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What Really Does and Doesn’t Work for Fair Use in the DMCA On July 28, the Senate Committee on the Judiciary held another in its year-long series of hearings on the Digital Millennium Copyright Act (DMCA). The topic of this hearing was “ How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use? ” We’re glad Congress is asking the question. Without fair use, much of our common culture would be inaccessible, cordoned off by copyright. Fair use creates breathing space for innovation and new creativity by allowing us to re-use and comment on existing works. As Sherwin Siy, lead public policy manager for the Wikimedia Foundation, said in his testimony: “That fair uses aren’t rare exceptions to the exclusive rights of copyright law but a pervasive, constantly operating aspect of the law. Fair use not only promotes journalism, criticism, and education, it also ensures that our everyday activities aren’t constantly infringing copyrights. Especially now that so much of our li

In Historic Opinion, Third Circuit Protects Public School Students’ Off-Campus Social Media Speech The U.S. Court of Appeals for the Third Circuit issued an historic opinion in B.L. v. Mahanoy Area School District , upholding the free speech rights of public school students. The court adopted the position EFF urged in our amicus brief that the First Amendment prohibits disciplining public school students for off-campus social media speech. B.L. was a high school student who had failed to make the varsity cheerleading squad and was placed on junior varsity instead. Out of frustration, she posted—over the weekend and off school grounds—a Snapchat selfie with text that said, among other things, “fuck cheer.” One of her Snapchat connections took a screen shot of the “snap” and shared it with the cheerleading coaches, who suspended B.L. from the J.V. squad for one year. She and her parents sought administrative relief to no avail, and eventually sued the school district with the help

In Historic Opinion, Third Circuit Protects Public School Students’ Off-Campus Social Media Speech The U.S. Court of Appeals for the Third Circuit issued an historic opinion in B.L. v. Mahanoy Area School District , upholding the free speech rights of public school students. The court adopted the position EFF urged in our amicus brief that the First Amendment prohibits disciplining public school students for off-campus social media speech. B.L. was a high school student who had failed to make the varsity cheerleading squad and was placed on junior varsity instead. Out of frustration, she posted—over the weekend and off school grounds—a Snapchat selfie with text that said, among other things, “fuck cheer.” One of her Snapchat connections took a screen shot of the “snap” and shared it with the cheerleading coaches, who suspended B.L. from the J.V. squad for one year. She and her parents sought administrative relief to no avail, and eventually sued the school district with the help

University App Mandates Are The Wrong Call As students, parents, and schools prepare the new school year, universities are considering ways to make returning to campus safer. Some are considering and even mandating that students install COVID-related technology on their personal devices, but this is the wrong call. Exposure notification apps , quarantine enforcement programs , and similar new technologies are untested and unproven, and mandating them risks exacerbating existing inequalities in access to technology and education. Schools must remove any such mandates from student agreements or commitments, and further should pledge not to mandate installation of any technology. Even worse, many schools—including Indiana University, UMass Amherst, and University of New Hampshire —are requiring students to make a general blanket commitment to installing an  unspecified tracking app of the university’s choosing in the future. This gives students no opportunity to assess

The PACT Act Is Not The Solution To The Problem Of Harmful Online Content The Senate Commerce Committee’s Tuesday hearing on the PACT Act and Section 230 was a refreshingly substantive bipartisan discussion about the thorny issues related to how online platforms moderate user content, and to what extent these companies should be held liable for harmful user content. The hearing brought into focus several real and significant problems that Congress should continue to consider. It also showed that, whatever its good intentions, the PACT Act in its current form does not address those problems, much less deal with how to lessen the power of the handful of major online services we all rely on to connect with each other. EFF Remains Opposed to the PACT Act As we recently wrote , the Platform Accountability and Consumer Transparency (PACT) Act , introduced last month by Senators Brian Schatz (D-HI) and John Thune (R-SD), is a serious effort to tackle a serious problem: that a handful

A Legal Deep Dive on Mexico’s Disastrous New Copyright Law Mexico has just adopted a terrible new copyright law, thanks to pressure from the United States (and specifically from the copyright maximalists that hold outsized influence on US foreign policy). This law closely resembles the Digital Millennium Copyright Act enacted in the US 1998, with a few differences that make it much, much worse. We’ll start with a quick overview, and then dig deeper. “Anti-Circumvention” Provision The Digital Millennium Copyright Act included two very significant provisions. One is DMCA 1201, the ban on circumventing technology that restricts access to or use of copyrighted works (or sharing such technology). Congress was thinking about people ripping DVDs to infringe movies or descrambling cable channels without paying, but the law it passed goes much, much farther. In fact, some US courts have interpreted it to effectively eliminate fair use if a technological restriction must be bypassed. In

Mexico's New Copyright Law Undermines Mexico's National Sovereignty, Continuing Generations of Unfair "Fair Trade Deals" Between the USA and Latin America Earlier this month, Mexico's Congress hastily imported most of the US copyright system into Mexican law, in a dangerous and ill-considered act. But neither this action nor its consequences occurred in a vacuum: rather, it was a consequence of Donald Trump's US-Mexico-Canada Agreement (USMCA), the successor to NAFTA. Trade agreements are billed as creating level playing fields between nations to their mutual benefit. But decades of careful scholarship show that poorer nations typically come off worse through these agreements , even when they are subjected to the same rules, because the same rules don't have the same effect on different countries. Besides that, Mexico has now adopted worse rules than its trade partners. To understand how this works, we need only look to the history of the USA'