Challenging The Digital Millennium Copyright Act

On July 21, 2016, the Electronic Frontier Foundation (the “EFF”), a nonprofit who advocates access to technologies through civil liberties, filed a lawsuit that could change the way copyrights are managed in the United States and effectively abroad.

What is Section 1201 of the Digital Millennium Copyright Act?

The Digital Millennium Copyright Act (“DMCA”) was passed in 1998. The law implemented two treaties of the World Intellectual Property Organization (WIPO): the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Section 1201 of the Digital Millennium Copyright Act criminalizes the manipulation of digital rights management, a variety of access control technologies used to restrict or control the use and modification of copyrighted works. One of the best examples of manipulating digital rights is when an individual tampers with a media player to play media forms that the device is not originally designed to play. Currently, the law allows the Copyright Office to consider exemptions to Section 1201 every three years. The public may request that particular activities be exempt to the Copyright Office. The Copyright Office will then make a recommendation to the Library of Congress, the office that considers such exemptions.

The EFF’s sues the federal government to overturn Section 1201.

The EFF is challenging the anti-circumvention and anti-trafficking provisions in Section 1201 of the Digital Millennium Copyright Act (“DMCA”). The EFF filed their complaint in the U.S. District Court in Washington D.C., arguing these provisions violate the First Amendment right to freedom of expression.  The DMCA was originally passed to curb the piracy of copyrighted works. Although mostly used by the entertainment industry, these provisions are hotly contested in the digital world because software is a copyrightable work.

The main issue is whether these DMCA provisions are preventing innovators from further improving products and technologies developed by others.

In their challenge, the EFF is representing Matthew Green and Andrew “bunnie” Huang. Green is a professor of computer science at Johns Hopkins University. His research focuses on applied cryptography, and he is credited with discovering serious security flaws in automotive anti-theft systems, Apple’s iMessage text messaging system, and encryption flaws that affects nearly 1/3 of the world’s websites, such as Facebook and the National Security Agency. He desires to continue investigating devices that affect millions of people: medical devices, industrial firewall and virtual private network devices, and wireless communication systems that connect vehicles to one another and to surrounding infrastructure.

Huang is an electrical engineer with a Ph.D. from the Massachusetts Institute of Technology. He is a prominent American hacker, most noted for his reverse engineering of Microsoft’s Xbox to install other operating systems. His other major projects include designing the world’s first fully integrated nanophotonic-silicon chips, developing the Safecast Open Hardware Geiger Counter, and designing NeTV, open hardware that allows users to overlay content over HD content without violating the DMCA.  He intends to create an improved version that will allow users to record and manipulate digital video in the same manner as a VCR.

In both Green and Huang’s situations, the EFF is arguing that even attempting to explore these technologies and publicly disclose their findings potentially violate Section 1201. The EFF also believes Huang, Green, and many other innovators are chilled from not only engaging in such activities due to 1201’s broad enforcement or potential enforcement, but also freedom of expression related to such activities in violation of the First Amendment. Additionally, the EFF is arguing that both the Library of Congress and Copyright Office actions in 1201 exemption proceedings amount to non-compliance with enforcement of the law in violation of the First Amendment and the Administrative Procedure Act.

Why is This Lawsuit Important?

This lawsuit has been long anticipated since the Digital Millennium Copyright Act’s passage almost 20 years ago. In September 2014, the EFF published “Unintended Consequences – 16 Years Under the DMCA,” a white paper that discusses the multiple ways the anti-circumvention provisions have stopped or delayed technological advancements.

In conclusion, this case is highly significant because the EFF is challenging the heart of 1201 in multiple ways. The EFF contends 1) that Section 1201 is invalid because it violates the First Amendment, and 2) that the Section 1201 exemption process is inadequate and the federal offices who enforce that statute have also violated the First Amendment with respect to the triennial exemption process. Because the DMCA was also implemented to impose international copyright laws, the invalidation or reconstruction of Section 1201 would have major implications on commercialization of copyrighted works here in the U.S. and abroad.

At The Royse Law Firm we can help guide your company in all aspects of business law including intellectual property. If are you involved in a case that involves the Digital Millennium Copyright Act or other copyright concerns, contact us today to help meet your company’s needs.

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Roger Royse
rroyse@rroyselaw.com

Roger Royse, the founder of the Royse Law Firm, works with companies ranging from newly formed tech startups to publicly traded multinationals in a variety of industries. Roger regularly advises on complex tax structuring, high stakes business negotiations and large international financial transactions. Practicing business and tax law since 1984, Roger’s background includes work with prominent San Francisco Bay area law firms, as well as Milbank, Tweed, Hadley and McCloy in New York City.
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