Will a Federal Judge Unleash Hackers on the TV Industry?

Streaming was merely the beginning. Here's a First Amendment case that survived initial judicial review and has the Trump administration fighting an electrical engineer over technology with broad applications.
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Most tales of business disruption these days have a decidedly corporate edge. For instance, Netflix often takes the mantle of being an usurper even if there's little chance that a company worth more than $122 billion would really do anything to make the content industry anything less than a profitable endeavor — at least for itself and partners. But what about those who lack significant financial backing but possess the technological savvy to truly move the marketplace forward? What chance do they have? A coming decision in D.C. federal court could provide a different sort of look at television's future.

Meet Andrew "Bunnie" Huang, an electrical engineer with a Ph.D. from the Massachusetts Institute of Technology, who has invented a device known as the NeTV2, which allows for the replacement of pixels in high-definition digital video streams. As described at various websites and in court papers, his crowdfunded device holds the potential to do everything from providing real-time text during presidential debates to onscreen reminders to the elderly that they need to take their medicine. Some of applications for the technology won't be disturbing to anyone in the industry. No one is going to get too mad when the television set is turned into a home assistant capable of ordering pizza when the big game begins with an onscreen clock tracking the speed of the delivery guy. But, ahem, how about ad-blocking? And where will television go once object detection and facial recognition become ingrained?

Whether or not hackers like Huang get immediately unleashed on the TV industry will turn on a lawsuit now challenging the "anti-circumvention" provisions of the Digital Millennium Copyright Act. On Thursday, after scoring a surprising early success in the case, Huang and fellow security researcher Matthew Green requested a preliminary injunction against enforcement of the law so they could engage in prohibited activity without fear of criminal prosecution.

Back in 1998, with many harboring "Y2K" visions of technological disaster, Congress updated copyright laws for a new millennium where reproduction promised to become easier than ever. The anti-hacking section of the DMCA (§1201) meant that the content industry could safeguard whatever they distributed with encryption, and anyone cracking access controls would be violating the law.

But not all uses of copyrighted content are out of bounds. The most famous example from legal history is the Sony Betamax VCR, which, in 1984, the Supreme Court blessed as "fair use."

"Sound policy, as well as history, supports our consistent deference to Congress when major technological innovations alter the market for copyrighted materials," wrote Justice John Paul Stevens. "Congress has the constitutional authority and the institutional ability to accommodate fully the varied permutations of competing interests that are inevitably implicated by such new technology. In a case like this, in which Congress has not plainly marked our course, we must be circumspect in construing the scope of rights created by a legislative enactment which never contemplated such a calculus of interests."

Technology like time-shifting may have never gotten off the ground in the first place if the industry had the tools at the time to lock down all content with anti-piracy measures like access controls. So when Congress passed the DMCA, lawmakers also nodded to the competing interest of innovation by establishing a triennial rulemaking process before the Librarian of Congress to exempt certain non-infringing uses of copyrighted works from the anti-circumvention provision. For example, a few years ago, it was declared ok to jailbreak a smart television to achieve interoperability and test security.

Huang and Green, though, aren't satisfied by this process of waiting three years and fighting for exceptions. Represented by the Electronic Frontier Foundation and attorneys at Wilson Sonsini, they assert in court that Section 1201 inhibits their expression and that the entire rule-making process has adverse impact on speech. They contend that the law is unconstitutionally overbroad and an impermissible prior restraint under the First Amendment.

The lawsuit was filed in July 2016, just a few days before then-candidate Donald Trump infamously expressed hope at a news conference that Russians would find and disseminate Hillary Clinton's emails. The case then sat dormant for nearly three years until U.S. District Court Judge Emmet Sullivan on June 27 rejected a motion to dismiss. That decision now means the Trump administration is defending the anti-hacking copyright law.

In Sullivan's 61-page opinion (read here), he recognizes past legal precedent that under the First Amendment, the right to speak doesn't carry with it an unrestrained right to gather information. But he also hears Huang's ambition to disseminate information on how to build a NeTV and says that he agrees with him that the DMCA and its triennial rulemaking process burdens the use and dissemination of computer code, thereby implicating the First Amendment. "Code is speech precisely because, like a recipe or a musical score, it has the capacity to convey information to a human," Sullivan writes.

The judge wasn't convinced that the DMCA was written so broadly as to inhibit constitutionally protected speech. He dismissed claims directed to the breadth of the process and how it relates to third parties. Similarly, Sullivan rejected the claim that the triennial rulemaking process amounted to an unconstitutional speech-licensing regime. He didn't see a sufficient allegation of censorship of disfavored speech and finds the regulation to be content-neutral.

But when looking specifically at Green's security research (he wants to publish a book about computer vulnerabilities) and Huang's NeTV2 invention, Sullivan does see an adequately alleged First Amendment claim and "alleged facts sufficient to show that the DMCA provisions, as applied to their intended conduct, burdens substantially more speech than is necessary to further the government’s legitimate interests."

The judge says it is up to the government to demonstrate otherwise, and so far, it hasn't.

Now, both plaintiffs are leaning into the court's ruling and telling the judge that they are likely to win the case. 

As such, Huang believes he is entitled to an injunction against any enforcement of the DMCA that would allow him to create his device and publish software so that others may do the same. The software would be open source, the court papers (here) add, and lead the way to transformative uses of copyrighted content.

"An individual might use NeTVCR to create a short movie of herself playing a video game, alongside commentary and remixes of other gamers’ videos," states the injunction bid by way of example. "Media organizations might display news coverage of important events from multiple sources at the same time, bringing different perspectives to their viewers. NeTVCR would also allow software developers to train neural networks on portions of videos. The applications are broad and include improved software for tasks such as object recognition. However, Dr. Huang has been unable to develop this technology because he needs to be able to circumvent HDCP [High-bandwidth Digital Content Protection] in order to perfect his understanding of how the signals are transmitted and encoded and to experiment and debug in order to write the software instructions that will communicate how to achieve the desired transformations."

Huang believes his circumvention will lead to fair use of copyrighted content, and that the government is getting in his way without legitimate reason.

The U.S. government is scheduled to reply by Oct. 24.