Yesterday, Public Knowledge joined the Samuelson-Glushko Technology Law and Policy Clinic along with more than 15 other accessibility, security, and repair advocates in filing an amicus brief at the U.S. Court of Appeals for the District of Columbia in the case of Matthew D. Green v. U.S. Department of Justice in support of the appellants.
This case will determine whether appellants can move forward with their constitutional challenge to Section 1201 of the Digital Millennium Copyright Act, which makes it illegal to bypass a digital lock protecting a copyrighted work even if there is no copyright infringement involved. In 2020, a federal district court judge allowed plaintiffs Green and Huang to move forward with their claims that 1201 violated their First Amendment rights to pursue specific fair use projects. However, the judge dismissed their claim that Section 1201 itself was unconstitutional. The plaintiffs then appealed with the support of the Electronic Frontier Foundation, claiming that Section 1201 likely violates the First Amendment by chilling a wide range of fair uses including accessibility, security, and the right to repair.
The following can be attributed to Kathleen Burke, Policy Counsel at Public Knowledge:
“Section 1201 prevents users from exercising their First Amendment rights. By limiting access to copyrighted works for non-infringing uses like accessibility, security, and repair, Section 1201 impedes fair use, which, as the Supreme Court held, prevents copyright from running afoul of the First Amendment. The exemption process that Congress built into Section 1201 does not provide the adequate balance between copyright protection and fair use because it overly favors rightsholders.
“The exemption process forces consumers and public interest groups to re-submit the same exemption requests over and over again to protect basic rights – even after the Copyright Office has already agreed that an exemption is necessary. Obtaining these exemptions is an arduous, time-consuming process that most people simply cannot navigate, even when the requested exemption is undeniably a fair use case.
“We urge the court to allow appellants to move forward with their constitutional challenge to Section 1201. If this challenge is successful, people will once again be able to make fair use of their digital devices without fear of legal retribution. Fair use doesn’t just disappear when it’s inconvenient for rightsholders.”
You may view the amicus brief for more information. You may also view our latest blog post, “Everything About the Section 1201 Process is Mad,” to learn more about the Copyright Office’s flawed exemption request process.
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