The Electronic Frontier Foundation is taking legal action against certain pseudo-copyright regulations that stifle free expression and contravene the First Amendment. These rules often inhibit legitimate uses of digital works, raising serious questions about their validity under the Constitution.
The Electronic Frontier Foundation (EFF) in conjunction with Wilson Sonsini Goodrich & Rosati, has taken its fight to the U.S. Court of Appeals for the District of Columbia Circuit. The organizations are challenging the constitutional validity of Section 1201(a) of the Digital Millennium Copyright Act (DMCA). The litigation originates from a quarter-century history of individuals having to seek authorization from the Copyright Office to use copyrighted materials that have been digitally secured. This lawsuit was initially filed in 2016 on behalf of Matthew Green, a security researcher and Andrew Huang, a technologist whose projects serve public interest yet breach DMCA's anti-expression clauses.
Green and Huang’s vocations highlight the urgency behind this issue; Green is an academic at Johns Hopkins Information Security Institute specializing in computer science, while Huang is known for establishing Alphamax LLC. As a response to their case, last December saw the appeals court narrowly decide whether or not First Amendment protection could extend to their publishing of code entailing encryption circumvention instructions.
According to EFF's brief, current legislation weighs heavily on Americans’ right under the First Amendment to access and learn from digital materials, which could include works they own or those embedded within physical objects they possess. Moreover, these laws pose difficulties for people trying to create original protected expression.
Section 1201 of the DMCA puts stringent restrictions on access to lawfully-acquired copyrighted content such as films, music tracks and computer codes if it involves bypassing encryption or other technological barriers put in place by copyright holders. These prohibitions were intended as measures against copyright infringement but have ended up suffocating lawful speech since non-compliance can lead to severe civil or criminal penalties. Aware of the impact this ban would have on legitimate speech, Congress designed a system allowing individuals to request exemption from the Librarian of Congress. However, this provision is only available every three years. EFF contends that such regulations are unconstitutional as it effectively hands over control over certain forms of lawful expression to the Copyright Office.
