EFF Challenges DMCA Anti-Circumvention Provisions, Reopens “Dancing Baby” Case

Issues arising from the often-controversial US Digital Millennium Copyright Act (DMCA) prompted the Electronic Frontier Foundation to head to court in recent weeks to address what it sees as violations of free speech and the right to freely use copyrighted content in some instances. 

One Electronic Frontier Foundation (EFF) lawsuit, filed on 21 July against the US Department of Justice, US Copyright Office and Library of Congress, seeks to overturn the “anti-circumvention” and “anti-trafficking” provision of the Digital Millennium Copyright Act (DMCA) (17 U.S.C. §§ 1201 (a), 1203 and 1204). These restrict people’s ability to access, speak about and use copyrighted materials, without the traditional safeguards, such as the fair use doctrine, that are necessary to safeguard free speech and allow copyright law to coexist with the First Amendment, the complaint said.

Baker Botts (New York) intellectual property attorney Lauren Emerson said that while the lawsuit may heighten the overall discussion of copyright law in the US, it likely won’t solve EFF’s problems with 1201. Baker & McKenzie (Palo Alto) IP attorney Lothar Determann said most 1201 concerns are not as significant as they’re made out to be but that raising attention to them helps EFF toward its goal of securing freedoms in the digital world.

Meanwhile, EFF has also sought US Supreme Court review of a lower court decision in the well-known “dancing baby” copyright case, which involved a takedown notice under other provisions of the DMCA.

The Sec. 1201 complaint, filed in the US District Court for the District of Columbia, is here: https://www.eff.org/document/1201-complaint.

“Unconstitutional Speech-Licensing Regime”

The threat of enforcement of the provisions “chills protected and noninfringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time,” EFF alleged.

Moreover, the triennial rulemaking process by which the public can seek exemptions to the rules not only does not alleviate the problems, but itself amounts to “an unconstitutional speech-licensing regime,” the complaint said. The plaintiffs in the lawsuit, computer scientist Andrew “bunnie” [sic] Huang, and computer security researcher Matthew Green, “wish to conduct valuable research and expression” but are barred from doing so by the DMCA to the detriment of their free speech rights, EFF said.

The creative process “requires building on what has come before, and the First Amendment preserves our right to transform creative works to express a new message, and to research and talk about the computer code that controls so much of our world,” said EFF Staff Attorney Kit Walsh. But Section 1201 threatens people with “financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand.”

The suit “highlights fundamental failures by the Copyright Office in the DMCA exemption process,” said Public Knowledge Policy Fellow Kerry Maeve Sheehan. The office “has erected a litany of administrative barriers, not required by the law itself, to scholars, technologists, consumers, and many others ensnared by unintended consequences and indefensible applicants of Section 1201,” she said in a 21 July statement.

Should Congress Decide?

Assuming the case is ripe for adjudication – and for Emerson that’s unclear because the complaint doesn’t allege threats of civil or criminal enforcement against Huang and Green – it raises constitutional claims that courts have heard before and that have not succeeded, she said in an interview.

EFF’s challenge may be arguably different in that it attacks the constitutionality of the triennial rulemaking process by which the public can seek exemptions from Section 1201’s anti-circumvention provisions, she said. But courts have declined to approve similar claims in the past and this case is likely to suffer the same fate, said Emerson, who predicted the court will leave such issues to Congress.

The DMCA was a compromise in which Sec. 1201 was balanced against Sec. 512, which gives intermediaries safe harbour from infringement claims, Determann said. The compromise has generally worked and most concerns arising from the DMCA have been “largely academic,” he said in an interview. Most 1201 problems have been resolved in practice, and lawsuits challenging the measure raise issues that are not as problematic as they are represented to be, he said.

Determann said he has not yet reviewed the EFF complaint, but that the organisation’s attorneys are good litigators whose court challenges shed light on concerns about freedoms in the digital arena. Even just raising awareness of those issues “gets EFF part of the way,” he said in an interview.

“Dancing Baby” Case

Separately, EFF said on 13 August that it asked the US Supreme Court to overrule part of the 2015 US Court of Appeals for the 9^th Circuit decision on the “dancing baby” video posted on YouTube. Stephanie Lenz, who posted the video in 2007, received a DMCA takedown notice from Universal Music Group, which owns the Prince song “Let’s Go Crazy” playing in the background. EFF alleged the notice was an abuse of the DMCA process for removing infringing material.

The appeals court held that copyright owners must consider fair use before sending a takedown notice, but also said rights owners should be held to a subjective standard, EFF said.

“In other words, senders of false infringement notices could be excused so long as they subjectively believed that the material they targeted was infringing, no matter how unreasonable that belief, the organisation said in a press statement. EFF is urging the high court to overrule that part of the lower court decision.

The petition is here: https://www.eff.org/document/petition-writ-lenz-v-universal