In order to make remix videos, do computer research, or make e-books accessible, people often need to bypass access controls on the media they own. This week, EFF explained to the U.S. Court of Appeals for the Ninth Circuit that the government cannot prohibit such speech without running afoul of the First Amendment, in a friend-of-the-court brief filed in the case of VidAngel v. Disney.
VidAngel provides a service that allows customers to view movies minus the parts it identifies as offensive. Disney and other entertainment companies, including Fox and Warner Brothers, argued that providing this service violates copyright law and the related law against bypassing access controls in Section 1201 of the Digital Millennium Copyright Act.
Importantly, they argue that the service involves circumvention of the access controls on DVDs, and that VidAngel could be liable for this violation even if its service were held to entail fair use and thus did not infringe copyright. This is an issue that the Ninth Circuit has previously left unresolved, and on which other federal appeals courts disagree.
We filed to ensure the Ninth Circuit understands the impact on speech of an anti-circumvention law that does not include flexible accommodations for free speech, like a fair use exemption. This is an issue we are also directly litigating in the District of Columbia, where we await a ruling in our Green v. Department of Justice lawsuit.
After almost 20 years of speech repression, it is past time to remedy the defects in Section 1201 of the DMCA, and we hope 2017 will be the year that finally happens.