Speech-licensing regime for digital world challenged in court

27 August 2016 by Steve Blum
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You have the right to a lobbyist. If you cannot afford one, you’re screwed.

The Electronic Frontier Foundation launched a constitutional challenge to a federal law that criminalises what you do with digital media and devices that you think you own. The Digital Millennium Copyright Act outlawed nearly anything anyone does that circumvents restrictions on DVDs you buy, mobile phones you own and pretty much anything that involves digital intellectual property. The language is so broad that it can turn millions of unwitting people into criminals every day.

When congress passed it in 1998, digital media was in its infancy. Lobbyists from movie studio, record labels and other companies that were nursing decades long grudges against analog tape recording convinced their congressional friends to completely change the game for the digital world to come.

One of the provisions of the law makes it the responsibility of the Librarian of Congress to grant exceptions, something that’s done only once every three years. That process has been sporadic and inconsistent, as low tech bureaucrats flip flop over high tech arcana. The end result, according to the lawsuit EFF filed in a D.C. court, is an assault on free speech…

These provisions broadly restrict the public’s ability to access, speak about, and use copyrighted materials, without the traditional safeguards—such as the fair use doctrine—that are necessary to protect free speech and allow copyright law to coexist with the First Amendment. The threat of enforcement of these provisions chills protected and noninfringing speech that relies on copyrighted works, including independent technical research into computer security systems and the discussion of that research, and accessing copyrighted works in order to shift the content to a different format, space, or time. The triennial rulemaking process by which the public may seek exemptions…does not alleviate these problems. To the contrary, the rulemaking is itself an unconstitutional speech-licensing regime.

The First Amendment does not distinguish between different kind of media. What matters is content and what you do with it. Transferring a movie from a DVD to your cellphone is no different than copying a vinyl record to a cassette tape so you can listen to it in your car. If the latter is legal – and it is – the former should be too.