One Weird Law That Interferes With Security Research, Remix Culture, and Even Car Repair

How can a single, ill-conceived law wreak havoc in so many ways? It prevents you from making remix videos. It blocks computer security research. It keeps those with print disabilities from reading ebooks. It makes it illegal to repair people’s cars. It makes it harder to compete with tech companies by designing interoperable products. It’s even been used in an attempt to block third-party ink cartridges for printers.

It’s hard to believe, but these are just some of the consequences of Section 1201 of the Digital Millennium Copyright Act, which gives legal teeth to “access controls” (like DRM). Courts have mostly interpreted the law as abandoning the traditional limitations on copyright’s scope, such as fair use, in favor of a strict regime that penalizes any bypassing of access controls (such as DRM) on a copyrighted work regardless of your noninfringing purpose, regardless of the fact that you own that copy of the work.  

Since software can be copyrighted, companies have increasingly argued that you cannot even look at the code that controls a device you own, which would mean that you’re not allowed to understand the technology on which you rely — let alone learn how to tinker with it or spot vulnerabilities or undisclosed features that violate your privacy, for instance.

Given how terrible Section 1201 is, we sued the government on behalf of security researcher Matt Green and innovator Andrew “bunnie” Huang — and his company, Alphamax. Our clients want to engage in important speech and they want to empower others to do the same — even when access controls get in the way.  

The case was dormant for over two years while we waited for a ruling from the judge on a preliminary matter, but it is finally moving once again, with several of our clients’ First Amendment claims going forward. Last month, we asked the court to prohibit the unconstitutional enforcement of the law.

That has gotten the attention of the copyright cartels, who are likely to oppose our motion later this month. In their opinion, the already astronomical penalties for actual copyright infringement aren’t enough to address the perceived problem, and the collateral damage to our freedom of speech and our understanding of the technology around us are all acceptable losses in their war to control the distribution of cultural works.  

EFF is proud to help our clients take on both the Department of Justice and one of the most powerful lobbying groups in the country—to fight for your freedoms and for a better world where we are free to understand the technology all around us and to participate in creating culture together.

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Author: Kit Walsh

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