Dangerously unchecked surveillance and rights violations have been a throughline of the Department of Homeland Security since the agency’s creation in the wake of the September 11th attacks. In particular, Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have been responsible for countless civil liberties and digital rights violations since that time. In the past year, however, ICE and CBP have descended into utter lawlessness, repeatedly refusing to exercise or submit to the democratic accountability required by the Constitution and our system of laws.   The Trump Administration has made indiscriminate immigration enforcement and mass deportation a key feature of its agenda, with little to no accountability for illegal actions by agents and agency officials. Over the past year, we’ve seen massive ICE raids in cities from Los Angeles to Chicago to Minneapolis. Supercharged by an unprecedented funding increase, immigration enforcement agents haven’t been limited to boots on the ground: they’ve been scanning faces, tracking neighborhood cell phone activity, and amassing surveillance tools to monitor immigrants and U.S. citizens alike.  The latest enforcement actions in Minnesota have led to federal immigration agents killing Renee Good and Alex Pretti. Both were engaged in their First Amendment right to observe and record law enforcement when they were killed. And it’s only because others similarly exercised their right to record that these killings were documented and widely exposed, countering false narratives the Trump Administration promoted in an attempt to justify the unjustifiable.   These constitutional violations are systemic, not one-offs. Just last week, the Associated Press reported a leaked ICE memo that authorizes agents to enter homes solely based on “administrative” warrants—lacking any judicial involvement. This government policy is contrary to the “very core” of the Fourth Amendment, which protects us against unreasonable search and seizure, especially in our own homes.   These violations must stop now. ICE and CBP have grown so disdainful of the rule of law that reforms or guardrails cannot suffice. We join with many others in saying that Congress must vote to reject any further funding of ICE and CBP this week. But that is not enough. It’s time for Congress to do the real work of rebuilding our immigration enforcement system from the ground up, so that it respects human rights (including digital rights) and human dignity, with real accountability for individual officers, their leadership, and the agency as a whole.  

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Long before generative AI, copyright holders warned that new technologies for reading and analyzing information would destroy creativity. Internet search engines, they argued, were infringement machines—tools that copied copyrighted works at scale without permission. As they had with earlier information technologies like the photocopier and the VCR, copyright owners sued. Courts disagreed. They recognized that copying works in order to understand, index, and locate information is a classic fair use—and a necessary condition for a free and open internet. Today, the same argument is being recycled against AI. It’s whether copyright owners should be allowed to control how others analyze, reuse, and build on existing works. Fair Use Protects Analysis—Even When It’s Automated U.S. courts have long recognized that copying for purposes of analysis, indexing, and learning is a classic fair use. That principle didn’t originate with artificial intelligence. It doesn’t disappear just because the processes are performed by a machine. Copying that works in order to understand them, extract information from them, or make them searchable is transformative and lawful. That’s why search engines can index the web, libraries can make digital indexes, and researchers can analyze large collections of text and data without negotiating licenses from millions of rightsholders. These uses don’t substitute for the original works; they enable new forms of knowledge and expression. Training AI models fits squarely within that tradition. An AI system learns by analyzing patterns across many works. The purpose of that copying is not to reproduce or replace the original texts, but to extract statistical relationships that allow the AI system to generate new outputs. That is the hallmark of a transformative use.  Attacking AI training on copyright grounds misunderstands what’s at stake. If copyright law is expanded to require permission for analyzing or learning from existing works, the damage won’t be limited to generative AI tools. It could threaten long-standing practices in machine learning and text-and-data mining that underpin research in science, medicine, and technology.  Researchers already rely on fair use to analyze massive datasets such as scientific literature. Requiring licenses for these uses would often be impractical or impossible, and it would advantage only the largest companies with the money to negotiate blanket deals. Fair use exists to prevent copyright from becoming a barrier to understanding the world. The law has protected learning before. It should continue to do so now, even when that learning is automated.  A Road Forward For AI Training And Fair Use  One court has already shown how these cases should be analyzed. In Bartz v. Anthropic, the court found that using copyrighted works to train an AI model is a highly transformative use. Training is a kind of studying how language works—not about reproducing or supplanting the original books. Any harm to the market for the original works was speculative.  The court in Bartz rejected the idea that an AI model might infringe because, in some abstract sense, its output competes with existing works. While EFF disagrees with other parts of the decision, the court’s ruling on AI training and fair use offers a good approach. Courts should focus on whether training is transformative and non-substitutive, not on fear-based speculation about how a new tool could affect someone’s market share.  AI Can Create Problems, But Expanding Copyright Is the Wrong Fix  Workers’ concerns about automation and displacement are real and should not be ignored. But copyright is the wrong tool to address them. Managing economic transitions and protecting workers during turbulent times may be core functions of government, but copyright law doesn’t help with that task in the slightest. Expanding copyright control over learning and analysis won’t stop new forms of worker automation—it never has. But it will distort copyright law and undermine free expression.  Broad licensing mandates may also do harm by entrenching the current biggest incumbent companies. Only the largest tech firms can afford to negotiate massive licensing deals covering millions of works. Smaller developers, research teams, nonprofits, and open-source projects will all get locked out. Copyright expansion won’t restrain Big Tech—it will give it a new advantage.   Fair Use Still Matters Learning from prior work is foundational to free expression. Rightsholders cannot be allowed to control it. Courts have rejected that move before, and they should do so again. Search, indexing, and analysis didn’t destroy creativity. Nor did the photocopier, nor the VCR. They expanded speech, access to knowledge, and participation in culture. Artificial intelligence raises hard new questions, but fair use remains the right starting point for thinking about training.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. In the Netflix/Spotify/Amazon era, many of us access copyrighted works purely in digital form – and that means we rarely have the chance to buy them. Instead, we are stuck renting them, subject to all kinds of terms and conditions. And because the content is digital, reselling it, lending it, even preserving it for your own use inevitably requires copying. Unfortunately, when it comes to copying digital media, US copyright law has pretty much lost the plot. As we approach the 50th anniversary of the 1976 Copyrights, the last major overhaul of US copyright law, we’re not the only ones wondering if it’s time for the next one. It’s a high-risk proposition, given the wealth and influence of entrenched copyright interests who will not hesitate to send carefully selected celebrities to argue for changes that will send more money, into fewer pockets, for longer terms. But it’s equally clear that and nowhere is that more evident than the waning influence of Section 109, aka the first sale doctrine. First sale—the principle that once you buy a copyrighted work you have the right to re-sell it, lend it, hide it under the bed, or set it on fire in protest—is deeply rooted in US copyright law. Indeed, in an era where so many judges are looking to the Framers for guidance on how to interpret current law, it’s worth noting that the first sale principles (also characterized as “copyright exhaustion”) can be found in the earliest copyright cases and applied across the rights in the so-called “copyright bundle.” Unfortunately, courts have held that first sale, at least as it was codified in the Copyright Act, only applies to distribution, not reproduction. So even if you want to copy a rented digital textbook to a second device, and you go through the trouble of deleting it from the first device, the doctrine does not protect you. We’re all worse off as a result. Our access to culture, from hit songs to obscure indie films, are mediated by the whims of major corporations. With physical media the first sale principle built bustling second hand markets, community swaps, and libraries—places where culture can be shared and celebrated, while making it more affordable for everyone. And while these new subscription or rental services have an appealing upfront cost, it comes with a lot more precarity. If you love rewatching a show, you may be chasing it between services or find it is suddenly unavailable on any platform. Or, as fans of Mad Men or Buffy the Vampire Slayer know, you could be stuck with a terrible remaster as the only digital version available Last year we saw one improvement with California Assembly Bill 2426 taking effect. In California companies must now at least disclose to potential customers if a “purchase” is a revocable license—i.e. If they can blow it up after you pay. A story driving this change was Ubisoft revoking access to “The Crew” and making customers’ copies unplayable a decade after launch.  On the federal level, EFF, Public Knowledge, and 15 other public interest organizations backed Sen. Ron Wyden’s message to the FTC to similarly establish clear ground rules for digital ownership and sales of goods. Unfortunately FTC Chairman Andrew Ferguson has thus far turned down this easy win for consumers. As for the courts, some scholars think they have just gotten it wrong. We agree, but it appears we need Congress to set them straight. The Copyright Act might not need a complete overhaul, but Section 109 certainly does. The current version hurts consumers, artists, and the millions of ordinary people who depend on software and digital works every day for entertainment, education, transportation, and, yes, to grow our food.  We realize this might not be the most urgent problem Congress confronts in 2026—to be honest, we wish it was—but it’s a relatively easy one to solve. That solution could release a wave of new innovation, and equally importantly, restore some degree of agency to American consumers by making them owners again.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Copyright owners increasingly claim more draconian copyright law and policy will fight back against big tech companies. In reality, copyright gives the most powerful companies even more control over creators and competitors. Today’s copyright policy concentrates power among a handful of corporate gatekeepers—at everyone else’s expense. We need a system that supports grassroots innovation and emerging creators by lowering barriers to entry—ultimately offering all of us a wider variety of choices. Pro-monopoly regulation through copyright won’t provide any meaningful economic support for vulnerable artists and creators. Because of the imbalance in bargaining power between creators and publishing gatekeepers, trying to help creators by giving them new rights under copyright law is like trying to help a bullied kid by giving them more lunch money for the bully to take. Entertainment companies’ historical practices bear out this concern. For example, in the late-2000’s to mid-2010’s, music publishers and recording companies struck multimillion-dollar direct licensing deals with music streaming companies and video sharing platforms. Google reportedly paid more than $400 million to a single music label, and Spotify gave the major record labels a combined 18 percent ownership interest in its now- $100 billion company. Yet music labels and publishers frequently fail to share these payments with artists, and artists rarely benefit from these equity arrangements. There’s no reason to think that these same companies would treat their artists more fairly now. AI Training In the AI era, copyright may seem like a good way to prevent big tech from profiting from AI at individual creators’ expense—it’s not. In fact, the opposite is true. Developing a large language model requires developers to train the model on millions of works. Requiring developers to license enough AI training data to build a large language model would  limit competition to all but the largest corporations—those that either have their own trove of training data or can afford to strike a deal with one that does. This would result in all the usual harms of limited competition, like higher costs, worse service, and heightened security risks. New, beneficial AI tools that allow people to express themselves or access information. For giant tech companies that can afford to pay, pricey licensing deals offer a way to lock in their dominant positions in the generative AI market by creating prohibitive barriers to entry. Legacy gatekeepers have already used copyright to stifle access to information and the creation of new tools for understanding it. Consider, for example, Thomson Reuters v. Ross Intelligence, the first of many copyright lawsuits over the use of works train AI. ROSS Intelligence was a legal research startup that built an AI-based tool to compete with ubiquitous legal research platforms like Lexis and Thomson Reuters’ Westlaw. ROSS trained its tool using “West headnotes” that Thomson Reuters adds to the legal decisions it publishes, paraphrasing the individual legal conclusions (what lawyers call “holdings”) that the headnotes identified. The tool didn’t output any of the headnotes, but Thomson Reuters sued ROSS anyways. A federal appeals court is still considering the key copyright issues in the case—which EFF weighed in on last year. EFF hopes that the appeals court will the in this overbroad interpretation of copyright law. But in the meantime, the case has already forced the startup out of business, eliminating a would-be competitor that might have helped increase access to the law. Requiring developers to license AI training materials benefits tech monopolists as well. For giant tech companies that can afford to pay, pricey licensing deals offer a way to lock in their dominant positions in the generative AI market by creating prohibitive barriers to entry. The cost of licensing enough works to train an LLM would be prohibitively expensive for most would-be competitors. The DMCA’s “Anti-Circumvention” Provision The Digital Millennium Copyright Act’s “anti-circumvention” provision is another case in point. Congress ostensibly passed the DMCA to discourage would-be infringers from defeating Digital Rights Management (DRM) and other access controls and copy restrictions on creative works. Section 1201 has been used to block competition and innovation in everything from printer cartridges to garage door openers In practice, it’s done little to deter infringement—after all, large-scale infringement already invites massive legal penalties. Instead, Section 1201 has been used to block competition and innovation in everything from printer cartridges to garage door openers, videogame console accessories, and computer maintenance services. It’s been used to threaten hobbyists who wanted to make their devices and games work better. And the problem only gets worse as software shows up in more and more places, from phones to cars to refrigerators to farm equipment. If that software is locked up behind DRM, interoperating with it so you can offer add-on services may require circumvention. As a result, manufacturers get complete control over their products, long after they are purchased, and can even shut down secondary markets (as Lexmark did for printer ink, and Microsoft tried to do for Xbox memory cards.) Giving rights holders a veto on new competition and innovation hurts consumers. Instead, we need balanced copyright policy that rewards consumers without impeding competition.

We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. There’s a crisis of creativity in mainstream American culture. We have fewer and fewer studios and record labels and fewer and fewer platforms online that serve independent artists and creators.   At its core, copyright is a monopoly right on creative output and expression. It’s intended to allow people who make things to make a living through those things, to incentivize creativity. To square the circle that is “exclusive control over expression” and “free speech,” we have fair use.   However, we aren’t just seeing artists having a time-limited ability to make money off of their creations. We are also seeing large corporations turn into megacorporations and consolidating huge stores of copyrights under one umbrella. When the monopoly right granted by copyright is compounded by the speed and scale of media company mergers, we end up with a crisis in creativity.  People have been complaining about the lack of originality in Hollywood for a long time. What is interesting is that the response from the major studios has rarely, especially recently, to invest in original programming. Instead, they have increased their copyright holdings through mergers and acquisitions. In today’s consolidated media world, copyright is doing the opposite of its intended purpose: instead of encouraging creativity, it’s discouraging it. The drive to snap up media franchises (or “intellectual properties”) that can generate sequels, reboots, spinoffs, and series for years to come has crowded out truly original and fresh creativity in many sectors.And since copyright terms last so long, there isn’t even a ticking clock to force these corporations to seek out new original creations.  In theory, the internet should provide a counterweight to this problem by lowering barriers to entry for independent creators. But as online platforms for creativity likewise shrink in number and grow in scale, they have closed ranks with the major studios.   It’s a betrayal of the promise of the internet: that it should be a level playing field where you get to decide what you want to do, watch, listen to, read. And our government should be ashamed for letting it happen.