Since the Digital Millennium Copyright Act (DMCA) became law in 1998, it has been a federal crime to copy a DVD or do anything else that subverts digital copy-protection schemes.

Soon, government lawyers will have to show up in court to defend those rules. Yesterday, the Electronic Frontier Foundation filed a lawsuit (PDF) claiming the parts of the Digital Millennium Copyright Act that deal with copy protection and digital locks are unconstitutional.

Under the DMCA, any hacking or breaking of digital locks, often referred to as digital rights management or DRM, is a criminal act. That means modding a game console, hacking a car's software, and copying a DVD are all acts that violate the law, no matter what the purpose. Those rules are encapsulated in Section 1201 of the DMCA, which was lobbied for by the entertainment industry and some large tech companies.

Users can lobby for "exceptions" to the DMCA's rules through a rule-making process that takes place every three years through the Librarian of Congress. But EFF's lawsuit says that doesn't alleviate the basic problems with the law and claims "the rulemaking itself is an unconstitutional speech-licensing regime."

The Librarian of Congress exceptions have been haphazard, at best. Last year, LoC allowed hackers who want to circumvent copy protection to revive defunct games to do so—unless the games involve a central server. Unlocking your cell phone was made legal in 2006, then banned again in 2012, before being legalized by Congress.

In the most recent 1201 rulemaking, the Library of Congress denied petitions requesting permission to copy portions of movies for "narrative" filmmaking, noncommercial filmmaking using more than short clips, and educational uses for K-12 students.

"As a result, it may be unlawful to circumvent in order to create a running critical commentary on a large portion of a political debate, sporting event, or movie, when where such activity would be a noninfringing fair use," states EFF.

Finally, the DMCA also includes an "anti-trafficking" provision, which can't be voided through the exemption process. That provision bans distributing tools that would help with circumvention. In other words, even if the Librarian of Congress were to pass an exemption to allow DVDs to be hacked for a specific purpose—say, letting teachers make clips for high school students in a media studies class—it would still be illegal to distribute software to help with that task.

The speech we don't see

One of EFF's clients in the case is Matthew Green, a computer science professor and researcher at Johns Hopkins University, who wants to include information in an upcoming book about how to circumvent security systems. Green's work includes investigating the security of encryption devices, and he has a grant from the National Science Foundation to investigate whether medical record systems are secure. Yet, he has avoided certain investigations and research because of concerns about litigation based on Section 1201.

"Instead of welcoming vulnerability reports, companies routinely threaten good-faith security researchers with civil action, or even criminal prosecution," Green wrote in a blog post explaining his decision to participate in the lawsuit. "Companies use the courts to silence researchers who have embarrassing things to say about their products, or who uncover too many of those products' internal details."

Another client is Andrew "bunnie" Huang, an electrical engineer and hacker who runs several small businesses. One of those businesses is Alphamax, which creates NeTVCR devices for editing HD television. In order to do that, he has to circumvent the "lock" on HDMI signals, even though Intel has threatened to sue anyone who does so.

Huang's NeTVCR technology could enable new types of non-infringing speech, if it was legal. For instance, a video gamer could post an image of herself playing a game, along with commentary; two films could be compared side-by-side on the same screen; a live presidential debate could be combined with the text of a commentator's live blog.

Before Section 1201 was passed, "we had the right to tinker with gadgets that we bought, we had the right to record TV shows on our VCRs, and we had the right to remix songs," Huang wrote on his blog.

"Section 1201 is a draconian and unnecessary restriction on speech and the time has come to set it aside," writes EFF staff attorney Kit Walsh in a blog post announcing the lawsuit. "The future of cultural participation and software-related research depends on it."

"[C]opyright law shouldn’t be casting a legal shadow over activities as basic as popping the hood of your own car, offering commentary on a shared piece of culture (and helping others do so), and testing security infrastructure," writes EFF's Parker Higgins, in a separate post explaining the effects that Section 1201 has on scholars, artists, and activists. "It’s time for the courts to revisit Section 1201, and fix Congress’s constitutional mistake."