In a long-running legal battle over the constitutionality of an anti-piracy statute, a federal judge in the nation’s capital has delivered disappointing news to all hackers wishing to tinker with their televisions.
The hacker in this case is Andrew “Bunnie” Huang, an electrical engineer with a device known as the NeTV2. Huang’s system has various capabilities including permitting virtually anything displayable on high-definition television — including Netflix and Hulu shows and Sony and Microsoft games — to be easily recorded and available in other formats for editing. The device also allows for the replacement of pixels in high-definition digital video streams. Huang imagines “numerous applications that will improve people’s lives in areas such as education, news, and safety.”
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The problem is to achieve what he wishes to do, he needs to circumvent High-Bandwidth Digital Content Protection — and that’s arguably illegal under the Digital Millennium Copyright Act. That mid-’90s law allows for folks like Huang to go before the Librarian of Congress every three years and argue for exemptions to the anti-circumvention provision. In 2017, Huang did. He was denied.
So Huang, represented by the Electronic Frontier Foundation, has brought a federal lawsuit to enjoin the DMCA’s restriction on hacking copyright control technologies, and before anyone shrugs this off as ridiculous, two years ago a federal judge thought Huang made a good First Amendment point. “Code is speech precisely because, like a recipe or a musical score, it has the capacity to convey information to a human,” wrote U.S. District Court Judge Emmet Sullivan in analyzing the DMCA’s regulation of constitutionally protected speech.
In the two years since, the U.S. Justice Department stepped up to defend the constitutionality of the law, and Sullivan is stepping back.
“The government makes a compelling argument that the code as used in the NeTVCR device Dr. Huang wants to create, use and distribute does not qualify as speech entitled to First Amendment protection,” he writes in his latest decision.
Sullivan doesn’t resolve that question because he rejects a proposed injunction on other grounds.
He explains that Huang is unlikely to succeed on the merits of his claim because the government has shown the DMCA furthers a substantial interest in countering piracy unrelated to the suppression of free speech. He also writes that the government has shown the the law isn’t burdening more speech than necessary as NeTVCR would potentially enable unrestricted access to pretty much the entire pay TV ecosphere.
“Plaintiffs argument that the government’s interests are protected because ‘actual copyright infringers can still be punished’ under copyright law that precedes the DMCA is unpersuasive because the DMCA was enacted specifically to address the challenges posed by the Internet and digital content,” writes the judge.
Huang attempted to lean on how his device would enable substantial fair use of copyrighted material, but Sullivan says he doesn’t have sufficient evidence before him to make such a conclusion. Moreover, the judge appears to defer in some respects to the triennial exemption process.
Here’s the entire decision:
