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IP News Bulletin

Digital Locks vs Right to Repair: Free Speech and Copyright Challenges



Date:9/12/22


A decades-old law that criminalises hacking through digital security measures to gain access to protected works such as music, movies, and software is being challenged in court by security researchers who claim it violates free speech.


Attorneys say the case, which is set for oral argument Monday in a federal appeals court in Washington, D.C., could have significant implications for the "right-to-repair" movement, which advocates for allowing well-intentioned hackers to tinker with legally purchased devices and software without fear of legal repercussions. According to them, security research, accessibility, and online copyright enforcement may all be impacted.


The Digital Millennium Copyright Act, which was passed in 1998 to modernise US copyright rules for the internet age, imposed criminal and civil sanctions for picking a digital lock used to protect copyrighted work.


Digital locks, referred to under the act as "technological protective measures," might range from password-protected movie viewing to file encryption on a DVD. A gamer who circumvents these protections to repair specific sections of an Xbox console, or a security researcher who identifies and publishes flaws in software, could face DMCA lawsuit.


In 2016, Matthew Green, a Johns Hopkins University computer security researcher, and Andrew Huang, an electrical engineer and hacker, sued the Justice Department and the US Copyright Office. They claimed that Section 1201 of the DMCA's circumvention ban is an unlawful restraint on free speech.


Green said that he could suffer legal consequences for producing and publishing a book exposing computer software security weaknesses that included hacking code. Huang and his business AlphaMax LLC intend to develop software that allows users to edit HD video while avoiding specific HDMI signal encryption.


"What are you allowed to do under fair use and what are you allowed to do under Section 1201 in terms of circumvention?" asked Blake Reid, a technology law expert at the University of Colorado. "That is why this case is so important. All of these issues would be resolved within the confines of fair usage, giving individuals a lot more certainty."


However, the Justice Department and prominent copyright supporters such as Intel Corp. and the Motion Picture Association Inc. say that the law has allowed the digital economy to thrive. Paywalls and other mechanisms that protect content providers' work against piracy can help them sell their work more effectively.


"Congress recognised that copyright owners need a safe environment where they may distribute their works in digital form," said Devlin Hartline, a Hudson Institute law scholar who specialises in intellectual property. "The notion was that we would protect these digital locks to prevent infringement in the first place."


Artists in the United States have exclusive rights to distribute, display, and monetize their work under US copyright law, but the DMCA creates a new class of rights.


The law's hacking prohibition allows copyright holders the authority to regulate access to their work, even if the hacker has no intention of infringing on the work's copyright. In other words, a DMCA violation does not necessitate copyright infringement.


Critics, like the Electronic Frontier Foundation, a digital rights organisation that represents Green and Huang in the case, claim that this new privilege has significantly enhanced manufacturers' authority over their products, to the disadvantage of customers.


For many years, John Deere used the DMCA to block tractor owners from accessing software on their machines for repair or diagnosis.


However, Congress understood that the broad scope of the anti-circumvention provision might stymie claims of fair use and other non-infringing uses of intellectual material.


The DMCA authorised the US Copyright Office, which is part of the Library of Congress, to publish rules every three years that allow for exemptions to the anti-circumvention ban in an attempt to address digital piracy without overbroad legislation.


Under specific conditions, the Copyright Office enabled tractor and car owners to analyse the software of their vehicles in 2015.


According to the EFF and friend-of-the-court papers, the rulemaking process is a "speech licencing" system that burdens individuals wishing to engage in completely legal circumvention. Reid represents a number of organisations active in security research, accessibility, and the right-to-repair movement, and filed an amicus brief in support of Green and Huang.


Reid believes that disability organisations should not have to go to the Copyright Office every three years to get permission to overcome certain safeguards on e-books and digital movies in order to make them accessible to persons with vision or hearing difficulties.


"The amount of paperwork, forms, and hours you have to spend preparing for these exemptions is enormous," Reid said. "It takes a couple of hundred man-hours for my student attorneys to do one exemption over the course of a year."


The Justice Department claimed in its arguments that the regulatory proceedings strike the correct balance by safeguarding fair usage while also deterring online infringement.


It was observed that the Copyright Office granted Green's request to conduct research by evading digital security measures in 2018, and that the law already offers a number of permanent exclusions relating to encryption research.


"Exemptions already exist," Hartline stated. "And if they believe there should be more, it is a totally reasonable viewpoint to take." But that does not indicate that the entire Act should be struck down."


The Justice Department's major defence against Green and Huang's First Amendment challenge is that the anti-circumvention legislation limits conduct, not speech.


So far, the courts have reached an agreement. In a 61-page judgement issued in 2019, Judge Sullivan of the United States District Court for the District of Columbia mostly dismissed the complaint.


Green and Huang filed an appeal with the United States Court of Appeals for the District of Columbia Circuit in 2021.


Sullivan determined that, while Section 1201 does involve speech (since code is a sort of speech), the Act solely limits the "functional, non-speaking" part of code.


"The code has an expressive component, but 1201 isn't addressed to the expressive component," Hartline explained. "It's aimed at the more utilitarian question of what the code actually performs." And the code is used to circumvent a digital lock."


According to Rebecca Tushnet, an intellectual property law expert at Harvard Law School, this stance fails to appreciate that the statute is a regulation on a tool used to make speech, similar to a camera.


If the government restricts where a camera may be put or what it can photograph, she says, "we want to see that as a speech regulation."


"Recharacterizing speech as activity is frequently 'unprincipled' and'susceptible to manipulation,'" Tushnet argued in an amicus brief in support of Green and Huang, citing precedent that "rules prohibiting booksellers from selling biographies" violate the First Amendment.


Green, Huang, and the EFF argue that because the anti-circumvention act includes specific exemptions, the law discriminates against people based on the substance of their speech. They contend that this should invoke severe scrutiny, a high threshold that would prohibit limitation unless it furthered a compelling government interest and was narrowly tailored.


According to Tushnet, the exemption process is insufficient to protect free speech.






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