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Old 16th May 2008, 21:33   #1
CBarton
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BMW NA crack down on ECU flashes?

I am stealing this very well written post from Flash2K6 and asking that not just ESS give an opinion on this.....But PowerChips, AA, ASR, Dinan and who ever else may read it that is producing software upgrades....




Being an M5 owner and a 335i owner, there is a lot of stuff going on right now with BMW NA, and ECU flashes. The 335i has a well known fuel pump problem, due to lack of pressure. There is a service order on it to have it replaced if the error pops up.

The message being projected by BMW NA is that they are "cracking down" on ECU mods for cars, and they're heavily focused on the 335i right now (mostly because it's easy to juice the car since it has turbos, with very little effort).

Since the DME's and flashing is getting smarter and smarter, how is this going to impact ESS flashes for the M5? If BMW is now able to detect reflashes AND piggyback modules on their DME's with the newer Progman code... where do you think we will end up as M5 owners?

Owners, before you freak out, this isn't meant to scare you, but there is a very real scenario brewing with regard to 335i modification, that is causing owners to lose their drivetrain warranties, that could trickle down.

ESS: Do you have any insight, and can you offer any information or validity to the existing BMW NA crack down on ECU flashes?
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Old 16th May 2008, 21:45   #2
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Heading to a meeting now... Will chime in later today with info for you guys.

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Old 16th May 2008, 21:49   #3
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Quote:
Originally Posted by CBarton View Post
I am stealing this very well written post from Flash2K6 and asking that not just ESS give an opinion on this.....But PowerChips, AA, ASR, Dinan and who ever else may read it that is producing software upgrades....
Although the thought is well-considered, I don't think you'll get any of the suppliers to provide an official opinion on this subject on a public forum. They have nothing to gain from making statements.
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Old 16th May 2008, 22:11   #4
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Posted by Todd from ESS in the other thread:

Quote:
Aftermarket upgrades and tuning of vehicles is nothing new. It has been going on since the first automobiles hit the road. And I don't believe it will stop... it will just adapt. Same as when EFI replaced carbs and when OBD and OBDII came along. Tuning lived on.

However, in regards to the 335... with stricter and stricter emission controls (main reason) and careless tuners putting BMW's reliability and value at risk such as the reckless overdriving of the 335i turbos, BMW has to now intervene. They cannot allow an aftermarket "attachment" to severely modify their warrantability, resale value, market segment, and mostly the coveted emissions certifications. BMW has to protect their investment.

In regards to ESS, we have been doing this since '95. We never push any car, supercharger, or software beyond safe limits regardless if we lose the horsepower race to someone else. We test, test again, and then when we are done, we test it again. We may not make the most power, but we do it right and we do it safely. Our products are designed to be reliable, durable, and require little to no maintenance. We program each software and SC kit to make more power, then spend more time to perform within both EPA and TUV emissions standards for global market use.

As for the future, we will continue to offer products that improve the performance of your BMW until we simply cannot anymore.

As of right now, there is no reason to worry about the M5/M6.
--

While I agree with your statements, that doesn't really provide comfort. The issue is that modification or reflash on the 335's can and for some users has voided the drivetrain portion of the warranty. Which translating to english means that if your car has a VANOS issue, completely unrelated to the ECU flash, BMW NA could stick it to you and not cover you under warranty even though that too is a "known problem" much like the 335i fuel pump problem.

It doesn't matter how "safe" your flash is, if BMW can detect that it's been done (which is what the claims are right now, that with the new version of Progman, they can detect reflashes and piggyback modules) then you are open to attack.

If that becomes true of the M5, no matter what you do that's "safe", I would imagine that it puts our warranties at risk. I just want to know if any of the tuners out there are "in the know" with what's really going on, because the answer makes the difference between possibly buying a flashed ECU, or not buying one... and that of course will effect all of the tuners profits.

Don't get me wrong, typically when I get ready to make performance mods, I throw my warranty out the window, and I accept that going in... but considering this particular car, and it's base power from the factory, I'm really debating if warranty questionable modifications are going to be worth it... with what I'm seeing in the 335i community, it's making me not want to modify my M5 at all.

-F

Last edited by Flash2k6; 16th May 2008 at 22:15.
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Old 16th May 2008, 22:46   #5
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Flash2K6

Quote:
Originally Posted by Flash2k6 View Post
Posted by Todd from ESS in the other thread:

--

While I agree with your statements, that doesn't really provide comfort. The issue is that modification or reflash on the 335's can and for some users has voided the drivetrain portion of the warranty. Which translating to english means that if your car has a VANOS issue, completely unrelated to the ECU flash, BMW NA could stick it to you and not cover you under warranty even though that too is a "known problem" much like the 335i fuel pump problem.

It doesn't matter how "safe" your flash is, if BMW can detect that it's been done (which is what the claims are right now, that with the new version of Progman, they can detect reflashes and piggyback modules) then you are open to attack.

If that becomes true of the M5, no matter what you do that's "safe", I would imagine that it puts our warranties at risk. I just want to know if any of the tuners out there are "in the know" with what's really going on, because the answer makes the difference between possibly buying a flashed ECU, or not buying one... and that of course will effect all of the tuners profits.

Don't get me wrong, typically when I get ready to make performance mods, I throw my warranty out the window, and I accept that going in... but considering this particular car, and it's base power from the factory, I'm really debating if warranty questionable modifications are going to be worth it... with what I'm seeing in the 335i community, it's making me not want to modify my M5 at all.

-F
I was wondering if anyone in the 335 community has challenged this in court yet considering the following give some legal wiggle room. In particular if the part can't be directly proven to be the cause of the issue.

Magnuson-Moss Warranty Act

The relevant legislation here, the Magnuson-Moss Warranty - Federal Trade Commission Improvement Act of 1975, protects consumers from being wrongfully denied warranty coverage by new car dealers.

The Magnuson-Moss Warranty Act states, in part, in Title 15, United States Code, Section 2302, subdivision (c):
No warrantor of a consumer product may condition his written or implied warranty of such product on the consumer's using, in connection with such product, any article or service (other than article or service provided without charge under the terms of the warranty) which is identified by brand, trade, or corporate name; except that the prohibition of this subsection may be waived by the [Federal Trade] Commission if

(1) the warrantor satisfies the Commission that the warranted product will function properly only if the article or service so identified is used in connection with the warranted product, and

(2) the Commission finds that such a waiver is in the public interest. The Commission shall identify in the Federal Register, and permit public comment on, all applications for waiver of the prohibition of this subsection, and shall publish in the Federal Register its disposition of any such application, including the reasons therefore.

Under this federal statute, a manufacturer who issues a warranty on your motor vehicle is prohibited from requiring you to use a service or maintenance item, unless such item is provided, free of charge, under your warranty or unless the Federal Trade Commission (FTC) waives this prohibition against the manufacturer.

Further, under the act, aftermarket equipment that improves performance does not automatically void a vehicle manufacturer's original warranty, unless the warranty clearly states the addition of aftermarket equipment automatically voids your vehicle's warranty, or if it can be proven that the aftermarket device is the direct cause of the failure.

Specifically, the rules and regulations adopted by the FTC to govern the interpretation and enforcement of the Magnuson-Moss Warranty Act are set forth in the Code of Federal Regulations, Title 16 - Commercial Practices, Chapter I - Federal Trade Commission, Subchapter G - Rules, Regulations, Statements and Interpretations under the Magnuson-Moss Warranty Act, Part 700 - Interpretations under the Magnuson-Moss Warranty Act. Contained within these rules and regulations is Section 700.10, which states:
No warrantor may condition the continued validity of a warranty on the use of only authorized repair service and/or authorized replacement parts for non-warranty service and maintenance. For example, provisions such as, "This warranty is void if service is performed by anyone other than an authorized 'ABC' dealer and all replacement parts must be genuine 'ABC' parts," and the like, are prohibited where the service or parts are not covered by the warranty. These provisions violate the Act in two ways. First, they violate the section 102(c) ban against tying arrangements. Second, such provisions are deceptive under section 110 of the Act, because a warrantor cannot, as a matter of law, avoid liability under a written warranty where a defect is unrelated to the use by a consumer of "unauthorized" articles or service. This does not preclude a warrantor from expressly excluding liability for defects or damage caused by such "unauthorized" articles or service; nor does it preclude the warrantor from denying liability where the warrantor can demonstrate that the defect or damage was so caused.

Under the Magnuson-Moss Act, a dealer must prove, not just vocalize, that aftermarket equipment caused the need for repairs before it can deny warranty coverage. If the dealer cannot prove such a claim or it proffers a questionable explanation it is your legal right to demand compliance with the warranty. The Federal Trade Commission administers the Magnuson-Moss Act and monitors compliance with warranty law.

That being said, if you choose to modify your car, and suddenly the fancy new electronic control boxes that you added to your car make it run rough, not start when cold, or buck like a bronco, the dealer can and will charge a diagnostic fee to find out what is wrong with your car. If it turns out that your modifications are the cause of the problem, the dealer has every right not only to charge you for the diagnosis and repair, but to also void the portion of the warranty that has been compromised by the use of those aftermarket parts. Likewise, a dealer may refuse to service your car if it is adorned with aftermarket parts to the extent that its technicians cannot reasonably be expected to diagnose what is wrong with your car. As an example, all cars manufactured after 1994 are equipped with OBDII (On Board Diagnostics II) ports that dealers use to read engine diagnostic codes for everything from an engine vacuum leak to a malfunctioning emissions system. If your chosen modification has compromised the dealer service center's ability to scan for these codes (aftermarket ECUs generally do not support OBDII), then there is a strong probability that the dealer service center will

- Deny warranty coverage
- Refuse to service the car
- Note with your factory field representative for your region/district that your car has been "modified"

_______________________________

I think were BMW NA may have legs is the part where it states ->

"...a dealer may refuse to service your car if it is adorned with aftermarket parts to the extent that its technicians cannot reasonably be expected to diagnose what is wrong with your car.... As an example, all cars manufactured after 1994 are equipped with OBDII (On Board Diagnostics II) ports that dealers use to read engine diagnostic codes for everything from an engine vacuum leak to a malfunctioning emissions system..."

I am not sure that any of the flashes disable anyones ability to see error codes though. Thought I'd just add this info to the discussion.

Q
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Old 16th May 2008, 23:08   #6
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Quote:
If it turns out that your modifications are the cause of the problem, the dealer has every right not only to charge you for the diagnosis and repair, but to also void the portion of the warranty that has been compromised by the use of those aftermarket parts.


Right there in your own post... is how that Act gets ignored, and we get stuck holding the bill.

-F
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Old 16th May 2008, 23:49   #7
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Magnusson Moss is no guarantee....dealers will commonly just refuse to cover something citing your mods as why......you can cite M-M act all day long but with many of them you will have to go legal on them....
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Old 17th May 2008, 00:05   #8
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I wonder if the section:

Further, under the act, aftermarket equipment that improves performance does not automatically void a vehicle manufacturer's original warranty, unless the warranty clearly states the addition of aftermarket equipment automatically voids your vehicle's warranty, or if it can be proven that the aftermarket device is the direct cause of the failure.

Could the ECU mod be used by BMW as follows::

  1. BMW claims the design specs for the drive trin allow for a max of XXX horsepower (where XXX) is all that the 335 will generate
  2. Failure of the drive train was caused by applying more than yyy (more than xxx) HP to the drive train which cause it to exceed it design spec.
How else could BMW "prove" the flash caused the problem except by testing the engine at the HP created by the flashed SW and seeing if the engine fails. I doubt that any court would make them do that. Simply having engineering that shows this is why it was designed as it was would be more than sufficient.
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Old 17th May 2008, 00:39   #9
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Guys this is true not only with BMWs late 2006 to present many manufacures are making tuning very hard, Audi, BMW, and lots more.

Audi is smart to an extent they bolt a metal case over the ECU so you cant tamper with it however all the cheap ECU stuff on the market is OBD and is nothing but a nightmare and OBD is not a highly secure method to flash cars. dealers crash ECU all the time, my 545 was crashed 3 times by the dealers when they were doing updates, OBD sucks. Bench tuning is the best way but lots of guys dont have the hardware to do this.

On the BMW 335 the piggyback stuff and the juicebox are dead give aways and I would void the warranty too cutitng wires and tapping into signals. You cant not READ the data from the MsV80 BMW 335 ECU its protected so tuners are left with not many options.

Dinan on the other hand has the connections to do this by buying all original files for their records and they can WRITE to the ECU so for backup they look your vin# and your safe, nobody else can offer this.


So just be careful on who does your M5 or M6 ECU because evidence inside on the circuit board can later burn your butt with a warranty disaster. Field reps are checking ECU at BMW dealers and it takes 5 minutes to remove it and spot tampering. There is much more I can give but for now no more info.

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Old 17th May 2008, 00:49   #10
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Here's the scoop.... I am active on e90post where this has been discussed thoroughly. Unfortunately there is no firm data....


On the 335i:
  • Ships with MSD80 DME
  • BMW introduced CIP 29.2 software which is rumored to have a tune detect mechanism
  • Once you take your car into service, and a diagnostic head is connected to the car, BMW will get a read out of all your error codes through FASTA data
  • It is rumored that BMW has slipped in a code that indicates a tune has been used in CIP 29.2
  • MSD80 is protected by 1024 bit RSA encryption but somehow Dinan has the password to flash this DME
  • 29.2 also seems to deaden the throttle on 335i
  • From March 2008 on, BMW switched from the MSD80 to MSD81 ECU
  • It is rumored there are more countermeasures against tuning in MSD81
  • No one has cracked the RSA encryption for MSD81 yet so Dinan has not been able to flash
  • Piggybacks and the SSTT seem to still work on MSD80 / CIP 29.2 but the scare is the DME is aware of the tune and has tracked it with a hidden code
On M3 / M5 / M6
  • They use the MSS60 (M3) and MSS65 (M5 / M6) DMEs which are also protected by RSA encryption but Dinan and others have cracked it
  • There is a rumor they are changing the ECUs but no more data
Shark Injector
Jim Conforti seems to be able to gain access to the MSD80 and inject blocks of code to allow for tuning for the 335i without any detection. THis product is supposed to come out in July. He just started working on the MSD81.

For the M5 / M6, his product will be able to tune the MSS65.....
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Last edited by T Bone; 17th May 2008 at 00:50.
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