‘Unconstitutional’: Civil liberties group takes on copyright rules

© Thomas Peter
Arguing that rules under the Digital Millennium Copyright Act are unconstitutional, the Electronic Frontier Foundation is challenging the US government on behalf of two plaintiffs.

Under the act, which became law in 1998, users face criminal charges if they hack or break digital locks. That makes it a federal crime to copy a DVD, modify a game console or hack a car’s software, even if you own the items, unless you seek an exemption from the Library of Congress.

The lawsuit against the Department of Justice, Library of Congress, and US Copyright Office was filed Thursday in the US District Court District of Columbia. The two named plaintiffs argue that the restrictions under DMCA violate their First Amendment rights under the US Constitution.

One plaintiff, Matthew Green, is a computer security researcher at John Hopkins University. His work involves reverse engineering to make sure that users can trust their communication devices’ encryption, which underpins financial transactions or secures private medical information.

The DMCA forbids Green from testing out his research. He would face criminal prosecution, unless he seeks an exception from the Library of Congress to conduct his study.

The Library of Congress does not always grant exemptions. They recently denied petitions requesting permission to copy portions of movies for “narrative” filmmaking, noncommercial filmmaking using more than short clips, and educational uses for K-12 students.

“As a result, it may be unlawful to circumvent in order to create a running critical commentary on a large portion of a political debate, sporting event, or movie, when such activity would be a noninfringing fair use,” stated the Electronic Frontier Foundation (EFF) in the lawsuit.

EFF argues, “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simple consuming culture, Section 1201 has to go.”

The predicament is especially incongruous for a country where the economy has thrived because of the innovations of tinkerers and makers, from Benjamin Franklin to Nikola Tesla to Dean Kamen to Elon Musk.

“Before Section 1201 [of the DMCA], the ownership of ideas was tempered by constitutional protections. Under this law, we had the right to tinker with gadgets we bought, we had the right to record TV shows on our VCRs, and we had the right to remix song,” said Andrew “bunnie” Huang, the other named plaintiff in the suit, in a blog post.

“Section 1201 built an extra barrier around copyrightable works, restricting our prior ability to explore and create. In order to repair a gadget, we may have to decrypt its firmware; in order to remix a video, we may have to strip HDCP. Whereas we once readily expressed feelings and new ideas through remixes and hardware modifications, now we must first pause and ask: does this violate Section 1201?” Huang, an inventor whose company Alphamax LLC is developing devices for editing digital video streams, wrote.

“[His] products would enable people to make innovative use of their paid video content, such as captioning a presidential debate with a running Twitter comment field or enabling remises of high-definition video. By using or offering this technology could run afoul of Section 1201,” stated the EFF in its released statement.