The side of me that’s been longing for more courtroom antics to follow since the closure of the Google Books and Apple agency pricing cases may just have found a new source of satisfaction. The Electronic Frontier Foundation has announced, and Ars Technica and Techdirt report, that the EFF has just filed suit against the US government on the grounds that the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, represents an unconstitutional restraint on free speech.
The suit takes aim at the practice of outlawing breaking DRM, with the Librarian of Congress permitted to make exceptions to the prohibition every three years, as well as outlawing any explanation of how to break DRM. The EFF calls this “an unconstitutional speech-licensing regime.”
“The government cannot broadly ban protected speech and then grant a government official excessive discretion to pick what speech will be permitted, particularly when the rulemaking process is so onerous,” said [EFF Staff Attorney Kit] Walsh. “If future generations are going to be able to understand and control their own machines, and to participate fully in making rather than simply consuming culture, Section 1201 has to go.”
The EFF is representing plaintiffs computer scientist Andrew “bunnie” Huang and computer security researcher Matthew Green. Huang is developing devices for editing digital video streams for his company Alphamax LLC that require the ability to break DRM in order to function properly. (Huang has previously shown up on TeleRead in connection with an open laptop he designed and successfully crowdfunded, so he’s not exactly new to advocating for open hardware.) Green is writing a book on circumventing security systems, and is investigating the security of medical record systems on a grant from the National Science Foundation—but he has had to avoid some areas of research because of concerns over Section 1201.
This is also, of course, the law that makes it illegal to crack DRM on ebooks so we can back up our purchases and convert from Kindle to ePub formats, or vice versa, or crack the DRM on DVDs or Blu-rays so we can rip the movies for mobile viewing. That restriction seems fairly toothless, given that the tools for doing such things can easily be downloaded, and I’ve never yet heard of anyone being prosecuted for cracking DRM for personal use—or, for that matter, for telling people how to do it, as Nate Hoffelder over at The Digital Reader has done. (I hope Nate will forgive me for not linking to the post in question, because technically doing so could itself be construed to be a violation of Section 1201. See the EFF’s argument about unconstitutional restraints on free speech.) But it remains a potential threat.
This certainly sounds like a reasonable lawsuit, and one of the only puzzling things is why the EFF waited so long to find an excuse to file it. But then again, perhaps it’s not so mysterious after all. Anti-circumvention has been coming under increased scrutiny lately, what with Congress opening hearings into whether the DMCA needs to be adjusted. It seems reasonable enough to try to strike while the iron is hot, and add some public legal pressure at the same time Congress is holding its own deliberations. Even if the lawsuit fizzles, it will at least provide another venue for shining a spotlight on the problem—and Congress will be in a position to act, however the lawsuit comes out.
I’m not terribly optimistic about the lawsuit succeeding on its own—it seems to me that if there were hope for this approach, someone would have tried it by now. Also, it will be facing some powerful opposition, as all the moneyed interests that argued for passage of the DMCA in the first place—publishers, movie studios, software companies—will be filing amicus briefs explaining in detail why they think the EFF is all wet. Still, the EFF could surprise me. And even if the suit fails, at least it will bring more publicity to the problem.
@Chris: Excellent post! Here’s one issue that Bernie Sanders and Elizabeth Warren could discuss with Hillary Clinton, even though I know that I’m only dreaming. If you want to determine who values people over corporations, the support of noninfringing circumvention of DRM ideally would come up as a major criterion. I hope the battle will go beyond the courts and can in fact be made a political issue.
Again, I’m pessimistic, but since the DMCA is under review and this is an election year, it won’t hurt to try. I would certainly be in favor of a major EFF petition drive to help make the topic newsworthy.
What’s more, suppose Trump’s camp seized upon the issue. He is definitely not my kind of candidate or human, but I certainly won’t mind if the extra-unlikely happens and he suddenly starts mentioning how Corporate America has deprived us of the right to own most Big Five books for real.
Maybe we can get The Donald to confuse “books” with “guns.”
A law suit requires one or more injured parties so an organization such as the EFF has too choose which of many injured parties to support. That takes time but has to be balanced with other time-sensitive factors such as the changing composition of the Supreme Court, elections and the mood of the nation. The story behind Brown vs Board of Education is an excellent case in point.
I’d wager that the EFF went through a similar process in deciding how best to pursue this matter.
When it comes to ebooks, DRM only punishes the honest people. If I purchase an ebook with DRM, then I am only permitted to use it under whatever terms the retailer imposes on us.
If for any reason the retailer goes bust and their reading software is no longer supported, then my ebook is no longer an ebook, just some 1’s and 0’s in a file somewhere. To overcome this, I would have to break the terms I ‘agreed’ to when purchasing the ebook. To find the tools to strip DRM, I have to rely on someone breaking the law to tell me how to strip DRM.
If I feel that the reading software provided by the retailer is not as good as a 3rd party app, then I would have to strip the DRM to have a better reading experience.
After all these years of having DRM imposed on us, the very same books are readily available on pirate platforms. DRM has never stopped a booked from being pirated.
Punish the people who distribute pirated ebooks, but allow the honest people who just want to read their purchased in books to do so whichever way we want
I suspect that Hayden’s concerns are part of the reasons that circumventing DRM by individuals for their own use has never been procecuted.
There are a lot of very good examples of laws that are ignored unless they’re really needed. For example if the traffic on the freeway in a 55 mph zone is actually moving at 60 mph it’s very unlikely you’ll get a ticket for doing the same. That’s just ignored and it would be a safety hazzard to enforce it. And yet, it’s a good law and is enforced if it’s needed. Of course if the speed limit were raised to 60 the normal traffic flow would increase to 65 leaving the same problem.
The law solves the problem and does no real harm because it’s usually ignored.
At least so far DRM circumvention is the same way. In forums all over the place people claim that they strip DRM for innocent reasons and if they were taken to court they’ve already confessed. And yet the law helps minimize piracy.
I’m not disagreeing with you at all. I’d like to see DRM stripping for personal use become legal as a matter of principle. But right now anyone who wants to do it can do it and those who don’t know how still won’t know how if the laws change. It’s an issue of principle much more than a practical one. It’s a good principle but it’s not so terribly important.
Hi Barry, I agree with most of your post. I don’t know of anyone who has been prosecuted for stripping DRM on books for personal use. I cannot see how a publisher could sue a reader for removing DRM on a book they purchased when the reader is still the only person reading that copy. There is no loss to the publisher.
However, I believe that to strip DRM, you do need a small element of technical knowhow and the right software. I really think that many people have no idea how to strip DRM and are therefore locked into a particular platform. I also believe that many people don’t even know what DRM is, they just buy a book from a retailer and read it on the retailer’s ereader. Its only when that retailer goes bust that they discover the trap they are in.
If we had no DRM on ebooks, I would expect an explosion of much improved reading experiences. Amazon would finally add an all bold option, vertical scrolling, text to speech and any other feature its competing ereaders have. I love competition