In 1998, Congress enacted 17 U.S.C § 1201, better known as the anti-circumvention provision. This legislation prohibits bypassing technological measures that control access to a work and includes a process to create exceptions to this general rule. On October 28, 2015, the Library of Congress denied a motion to create an exception for “speech using clips of motion pictures, for the shifting of lawfully-acquired media to different formats and devices, and for certain forms of security research.” On July 21, 2016, the Electronic Frontier Foundation (EFF) sued the government on behalf of researchers and persons affected by this denial claiming the legislation is unconstitutional. The EFF seeks an injunction enjoining the Department of Justice from enforcing this legislation.
A summary of the history surrounding EFF’s lawsuit is available here. Online commentary is generally in support of this lawsuit, calling the anti-circumvention provision “broken” and “one of the worst US copyright rules.”
The EFF claims that the anti-circumvention provision is unconstitutional because it violates the First Amendment. This provision, primarily designed to “fight music and movie piracy” is written so broadly that it restricts access to lawfully purchased copyright material, prohibits fair use of accessed materials, and even hinders people’s ability to speak about copyrighted materials. This law can make it a crime to “tinker” or repair your own devices, remix a video, and conduct independent security research to reveal security flaws, fueling the EFF’s argument that this legislation is creating a chilling effect and is preventing the right to freedom of expression.
Although there is a process to create exceptions to the anti-circumvention provision, the EFF complaint states that this process is unhelpful and “is itself an unconstitutional speech-licensing regime.” The process for creating an exception is long, complex, and impermanent. Only once every three years may members of the public approach the Copyright Office to create an exception. The Copyright Office then forwards the recommend exceptions to the Librarian of Congress who then makes an ultimate decision based on certain factors included in the legislation. However, the EFF claims that the “rulemaking defendants” have imposed several additional onerous requirements, including requiring evidence that “people are already engaging in circumvention,” and that “there is no viable alternative means of engaging in that use.” On top of that, the exceptions expire within three years requiring members of the public to go through this onerous process repeatedly. The exemptions that are granted, according to the Verge, are oddly limited and specific, for example allowing phones to be jailbroken but not tablets. The EFF finds this process to be “arbitrary, capricious, and contrary to law.”
In this lawsuit, the EFF is representing three clients that have been negatively impacted by this legislation and the Librarian of Congress’s refusal to create certain exceptions. The first client is Mathew Green, an Assistant Professor and Johns Hopkins University. According to the EFF and Ars Technica, his research is focused on investigating security and encryption devices but he has avoided certain research that would help increase our understanding of how secure our systems are for fear of litigation. The second client is Andrew Huang, an electrical engineer, hacker, and the owner of Alphamax, LLC, an audiovisual media company. Alphamax creates devices for editing television, opening up a world of new types of non-infringing speech. However, in order to do this, the “lock” on HDMI signals has be circumvented which he cannot do for fear of being sued. The final client is Alphamax itself.
It is hard to counter EFF’s arguments. 17 U.S.C § 1201(c)(1) states that this legislation will not affect defenses to copyright infringement, including fair use, but that is not much help when certain courts hold this provision to apply even when the circumvention has no relation to copyright infringement. As Kerry Sheehan, Policy Fellow at Public Knowledge, stated “This suit highlights the fundamental failures by the Copyright Office in the DMCA exemption process.” There definitely seem to be some problems with this out of date law, and it will be interesting to see what happens moving forward.
Priyanka Nawathe is a 2L at Harvard Law School.