Advocacy body the Electronic Frontier Foundation (EFF) – which defends civil liberties in the digital world – has sued the US government on behalf of technology creators and researchers to overturn what it contends are onerous provisions of copyright law that violate the First Amendment.
EFF’s lawsuit, filed with co-counsel Brian Willen, Stephen Gikow, and Lauren Gallo White of Wilson Sonsini Goodrich & Rosati, challenges the anti-circumvention and anti-trafficking provisions of the 18-year-old Digital Millennium Copyright Act (DMCA). These provisions – contained in Section 1201 of the DMCA – make it unlawful for people to get around the software that restricts access to lawfully-purchased copyrighted material, such as films, songs, and the computer code that controls vehicles, devices, and appliances. This ban applies even where people want to make non-infringing fair uses of the materials they are accessing.
Ostensibly enacted to fight music and movie piracy, the EFF argues that Section 1201 has long served to restrict people’s ability to access, use, and even speak out about copyrighted materials—including the software that is increasingly embedded in everyday things. “The law 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. It criminalises the creation of tools to let people access and use those materials,” it claims.
According to the EFF, copyright law is supposed to exist in harmony with the First Amendment. But the prospect of costly legal battles or criminal prosecution stymies creators, academics, inventors, and researchers. In the complaint filed in US District Court in Washington DC, EFF argues that this violates their First Amendment right to freedom of expression.
“The creative process requires building on what has come before, and 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,” said EFF Staff Attorney Kit Walsh. “Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.”
EFF is representing plaintiff Andrew ‘bunnie’ Huang, a prominent computer scientist and inventor, and his company Alphamax LLC, where he is developing devices for editing digital video streams. Those products would enable people to make innovative uses of their paid video content, such as captioning a presidential debate with a running Twitter comment field or enabling remixes of high-definition video. But using or offering this technology could run afoul of Section 1201.
“Section 1201 prevents the act of creation from being spontaneous,’’ said Huang. “Nascent 1201-free ecosystems outside the US are leading indicators of how far behind the next generations of Americans will be if we don’t end this DMCA censorship. I was born into a 1201-free world, and our future generations deserve that same freedom of thought and expression.”
EFF is also representing plaintiff Matthew Green, a computer security researcher at Johns Hopkins University who wants to make sure that we all can trust the devices that we count on to communicate, underpin our financial transactions, and secure the most private medical information. Despite this work being vital for the safety of all US citizens, Green had to seek an exemption from the Library of Congress last year for his security research.
“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 process is so onerous,” said Walsh. “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.”