 
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