July 21, 2016 | By Kit Walsh

Section 1201 of the DMCA Cannot Pass Constitutional Scrutiny

Section 1201 of the Digital Millennium Copyright Act forbids a wide range of speech, from remix videos that rely upon circumvention, to academic security research, to publication of software that can help repair your car or back up your favorite show. It potentially implicates the entire range of speech that relies on access to copyrighted works or describes flaws in access controls—even where that speech is clearly noninfringing.

At EFF, we’ve been worried about this law since before it was passed. We were counsel in one of the first major tests of the law, but in those early days, we failed to convince the courts of its dangerous risk to speech. Ever since, we’ve documented those speech consequences. We’ve called on Congress to reform the law, to no avail. So today, we’re going to back to court, armed with nearly twenty years of knowledge about Section 1201’s interference with lawful speech and with key Supreme Court cases that have been decided in that time. For more about the problems caused by this law, see our companion post on the issue.

Section 1201 was billed as a tool to prevent infringement by punishing those who interfered with technological restrictions on copyrighted works. After the DMCA was passed, the Supreme Court was asked to evaluate other overreaching copyright laws, and offered new guidance on the balance between copyright protections and free speech. It found that copyright rules can be consistent with the First Amendment so long as they adhere to copyright’s "traditional contours." These contours include fair use and the idea/expression dichotomy.

The dominant interpretation of Section 1201, however, can’t be squared with these First Amendment accommodations. As long as circumvention in furtherance of fair use risks civil damages or criminal penalties, Section 1201's barrier to noninfringing uses of copyrighted works oversteps the boundary set by the Supreme Court..

In First Amendment terms, the law is facially overbroad and therefore unconstitutional. By preventing valuable and noninfringing speech, it goes far beyond any restriction that might be justified by the purposes of copyright law.

Defenders of the law may point to the triennial exemption process. But that rulemaking, which was intended as a protection for lawful speech, instead acts as an unconstitutional speech-licensing regime. To comply with the First Amendment, a speech-licensing regime must conform to strict safeguards to ensure that government officials issue timely permission according to strict standards, rather than exercising too much discretion.

The opportunity to seek government permission once every three years hardly provides for timely review, and in the most recent rulemaking, the government went so far as to claim that permission may be denied at the Librarian's discretion. It is also not enough to prove that you have the right to speak, the government demands that you show a widespread impact on others in a similar position, or you will be refused.

Section 1201 is a draconian and unnecessary restriction on speech and the time has come to set it aside. The future of cultural participation and software-related research depends on it.


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