SFC joins amicus curiae in Green v. Department of Justice

Large coalition against DMCA among right to repair, digital rights and advocacy groups speaks out

December 6, 2023

In the case of Green v. Department of Justice, filed in 2016 concerning section 1201 of the DMCA, Software Freedom Conservancy — along with Public Knowledge, The Digital Right to Repair Coalition, iFixit, The Open Source Hardware Association, and Jonathan Askin, Aaron Perzanowski, and Anthony Rosborough — all joined an amicus curiae brief led by Charles Duan in support of the defendant. The DMCA includes many incredibly harmful policies. In particular, for almost 20 years, the DMCA has allowed overbroad corporate control of our technology in the name of copyright. Particularly harmful are the Draconian §1201-backed TPMs (“technological protection measures”) — which have curtailed and nearly eliminated these core rights of ownership:

• The right to repair: TPMs block third-party parts or fixes — allowing monopolies in the repair market, or forcing consumers to harm our environment by discarding otherwise repairable devices.
• The right to exclude: TPMs spy on consumers and open insecure backdoors on their computers — allowing malicious software to enter from anywhere.
• The right to use: TPMs prevent consumers from using their devices as they wish. For example, some coffee machines' TPMs prohibit the brewing of other companies’ coffee pods.
• The right to possess: Device manufacturers have leveraged TPMs to dispossess consumers of their purchases (without legal justification).

The amicus brief expresses its support for Green's position that, as a matter of free speech under the Constitution, Green should have permission to share information on circumventing TPMs with other consumers. Quoting from the brief:

When consumers seek to circumvent TPMs to protect their property interests, fight back against anticompetitive monopolization, or preserve their privacy, their efforts have everything to do with protecting individual consumer rights and virtually nothing to do with copyright.

§1201 gives corporations power over us. The amici believe that §1201 “… advanc[es] not copyright policy but rather corporate interests in denying consumers their rights to use and enjoy what they own.“ Seeking to empower people through policy change and promotion of free and open source software, SFC pushes for ethical technology standards and through coalition building like has been done for this brief. We stand with other organizations doing adjacent work and in doing so, show that there is near universal support for consumer and user focused rights advocacy.

Also, SFC's Executive Director, Karen Sandler, shared her compelling story of real-world negative healthcare impacts of TPMs in the brief:

A software malfunction on the device misinterpreted her pulse, causing it to shock her heart unnecessarily while she was pregnant. Yet the defibrillator’s TPM kept [her] from even finding the bug in the software, let alone repairing it, leaving her at the mercy of the device’s manufacturer to stop the erroneous shocks.

Free and open source software is a necessary (but not sufficient) condition to ensure our rights are protected and is key in making policy changes that empower all users of technology while restricting corporate control over our hardware and software. Software Freedom Conservancy provides a critical viewpoint to contribute with the other organizations joining us in support of this brief. By working with other advocacy groups, we broaden our own viewpoints and spread the ideas of software freedom to other organizations. This has a twofold benefit of enabling us to bring more people into the software freedom movement who are left out by our rhetoric and simultaneously bring the software freedom movement to other organizations and people by sharing our perspective. It's work like this that makes us hopeful for the future of all our digital rights.

You can read the whole brief with the official court document subject to change. Also please consider supporting our organization by becoming a Sustainer or making a donation. Now is an especially good time because your donation goes towards our matching fund, so all donations until January 15th are doubled up to our match amount!