U.S. Justice Department Defends Copyright Anti-Hacking Law as "Unquestionably Constitutional"

The Hollywood Reporter

The U.S. Department of Justice is demanding an end to a lawsuit that challenges the constitutionality of a law that prevents people from getting around the access restrictions on copyrighted works such as films, television shows and songs.

In July, the Electronic Frontier Foundation led the lawsuit that argues that the anti-circumvention provision of the Digital Millennium Copyright Act (Sec. 1201) inhibits free expression in violation of the First Amendment.  The law allows for a triennial review where every three years the Librarian of Congress grants exemptions. For example, in the most recent review, the government made it legal to hack a smart TV to achieve interoperability and also allowed grade school teachers to circumvent access controls on DVDs for educational purposes.

But the EFF, who has demanded the right to tinker with smart phones and automobiles, as well as the named plaintiffs who want to conduct security research and create a device that would make it easier to space- and format-shift motion pictures (among other things), assert that the triennial review is "fundamentally flawed" and has an "adverse impact on speech."

On Thursday, the government filed a motion to dismiss that begins with an attack on plaintiffs' standing to sue.

"None of the Plaintiffs claims to have been threatened with criminal prosecution," states the DOJ lawyers. "Plaintiffs' conclusory assertion that others have been prosecuted under the DMCA in the past, for unidentified reasons, is insufficient to establish that Plaintiffs face a credible threat, as is their assertion that third parties might bring suit against them under a separate civil private right of action."

Next comes the argument that the DMCA's anti-circumvention statute on its face does not regulate speech.

"Indeed, laws barring unauthorized circumvention of access controls do not regulate speech any more than laws barring unauthorized access to museums or libraries," states the motion.

The EFF has argued when the Librarian has denied documentary filmmakers the opportunity to circumvent encryption on DVDs and Blu-rays in order to extract excerpts of films for their own works, that this constitutes an example of inhibited free speech since these filmmakers have a "fair use" to the copyrighted material anyway. The government believes the argument is misplaced.

"These DMCA provisions are also unquestionably constitutional in the vast majority of applications, and indeed Plaintiffs have identified no instance where the provisions would violate the First Amendment," the government lawyers write. "Plaintiffs' reliance on the 'fair use doctrine' cannot establish that the DMCA is unconstitutionally overbroad under the First Amendment. The Copyright Act contains a statutory provision limiting the exclusive rights of copyright owners so that users may make 'fair use' of copyrighted materials, but that provision affords no First Amendment right to gain access to such materials in the first place. Indeed, nothing in the fair use doctrine requires that copyright owners or the Government allow the unauthorized circumvention of access controls, nor the trafficking in devices that allow circumvention. Plaintiffs thus raise no plausible allegation that the provisions are substantially overbroad relative to their plainly legitimate sweep." 

Elsewhere in the brief (read in full here), the government challenges the EFF's proposition that the triennial rulemaking represents an unconstitutional prior restraint on speech.

"First, as opposed to regulations requiring each individual person or group to obtain a permit or license before engaging in their own speech (for example, by demonstrating, leafletting, or posting a sign), the triennial rule making … does not create exemptions to the prohibition on circumvention in § 1201(a)(1) on an individual, case-by-case basis," argues the government. "The risk of censorship based on content, which arises when a law delegates overly broad licensing discretion to a government official making decisions on a case-by-case basis, is wholly absent because there is no individualized determination involved."

"Second, … the DMCA's prohibition on circumventing access controls does not impose direct limitations on an individual's own speech; rather, the access controls restrict access to someone else's copyrighted material."

"The third distinction … is that the triennial rulemaking process … is a mechanism for identifying exceptions to an already-existing prohibition."

The EFF will now respond and aim to move forward a lawsuit that demands declarations of unconstitutionality as well as an injunction upon the DOJ from enforcing criminal prohibitions on circumvention and trafficking.