Last Thursday lawyers from the Electronic Frontier Foundation filed a lawsuit against the U.S. government on behalf of hardware guru Andrew “bunnie” Huang and computer-security researcher Matthew Green. In a nutshell, the pair allege that parts of the Digital Millennium Copyright Act are unconstitutional. Their objections center on Section 1201 of the DMCA, which makes it illegal to circumvent technical copy-protection schemes or to broadcast to others methods for doing so.
At first blush you might think that these rules are quite fair. After all, it’s only reasonable that content producers should put technology in place to prevent the misappropriation of their intellectual property, and they should have the full force of the law behind them in their battle against people intent to rip them off, right?
Perhaps. But, Huang, Green, and the EFF argue, the provisions of Section 1201 fail to balance the rights of the people who are using copyrighted works, which are protected in part by what’s known as fair-use doctrine. That’s why, to give a concrete example, IEEE Spectrum could quote passages from a book we were reviewing without asking permission of the book’s publisher, who might not be so keen to allow that if we were, say, critically ridiculing the book.
Indeed, we’re all pretty used to using copyrighted works in ways that the publishers of these works would probably prefer we didn’t. But thankfully, fair use puts limits on what content creators can object to. Section 1201, the plaintiffs argue, ignores those limits to the peril of our rights.
Take the part of Section 1201 that makes it illegal to circumvent technical prevention measures to change the format of a digital work that you have lawfully obtained so that you can view it on a different device. There’s no copyright infringement here, yet the law forbids you from doing it. Were you to use your technical skills to accomplish such format-changing for someone else for a fee, you could incur stiff criminal penalties—up to 5 years in prison with a fine of as much as US $500,000.
Worse in my view is the shadow Section 1201 casts over people who want to do things like hack their own digital devices, so that they can run whatever software they want on them. Such hacking can be viewed as circumvention of technical prevention measures protecting the device’s original software and is thus illegal according to the DMCA.
The legislators who created the DMCA did, however, build in something of a safety valve: They stipulated that every three years the Librarian of Congress would carve out certain exemptions to the law’s anti-circumvention provisions. The last set of exemptions allow for such things as jailbreaking phones and tablets but not e-readers or gaming devices. Those exemptions were issued in October 2015, so if you’re hoping for additional ones, you have to be patient and wait for 2018’s rulings. But there’s no guarantee that the exceptions allowed now will be renewed in 2018, so entrepreneurs can’t base any long-term business decisions on the Librarian’s current stance on these questions.
It’s no wonder that the EFF teamed up with bunnie Huang to argue the absurdity of the current situation. Huang, who last wrote for Spectrum about his open-source laptop project, is also the creator of something called NeTV, which allows its users to overlay web content on an HDMI video stream. To build the device, Huang had to accomplish the seemingly impossible and make it work without ever decrypting the video, which is scrambled as it passes between, say, a DVD player and a television, using something called High-bandwidth Digital Content Protection, or HDCP.
Huang would like his NeTV to do more—to be what he calls a NeTVCR, a device that could, for example, allow you to record a video stream and play it back later, just like the good old days of tape-based VCRs. Or it could allow you to show live coverage of an event from multiple news sources on one screen. Indeed, there are lots of non-infringing uses for such a device, probably more than even Huang can think of right now. But we’ll never know if he’s prevented from building and selling the device because of the DMCA.
Huang is the perfect guy to be on this suit for another reason—he’s very smart, not just about technology but also about copyright. I can attest to that through personal experience. While editing an article he wrote for Spectrum about Moore’s Law, he pointed out to me that one of the drawings he provided didn’t require permission from the original publisher (in this case Apple Computer), because it would be used in this context to parody the company—parody being a recognized fair use. (In the end, we didn’t include that drawing, but boy was I impressed by his grasp of copyright.)
Matthew Green, a computer scientist at Johns Hopkins University in Baltimore, is also a most appropriate plaintiff. His concerns with the DMCA are similar to those of many computer-security researchers: Basically, this law makes it very hard for them to do their jobs. That’s because often product manufacturers would rather not have security vulnerabilities in their computerized devices come to light. And they can use Section 1201 of the DMCA to discourage researchers from probing their equipment too closely by threatening legal action.
Green, moreover, would like to write a book that includes information about circumventing technical-prevention measures. But he is prevented from doing that by the DMCA, under which he could be subject to criminal penalties if he collects royalties. Green is also interested in studying security flaws in, for example, medical devices, toll-collection systems, and wireless communication systems that connect vehicles with one another and with highway infrastructure. But the chilling effects of the DMCA put a damper on such activity to the detriment of all of us.
If you haven’t figured it out already, I’m a biased observer and would take great pleasure in seeing Huang, Green, and the EFF prevail. That, in my view, would help restore some much-needed balance to the world of copyright law.