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.