The Digital Millennium Copyright Act [DMCA] is being taken to court over certain provisions supposedly in violation of the First Amendment’s protection of Fair Use Law.

The Electronic Frontier Foundation [EFF] has filed a lawsuit against the federal government challenging two provisions of the DMCA including the “anti-circumvention” provision, which created Digital Rights Management [DRM], and the “anti-trafficking” provision which allows the circumvention of DRM en masse.

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DRM is a measure to prevent consumers of entertainment who haven’t bought said entertainment from having access to the media. This includes services like iTunes, Steam, or YouTube.

The anti-circumvention provision, in section 1201 of the DMCA lists the ways using DRM is mandatory to consumers purchasing content linked to DRM.

This was created by the Federal Government in an effort to curb piracy on the internet in the era of LimeWire and Torrents. The issue with the provision is that DRM has proven ineffective in recent years by companies like CD Projekt Red and Denuvo.

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The EFF’s argument in its lawsuit is that DRM is an unnecessary restriction which restricts users’ “Fair Use” rights by preventing them from using content they legally purchased in any (legal) way they desire. In a 2014 document by the EFF collecting cases in which the anti-circumvention provision has proven anti-consumer, the EFF said the following:

“By banning all acts of circumvention, and all technologies and tools that can be used for circumvention, the DMCA grants to copyright owners the power to unilaterally eliminate the public’s fair use rights. Already, the movie industry’s use of encryption on DVDs has curtailed consumers’ ability to make legitimate, personal-use copies of movies they have purchased.”

Fair Use law dictates that a content creator can use a piece of media in any way shape or form and profit from it if the final product is transformative or critical in a significant way. This refers to people who make remixes of music, or people who report news relating to a form of media.

Fair Use is protected by the First Amendment, as it is considered a form of free speech. Barring Fair Use is barring free speech. Therefore the EFF have a very strong case against the DMCA at the moment.

If a song is on a disc, and a musician is incapable of moving the song off of the disc so that they may use it to create a remix of the song, that means the DRM on the disc is barring someone from their Fair Use Rights. Legally, a consumer can create original content from something protected by DRM, but the actual act of accessing that content behind the DRM is illegal. The EFF defines this as a “Gotcha” moment in which someone is jailed or fined for doing something that should be legal.

In another post by the EFF’s Parker Higgins titled “Research and Remixes the law Won’t Allow” Higgins further details how the anti-circumvention provision violates Fair Use Law.

“...Section 1201 means that you can be sued or even jailed if you bypass digital locks on copyrighted works—from DVDs to software in your car—even if you are doing so for an otherwise lawful reason, like security testing.”

The full complaint made by the EFF can be found below.

A studio working with the EFF in filing and acting on the lawsuit against Section 1201, Bunnie Studio, has a blog post justifying the lawsuit, which can be found here.


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