Supreme Court Hears Oral Arguments Regarding Anti-Hacking

Supreme Court Hears Arguments Against DMCA Section 1201 Circumvention of Copyright Protection Systems

Last month, the Supreme Court heard oral arguments regarding digital locks under the Digital Millennium Copyright Act. The issue has been a sore subject for critics of the law and finally reached the Supreme Court for final review.

Does DMCA Section 1201 Violate the Constitution?

The Digital Millennium Copyright Act has long prohibited circumvention of digital protective measures in order to afford copyright protection to qualifying works. Such protection encompasses everything from simple password protection to more complex digital encryption. In 2016, computer experts, Matthew Green and Andrew Huang, sued the federal government over Section 1201 of the Digital Millennium Copyright Act.

Represented by the Electronic Frontier Foundation, Green and Huang argued that computer code is speech, and as such, Section 1201 violates the U.S. Constitution because it illegally restricts free speech.  In support of their arguments, Green and Huang noted that many lawful activities are currently prohibited by Section 1201, such as lawfully hacking to find security deficiencies. Other experts have noted that some circumvention efforts could also arguably fall under Fair Use, but without federal guidance, few are willing to hazard that chance.

DMCA Section 1201 Exemptions Published Every Three Years

Currently, the U.S. Copyright Office publishes approved exemptions to the Digital Millennium Copyright Act every three years, which, for most, is an unsatisfying solution. 

In support of Green and Huang, various organizations have filed amicus briefs. A particularly relevant argument comes from various disability organizations that argue having to wait every three years to receive permission to gain accessibility to certain copyrighted works has unfairly impacted populations with disabilities.

Key Takeaways on DMCA Section 1201 Anti-Circumvention Provisions

The Supreme Court heard oral arguments regarding Section 1201 of the Digital Millennium Copyright Act in connection to its anti-circumvention provisions. This has significant ramifications for:

• Right-to-repair proponents because it could mean that manufacturers’ limitations are overturned;

• Disability organizations who may be granted specific exemptions or rights; and

• Others that have legitimate reasons for circumvention.

For more information about copyright protection, see our Software and Copyrights and Industry Focused Legal Solutions pages.

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