{"id":11192,"date":"2022-02-08T23:56:17","date_gmt":"2022-02-08T23:56:17","guid":{"rendered":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/08\/appeals-court-can-rule-that-dmcas-anti-circumvention-rules-are-unconstitutional\/"},"modified":"2022-02-08T23:56:17","modified_gmt":"2022-02-08T23:56:17","slug":"appeals-court-can-rule-that-dmcas-anti-circumvention-rules-are-unconstitutional","status":"publish","type":"post","link":"https:\/\/mailinvest.blog\/index.php\/2022\/02\/08\/appeals-court-can-rule-that-dmcas-anti-circumvention-rules-are-unconstitutional\/","title":{"rendered":"Appeals Court Can Rule That DMCA’s Anti-Circumvention Rules Are Unconstitutional"},"content":{"rendered":"

<\/a>\n<\/p>\n

\n

from the make-it-so<\/i> dept<\/h3>\n

\nAs you hopefully know, there are two main parts to the DMCA law that was passed in 1998. There’s DMCA 512<\/a>, 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<\/a>, 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<\/b> 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.”\n<\/p>\n

\nIn fact, everyone<\/em> — 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<\/a> 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.\n<\/p>\n

\nWay back in 2016, EFF brought a case challenging the constitutionality of 1201<\/a> 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<\/a>, while allowing other parts of the case to move forward.\n<\/p>\n

\nHowever, those constitutional questions are now on appeal and the EFF recently filed its opening brief<\/a>. It’s worth reading.\n<\/p>\n

<\/p>\n

\nAppellants\u2019 research and expression would be highly valuable to society. Their work would also be perfectly lawful but for one thing\u2014it 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\u2014one it cannot and should not survive.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nSome useful and worth reading amicus briefs have also been filed in the case. Copyright scholars Pam Samuelson and Rebecca Tushnet filed a fantastic brief<\/a>:\n<\/p>\n

<\/p>\n

\nIn 1998, Congress made a momentous departure from traditional copyright
\nlaw by enacting Section 1201 of the Digital Millennium Copyright Act (\u201cDMCA\u201d).
\nSection 1201 created a new class of right\u2014a right to control access to legitimately
\nacquired copies of copyrighted works that had been transferred to lawful owners, as
\nwell as a new antitrafficking right specific to access controls. 17 U.S.C. \u00a7 1201(a).
\nBoth new rights\u2014as well as the significant civil and criminal penalties for infringing
\nthose rights\u2014apply well beyond the traditional contours of secondary liability for
\naiding infringement by others. Id. \u00a7\u00a7 1203, 1204. Moreover, these new rights
\ndisregard and override traditional mechanisms within the Copyright Act that struck
\nthe balance between copyright protection and First Amendment interests.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nThe 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<\/a>:\n<\/p>\n

<\/p>\n

\nThe right to engage in fair use is protected by the First Amendment.
\nThe Supreme Court has concluded that fair use is one of copyright law\u2019s
\nessential \u201cbuilt-in First Amendment accommodations\u201d and serves as a
\n\u201ctraditional First Amendment safeguard.\u201d The Supreme Court has
\nconceptualized fair use as a safety valve that prevents copyright law
\nfrom suppressing the exercise of First Amendment rights.\n<\/p>\n

\nSection 1201 eliminates fair use\u2019s capacity to serve as a First
\nAmendment safeguard when copyrighted works are encumbered with
\nTPMs. It does so by effectively prohibiting fair uses that require the
\ncircumvention of TPMs.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nAnd then there’s an amicus brief from documentary film makers<\/a> talking about how damaging 1201 has been to their own expression:\n<\/p>\n

<\/p>\n

\nThe Digital Millennium Copyright Act prevents filmmakers from exercising
\ntheir First Amendment right to make fair use by making it illegal to access content
\non DVDs and other digital content protected by encryption. Congress intended to
\ncreate a \u201cfail-safe\u201d mechanism to preserve the public\u2019s right to make fair use. But
\nthe open-ended rulemaking process it devised is unduly burdensome and has led to
\nexemptions that leave filmmakers uncertain as to how they can make fair use
\nsafely. Amici urge this Court to issue a limiting construction that preserves their
\nFirst Amendment right to make fair use. In addition, if this Court is inclined to
\norder equitable relief in this appeal, this Court should preserve existing exemptions
\nuntil a more constitutionally appropriate procedure is in place and more workable
\nexemptions have gone into effect.\n<\/p>\n

\nFilmmakers depend on the doctrine of fair use to make commentary,
\ncriticism, instruction, and report on current events by utilizing portions of digitized
\nmovies and other digitized content. Fair use in filmmaking has been called a
\nparadigmatic fair use, and without it a massive range of expressive conduct would
\nbe impossible. But fair use is of little consequence if filmmakers cannot access the
\nhigh-quality digital material they seek to use in the first place. Suppose a
\nfilmmaker wants to analyze how special effects in the Star Wars film franchise
\nhave evolved from 1977 to the present day, examining various clips from the past
\n45 years. The law is quite clear that fair use permits the use of film clips without
\npermission or payment to the Star Wars rightsholders. To do this, however, the
\nfilmmaker will need to obtain high-quality footage, which is likely to be locked
\nbehind encryption and other technological protection measures (\u201cTPMs\u201d). That is a
\nproblem for filmmakers because Congress made it a crime to circumvent
\ntechnologies that control access to copyrighted content when it enacted the Digital
\nMillennium Copyright Act (\u201cDMCA\u201d) in 1998, now codified at Section 1201 of
\nthe copyright statute. The result is that, barring an exemption from the Librarian
\nof Congress, filmmakers cannot access the digital content they need for fair use
\nwithout a credible fear of civil and criminal liability.\n<\/p>\n

<\/em><\/p><\/blockquote>\n

\nThis 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.\n<\/p>\n

\nHopefully the court agrees.\n<\/p>\n

\n