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.