EFF Asks Appeals Court to Rule DMCA Anti-Circumvention Provisions Violate First Amendment

Washington D.C.—The Electronic Frontier Foundation (EFF) asked a federal appeals court to block enforcement of onerous copyright rules that violate the First Amendment and criminalize certain speech about technology, preventing researchers, tech innovators, filmmakers, educators, and others from creating and sharing their work.

EFF, with co-counsel Wilson Sonsini Goodrich & Rosati, asked the U.S. Court of Appeals for the District of Columbia yesterday to reverse a district court decision in Green v. DOJ, a lawsuit we filed in 2016 challenging the anti-circumvention and anti-trafficking provisions of the Digital Millennium Copyright Act (DMCA) on behalf of security researcher Matt Green and technologist Andrew “bunnie” Huang. Both are pursuing projects highly beneficial to the public and perfectly lawful except for DMCA’s anti-speech provisions.

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 noninfringing fair uses of the materials they are accessing. The only way to challenge the ban is to go through an arduous, cumbersome process, held every three years, to petition the Library of Congress for an exemption.

While enacted to combat music and move piracy, 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. Our rights to tinker with or repair the devices we own are under threat by the law, which makes it a crime to create or share tools that could, for example, allow people to convert their videos so they can play on multiple platforms or conduct independent security research to find dangerous flaws in vehicles or medical devices.

Green, a computer security researcher at Johns Hopkins University, works to make Apple messaging and financial transactions systems more secure by uncovering software vulnerabilities, an endeavor that requires finding and exploiting weaknesses in code. Green seeks to publish a book about his work but fears that it could invite criminal charges under Section 1201.

Meanwhile Huang, a prominent computer scientist and inventor, and his company Alphamax LLC, are developing devices for editing digital video streams that 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 also run afoul of Section 1201.

Ruling on the government’s motion to dismiss the lawsuit, a federal judge said Green and Huang could proceed with claims that 1201 violated their First Amendment rights to pursue their projects but dismissed the claim that the section was itself unconstitutional. The court also refused to issue an injunction preventing the government from enforcing 1201.

“Section 1201 makes it a federal crime for our clients, and others like them, to exercise their right to free expression by engaging in research, creating software, and publish their work,” said EFF Senior Staff Attorney Kit Walsh. “This creates a censorship regime under the guise of copyright law that cannot be squared with the First Amendment.”

For the filing:
https://www.eff.org/document/geen-v-doj-appellant-brief

For more about this case:
https://www.eff.org/cases/green-v-us-department-justice