Suit filed by the Electronic Frontier Foundation (EFF) contends First Amendment rights are being violated by DMCA’s anti-circumvention provisions
Our Robert W. Deutsch Arts & Technology Policy Fellow, Courtney Duffy, returns with a new #CopyrightWithCourtney post on a legal challenge to the U.S. Copyright Office’s flawed system of granting exemptions to tech users who seek to break digital locks to access copyrighted works for legal purposes. The current system has major ramifications for filmmakers. Follow Courtney on Twitter @cduffy90 and join the conversation using #CopyrightWithCourtney.
Last week, the Electronic Frontier Foundation (EFF) sued the U.S. Copyright Office and the Department of Justice to overturn the anti-circumvention provisions in Section 1201 of the Digital Millennium Copyright Act (DMCA), which make it illegal to circumvent digital locks on copyrighted works.
Refresh my memory: What’s the DMCA, and what’s wrong with it?
The Digital Millennium Copyright Act (DMCA) was signed into law in 1998 under President Clinton as an attempt to update copyright law in accordance with the changing technology of the times. Part of the law, Section 1201, makes it illegal to break digital locks placed on copyrighted material whether the intended use is legal or not. It’s the act of breaking the lock itself which is illegal. The Library of Congress, which houses the Copyright Office, has a triennial review process by which individuals and organizations can petition for exemptions to this law on behalf of those who intend to make legal uses of these copyrighted works. This review process is burdensome, and groups must spend time and money to restate their case every three years, even if they have been granted an exemption in the past.
How are artists impacted by the broken DMCA?
Filmmakers and authors have long held the right to make fair use of copyrighted material, transforming it for uses like criticism and commentary, making arguments, and providing historical context. But since the DMCA made it illegal — and, in some cases, a crime — to access this content by breaking encryption unless an exemption is granted, these artists are forced to restate the same case over again every three years in order to continue to be able to access these works. Veteran filmmaker Gordon Quinn, who is a Fractured Atlas member, has presented the case of the documentary filmmaking community before the Library of Congress for the past several years.
In this Motherboard article Gordon and I wrote together, he details the unpredictability of the process, noting that although the filmmakers’ argument for the circumvention of digital locks on Blu-Ray disks was denied two cycles ago, it was accepted during the most recent cycle without significant changes to the argument. This unpredictability has undoubtedly stifled innovation in the field, which harms filmmakers and audiences alike. As a result, Gordon and I argued, the DMCA inadvertently chills fair use and other lawful activities that are central to free expression in a democracy, as well as the livelihoods of filmmakers around the country.
What is the nature of EFF’s new lawsuit against the Copyright Office?
EFF’s suit comes after years of failures by the Copyright Office to fix the broken DMCA exemption process, which involves a number of burdensome and administrative hoops for artists like Gordon Quinn to jump through every three years. EFF’s main argument in this suit is that the legal proceedings involving circumvention violate consumers’ First Amendment rights to freedom of expression. The Copyright Office, EFF alleges, “has mismanaged the process and repeatedly failed to grant valid exemptions” in violation of the First Amendment.
My colleague at Public Knowledge, Kerry Maeve Sheehan, agrees: “The Office has erected a litany of administrative barriers, not required by the law itself, to scholars, technologists, consumers, and many others (like artists) ensnared by unintended consequences and indefensible applications of Section 1201,” she says. “Even when the Copyright Office does recommend exemptions, they are often so narrow as to be practically useless.”
What sort of advocacy have Fractured Atlas and Public Knowledge done already?
My colleagues at Public Knowledge have been paying close attention to this issue for several years, and took a more active approach to advocacy in the fall of 2015, aligning with the most recent triennial review process. Fractured Atlas sponsored a trip for Gordon Quinn to Washington, D.C., where he represented the arts community on a Capitol Hill panel put on by Public Knowledge that focused on the DMCA’s flaws.
During his trip to Capitol Hill, Gordon accompanied me on face-to-face visits with a dozen Congressional offices from across the political spectrum in which he described the burdensome exemption process he endures every three years. Gordon clarified that fixing the current system will not in fact lead to additional piracy — a common misconception — because those who seek exemptions are seeking to access copyrighted works for legal uses only. Any uses of the works that do not fall under fair use would be subject to punishment under existing copyright law. Gordon articulated that as a copyright holder himself, he relies on the ability to legally incorporate copyrighted works into his new works. “In a democracy,” he said, “we cannot keep culture locked up.”
We will monitor the process of EFF’s suit carefully and provide updates on the blog. Stay tuned!
You can find additional blog posts Courtney has written on this subject here, here, and here.
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