Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants. The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC. The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.
The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.
We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand. Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.
In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.
As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests. But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.
That Dr. Matthew Green’s Security Research is Being Stifled
Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.
Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process. But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.
In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption. Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.
For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.” How? I have no idea. But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.
Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability. But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.
So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional? After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.
That the Triennial Review Process is Stifling Speech
Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.
Two things seem odd about this section of the complaint. The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching. The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech. Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.
Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market. Exemptions apply to everyone, not just the applicants. So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions. The CO’s complete review of the last round of applications is over 400 pages long. How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?
And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated. This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem. So, the big question reprises: Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?
Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views. We’ll see what the courts say.
© 2016, David Newhoff. All rights reserved.