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An adversary seeking to extract information about the software code or about the system’s user, or to install their own malicious software, would seek to bypass these measures in order to maximize their ability to locate and exploit vulnerabilities.

To identify security flaws, Dr. Green must do the same; indeed, finding and reporting on the vulnerability of these access controls is a critical part of auditing the security of the system. If he does not bypass access controls in a computer system, Dr. Green’s research is significantly limited. While he may be able to discover some vulnerabilities, he cannot determine with confidence whether devices are secure against an adversary willing to circumvent access controls.

The DOJ has already responded (sort of) to some of the claims raised in the EFF's injunction request. Its motion to dismiss [PDF] -- filed the same day as the EFF's injunction request -- claims the EFF and Matthew Green have no standing to challenge Section 1201 of the DMCA. Not only that, but they cannot provide any evidence prosecution is likely if Green continues with his research work.

Plaintiffs’ claims should be dismissed in their entirety. As an initial matter, Plaintiffs lack standing to raise their First Amendment claims on a pre-enforcement basis because the assertions in their Complaint fail to establish a credible threat of prosecution, under the DMCA’s criminal enforcement provision, for engaging in constitutionally-protected activity. None of the Plaintiffs claims to have been threatened with criminal prosecution. Plaintiffs’ conclusory assertion that others have been prosecuted under the DMCA in the past, for unidentified reasons, is insufficient to establish that Plaintiffs face a credible threat, as is their assertion that third parties might bring suit against them under a separate civil private right of action. Moreover, Plaintiffs fail plausibly to assert that the acts of circumvention and trafficking that they wish to undertake qualify as speech or expressive conduct that is entitled to First Amendment protection but prohibited by the DMCA.

The DOJ's arguments roughly align with the assertions made in its motion to dismiss in a lawsuit brought by security researchers and the ACLU against the much-hated CFAA. Once again, the DOJ recognizes that Green's book may be covered by the First Amendment, but actions taken during its compilation may not be.

In both cases, though, the statutes lend themselves to punishing security researchers for performing security research. While the DOJ may have no intention of prosecuting Green for his work, the anti-circumvention clause allows it to hold onto that option for as long as it wants to. The only way to guarantee this won't happen is to obtain an injunction, but chances are the court won't be as interested in staving off the theoretical as it will be in examining the First Amendment claims.

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by Mike Masnick

Thu, Aug 18th 2016 1:02pm

Filed Under: anti-circumvention, broadcast flag, copyright, decss, dmca, dmca 1201, drm, sdmi, tarleton gillespie

Short link.

Techdirt Reading List: Wired Shut: Copyright And The Shape Of Digital Culture from the digital-locks dept We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt. I've been going back through various books from the past and came across Tarleton Gillespie's amazing Wired Shut: Copyright and the Shape of Digital Culture from almost a decade ago. However, it's still very, very relevant today, especially as we're constantly discussing how DRM is impacting the way physical products are built and while there is a big debate happening about Section 1201 of the DMCA. Gillespie saw all of this pretty early on, using many of the early examples of how 1201 basically enabled companies to force certain product design decisions that really had nothing to do with stopping "piracy," but were very much about locking out competition or holding back innovation. The book pulls together the thread on three of the biggest fights from the 2000s around these issues: (1) The silly fight over SDMI, the RIAA's preferred DRM that was so bad that they had to threaten professor Ed Felten for showing how bad it was. (2) The similarly stupid freakout over DeCSS encryption for DVDs. (3) And the attempt to lock down television with a needless broadcast flag. While the specific technologies may have changed, the fights are pretty damn similar a decade later, and it's worth reading (or rereading) Wired Shut to remind you of the past as we prepare to fight for the future.