The EFF vs. DMCA Section 1201

As the EFF's Parker Higgins wrote:

Simply put, Section 1201 means that you can be sued or even jailed if you bypass digital locks on copyrighted works—from DVDs to software in your car—even if you are doing so for an otherwise lawful reason, like security testing.;

Section 1201 is obviously a big problem for software preservation, especially when it comes to games.

Last December in Software Preservation Network I discussed both the SPN's important documents relating to the DMCA:

• Best Practices in Fair Use for Software Preservation
• A Preservationist's Guide to the DMCA Exemption for Software Preservation

Below the fold, some important news about Section 1201.

The only way to avoid liability is via one of the temporary exemptions granted by the Copyright Office under the triennial review process:

The SPN, with the support of Harvard's CyberLaw Clinic, and ALA, ARL and ACRL petitioned the Copyright Office in their most recent triennial 1201 exemption process for A proposed exemption for libraries, archives, museums, and other cultural heritage institutions to circumvent technological protection measures on lawfully acquired software for the purposes of preserving software and software-dependent materials. Amazingly, this broad exemption was granted. In a joint effort of SPN and Harvard's CyberLaw Clinic, Kee Young Lee and Kendra Albert have written A Preservationist's Guide to the DMCA Exemption for Software Preservation:

Importantly, the defense of "fair use" is not available under Section 1201 for uses not covered by one of these exemptions.

The EFF has been fighting to allow lawful uses for "circumventing" digital protection mechanisms since before the law was passed, and were counsel in its first major test. Three years ago this month, they filed a suit arguing that, precisely because there was no "fair use" defense, Section 1201 represented a constitutionally impermissible prior restraint on speech, as detailed in Kit Walsh's Section 1201 of the DMCA Cannot Pass Constitutional Scrutiny:

After the DMCA was passed, the Supreme Court was asked to evaluate other overreaching copyright laws, and offered new guidance on the balance between copyright protections and free speech. It found that copyright rules can be consistent with the First Amendment so long as they adhere to copyright’s "traditional contours." These contours include fair use and the idea/expression dichotomy.

The dominant interpretation of Section 1201, however, can’t be squared with these First Amendment accommodations. As long as circumvention in furtherance of fair use risks civil damages or criminal penalties, Section 1201's barrier to noninfringing uses of copyrighted works oversteps the boundary set by the Supreme Court.

The plaintiffs were:

• Security researcher Matthew Green who, the judge has now ruled:
  

  has sufficiently alleged that he plans to include “detailed information regarding how to circumvent security systems” in a book about his research, and he has indicated that the “detailed information” will include computer code.... (“I am now writing an academic book . . . . I would like to include examples of code capable of bypassing security measures, for readers to learn from.”)

• The awesome bunnie Huang and his company Alphamax who, the judge has now ruled:
  

  have alleged that they intend to disseminate “information about how to build NeTVCR,”... which permits the reasonable inference that they will disseminate the technological know-how and computer code required to circumvent the TPMs that bar access to HDMI signals

Neither of these activities were at the time, or are now, covered by one of the triennial review process exemptions.

The suit languished in the courts for almost three years but, finally, on 27th June, the DC Circuit Court ruled that at least some of the case could proceed. Kit Walsh's First Amendment Case Against Restrictive Copyright Law Can Proceed, Says Judge details which parts can, and which parts cannot move forward:

A federal judge has ruled that litigation can go forward to determine whether Section 1201 of the Digital Millennium Copyright Act violates the First Amendment as applied. EFF brought this litigation on behalf of security researcher Matt Green, technologist bunnie Huang, and bunnie's company Alphamax, in order to vindicate the right to speak, learn, and innovate despite this overly-broad and harmful law.

Originally passed to combat infringement, the sweeping language of Section 1201 allowed courts to interpret its provisions to leave out critical speech protections such as the fair use doctrine. This has interfered with educational uses of copyrighted works, accessibility, security research, remix art, and even your ability to repair your own car or tractor.

The ruling is a mixed bag. While the "as-applied" First Amendment claims will go forward, the court did not agree that rulemaking by the Librarian of Congress is subject to judicial review under the Administrative Procedure Act, even when the Librarian is performing an executive branch function rather than a congressional one. The court also did not agree that the Librarian's rulemaking is subject to the First Amendment scrutiny that applies when a government official is making determinations about what speech to permit. Finally, the court saw no need to adjudicate the claims that Section 1201 is overly broad, because it concluded that determining the constitutionality of the statute as applied to the plaintiffs will turn on the same issues as with other potential targets of the law.

In Three Years Later: 1st Amendment Challenge Over DMCA's Anti-Circumvention Provisions Can Move Forward Mike Masnick analyzes the ruling:

It's a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That's disappointing. ... nice is that the court explicitly recognizes that "code is speech." ... the case can and should focus on the direct impact on Green and Huang based on what they were trying to do -- and the claims failed (in the court's opinion) to make a clear case how the statute itself was over-broad and unconstitutional. That at least leaves open the possibility of other cases making a better argument on that front.

Lets hope that we don't have to wait another three years for further progress in the EFF's suit, and that some other case can be found to better argue that Section 1201 impermisssibly restrains speech.