We use locks constantly in our everyday life. Our houses have locks on them. Our autos have locks on them. Even our interactions on the internet require that our actions are protected by usernames and passwords. It’s only common sense.
However, that common sense has eluded the folks over at the Electronic Frontier Foundation. They contend that the legal ban on defeating the copy-protection systems which prevent unauthorized copying of copyrighted works is an unconstitutional restriction on their free speech rights. They might as well be arguing they have the right to break into my house so they can enjoy my big screen television.
Sound loopy? It is, and that’s why the EFF was on the receiving end of a complete smackdown courtesy of the Court of Appeals for the District of Columbia.
The law in question is section 1201 of the Copyright Act. It does two things: first, it makes illegal the act of circumventing copy protection in order to gain access to the copyrighted work. Secondly, it makes illegal the distribution of “hacks” of copy protection systems, in other words, methods or systems whose main purpose is to defeat copy protection.
The case is Green v. United States, 1 and has been kicking around the Federal Court system since 2016. The plaintiffs are Mathhew Green, a “computer science professor at John Hopkins University” and Andrew “Bunnie” Huang, the creator of a device he calls “NeTVCR.” 2 But the real Plaintiff is the Electronic Frontier Foundation. The names of the lawyers for the Plaintiffs all work for the EFF.
For his part, Green claims his fear of liability under section 1201(a) caused him to “‘decline to investigate certain devices,’ ‘chilled [him] from informing others of vulnerabilities,’ and ‘prevent[ed] [him] from selling a book that might garner significant commercial sales discussing how to circumvent access controls.’” 3 In other words, his fear of breaking the law is preventing him from writing a book instructing other people on how to break the law.
In regards to Mr. Huang, he claims his device would “allow users to save, manipulate, convert, and edit high-definition digital video streams. [citation omitted] Those video streams—like shows on Netflix, for example—are generally protected by a technology called High-bandwidth Digital Content Protection (HDCP), which prevents unauthorized copying or capturing of copyrighted content by people lawfully streaming it on their devices. The NeTVCR device operates by circumventing that protection technology.” 4 In other words, he’s a pirate. The Court below observed that:
“Huang’s technology, as described, would ‘eviscerate virtually every single video content delivery protection system,’ and thus would expose anything displayable on a modern TV screen or laptop to widespread piracy.” 5
Underpinning all of this is the rallying cry of “fair use,” the anti-copyright crowds’ all-purpose excuse for engaging in copyright infringement. They claim that because circumventing the copy protection technology might be in furtherance of “fair use,” the anti-circumvention provisions of Section 1201 are an unconstitutional restriction on their right to free speech.
The key word here is “might.” As “Wayne’s World” used to famously say: “Yeah, and monkeys MIGHT fly out of my butt.” Just because something MIGHT be fair use does not mean that it is presumptively fair use. Here, the Court reminds the Plaintiffs that:
“[T]he Supreme Court has described reliance on a ‘potential fair use defense’ as a ‘roll [of] the dice,’ subjecting the user of copyrighted material to a ‘notoriously fact sensitive’ analysis that typically cannot be resolved ‘without a trial.’” 6
One of the examples trotted out by the Plaintiffs is that “that section 1201(a) would impermissibly burden the speech of a fifth-grade teacher who wished to circumvent a DVD’s encryption and extract a clip to screen during a lesson.” 7
Well, baloney. This ignores the provisions of Section 110 which regards the performance of copyrighted works in the course of face-to-face teaching activities. Needless to say, this is a section I quote to the professors and teachers of NSU on a regular basis. Section 110 states:
“Notwithstanding the provisions of section 106, the following are not infringements of copyright:
- performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made.”
The teacher has every right to show the clip. Heck, the teacher could show the class the entire movie and it would not be an infringement. The only restriction is that the copy be “lawfully made” e.g. not an illegal DVD rip and not downloaded from the Pirate Bay. It’s really that simple. The Court holds that:
“Plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.” 8
And:
“If every work that the public might wish to access ‘could be pirated away’ via circumvention, soon nothing worth reading would be published electronically.”
Precisely.
And at the most basic level, the problem with the Plaintiff’s case is conduct, not speech. Circumvention is an act, and not an act that carries any message at all. As the Court holds:
“Plaintiffs’ facial overbreadth challenge is especially disfavored because section 1201(a) expressly regulates conduct—the circumvention of technological locks, and trafficking in means of circumvention—rather than speech… The act of circumvention is not inherently expressive because it does not ‘inten[d] to convey a particularized message’ in a manner that allows others to understand it.’ The act of trafficking in circumvention technology is likewise not inherently expressive. As the government aptly notes, trafficking is no more identified with expression than is the sale of lock picks for breaking into bookstores identified with the expressive conduct of reading the stores’ books.” 9
When the EFF wins a case, they love to write headlines on their website that boldly claim “VICTORY!” I suppose it would be too much to expect when they lose a case as badly as they lost this case that the headline would read “DEFEAT!” Instead, they write this sniveling headline:
“Federal Appeals Court Rules That Fair Use May Be Narrowed to Serve Hollywood Profits” 10
Which of course, as the above analysis shows, does not even begin to accurately summarize the actual ruling of the Court.