Fahrenheit 1201: DMCA Showdown at the Library of Congress

The Electronic Frontier Foundation on Thursday filed a lawsuit in U.S. District Court in Washington, DC, challenging Sections 1201, 1203, and 1204 of the Digital Millennium Copyright Act, known as the “anti-circumvention provisions,” on constitutional grounds.

That, in itself, is not particularly surprising. EFF served as pro bono counsel to Eric Corley in one of the first major cases to test Section 1201 in court and has been an outspoken critic of the law since it was enacted in 1998. What makes this week’s filing notable is its timing and EFF’s apparent strategy.

Library_of_Congress_(1)Section 1201 broadly prohibits the circumvention of DRM (“technical protection measures,” or TPMs in the language of the statute) used to protect access to copyrighted works (Section 1203 prohibits “trafficking” in anti-circumvention technologies and Section 1204 provides for criminal penalties for violating Section 1201). In its lawsuit, filed on behalf of a computer security researcher and a technology inventor and entrepreneur, EFF claims the three provisions violate the First Amendment because they prevent people from engaging in what would otherwise be protected speech under the fair use doctrine in copyright law — an argument raised many times before.

But the complaint also takes direct aim at the law’s triennial rulemaking procedures by which members of the public are allowed to apply to the Library of Congress for an exemption to the anti-circumvention rules for specific purposes. The complaint declares the rulemaking itself “an unconstitutional speech-licensing regime.” Read More »

Fahrenheit 512

The Friday night document dump is a tried and true tactic used by businesses as well as government officials looking to avoid a conflagration over the content of the documents. Waiting until a Friday that happens to fall on New Year’s Eve, however, has a panache all its own.

That’s when the U.S. Copyright Office dropped a Notice of Inquiry (NOI) into the Federal Register seeking comments on whether section 512 of the Digital Millennium Copyright Act, dealing with the procedures for notice and takedown of infringing material, is working effectively and as Congress intended when it passed the law back in 1996. But if the Copyright Office was hoping that few would notice the NOI, or that it might be able to keep the comments down to a dull roar it will almost surely be disappointed.

Library-of-Congress-Reading-RoomNo one who actually has to follow or apply the Section 512 procedures thinks they’re working well or effectively. Google alone was processing nearly 20 million takedown requests per week at the end 2015, while copyright owners see the system as a hopeless game of Whac-a-Mole, in which files get removed only to reappear quickly under a different URL. Litigation between copyright owners and online service providers — over the scope of the Section 512 safe harbor, which shields service providers from liability for infringing content posted by users if they follow the proscribed takedown procedures, the legal standard for culpable knowledge of infringing activity, and the efficacy of enforcement against repeat infringers — has formed a near-constant backdrop to the law almost since it took effect in 1998, most epically in the seven-year legal battle between Viacom and Google over content posted to YouTube. Many have been waiting years to get a crack at rewriting the safe harbor rules and they’re not likely to let the opportunity pass. Read More »