Every three years, the public has an opportunity to chip away at the harm inflicted by an offshoot of copyright law that doesn’t respect traditional safeguards such as fair use. This law, Section 1201 of the Digital Millennium Copyright Act, impedes speech, innovation, and access to knowledge by threatening huge financial penalties to those who simply access copyrighted works that are encumbered by access restriction technology. To mitigate the obvious harm this law causes, Americans have the right to petition for exemptions to Section 1201, which last for three years before the whole process starts over.
The liability created by Section 1201 can attach even to those who aren’t infringing copyright, because their access is in service of research, education, criticism, remix, or other fair and noninfringing uses. The law allows rightsholders to enforce their business models in ways that have nothing to do with the rights actually granted to copyright holders. A willful and commercial act of circumvention can even result in criminal charges and jail time, and the Department of Justice takes the position that there doesn’t need to be any connection to actual copyright infringement for them to prosecute.
EFF is representing Matthew Green and bunnie Huang in a First Amendment challenge to Section 1201, based on its failure to respect copyright's traditional boundaries, including safeguards like fair use. At the same time, we're participating in the rulemaking process in hopes of winning some exemptions that will mitigate the law's harms. In the past, we’ve won exemptions for remix videos, jailbreaking personal computing devices, repairing and modifying car software, security research, and more.
This year, EFF is asking the Librarian of Congress to expand on the 2018 device repair exemption with a broader version that would apply to all software-enabled devices and include non-repair modifications. In past rulemakings, the government has insisted on drawing arbitrarily narrow classes of devices to exempt; our submissions aim to illustrate the wrongheadedness of this approach. In keeping with that theme, we're also asking the Librarian to clarify that the existing exemption for jailbreaking smart TVs includes video streaming devices like the Roku, Apple TV, and Amazon Fire Stick.
Thank you to everyone who sent in stories about how Section 1201 is interfering in your life! We’re proud to turn your stories into legal arguments that can help improve the state of the law, and we couldn’t do it without you.