Digital advocates call DMCA copyright restrictions unconstitutional

The Electronic Frontier Foundation is suing the US government over its controversial anti-digital-piracy law, calling it unconstitutional because it quashes free speech.

The digital advocacy group, which filed its lawsuit in federal court in Washington, DC, on Thursday, says a section of the 18 year-old Digital Millennium Copyright Act (DMCA), which restricts the ability to reverse-engineer software used for encryption, has not kept up with the modern age. Section 1201 of the act was originally written to protect the movie industry from piracy.

The group says the restrictions have had a chilling effect on security research, since researchers often need to reverse-engineer code to find flaws and bugs in the software.

"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," Kit Walsh, an attorney for EFF, said in a statement. "Section 1201 threatens ordinary people with financial ruin or even a prison sentence for exercising those freedoms, and that cannot stand."

The US Copyright Office reviews requests for exemptions from copyright protections for "innovation, free expression and other public interests." But EFF argues the office has been routinely failing to grant these exemptions and even when it does, the exemptions are so narrow, it's still difficult for researchers to navigate what is and is not allowed. That's why it has brought the lawsuit on behalf of two plaintiffs -- a computer scientist and a security researcher-- alleging that the protections used in Section 1201 go beyond what the law allows.

Other consumer advocacy groups cheered the EFF's efforts.

"This suit highlights fundamental failures by the Copyright Office in the DMCA exemption process," Kerry Maeve Sheehan, a policy fellow at the advocacy group Public Knowledge, said in a statement. "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 applications of Section 1201."

The Department of Justice, Copyright Office and Library of Congress, which were each named as defendants in the lawsuit, were contacted for this story, but did not immediately respond for comment.