EFF: Controversial copyright law unconstitutional

EFF: Controversial copyright law unconstitutional

The Electronic Frontier Foundation is suing the government to remove a controversial clause in a long-controversial copyright law.

The digital liberties organization is suing to remove "anti-circumvention" restrictions from Digital Millennium Copyright Act (DMCA), long a thorn in civil libertarians' craw.


The DMCA was signed in 1998. Originally intended to protect the arts industries from online privacy, its Section 1201 included “anti-circumvention” provisions that prohibit breaking any digital safeguards that protected copyrights. For example, a user could no longer disable the copy protection on a video tape.

The rule bothers groups like the EFF because it limits what people can do with the devices and products they own, even when it has nothing to do with violating the actual copyrights.

On Thursday, the EFF filed a lawsuit stating that anti-circumvention provisions violate the constitutionally protected freedom of expression.

“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, 1201 has to go,” said EFF attorney Kit Walsh in a press release announcing the suit

The EFF represents two defendants. The first, Andrew Huang, develops digital products that allow people to edit video they have purchased and own. The second, Matthew Green, is a professor at Johns Hopkins that does security research on devices – for example, making sure hackers cannot steal customers account information from ATMs.

"Green’s publication of technological information is core expressive activity," says the court filing 

There are a variety of other issues with anti-circumvention that have been brought up since its codification into law.  People with pacemakers cannot do their own diagnostic tests on the devices with circumventing copyrights protection.

Many argue that the Volkswagon emissions scandal – where software was designed to be more frugal with pollutants when the car detected it was being tested – would have been much quicker caught if auto owners could tinker with the software that runs cars.

There is some recourse. Every three years, the Library of Congress hears arguments to create temporary exemptions to the DMCA. In fact, in the last round of rulemaking, many instances of security research like Green’s received exemptions.

The EFF argues in its court filing that the exemption for research is too narrowly construed.

Many of the fiercest defenders of the anti-circumvention rule are automotive companies who claim that allowing owners to tinker with their cars would create a public safety risk or allow owners to disable law-mandated features. Similarly, medical device manufacturers say opening up implanted devices to amateur developers risks serious harm to patients.

The original beneficiaries of DMCA continue to defend the anti-circumvention as well. 

"The enactment of Section 1201 in 1998 has enabled creators to provide an unprecedented amount of high-quality video content over the internet and in digital formats using multiple platforms and new technologies, despite the increased risks of piracy," said the Motion Picture Association of America in a written statement. "Thanks largely to the protections of Sec. 1201 and similar provisions around the globe, there are now over 120 legal platforms for accessing movies and TV shows over the internet in the U.S. – and more than 400 worldwide."

--Updated at 7:20 PM to include the MPAA's statement