EFF says Section 1201 of the DMCA is Unconstitutional?

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 – 2018, David Newhoff. All rights reserved.

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  • How do they square the legality of prohibiting breaking the protection designed to stop copy of content from a device with the legality of prohibiting breaking the protection designed to stop copying of people’s bank details from a credit card? Its all the same stuff.

    • David Newhoff

      Their response would be that 1201 doesn’t address that kind of hacking, which is prohibited by the CFAA. That’s the legal answer. The theoretical question you raise, though, has a place in the larger debate I think. Of course, the CFAA is also considered the worst law ever by the same voices. After SOPA that is. Nothing is worse than SOPA.

      • So I understand:

        The issue is the same though one is bank data the other music/film, all of it is property of one type or another, all of the laws are designed to stop interfering fingers gaining unauthorised access.

        Then there are smart meters in your home for utilities like gas, electricity, and water. Your wifi router. The engine management system on your car. Industrial controls on pumps and turbines, the nanny cam in your child’s bedroom. 100,000s of bits of kit, which one wouldn’t want the neighbourhood script kiddies fiddling about with.

        His beef seems to be that some companies won’t give him permission to test their systems. So publicise that X won’t allow anyone to test the security of their kit.

      • David Newhoff

        If by “his,” you mean Matthew Green, his exact complaint is unclear. As I said, the CO largely agreed with his application but had to delay implementation. I’m not sure if this is the source of frustration. Unfortunately, the CO reviews in detail, while blog posts and articles tend to generalize, so the specifics are hard to find.

        As for the CFAA, the Nosal case has been the source of recent headlines telling everyone that sharing passwords is a federal crime, which is a distortion in the extreme. I wrote about it a week or two ago.

        I wouldn’t lump it all together only because that’s kinda what I think EFF and other critics do in order to boil it all down to a tweet people can share and support. None of it is that simple.

  • Without getting into the rest of your post, there’s a factual error: iPods would absolutely exist sans the DMCA. iPods were first released in 2001, but the iTunes Music Store (which initially had licensed, encrypted music) didn’t appear until 2003. Prior to that, the only real way to get music onto iPods was by ripping music from various sources, typically unencrypted ones like CDs. Ofttimes people would pirate music from such sources in order to put music on their iPods.

    In fact, were CDs encrypted (like, say, SACD, DVD-Audio, or various other formats that were market failures) then the iPod likely would not exist.

    And let’s not forget the irony that the insistence of the music industry that iTMS tracks be encrypted led to the dominance of Apple over the clueless, hapless record labels, because it promoted vendor lock-in. The only solution was for the music industry to permit unencrypted music to be made available from other retailers (e.g. Amazon), and eventually from Apple itself. Something similar has gone on in the ebook sphere, with publishers essentially ceding control to Amazon because entrenched copyright interests are usually dumb as a sack of hammers.

    • David Newhoff

      iTunes was fundamentally created to sell iPods. If Apple hadn’t created a platform for licensing popular music, it would not have had a market for iPods and would not, therefore, continue to produce them. You’re taking a very narrow view of the market and the process by which these things are developed.

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  • “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?”

    I don’t think the EFF’s concern is limited to Dr. Green. If they think 1201 is unconstitutional, a permanent exemption for security researchers doesn’t address the full scope of the problem. Dr. Green is just one example.

    As far as the review process having far-reaching implications such as making it kosher for teachers to rip films — I think that’s a bit misleading. Those teachers are still limited to fair-use activities with copyrighted works. So while yes, the decision doesn’t just affect the applicant, it’s not a free-for-all either. It affects those using 1201 to control use of their work beyond the protections copyright ordinarily affords. When those controls interfere with constitutionally protected activities, an onerous process for a time limited exemption might not be sufficient.

    • Thanks, Paul.

      Dr. Green may be just one example, but he’s one of two the EFF picked to argue the constitutionality question, so he better be a damn good example. My personal assumption is that the EFF doesn’t expect to win this argument and isn’t “concerned” about it quite so broadly as you suggest. I think this was a PR move that just so happened to coincide with a full-frontal assault on the Copyright Office. That or it’s a tactic in defense of Section 512.

      1201 is an 18-year-old law that makes all the various ways to distribute works in digital formats possible. Striking it down entirely creates a problem for producers and consumers. The exemption process may not be perfect, but amending the permanent exemptions would be a more effective and balanced approach; and Register Pallante had proposed other means of streamlining the process that would make it less onerous.

      And why shouldn’t teachers be limited to fair uses of copyrighted works, and how is that related to circumvention per se? It’s easy to generalize about 1201 “interfering with constitutionally protected activities,” but this isn’t a generalized issue. It’s a case-by-case consideration, and one that is more limited than I think many claim. Meanwhile, the market is changing very rapidly, moving away from “ownership” of goods and certainly of copyrighted materials like creative works. So, my own view is that this argument against 1201 is largely addressing a problem that a) is exaggerated; and b) will look different in just a few years.

      • I don’t think either of us are suggesting teachers shouldn’t be limited by fair use, although it might be an interesting discussion. But it does mean in many respects any exemption from 1201 is narrow since copyright law still applies.

        To me the general nature of the problems with 1201 are unavoidable. Prior to 1201 copyright was limited to controlling copying of a work. 1201 gives copyright holders the ability to make any rules they want regarding /use/ of their work, and gives those rules the force of law. That’s a very open-ended power, especially when software is everywhere. Licensing has similar issues that may need to be addressed at some point.

        It’s probably to be expected that those who feel they benefit from 1201 and those who are negatively affected by 1201 have a different perspective on whether the problems are limited and suitably addressed case-by-case, or otherwise.

      • Actually, 1201 is fairly narrow in that it is concerned specifically with circumvention of TPM. In this regard, the majority of the market, by a very large margin, is served by 1201 in contrast to the market that is going to have a conflict, let alone a constitutional conflict, with its prohibitions. In simple terms, tens of millions of people benefitted from the DVD and neither cared, nor knew how, to circumvent the TPM; and of those who could or wanted to do so, it would be an even smaller set who could make any kind of constitutional claim.

        What is unavoidable is that the market continues to evolve, and as you say, software becomes part of everything. But as expansive as that truth may be, I would still say the need for exemption is a small fraction of the market being served. That fraction is important and may have broad implications (e.g. the research of Mr. Green), but that’s why there is an exemption process and one reason Palatine had proposed a fix to allow exemptions to stand without need for triennial re-application as long as there were no new exceptions proposed.

        We read about stories that sound big, like not being allowed to bring a car to a mechanic of our choice, and I agree that should be rectified even if it isn’t a constitutional matter per se. Without knowing a lot about it, that sounds like automakers using copyright improperly, and it should be addressed. But that doesn’t warrant striking down 1201, which protects actual producers of copyrighted works and the market for those works. Meanwhile, I believe the more software becomes integrated with our lives, I suspect there will be anti-circumvention laws predicated on grounds other than copyright. Like the way it’s a federal crime to tamper with the smoke detector in an aircraft lavatory.

        1201 doesn’t give rights holders unlimited power to keep changing the rules, but the fact remains that we increasingly enjoy a market that is no longer based on copies. Of course the word copyright has its foundations in mechanical and manual reproduction of works, but is that a reason for arguing against the purpose and spirit of copyright law on semantic grounds alone? That seems beyond self-defeating because it would mean no Netflix, which people seem to like.

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