EFF Lawsuit Challenges DMCA's Digital Locks Provision As First Amendment Violation

Computer security professor Matthew Green and famed hardware hacker Bunnie Huang have teamed up with the EFF to sue the US government, challenging the constitutionality of Section 1201 of the DMCA, also known as the "anti-circumvention" clause. As we've discussed for many years, 1201 makes it against the law to "manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof" that is designed to "circumvent" DRM or other "technological protection measures." There are all sorts of problems with this part of the law, including the fact that it doesn't matter why you have that tool or why you're circumventing the DRM. For example, it would still be considered infringement if you cracked DRM on a public domain work. That's... insane. The only "safety valve" on this is the ridiculous triennial review process, whereby people can beg and plead with the Librarian of Congress to "exempt" certain scenarios from being covered by 1201. The process is something of a joke, and even if you get an exemption one time, it automatically expires after three years, and the Library of Congress might not renew it. The lawsuit, filed by EFF and some excellent lawyers from Wilson Sonsini, points out that the Supreme Court has long stated that fair use is the "safety valve" that stops copyright law from violating the First Amendment in regulating speech. But fair use isn't an allowable defense under 1201, leading to a question of whether or not 1201 itself violates the First Amendment:

Enacted in 1998, these provisions broadly restrict the public’s ability to access, speak about, and use copyrighted materials, without the traditional safeguards—such as the fair use doctrine—that are necessary to protect free speech and allow copyright law to coexist with the First Amendment. The threat of enforcement of these provisions chills protected and noninfringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time. The triennial rulemaking process by which the public may seek exemptions pursuant to 17 U.S.C. § 1201(a)(1)(C) does not alleviate these problems. To the contrary, the rulemaking is itself an unconstitutional speech-licensing regime.

The complaint highlights how both Green and Huang have been scared away from working on various projects that have nothing to do with copyright-covered content, but both of which involve circumventing technological protection measures. In Green's case, it's about his security research, finding computer security problems in various devices. For Huang it's his work on a NeTVCR, an advancement on the NeTV device he created in the past. For it to work, however, he needs to get around HDCP and that, of course, would violate 1201. This presents a problem:

To the extent that the purpose of Section 1201 is “to promote the progress of science and the useful arts,” see U.S. Const. Art I, Sec. 8, cl. 8, its restrictions are not narrowly tailored to this purpose. Rather, they sweep up a vast amount of protected speech. This includes the speech that Green, Huang, Alphamax, and users of NeTVCR would undertake, but for the fear or criminal and other penalties. It also includes the many forms of speech that have been the subjects of exemption requests, and many additional forms of speech that have not yet been the subject of an exemption request. The means chosen in Section 1201 specifically targets the communicative impact of uses of copyrighted works and speech about the circumvention of TPMs that restrict such works.

Separately, as noted in the quote above, the case argues that the triennial review process itself violates the First Amendment.

The rulemaking contemplated by Section 1201(a)(1) is a licensing regime that lacks the safeguards the First Amendment requires. The combined ban and exemption process grants excessive power to a government official to make discretionary case-by-case decisions absent sufficient controlling standards. Section 1201 does not provide for timely review of requests for permission to speak. Applicants must wait up to three years for an opportunity to participate in the triennial rulemaking, and the Rulemaking Defendants have no deadlines governing when they must issue a rule granting or denying exemption requests.

As Huang notes in