EFF to Court: Fair Use is a Right Congress Cannot Cast Aside

Copyright law and free expression have always been in tension, with the courts protecting speech from overzealous copyright claims using legal doctrines such as fair use. But in 1998, Congress passed the Digital Millennium Copyright Act, and since then courts have interpreted its “anti-circumvention” provision to give rightsholders the unprecedented power to block even fair uses of their works, whenever that use requires bypassing an access control like encryption or DRM.

This has harmed independent filmmakers when they try to include clips from other works in their own. It’s harmed people with visual disabilities who need to run text-to-speech software on their e-books in order to enjoy them, and people with hearing disabilities who rely on captioning to enjoy videos they purchase. It’s prevented educators from teaching media literacy and it’s prevented security and safety researchers from understanding electronic devices to keep us all safer. It keeps people from reading the code in the things they buy, from cars to tractors to home appliances, preventing us from understanding how these devices work and harming the market for independent repair and follow-on innovation.

Fair users can get sometimes get temporary and partial relief through the rulemaking process run by the Copyright Office, but that only underscores the fundamental problem: Section 1201(a) of the DMCA turned the right to make fair uses into a contingent privilege that you have to beg for in advance – with no binding legal standards to protect your right to speak.

That’s why we sued the government on behalf of security researcher Matthew Green and technologist bunnie Huang, working with law firm Wilson Sonsini Goodrich & Rosati. The case is now on appeal, and we’ve just concluded the briefing, with amicus support from law professors, disability rights advocates, filmmakers, and more.

The government defends the law by arguing that it only burdens conduct, not speech. Nonsense: the law is a direct ban on accessing information so that it can be communicated and adapted. It also directly bans providing instructions on how to do this in the form of software or a service. It restricts a wide range of legitimate speech, without adding much if anything to the government’s arsenal of tools to combat actual copyright infringement. Since someone circumventing in order to infringe is already an infringer, the law primarily impacts people who are circumventing for a non-infringing purpose, such as research, education, or just to enjoy the e-book they bought.

This disastrous law has interfered with creativity, research, and innovation for far too long. We hope the Court of Appeals for the D.C. Circuit agrees and restores the traditional balance between rightsholders and subsequent speakers.

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