EFF Challenges DMCA's Anti-Circumvention Provision

The Electronic Frontier Foundation (EFF) and Wilson Sonsini Goodrich & Rosati have teamed up to challenge provisions in U.S. copyright law that threaten harsh penalties for breaking “digital locks” guarding content such as music and software code. In a complaint filed last month at the U.S. District Court for the District of Columbia, EFF and Wilson Sonsini seek to strike down parts of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. '1201 et seq. (1998), that they say have stifled important work by creators and tinkerers. They allege the provisions, particularly '1201 of the DMCA, violate the First Amendment.

“The threat of enforcement of these provisions chills protected and non-infringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time,” the 32-page complaint says. Green v. U.S. Department of Justice, 1:2016cv01492.

The case is sure to draw the ire of Hollywood and the recording industry, says Joseph Gratz, a partner at IP boutique Durie Tangri. It's also likely to provoke such Silicon Valley titans as Apple and Netflix that have raked in cash by creating systems that control the delivery of media. “The danger is ultimately that if you strike down through the fiat of the lawsuit ' the protection [under '1201], you really are threatening the creation, continuation, and development of continually new platforms for disseminating copyrighted content,” says Kelly Klaus of Munger Tolles & Olsen, who represents movie and recording studios.

Kit Walsh, a staff attorney at EFF, acknowledges that the litigation challenges powerful interests. “There's definitely been money to be made in keeping people from exercising the freedoms that they used to have,” she said in an interview. The suit is being brought on behalf of Matthew Green, a cybersecurity researcher and assistant professor at Johns Hopkins University, and Andrew “Bunnie” Huang, a renowned electrical engineer and inventor from Singapore. It argues that the penalties for breaking the DMCA provisions ' up to five years in prison and a fine of $500,000 'have hampered their research and business efforts.

Green, for example, says he wants to collect information on the security of medical devices, toll collection systems and virtual private network devices. He hopes to learn about possible failures in their security and write about them in a book, but says '1201 bars him from doing so. Meanwhile, Huang is attempting to market a device through his company Alphamax that would allow people to edit digital TV and take it with them across a range of devices and formats. To do that, though, he has to crack a technology developed by Intel Corp. called HDCP. The company has threatened to sue anyone who does so under '1201, and the way the law is structured Intel could win even if its copyrights were not infringed in the process.

“Fear of prosecution under Section 1201 deters Huang and Alphamax from engaging in the circumvention of HDCP applied to copyrighted works in furtherance of the non-infringing uses described above,” the complaint says. The law states that no person “shall circumvent a technological measure that effectively controls access to a work” protected by the DMCA. It allows for a three-year review period administered by the Library of Congress, which can grant temporary exemptions for particular uses. But the last determination made in 2015 did not cover the types of work that Green and Huang seek to do, according to their complaint. The lawsuit alleges that the review process, in and of itself, also represents overbroad government control on free speech.

Litigation over '1201 isn't new, but this suit appears to be the most direct attack on the statute in a long time. The last similar instance was a case in the U.S. Court of Appeals for the Second Circuit named Universal City Studios Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001), decided in favor of the law's prohibitions. But Klaus, who's litigated on the other side of EFF before, says the same outcome isn't assured: “I expect they will try to distinguish and say that times and circumstances have changed.”

Ben Hancock is a reporter for The Recorder, the San Francisco-based ALM sibling of Entertainment Law & Finance.