EFF Sues to Stop Enforcement of DMCA Section 1201 Anti-Circumvention, Anti-Trafficking Rules

EFF led the filing of a lawsuit Thursday against the federal government seeking to end enforcement of the Digital Millennium Copyright Act's Section 1201, claiming the DMCA's ban on circumvention of technological protection measures and its anti-trafficking provisions overly restrict First Amendment rights. EFF is representing Johns Hopkins University Information Security Institute assistant professor Matthew Green, media tech firm Alphamax and company owner Andrew Huang, who jointly filed the suit in U.S. District Court in Washington, D.C. The EFF-backed suit is directed at DOJ, the Library of Congress, Copyright Office and their leaders. EFF said Section 1201's 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 actions in the section “chills protected and noninfringing speech that relies on copyrighted works,” particularly speech about computer security research and the ability to shift the format of copyrighted works, EFF said. The CO triennial review process for considering exemptions to Section 1201's anti-circumvention rules doesn't “alleviate these problems” and is itself an “unconstitutional speech-licensing regime,” EFF said. Then-acting Librarian of Congress David Mao granted 10 exemptions in October after the CO's most recent triennial review, including a delayed exemption for security research. The office recommended against granting a proposed exemption allowing space-shifting and format-shifting of videos and other media for personal use (see 1510270056). EFF, which actively participated in the CO's most-recent Section 1201 triennial review and backed multiple exemptions, said it believes the LOC's failure to grant the format-shifting exemption and a broader security research exemption violate both the First Amendment and Administrative Procedure Act. “The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said EFF Staff Attorney Kit Walsh in a news release. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.” Public Knowledge Policy Fellow Kerry Sheehan lauded the EFF lawsuit, saying in a news release it “highlights fundamental failures by the Copyright Office in the DMCA exemption process. The Office has erected a litany of administrative barriers, not required by the law itself, to scholars, technologists, consumers, and many others ensnared by unintended consequences and indefensible applications of Section 1201. Even when the Copyright Office does recommend exemptions, they are often so narrow as to be practically useless. In light of the Copyright Office’s mismanagement, this constitutional challenge is hardly surprising.”