EFF Lawsuit Challenges DMCA's Digital Locks Provision As First Amendment Violation

from the well,-that's-interesting dept

Computer security professor Matthew Green and famed hardware hacker Bunnie Huang have teamed up with the EFF to sue the US government, challenging the constitutionality of Section 1201 of the DMCA, also known as the “anti-circumvention” clause. As we’ve discussed for many years, 1201 makes it against the law to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that is designed to “circumvent” DRM or other “technological protection measures.” There are all sorts of problems with this part of the law, including the fact that it doesn’t matter why you have that tool or why you’re circumventing the DRM. For example, it would still be considered infringement if you cracked DRM on a public domain work. That’s… insane.

The only “safety valve” on this is the ridiculous triennial review process, whereby people can beg and plead with the Librarian of Congress to “exempt” certain scenarios from being covered by 1201. The process is something of a joke, and even if you get an exemption one time, it automatically expires after three years, and the Library of Congress might not renew it.

The lawsuit, filed by EFF and some excellent lawyers from Wilson Sonsini, points out that the Supreme Court has long stated that fair use is the “safety valve” that stops copyright law from violating the First Amendment in regulating speech. But fair use isn’t an allowable defense under 1201, leading to a question of whether or not 1201 itself violates the First Amendment:

Enacted in 1998, these provisions broadly restrict the public?s ability to access, speak about, and use copyrighted materials, without the traditional safeguards?such as the fair use doctrine?that are necessary to protect free speech and allow copyright law to coexist with the First Amendment. The threat of enforcement of these provisions chills protected and noninfringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time. The triennial rulemaking process by which the public may seek exemptions pursuant to 17 U.S.C. § 1201(a)(1)(C) does not alleviate these problems. To the contrary, the rulemaking is itself an unconstitutional speech-licensing regime.

The complaint highlights how both Green and Huang have been scared away from working on various projects that have nothing to do with copyright-covered content, but both of which involve circumventing technological protection measures. In Green’s case, it’s about his security research, finding computer security problems in various devices. For Huang it’s his work on a NeTVCR, an advancement on the NeTV device he created in the past. For it to work, however, he needs to get around HDCP and that, of course, would violate 1201. This presents a problem:

To the extent that the purpose of Section 1201 is ?to promote the progress of science and the useful arts,? see U.S. Const. Art I, Sec. 8, cl. 8, its restrictions are not narrowly tailored to this purpose. Rather, they sweep up a vast amount of protected speech. This includes the speech that Green, Huang, Alphamax, and users of NeTVCR would undertake, but for the fear or criminal and other penalties. It also includes the many forms of speech that have been the subjects of exemption requests, and many additional forms of speech that have not yet been the subject of an exemption request. The means chosen in Section 1201 specifically targets the communicative impact of uses of copyrighted works and speech about the circumvention of TPMs that restrict such works.

Separately, as noted in the quote above, the case argues that the triennial review process itself violates the First Amendment.

The rulemaking contemplated by Section 1201(a)(1) is a licensing regime that lacks the safeguards the First Amendment requires. The combined ban and exemption process grants excessive power to a government official to make discretionary case-by-case decisions absent sufficient controlling standards.

Section 1201 does not provide for timely review of requests for permission to speak. Applicants must wait up to three years for an opportunity to participate in the triennial rulemaking, and the Rulemaking Defendants have no deadlines governing when they must issue a rule granting or denying exemption requests.

As Huang notes in his blog post about the case, this is a really big issue. It’s both about free speech and what it means to “own” something.

Before Section 1201, the ownership of ideas was tempered by constitutional protections. Under this law, we had the right to tinker with gadgets that we bought, we had the right to record TV shows on our VCRs, and we had the right to remix songs. Section 1201 built an extra barrier around copyrightable works, restricting our prior ability to explore and create. In order to repair a gadget, we may have to decrypt its firmware; in order to remix a video, we may have to strip HDCP. Whereas we once readily expressed feelings and new ideas through remixes and hardware modifications, now we must first pause and ask: does this violate Section 1201? Especially now that cryptography pervades every aspect of modern life, every creative spark is likewise dampened by the chill of Section 1201.

The act of creation is no longer spontaneous.

Our recent generation of Makers, hackers, and entrepreneurs have developed under the shadow of Section 1201. Like the parable of the frog in the well, their creativity has been confined to a small patch, not realizing how big and blue the sky could be if they could step outside that well. Nascent 1201-free ecosystems outside the US are leading indicators of how far behind the next generation of Americans will be if we keep with the status quo.

Our children deserve better.

The argument here is compelling. 1201 has all sorts of problems, but no one has tested this First Amendment argument before. Unfortunately, our courts have been incredibly (and unfortunately) reluctant to seriously consider constitutional challenges to copyright law. The cases that have made it up through the court system have ended unfortunately badly — cases like the Eldred case challenging copyright term extension, for example. I hope that this one turns out differently, and it may become a case to watch. Again, the arguments are quite compelling to me, but I’m unfortunately skeptical that the judicial system will agree. I hope I’m wrong.

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Comments on “EFF Lawsuit Challenges DMCA's Digital Locks Provision As First Amendment Violation”

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Mason Wheeler (profile) says:

I hope this succeeds, though that won’t be enough. The only position that truly makes sense is not simply a nullification of section 1201, but a reversal.

If my property is truly mine, then by any reasonable, objective standard, wresting control of it away from me and turning it against my interests is a violation of my rights. Therefore, any use of “TPM” to do so is a crime, an act of hacking, and needs to be legally recognized as such.

Anonymous Coward says:

I predict a narrow and unsatisfying punt

US courts have demonstrated an extreme fondness for declaring that the plaintiff only has standing to pursue such a challenge after the plaintiff is under threat from the challenged law. These plaintiffs outline work they want to undertake, but have not done due to fear of the law. Historically, this has not been enough to convince the courts that standing exists. Instead, they must first violate the allegedly unconstitutional law, then challenge it. While I sympathize with the courts’ desire to avoid being buried by hypothetical challenges, that standard makes it unreasonably difficult to challenge bad laws, especially ones with heavy penalties. I hope the courts entertain this challenge instead of hiding behind a technicality like the one I describe.

Anonymous Coward says:

Re: I predict a narrow and unsatisfying punt

In some cases you’re entirely correct, but the plaintiffs have already been ‘harmed’ by the law, via rejection of their request for exemptions. As such it isn’t necessary that they suffer further harm by being charged with a crime. In other words, they have ‘standing to challenge’ the law because they have been directly harmed by it, the ‘fear of prosecution’ is just extra gravy.

The EFF has been waiting to ‘spring’ such a lawsuit for many years & now it seems they feel they have appropriate plaintiffs & rulings to support their case. They have demonstrated extremely good understanding of the law in the past so I think we can trust they know what they are doing here.

Anonymous Coward says:

Re: Re: I predict a narrow and unsatisfying punt

I am doubtful that the courts will accept the rejection of request for exemption as adequate harm to provide standing. That rejection is only harmful if you accept their claims that they would do this security research if not for fear of prosecution. Yes, that is a better opening than the fear of prosecution on its own, but I think we can see parallels in lawsuits related to gun licensing. Some jurisdictions make it very difficult to obtain the required permits to own and/or operate a firearm. The National Rifle Association is generally interested in getting every jurisdiction to the point of a “shall-issue” law with criteria that can be achieved by the average law-abiding citizen. Yet despite years and considerable funding, there are still places where this is not the case, because challenging those requirements in court requires finding an extremely compelling plaintiff. These plaintiffs are more compelling than many I could imagine, but I fear that they are not compelling enough.

I trust that the EFF employs smart lawyers and that they think there is a chance they could win. I do not trust that the courts will not try to cheat them of the win with procedural technicalities.

Ninja (profile) says:

Considering the IOT, car software and other recent security disasters maybe there is hope here at the very least for security purposes. I mean, any judge can understand how bad some creep invading some connected device and calling your baby a slut because the code can’t be audited is.

The fair use portion may be an uphill battle because there’s too much entitlement in the American collective mindset. People seem to think they are entitled to whatever. Not that it matters, DRM will be circumvented regardless of any moronic law.

Anonymous Coward says:

Re: Re:

I never understood the “entitlement” argument. There’s a product and a service. There’s norms and expectations that are created by the frequency and quality of preceding services.

It’s like saying people feel “entitled” to running water. They feel “entitled” to electricity.

It’s a disgusting descriptor and dehumanizes the average person. For what reason?

Whatever says:

First amendment arguments in this area generally run into a dead end (ask your sainted Lessig about that). The problem is actually pretty simple:

What EXACT free speech is being violated?

The question is pretty important. In the same manner that I don’t have access to the coding of this website (I can only see the results, not the code driving it), I don’t have any particular rights to code that may exist as part of an item, beyond those set forth in the purchase agreement. You have ownership of the thing, and a license to use the code to operate the machine.

So the hurdle is simple: Before they can have a hope of winning the argument, EFF would have to work harder to define what right is being actually broken. If they cannot define it simply and directly within existing legal terms, then they are very likely to fail.

Anonymous Coward says:

Re: Re:

Because it’s not as if the DMCA and copyright law as a whole have been used to run around free speech and shut down dissenting opinions or anything, right? So the DMCA is fine when it comes to claiming copyright on speech, but other laws suddenly can’t apply to that speech…

Wonder why you, and copyright, aren’t taken as seriously as you’d like? It’s because even infants can see how rigged the game you play is before they even sit down at the table.

Tanner Andrews (profile) says:

Re: What EXACT free speech is being violated

In the same manner that I don’t have access to the coding of this website (I can only see the results, not the code driving it), I don’t have any particular rights to code that may exist as part of an item

The situations are not analogous. I have may have no useful rights to a video of my neighbor reading a book, but if I purchase the book I have rights to my copy.

I can repair that book. I can take it apart and re-bind it as the old binding wears out. I can furnish new covers if I want. The author’s rights to the words printed inside it are undiminished, but the rights to the particular copy are mine. I could, should I choose, rip out chapter 3 (the one with the nasty bits about Judge — and the banking cartel).

I can highlight some of the remaining chapters. I can scribble notes in there. I can pass my copy along to a buyer, complete with my notes and the missing chapter 3 if I still have it.

Likewise, if I purchase some device, I gain no rights to the code inside it. I cannot sell copies of that code. But I can surely sell my device. Or open it up and repair it. I can rip out the offending chapter 3, the part which says “do not work when vendor sends a disable code”, should it please me to do so.

All this works because I have the rights of ownership of my copy.

John Mitchell (profile) says:

Masterful complaint

The First Amendment issues have sometimes been raised by a defendant in a civil suit, and never in the full-throated way they should be. Although this lawsuit necessarily alleges very specific facts pertaining to things people want to do but can’t, it is a fundamental challenge to the entire scheme. The plaintiffs have the high ground here, because the DMCA emperor has been running around naked long enough, and this case allows the plaintiffs to explain precisely why the DMCA scheme (and the regulatory mis-implementation by the LOC/CO) exceed the government’s authority. Even child pornography and obscenity get more favorable First Amendment treatment than non-infringing uses that require circumvention.

A look at the fundamentals gives me reason to be more optimistic than Mike Masnick is:

a. There is a “copyright clause” of the Constitution that authorizes Congress, if it so wishes, to grant exclusive rights to authors, so long as it is to advance the progress of science and the useful arts. Whether to even have copyright protection is discretionary.

b. We later amended our Constitution to provide that no law may abridge freedom of speech. First Amendment protection is not discretionary.

c. That could have meant that the copyright clause has been superseded, but for reasons I have not explored, we never went there, and instead came up with the requirement that there be First Amendment “safeguards,” such as the idea/expression dichotomy, fair use, and the like.

d. Even so, it is absolutely the case that (leaving aside obscenity and child pornography) all copyright-non-infringing speech is fully protected by the First Amendment. This means that all uses of copyrighted works that are (i) not within the narrow set of exclusive rights set out in 17 USC § 106, plus any uses that are within the limitations and exceptions set out in §§ 107-122, are non-infringing, and to the degree that they are an exercise of “speech”, those uses are 100% protected by the First Amendment as a matter of law.

e. That means that if, in exercising its right to grant certain exclusive rights, Congress uses a sledge hammer where a tack hammer would more than suffice, it is unconstitutional. It also means that if the DMCA suppresses speech without regard to whether copyrights are infringed, it goes too far.

f. In this suit, I see two stories emerging. One is that the DMCA itself goes too far. At a minimum, there is a court split, where the Chamberlain (garage door openers) court rightly required a “copyright nexus” to apply exist in order to support a DMCA claim (the immediate upshot being that TPM’s that protect business models rather than copyrights should be ignored, and the logical extension is that circumvention for non-infringing use should not be made unlawful — otherwise copyright owners get to leverage their limited rights into unlimited control just by using TPM). The problem is that other courts have said no such nexus is needed. So non-infringers who must circumvent to speak walk in fear of being sued in the wrong court.

g. The second story is that the triennial rule-making for the Librarian of Congress to allow exemptions is flawed in its architecture and its implementation. It is flawed in its architecture because it violates a fundamental First Amendment right to speak without prior restraint, and to have an opportunity for meaningful prompt judicial review of any suppression. Having to ask permission through a lengthy process that occurs once every three years is a total failure, particularly since the permission is good for only three years. It is flawed in its implementation because the Register of Copyrights set out completely arbitrary conditions that imposed unnecessary barriers to obtaining permission, including improperly placing the burden of proof on the party seeking permission to speak rather than on the government seeking to prove it has the right to suppress speech.

h. To suggest that the burden of proof should be on the person seeking the exemption would be like authorizing Congress to prohibit all political speech unless an exemption is obtained. Scary thought. It should be just as scary when it means needing permission to circumvent a TPM that prevents making First Amendment-protected non-infringing use.

Let’s hope we finally get some logical sense back in to the system. I recall, during the DMCA lobbying days, that an example of its application would be that if you agreed to pay for a song download, the copyright owner might legitimately prevent access until payment was processed. And, since you would not want the download to fail after payment, having a TPM coordinate the success of the download and the payment made perfect sense. No one was lobbying for the nefarious use of TPM that simply extends copyright holder control beyond the Copyright Act’s express limits.

Anarres (profile) says:

Re: Masterful complaint

Brilliant outline, thanks.

I would add that the TPP says that the TPM doesn’t need to prevent an infringing use, it will apply no matter if the user isn’t infringing any copyright. That changes the US law as I understand it after Chamberlain. If ratified, the DMCA will need to be amended to ‘clarify’ that it creates a new liability, without connection to an underlying copyright infringement.

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