Appeals Court Can Rule That DMCA's Anti-Circumvention Rules Are Unconstitutional

from the make-it-so dept

As you hopefully know, there are two main parts to the DMCA law that was passed in 1998. There’s DMCA 512, which is what you hear about most of the time. That’s the part that includes the rules for notice and takedown regimes for user uploaded content (among other things). It’s got problems, but in its current form has also enabled many important services to exist. The other part, which is much more problematic, is DMCA 1201, which is the anti-circumvention rules — or you could call it the “DRM” part of the law. This has no redeeming value whatsoever. Under 1201 basically any attempt to circumvent a “technological” protection measure, can be deemed infringing even if the underlying content is never infringed upon. This part of the law is not only not necessary, but it’s drafted in a manner that has been regularly abused — enabling everyone from printer manufacturers to garage door opener companies to argue that simple reverse engineering to create competition is “infringement.”

In fact, everyone — even the drafters of the DMCA — knew that 1201 went too far and would lead to massive collateral damage. Rather than not passing such a bill, Congress came up with its “escape valve” which is the triennial review process, whereby every three years, the Librarian of Congress can magically declare which things are exempt from 1201. This has exempted a few classes of important use cases, but just the fact that (1) these uses need to be renewed every three years, and (2) that you have to ask for permission that can only be granted every 3 years for things that should be perfectly legal… is a problem.

Way back in 2016, EFF brought a case challenging the constitutionality of 1201 on behalf of computer security researcher/professor Matthew Green and hardware hacker Bunnie Huang, arguing that the DMCA 1201 liability suppressed their speech by stopping security research and beneficial hacking efforts. In 2019, a court dismissed much of the constitutional challenge, while allowing other parts of the case to move forward.

However, those constitutional questions are now on appeal and the EFF recently filed its opening brief. It’s worth reading.

Appellants? research and expression would be highly valuable to society. Their work would also be perfectly lawful but for one thing?it requires circumventing digital locks and teaching others how to do the same. In the name of protecting copyrights, a federal statute, Section 1201(a) of the Digital Millennium Copyright Act (DMCA), makes it a crime to engage in or even distribute information about such circumvention, even if the circumvention serves an otherwise lawful purpose. This statute subverts the traditional contours of copyright law to criminalize speech and bar people from using information they possess for education, journalism, and expression. That, in turn, puts Section 1201(a) on a collision course with the First Amendment?one it cannot and should not survive.

Some useful and worth reading amicus briefs have also been filed in the case. Copyright scholars Pam Samuelson and Rebecca Tushnet filed a fantastic brief:

In 1998, Congress made a momentous departure from traditional copyright law by enacting Section 1201 of the Digital Millennium Copyright Act (?DMCA?). Section 1201 created a new class of right?a right to control access to legitimately acquired copies of copyrighted works that had been transferred to lawful owners, as well as a new antitrafficking right specific to access controls. 17 U.S.C. ? 1201(a). Both new rights?as well as the significant civil and criminal penalties for infringing those rights?apply well beyond the traditional contours of secondary liability for aiding infringement by others. Id. ?? 1203, 1204. Moreover, these new rights disregard and override traditional mechanisms within the Copyright Act that struck the balance between copyright protection and First Amendment interests.

The Tech Law & Policy clinic at Colorado Law highlighted how much damage 1201 and the triennial review process has done to accessibility, security, and right to repair:

The right to engage in fair use is protected by the First Amendment. The Supreme Court has concluded that fair use is one of copyright law?s essential ?built-in First Amendment accommodations? and serves as a ?traditional First Amendment safeguard.? The Supreme Court has conceptualized fair use as a safety valve that prevents copyright law from suppressing the exercise of First Amendment rights.

Section 1201 eliminates fair use?s capacity to serve as a First Amendment safeguard when copyrighted works are encumbered with TPMs. It does so by effectively prohibiting fair uses that require the circumvention of TPMs.

And then there’s an amicus brief from documentary film makers talking about how damaging 1201 has been to their own expression:

The Digital Millennium Copyright Act prevents filmmakers from exercising their First Amendment right to make fair use by making it illegal to access content on DVDs and other digital content protected by encryption. Congress intended to create a ?fail-safe? mechanism to preserve the public?s right to make fair use. But the open-ended rulemaking process it devised is unduly burdensome and has led to exemptions that leave filmmakers uncertain as to how they can make fair use safely. Amici urge this Court to issue a limiting construction that preserves their First Amendment right to make fair use. In addition, if this Court is inclined to order equitable relief in this appeal, this Court should preserve existing exemptions until a more constitutionally appropriate procedure is in place and more workable exemptions have gone into effect.

Filmmakers depend on the doctrine of fair use to make commentary, criticism, instruction, and report on current events by utilizing portions of digitized movies and other digitized content. Fair use in filmmaking has been called a paradigmatic fair use, and without it a massive range of expressive conduct would be impossible. But fair use is of little consequence if filmmakers cannot access the high-quality digital material they seek to use in the first place. Suppose a filmmaker wants to analyze how special effects in the Star Wars film franchise have evolved from 1977 to the present day, examining various clips from the past 45 years. The law is quite clear that fair use permits the use of film clips without permission or payment to the Star Wars rightsholders. To do this, however, the filmmaker will need to obtain high-quality footage, which is likely to be locked behind encryption and other technological protection measures (?TPMs?). That is a problem for filmmakers because Congress made it a crime to circumvent technologies that control access to copyrighted content when it enacted the Digital Millennium Copyright Act (?DMCA?) in 1998, now codified at Section 1201 of the copyright statute. The result is that, barring an exemption from the Librarian of Congress, filmmakers cannot access the digital content they need for fair use without a credible fear of civil and criminal liability.

This isn’t just an issue for big companies. This is about fundamental fair use rights of the public — which Congress tossed away decades ago, and tried to pave over by insisting the Librarian of Congress could swoop in every 3 years and stop the most egregious attacks on free speech. But that’s not how the 1st Amendment works.

Hopefully the court agrees.

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Comments on “Appeals Court Can Rule That DMCA's Anti-Circumvention Rules Are Unconstitutional”

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Anonymous Coward says:

Not the end; not by a long shot.

This is a problem that the supreme court refused to rule on decades ago. Specifically because of the law’s contradiction, incompatibility, and lack of supersession with pre-existing law. Instead they opted to let congress deal with it, and congress having just swept in their master’s wishlist (at the time) wanted nothing to do with restarting that debate process all over again.

I doubt this will be resolved by anything short of congress passing a new bill. If the supreme court does decide to take up the case, and it goes in a way the empire doesn’t like, I’d imagine there will be a fat paperclip put on every must pass bill until the high court’s *mistake* gets corrected.

Cynical? Yes, yes I am.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

"filmmakers cannot access the digital content they need for fair use without a credible fear of civil and criminal liability"

And even if they are on the right side of the equation, they can still face crippling legal warfare.

They can easily crush anyone attempting to exercise their rights underfoot, any question of their ability and desire to do so should be answered by the "Dancing Baby" (Lenz v. Universal) being fought for a decade over a low quality video where the copyrighted content can barely be heard during the 30 seconds.

You gave them these expansive powers & are shocked that they pushed them to the limit & that they will fight tooth and nail (using a series of donations and outright lies) claiming the entire planet will die if people actually can exercise fair use.

It’s time to start looking at factual information rather than unfounded claims supported only by campagin donations.

Anonymous Coward says:

International treaty bullshit

As some astute people may be aware, the likes of WIPO and other international bodies have been trying to cram DMCA bullshit into other countries laws as well.

However I do not know: was the US pressuring WIPO into doing this, or WIPO and its joke of a "copyright treaty" that got us the DMCA in the first place?

For all the talk of US trying to pressure other countries into emulating this and the resulting pushback by this litigation it appears that WIPO and other bodies have been asleep at the wheel.

For those of us not American, what is the next battle to fight?

Anonymous Coward says:

Re: International treaty bullshit

Indeed, what’s the next battle to fight? As long as American IP ("Intellectual Property") neo-colonization continues, there will be no shortage of battles for a more free market or more free internet or a more free digital society against the Americans. The ever money-grubbing American elites in the IP industry and their government cronies never stop pushing for more IP monopoly powers in other countries. After all, growing monopolies and exploiting foreign populations is what imperialism is about.

It was the WIPO that bought on the DMCA, I believe. The American IP imperialists’ playbook was to leverage international negotiations to expand copyright controls in other countries then pressure Congress to "conform" to the new "international standard". This kind of thing, this IP empire building thing has been going on since the early 1990s at least DMCA is an example of this pattern, I believe. (If you care to check, there is an interesting blog that describes this pattern in some details. Notice the 1994 example of Jordan where the Americans pushed IP provisions into a peace treaty that has nothing to do with IP. )

By the way it was the American imperialists that pressured Canada to change our unique Canadian approach to copyright monopolies to an Americanized one. It was either change or be put on Special 301 and then being bullied into it. According to the imperialists in the Office of the United State Trade Representative, (USTR) it’s not okay for other countries including Canada to have "indigenous innovation policies" (their own words) that the imperialists in the USTR deem be "troubling" . they seem to deem "troubling" any "indigenous innovation policies" that is perceived to "unfairly" prevent the American IP imperialists extracting the maximum possible monopoly rents from their captive foreign markets.

We have our DMCA now thanks to the undue and odious neo-colonizing influence of our dear neighbors to the south, another unwelcome "present" of many we have received from them. More and more of American decadent materialistic values are being embodied in our IP laws instead of our more prosocial Canadian values. 🙁 What next kind of "present" do we expect from our dear neighbor, and can we return it this time, I wonder as well.

This comment has been deemed insightful by the community.
That One Guy (profile) says:

The ultimate fair-use veto

‘This action would be entirely legal to do but that person over there said ‘nuh-uh’ so if you try to do it it’s illegal, but don’t worry that other person can provide limited exceptions every few years so it’s fine’ is such a blatantly absurd twisting of logic you really do need to be a politician to buy it, and one can only hope that the courts don’t.

William Null says:


Now if only they’d declare 512 illegal as well and then we can live in a wonderful world where your content can’t be taken down, unless there’s a court decision to do so. And even the richest production companies can’t sue everybody.

Then, it’s only one short step to abolishing copyright altogether. I saw one guy online saying what he’d do if copyright was abolished. And I agree, that Skyrim/Super Mario/Trackmania/Prince of Persia/Tomb Raider/Call of Duty/Fortnite/Mickey Mouse/Star Trek/Stargate/Battlestar Galactica/V/V for Vendetta/Matrix crossover has to happen. And it can only happen when copyright is no more.

Rich says:

What about the Americans With Disabilities Act?

(Trigger warning: the following comments contain some unreasonable righteous indignation, as is so popular with the kids today. Although the value of which, when translated into social media currency and probability of positive feedback, doesn’t necessarily rise to the levels of fortune typically needed to inspire the legions of gold digging Twitdiots to begin their waves of theatrical 280 character transient demonstrations of make believe give-a-fuck, the anger and frustration that arise from the innumerable and unnecessary injustices and indignities that many with disabilities must swallow regularly are indeed legitimate sources of righteous indignation, and that is what we have to deal with)

The love of my life has extremely limited mobility after a spinal cord injury 30 years ago. She spends about half of her day in her wheelchair, and the other half in her bed, usually on her side. We like to watch movies and TV shows together, and when she is in her bed, on her side, the best viewing option for her is a tablet mounted to the side of her bed.

This is a single user option, and great for her when watching streaming content by herself. Now, I am not saying that we do this, because we would never commit such a serious felony, but one reasonably simple way we could "theoretically" watch DVDs together is for me to "theoretically" rip the DVDs on a computer, copy them to a "theoretical" Raspberry Pi, and then we could "allegedly" engage in the reprehensible practice of watching them together by multicasting the video to both of our screens while we have dinner, in theory.

I, of course, would never do this, because the people who produce those DVDs, even the romantic ones about love conquering all, or the inspiring stories of people rising above the adverstities of their physical disabilities, or even those classics involving the triumphant conquering of some unjust legislation enacted by corrupt politicians at the behest of their corporate overlords, find that the very idea of a severely disabled person wanting to comfortably enjoy her DVDs with her significant other is far too offensive to be tolerated in polite society, and so in a civilized world, such odious practices should be punished as severely as possible, with as much prison as possible.

While I have not yet been prepped to withstand the inevitable waterboarding at the hands of the federal government, should said corporate overloads ever suspect any such shenanigans, and if I were indeed accused of such an afront to common decency, I would never confess to any wrongdoing. I would like to think that the aforementioned A.D.A. would provide some sort of protection in such a case, regardless of how despicable the idea of a disabled person wanting to watch a movie with someone else might be.

Thus concludes my righteously indignant, and mildly sarcastic message to the DRM proponents of the world. Put that in your pipe and smoke it, you fascist corporate fucksticks!

P.S. if anyone has a 100% legal method by which we can watch a DVD on both of our screens together, please share.

Anonymous Coward says:

Re: What about the Americans With Disabilities Act?

P.S. if anyone has a 100% legal method by which we can watch a DVD on both of our screens together, please share.

  1. Buy two copies of the same DVD.
  2. Plug them both into your two authorized player devices at the same time.
  3. Proceed to watching them in separate sound proof rooms without windows or any other means to see what is going on within them. (After all you wouldn’t want to violate the private viewing clause.)
  4. Don’t forget to never share nor discuss your experience with anyone. You wouldn’t want to create an unauthorized derivative work or destroy the creator’s artistic vision with unauthorized commentary. (Fair use will be destroyed. It’s a US abomination anyway.)
  5. As soon as the mind chips are installed, remember to never think about your experience again without proper automatic payments in place. (What? You think if they could they wouldn’t? Hah! You owe me for that thought.)
  6. Proceed to constantly look for ways to avoid displeasing your Hollywood Empire’s overlords.
Anonymous Coward says:

"...for limited times..."

If one is being rigorously literal, the Constitutional requirement is (from Article 1 Section 8):

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

If DMCA protections are not required to eliminate themselves after that limited time, then their very existence is unConstitutional.


BTW, speaking as a mathematician, "limited" means that the extent of that limit is fixed and not allowed to be expanded the way Congress has repeatedly done. There are a lot of politicians and judges who have violated their oaths to preserve and protect the Constitution of the United States.

Anonymous Coward says:

every part of the DMCA was brought intop law at the insistence of and to protect the revenue earnings of the entertainment industries! as usual, this law made members of the public guilty of doing or trying to do what they needed to with items and content legally bought and owned, just to give Hollywood, the MPAA and RIA in particular, yet another source of income for doing nothing except throwing money at members of congress to restrict the public of their rights!
long live America! ‘Home of the Brave, Land of the Free!’ who the fuck are you trying to kid! getting more and more like a European war-mongering country of the 30s-40s every day!!

mechtheist (profile) says:

Am I reading this right:
"This has exempted a few classes of important use cases, but just the fact that (1) these uses need to be renewed every three years"
Wouldn’t that mean that someone could avail themselves of granted exemptions to create something entirely legally [at that time], then the exemptions could be refused renewal at the next 3 year period, so then the creation would become illegal at that point? That’s seriously fucked up, like grandfathering crimes.

Anonymous Coward says:

Re: Re:

refused renewal at the next 3 year period, so then the creation would become illegal at that point? That’s seriously fucked up, like grandfathering crimes.

Past actions won’t become retroactively illegal. The fucked up part is that it mostly remains illegal to teach people how to break DRM, or give them the tools to do so. So, if you can figure out on your how how to break the DRM on DVDs, and there’s an active exemption for it at the time, you can go ahead and produce your documentary. But if you can’t hire someone else to do that, and the distribution of DeCSS remains illegal, how are you gonna do it? I don’t imagine too many filmmakers just happen to also be experts in cryptography and reverse-engineering.

And if it were temporarily legal to produce and distribute the tools, you’d better damn well pull them all offline before the exemption ended—that speech would then become illegal again.

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