Wed, 09 Feb 2022

Appeals Court Can Rule That DMCA's Anti-Circumvention Rules Are Unconstitutional
Furnished content.


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 thingit 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 Amendmentone it cannot and should not survive.

In 1998, Congress made a momentous departure from traditional copyrightlaw by enacting Section 1201 of the Digital Millennium Copyright Act (DMCA).Section 1201 created a new class of righta right to control access to legitimatelyacquired copies of copyrighted works that had been transferred to lawful owners, aswell as a new antitrafficking right specific to access controls. 17 U.S.C. 1201(a).Both new rightsas well as the significant civil and criminal penalties for infringingthose rightsapply well beyond the traditional contours of secondary liability foraiding infringement by others. Id. 1203, 1204. Moreover, these new rightsdisregard and override traditional mechanisms within the Copyright Act that struckthe balance between copyright protection and First Amendment interests.

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'sessential built-in First Amendment accommodations and serves as atraditional First Amendment safeguard. The Supreme Court hasconceptualized fair use as a safety valve that prevents copyright lawfrom suppressing the exercise of First Amendment rights.Section 1201 eliminates fair use's capacity to serve as a FirstAmendment safeguard when copyrighted works are encumbered withTPMs. It does so by effectively prohibiting fair uses that require thecircumvention of TPMs.

The Digital Millennium Copyright Act prevents filmmakers from exercisingtheir First Amendment right to make fair use by making it illegal to access contenton DVDs and other digital content protected by encryption. Congress intended tocreate a fail-safe mechanism to preserve the public's right to make fair use. Butthe open-ended rulemaking process it devised is unduly burdensome and has led toexemptions that leave filmmakers uncertain as to how they can make fair usesafely. Amici urge this Court to issue a limiting construction that preserves theirFirst Amendment right to make fair use. In addition, if this Court is inclined toorder equitable relief in this appeal, this Court should preserve existing exemptionsuntil a more constitutionally appropriate procedure is in place and more workableexemptions 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 digitizedmovies and other digitized content. Fair use in filmmaking has been called a paradigmatic fair use, and without it a massive range of expressive conduct wouldbe impossible. But fair use is of little consequence if filmmakers cannot access thehigh-quality digital material they seek to use in the first place. Suppose afilmmaker wants to analyze how special effects in the Star Wars film franchisehave evolved from 1977 to the present day, examining various clips from the past45 years. The law is quite clear that fair use permits the use of film clips withoutpermission or payment to the Star Wars rightsholders. To do this, however, thefilmmaker will need to obtain high-quality footage, which is likely to be lockedbehind encryption and other technological protection measures (TPMs). That is aproblem for filmmakers because Congress made it a crime to circumventtechnologies that control access to copyrighted content when it enacted the DigitalMillennium Copyright Act (DMCA) in 1998, now codified at Section 1201 ofthe copyright statute. The result is that, barring an exemption from the Librarianof Congress, filmmakers cannot access the digital content they need for fair usewithout a credible fear of civil and criminal liability.

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