Creatitivity vs. Copyright: The Battle Over Section 1201 of the DMCA

August 21, 2016 by Ebony Calloway

Section 1201 is meant to protect creativity—but does it also stifle it?

Section 1201 is meant to protect creativity—but does it also stifle it?

The Digital Millennium Copyright Act

The Digital Millennium Copyright Act (DMCA) is a piece of legislation passed in 1992 under the Clinton administration. It was introduced with the intention of protecting intellectual property online, a field known as DRM (Digital Rights Management).

Section 1201 of the Digital Millennium Copyright Act includes language that makes what the hacking community does illegal. It is a long section of the DMCA that is ultimately meant to protect copyrighted works—but at the same time, it prohibits people from taking things apart to figure how they work and how to recreate them.


Anti-Section 1201—Creativity

On the anti-Section 1201 side of the argument is Andrew "bunnie" Huang, a maker and self-proclaimed hacker who is suing the US government to challenge the section. Huang objects because it explicitly forbids tinkering with, changing, or modifying—in any way—digital media or any technology which you have paid for.

This section adds another layer on top of extent copyright law. Now it is illegal to record television shows on a VCR or repair something that you have bought if it requires circumventing firmware that has been installed. Bunnie argues that Section 1201 stifles creativity because people now have to stop and consider whether they are violating some law before remixing a song or making hardware modifications.

Working with Huang to file suit against the government is the Electronic Frontier Foundation (EFF).


Image courtesy of EFF.


The EFF is a non-profit organization aimed at defending civil liberties online. Their tagline is "Defending Your Rights in the Digital World". For over two years, they have maintained a white paper of what they call the "unintended consequences" of the DCMA. Their concerns include that the DCMA targets even non-hacker consumers who "jailbreak" their mobile phones and allows corporations to threaten developers and innovators with legal action.

Pro-Section 1201—Copyright

On the other side of the arguments are proponents of Section 1201, which was last fully revised on August 1, 2014. The section is aimed at protecting intellectual property and creative work. Also, there is a paragraph in Section 1201 which directly addresses things such as hacking, reverse engineering, and encryption research.

It states that encryption research is perfectly fine as long as it is to advance the knowledge in the field of encryption technology. More or less, this means that there is still a place for "legal" hacking.

This is important to note because many companies have competitions and offer prizes to people who can identify vulnerabilities in their software so that the company can fix it. At this year's Def Con hacking conference, Apple joined the ranks of companies utilizing "white hat" hackers to test their security.



Up until this point, Apple has relied on a combination of private cyber security measures and user-dependent bug reporting to identify security vulnerabilities. The spread of "bug bounties", especially backed by large corporations like Apple, publicly legitimizes legal hacking.

Section 1201 also builds upon this idea of encryption technology to extend to security testing which is good-faith testing for products and other technology. While some in the hacking community may be in favor of channeling their efforts and talents towards these legally-sanctioned means, Section 1201 still drastically reduces the scope of activities they can undertake.


Overall I think that Section 1201 of the Digital Millennium Copyright Act wants to protect the artistic integrity of a technology or piece of digital media. But the changes to the Digital Millennium Act have altered the way that creators work as well. Specifically, Section 1201 is very strict about what constitutes an illegal act of violating a copyright or tampering with software. It constrains makers to just thinking about how something they are creating might be seen as illegal in some way rather than it just being an improvement or a modification for certain purposes.

Section 1201 of the Digital Millennium Copyright Act should take into consideration how makers work and how to best serve both sides of the community so that progress within the digital community can continue.