September 27, 2023

EFF Files First Amendment Lawsuit Against Sec. 1201 of DMCA

Ever bought an app for your smartphone only to find it locked out? Or tried to download a movie you’ve purchased to a media player (phone, tablet, etc) but instead get an alert that you can’t save the files you now own? The Electronic Frontier Foundation (EFF) is now suing the US government to get those kinds of locks on files removed, claiming such prohibitions are in violation of the First Amendment.

In a 32-page lawsuit filed July 21, EFF is challenging the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA, the same law that gets referenced in relation to downloading music and uploading videos to YouTube). Both provisions, housed in Section 1201 of the law, “make it unlawful for people to get around the software that restricts access to lawfully purchased copyrighted material, such as films, sons, and the computer code that controls vehicles, devices and appliances,” EFF said in announcing the lawsuit. “This ban applies even where people want to make non-infringing fair uses of the materials they are accessing.”

The section in question might have been intended to protect against movie and music piracy, but instead “imposes a legal cloud over our rights to tinker with or repair the devices we own, to convert videos so that they can play on multiple platforms, remix a video, or conduct independent security research that would reveal dangerous security flaws in our computers, cars and medical devices,” EFF says. “It criminalizes the creation of tools to let people access and use those materials.”

EFF’s attorney, Kit Walsh, says that Section 1201 “threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.” The First Amendment “preserves our right to transform creative works to express a new message and to research and talk about the computer code that controls so much of our world.”

In addition to EFF, two computer scientists have signed on to the lawsuit: Andrew “bunnie” Huang and his company, Alphamax LLC, which develops devices for editing digital video streams, and Matthew Green, a computer security researcher at Johns Hopkins University who had to request an exemption from the Library of Congress last year for his research into whether our technological devices can be trusted to keep online transactions safe.

“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking is so onerous,” Walsh says. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”

To provide some context, take a look at this article from Forbes on the filing. Major tech companies are paying very close attention to these proceeding because the outcome could have big implications for them, namely as it pertains to items protected under intellectual property laws.

While the US Justice Department has yet to comment on the case, “the agency will probably say the law protects copyright without harming speech (especially because of the exemptions), or that the case doesn’t really involve free speech in the first place,” suggests Forbes reporter Jeff John Roberts.

“Obviously, no one can know for sure what the courts will do,” he continues. “But it’s worth noting Green and Huang are not cranks or copyright pirates, but are a well-respected professor and engineer, respectively… Finally, it’s likely corporations and trade groups will ask to intervene in the case, with big tech companies siding with Green and Huang, and the entertainment industry asking to preserve the law.”

Roberts adds that this case, in addition to other complaints about the DMCA, might be a tipping point forcing Congress to reexamine the 18-year-old law.

“While the anti-circumvention rules at stake here have long been contentious, they are just one part of a larger debate over the DMCA. If Congress decides to re-examine the DMCA, you can be sure the entertainment industry will use the occasion to try and erode the law’s safe harbor rules, which protect websites from getting sued for copyright infringement so long as they abide by certain measures.”

Read more on the case here and here. Rest assured, we’ll be keeping a close eye on the proceedings.

Amber Healy

I write about music policy and lawsuits because they're endlessly fascinating.

Amber Healy has 510 posts and counting. See all posts by Amber Healy

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