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.