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DEEPLINKS BLOG

Research and Remixes the Law Won’t Allow

July 21, 2016

Some day, your life may depend on the work of a security researcher. Whether it’s a simple malfunction in a piece of computerized medical equipment or a malicious compromise of your networked car, it’s critically important that people working in security can find and fix the problem before the worst happens.

And yet, an expansive United States law, passed in 1998 and emulated in legal codes all over the world, casts a dark legal cloud over the work of those researchers. It gives companies a blunt instrument with which to threaten that research, keeping potentially embarrassing or costly errors from seeing the light of day.

That law is Section 1201 of the Digital Millennium Copyright Act. Simply put, Section 1201 means that you can be sued or even jailed if you bypass digital locks on copyrighted works—from DVDs to software in your car—even if you are doing so for an otherwise lawful reason, like security testing.

It gets worse: Section 1201’s speech restrictions also apply to scholars, artists, and activists that are seeking to comment on culture or make it more accessible. The tools to make engaging remixes, annotations, or interactive commentaries are in the hands of more and more people, but the law has created a “gotcha” situation: while using that source material is legal, getting access to it might run afoul of these additional legal hurdles.

You can seek an exemption from the law to exercise a limited range of your fair use rights, but the avenue to do so is managed by an unsympathetic gatekeeper: the Library of Congress. The Librarian, working with the Register of Copyrights, has turned an already-onerous exemption process into legal obstacle course. And even if you win, you still have to come back every three years to do it again.

The intent behind that law was to create legal backing for DRM—the software that adds restrictions to “content” like music, movies, and books. But over nearly two decades, as software that the law counts as a “copyrighted work” became embedded in everything from tractors to light bulbs to kitty litter boxes, the prohibition has become best known for its unintended consequences.

Those unintended consequences create a problem of constitutional scale. Congress has the power to create copyright laws that “promote the progress of science and the useful arts,” but when it interferes with the traditional contours of copyright law, including fair use protections, it intrudes on the First Amendment. Section 1201 represents just such an intrusion, one that cannot pass constitutional scrutiny.

EFF has filed a lawsuit today to address that constitutional issue, and we’ve gone into more depth about the legal questions at hand in a companion post.

When Congress passed Section 1201, the hot-button copyright debates were about the terms under which people could copy and consume music, movies, and books. Those are important issues, and there is still work to do in getting the balance right for the producers, distributors, and consumers of those works—especially considering that, more than ever before, people jump between all those roles.

But while that work continues, copyright law shouldn’t be casting a legal shadow over activities as basic as popping the hood of your own car, offering commentary on a shared piece of culture (and helping others do so), and testing security infrastructure. It’s time for the courts to revisit Section 1201, and fix Congress’s constitutional mistake.

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