US appeals court rejects First Amendment DMCA challenge, penalizing unauthorized access of copyrighted material News
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US appeals court rejects First Amendment DMCA challenge, penalizing unauthorized access of copyrighted material

The US Court of Appeals for the DC Circuit rejected a First Amendment challenge to the Digital Millennium Copyright Act (DMCA), which penalizes unauthorized access to copyrighted material and limits the scope of “fair use” exceptions.

Filed by Judge Nina Pillard, the decision stated that while the First Amendment protects the right to read, it does not guarantee unrestricted access to all reading materials one might desire. Similarly, Judge Pillard noted that the First Amendment does not guarantee potential fair users special access to copyrighted works they wish to include in their expression. According to her, “to rule otherwise would contradict the First Amendment’s protection of speakers’ control over their own speech.”

The “fair use” exception is a legal doctrine that allows limited use of copyrighted material without requiring permission from the rights holders. This exception is devised to balance the interests of copyright owners and the public in accessing and utilizing innovative works for purposes such as criticism, news reporting, teaching, scholarship, and research.

According to the Electronic Frontier Foundation, the court’s decision creates a back door into speech regulation that favors large, commercial entertainment products over individuals using those works for “fair use” expression. Moreover, the foundation cited that the decision is dangerous for our technological future as it restricts entry to copyrighted software, making it illegal to understand how technology works.

In 2016, the Electronic Frontier Foundation filed the case Matthew Green v. DOJ, challenging the prohibitions within the DMCA on circumventing technological measures that protect copyrighted works. Circumventing technology refers to techniques used to bypass the safeguards copyright owners implement to protect their work, such as passwords or encryption. When someone “circumvents” these protections, a way is found to access the content despite the safeguards in place.

For example, if DRM protects an eBook, users will be prevented from copying text or transferring the file to different devices. In that case, a person might use specialized software to bypass this DRM protection, and by doing so, they can access and share the content in ways the copyright owner intended to restrict. A prime instance of this is test preparation eBooks, where companies restrict how the written material is used.

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