Tag: Section 1201

The EFF Campaign Against DMCA Section 1201 Perishes in the DC Circuit

section 1201

The First Amendment protects the right to read books but not the right to break into a bookstore for the purpose of reading—not even if the goal is to quote a passage from a book in a manner that would be fair use under copyright law. The hypothetical, lawful use of the book’s contents to produce protected expression does not make the law prohibiting trespassing into the store a violation of the speech right. Most reasonable people can understand this distinction, but for about 18 years, the Electronic Frontier Foundation (EFF) has tried to prove that common sense is wrong.

Ever since literary works, sound recordings, audiovisual works, etc. went digital, the concept of “digital locks” used to protect lawful access to these materials has vexed the EFF, which launched a campaign and lawsuit in 2016 to prove that the law against breaking said locks is unconstitutional. Filing suit on behalf of researcher Matthew Green and product developer Andrew Huang, the EFF has argued that Section 1201 of the Digital Millennium Copyright Act (DMCA) violates the speech right because circumvention of technical protection measures (TPM) may sometimes be done to achieve forms of protected expression that would be defensible under the fair use exception.

TPMs generally consist of code used to enforce lawful access to digitally distributed works like eBooks or streaming services, and §1201 prohibits circumventing TPM and/or trafficking in devices primarily designed for circumvention. By law, the Librarian of Congress (really the Copyright Office) conducts a triennial rulemaking proceeding to consider applications for, and grant exemptions to, §1201 for purposes such as research and certain educational or journalistic uses of the encrypted works. You can read posts here and here for background on the EFF’s case, but the bottom line is that the appellate court last week soundly rejected the claim that 1201’s “legitimate sweep” functions as a “speech licensing” law.

Among the court’s determinations, it held that the government’s interest in preventing “digital trespass” properly restricts a wide range of conduct that has no expressive purpose; the First Amendment does not guarantee unfettered access to expressive works; the plaintiffs in name make no showing that their protected expression is being chilled; and the various hypothetical examples presented by the EFF are answered by legal forms of access to works that do not require circumvention of TPM. More than a few of the court’s responses demonstrate why the EFF has tried inaptly to portray an anti-trespass law as a speech law. For example…

A trespass law undoubtedly affects some expressive conduct, as when political protestors trespass to stage a demonstration where it might have maximal impact. Similarly, the DMCA’s anticircumvention provision might preclude a student from circumventing technological measures to cut a high-quality clip of a copyrighted feature film to use in his class presentation. But trespassing is not “necessarily associated with speech,” because laws prohibiting trespass also “apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer players, and others not engaged in constitutionally protected conduct.”

As the court explains, §1201 likewise applies to a range of parties with an interest in circumvention for both lawful and unlawful purposes, but expression is not the basis on which the law operates. Going back to the bookstore, it is simply illegal to break in at all, regardless of whether the intent is to read, cite a book, or ransack the place. The fact that the vandal will face charges not attributable to the reader has no bearing on the trespass violation they both committed.

I also want to highlight the court’s response to the allegation that the §1201 rulemaking process is itself an unconstitutional prior restraint on speech as indicative of EFF’s chronic misstatements about fair use. The court writes, “An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself.”

In other words, arguing a fair use defense requires litigation and uncertainty in contrast to a rule by the Librarian that a given use has been granted an exemption. The Library has granted a broad range of exemptions to §1201, and as this opinion notes, an exemption granted to a single petitioner (e.g., a documentary filmmaker or teacher) applies to all parties in that class with the same interest in circumventing TPM.

Finally, the court concludes that the rulemaking proceeding is not above judicial review—that a petitioner who believes the Library has made a content- or viewpoint-based decision may still bring a First Amendment complaint to the courts on that basis, but this does not alter the finding that the law itself withstands constitutional scrutiny. Never say never, I guess, but I predict this alleged controversy is now a settled matter—that EFF has wrung all the value it can from this campaign and will need to find a new anti-copyright windmill on which to break its lances.

DMCA Section 1201 Still Constitutional Says Circuit Court

The Electronic Frontier Foundation (EFF) was dealt a significant (possibly fatal) blow in its longstanding endeavor to have the courts abolish the entirety of DMCA Section 1201 as an unconstitutional violation of the First Amendment. The case Matthew D. Green, et al. v. United States Department of Justice was filed in July of 2016, and on December 6, the DC Circuit Court of Appeals affirmed the lower court’s denial of a preliminary injunction against enforcement of 1201 on behalf of plaintiffs Matthew Green and Andrew Huang.

Section 1201 is the provision within the Copyright Act that enables rightsholders to use computer code for the purpose of digital rights management (DRM) with two primary purposes: 1) to control access to works; and 2) to prohibit unauthorized copying of works. These purposes naturally work in tandem. For instance, Netflix requires a subscription for access and allows an account holder to download a file for offline viewing, but different code prevents copying that file for transmission to some other party. The 1201 statute prohibits unauthorized circumvention of DRM and/or trafficking in technology that enables unauthorized circumvention or copying, either of which may result in civil or criminal action.

Simply put, without DRM, the digital, on-demand market for most media would not exist, and the central purpose of 1201 to foster and sustain this market is a settled matter—both in Congress and the courts. Nevertheless, the EFF has vowed to see 1201 abolished in our lifetimes. In 2018, in a blatant appeal for donations, Cory Doctorow wrote a blog for EFF touting its “Apollo 1201 Project [which] aims to kill all the DRM in the world inside of a decade.” No mention of the fact that, at that point, the EFF’s original endeavor to “kill” DRM with the Constitution was already about twenty years old. And as of last week, it is fair to say that if DRM is to die circa 2026-28, it will not be at the clumsy hand of the EFF and its flawed arguments on behalf of inapt plaintiffs.

In the case of Mr. Green, he was seeking a preliminary injunction as a prophylactic shield in advance of publishing a book which explains (in both English and computer code) how circumvention is achieved. But the appellate court states:

Because Green intends to provide code able to circumvent technological protection measures, he believes the book would likely violate the antitrafficking provision. At oral argument, however, government counsel made quite clear that in its view, Green’s proposed course of conduct would not run afoul of the DMCA…. The government’s concession ends any “credible threat of prosecution” against Green, leaving him without standing to obtain a preliminary injunction.

As my friend Devlin Hartline mentioned during a call to discuss this case, “It was surprising to see the government concede that ground here, but even if it had not, Green’s argument for a preliminary injunction would have lost on the merits.” Writing a book about circumvention is protected speech that does not implicate 1201’s anti-trafficking provision, and the extent to which said book might be construed as a How-To manual for circumvention, that would be a fact-intensive inquiry which would still be tough to argue is a violation of the statute. This may explain why the government shrugged at it in this case.

As for Andrew Huang, he sought an injunction for intended activity that goes to the heart of 1201. Hoping to sell a DRM circumvention device called NeTVCR, along with published code so the device can be updated, Huang (the EFF) argued that computer code, even for circumvention, is protected speech. To this, the circuit court essentially said “no kidding” and notes that the government never challenged the premise that code itself is speech under the First Amendment. But as the opinion states, “We turn then to whether the DMCA ‘target[s] speech based on its communicative content’—that is, if it ‘applies to particular speech because of the topic discussed or the idea or message expressed.’”

Separating Expression from Function

“The Supreme Court’s recent free speech case, City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022), is virtually dispositive,” the DC Circuit opinion states. At issue in Austin, and the relevant caselaw, is the distinction between state sign regulations that are content-neutral (and likely not in conflict with the First Amendment) versus regulations that may be content-focused (and likely to conflict with the First Amendment). The City of Austin’s rules pertain to off-premise signs, which may advertise, promote, or inform readers about something unrelated to the location of the sign; and on-premise signs, which may advertise, promote, or inform readers about something specific to the location of the sign.

Without getting into the weeds on various state sign regulations, suffice to say, the SCOTUS majority in Austin held that the city’s regulations at issue are content neutral, rejecting the petitioner’s argument (and the dissent) that because enforcement necessitated reading the signs, the regulations are fundamentally content based. The majority held, “Underlying these cases and others is a rejection of the view that any examination of speech or expression inherently triggers heightened First Amendment concern. Rather, it is regulations that discriminate based on ‘the topic discussed or the idea or message expressed’ that are content based.” Making a comparison to Austin, court in Green states:

The same logic applies here. Although the DMCA requires reading computer code to determine what digital act the code carries out, it is nonetheless content neutral because, in the words of City of Austin, it cares about the expressive message in the code “only to the extent that it informs” the code’s function.

The court further states that the DMCA question presented is easier than Austin because that case concerned the regulation of speech as speech, while Section 1201 is only concerned with the functional aspect(s) of computer code. As any copyright nerd is aware, the copyrightability of code is acutely concerned with reconciling the expressive (protectable) from the functional (non-protectable) aspects of the work. And here, as elsewhere, that which is copyrightable (expression) happens to be the part of computer code that would be protected speech. The EFF wants to call locks and keys forms of expression just because they are made of code instead of steel. But, of course, the locks are made of code — because so are the works they protect against theft.

Devlin Hartline, writing about this case for Copyright Alliance in September of 2021, discussed EFF’s alternate (reverse engineered?) route to a First Amendment challenge to 1201—namely that DRM is a prior restraint on potentially non-infringing conduct. The organization has argued many times, for instance, that if the intended use of the copyrighted work may be a fair use, then 1201 prohibits this otherwise legal conduct, which is itself protected by the First Amendment. But, as Hartline plainly observes, “The First Amendment does not allow you to pick the lock on the front door of a library in the middle of the night in order to break in and make fair use of the copyrighted books in the stacks.”

One does not need to be a constitutional scholar or a computer programmer to grasp the common sense understanding that the provisions of 1201 address solely functional aspects of code. In plain terms, 1201 is silent as to what code may be used for DRM, and it is likewise silent as to what code may be written that could pick the proverbial lock. It simply states that the act of picking the lock or trafficking in lock picks is against the law for the same reasons that bootlegging was illegal in the days before digital.

To work at the EFF, it seems that one must swear a blood oath to the core belief that copyright is inherently in conflict with the speech right. And orthodoxy mixed with righteousness (and more than a little self-interest) will invariably produce convoluted logic. Since 2001, the organization and its likeminded amici have failed to find any purchase in the courts with a constitutional challenge to DMCA Section 1201. As opined in an older post about this case, if EFF et al. really cared about specific burdens on certain parties, it would put more energy into advocating relevant permanent exemptions via the Copyright Office rulemaking process. Why it persists in this boondoggle of endless, ill-fated litigation can best be explained, I think, by the “Donate Now” button.

A Good Right to Repair Bill Would Not Break Things

Rep. Mondaire Jones (NY), along with co-sponsor Rep. Victoria Spartz (IN) introduced a bill in February called the Freedom to Repair Act. Seeking to remedy a specific, unintended consequence of one part of the Copyright Act, the bill overreaches so dramatically that it would effectively legalize piracy of creative works. If Congress wants to address unfair practices among certain manufacturers of machines and vehicles, the solution cannot be to remove copyright protections for authors, filmmakers, musicians, and other creators.

We all know that many domestic and commercial products are at least partly controlled by software. It has been years since anyone has taken a car to a mechanic without seeing it hooked up to a computer to obtain diagnostic data about the vehicle’s condition. And because software is protectable by copyright law, consumers of various products complain that manufacturers use enforcement of their copyright rights to maintain monopoly protection over replacement parts and repair processes necessary for maintenance.

While it is true that using copyright law to extend unreasonable, post-sale control over machines and vehicles can strain copyright’s core purpose to foster creative expression, the Freedom to Repair Act makes no distinction between the creative industry and the world of manufactured goods. Instead, the one-page bill simply upends DMCA Section 1201 of the Copyright Act—the section that prohibits circumventing digital rights management (DRM) tools (a.k.a. technical protection measures) used to prevent unlawful copying or distribution of protected material.[1]

The difficulty of course is that creative works are all converted into code so we can have products like eBooks and enjoy filmed entertainment or music via downloads or streaming services. The same Section 1201 that may be wrongly exploited by certain manufacturers is still predominantly doing the work of ensuring that creative material can be legally commercialized so that the professionals who produce these works are paid for their labor, skills, and expertise.

The Freedom to Repair Act is so broadly written that it would repeal Section 1201 without regard for the diverse range of economic activity it continues to foster. Reps. Jones and Spartz should be reminded that the creative industries contribute about $1.5 trillion to U.S. GDP, and Jones’s state of New York is one of the most vibrant creative markets in the country. If the congressman hopes to craft an effective right to repair bill, his office needs to hear from the many creative professionals in his state alone whose livelihoods increasingly depend on the provisions in Section 1201.

With the vast majority of us consuming most of our media through on-demand digital services, Section 1201 is more relevant than it was in 1998, when it was first adopted to encode material distributed in formats like DVDs. Meanwhile, the market continues to tempt opportunistic ventures hoping to develop new methods and new rationales for circumventing copyright law and exploiting creative works without license. The last thing the creative industries need is for Congress to clear a new path to legalized piracy.

I join those who endorse the spirit of a right to repair initiative, but the Freedom to Repair Act, as written, would allow the exception to overwhelm the rule and cause considerable and needless harm to millions of professionals who work in creative fields. Consequently, the bill is a disservice to the issue it proposes to address because it is justifiably going nowhere on Capitol Hill. If Rep. Jones et al. are serious about a federal right to repair law, they must meet with representatives of the creative industries and work to craft nuanced legislation that targets the issue at hand and does not carelessly fix things that ain’t broken.

[1] It should also be noted that complaints about a right to “jailbreak” various products often blame copyright law where regulations like environmental safety may be the underlying basis for the prohibition.

Photo source by: JGade_DK