One of the key elements of US copyright law in the digital age may be challenged in the Supreme Court. The Electronic Frontier Foundation (EFF) claims the Digital Millennium Copyright Act (DMCA) breaches the first amendment.

The DMCA, introduced in 1998, includes a controversial measure that reads “No person shall circumvent a technological measure that effectively controls access to a work protected under this title.” That means that tools which get round electronic copyright protection are illegal to use, even if you don’t use them to actually breach copyright.

The problem in practice is that this technicality outlaws all manner of activity which many people consider perfectly acceptable behavior. To deal with this, the Librarian of Congress (a Presidential appointee confirmed by the Senate) is able to grant specific exemptions for a three year period that must then be renewed. Examples of exemptions include jailbreaking phones and ripping copies of DVDs to get clips for non-commercial use.

The EFF believes the entire basis of having a blanket ban with specific exemptions is unfair. It argues that copyright laws are inherently a special exception to the free speech principle of the first amendment, so any laws that build upon copyright should be extremely limited and not include a default presumption of illegality. It also says the three year review cycle of the Librarian of Congress is far too long to keep up with technology developments and thus offers inadequate protections against constitutional violations.

To test this argument, the EFF has chosen two specific cases for a lawsuit that it plans to take through the system. One involves a man working on software that could access and manipulate online video, for example to overlay Twitter comments on a YouTube broadcast of a political event. Another involves a man who wants to be able to bypass copy protection for the purposes of exploring and testing devices for security flaws. Both argue that the actions they want to take are inherently not copyright infringements and thus they shouldn’t be restricted by the DMCA.