Court Rejects Flimsy First Amendment Challenges to Copyright Anti-Circumvention Law

A Copyright Alliance blog post on September 2 by Devin Hartline calls attention to a July 15 courtroom defeat for parties challenging the anti-circumvention and anti-trafficking provisions contained in Section 1201 of the Digital Millennium Copyright Act (DMCA). In Green v. U.S. Department of Justice, the U.S. District Court for the District of Columbia denied a request for a preliminary injunction that would have enjoined enforcement of Section 1201. The Plaintiff's request was based on as-applied First Amendment challenges – which were rejected by the District Court.

In October 2020, Free State Foundation President Randolph May and I published a Perspectives from FSF Scholars paper titled "Congress Should Preserve Anti-Circumvention Rights: The Online Market for Movies and Music Depends on DMCA Section 1201." In that paper, FSF President May and I explained that the success of Internet-based services for accessing copyrighted music, movies, and TV shows depended on the maintenance of strong "anti-circumvention" rights that are secured under Section 1201. And we wrote that "Congress must preserve these rights so that copyright owners and service providers can continue to rely on encryption and password protection to give access to paying consumers while preventing unauthorized users from accessing content to which they are not legally entitled."

 

Our October 2020 Perspectives paper mentioned expressly mentioned a previous court decision in the Green case: 

[F]ederal courts have rejected broad-based First Amendment challenges to Section 1201, including challenges tied to alleged fair uses of copyrighted works. For example, in Green v. U.S. Department of Justice (2019) the U.S. District Court for the District of Columbia rejected pre-enforcement claims that Section 1201(a)'s anti-circumvention and anti-trafficking provisions are unconstitutionally overbroad and burden a substantial number of possible fair uses of copyrighted materials by third parties. The District Court in Green also rejected claims that the triennial rulemaking process constitutes a prior restraint on speech, as the process does not call for censorship based on content, viewpoint, or speaker identity. Like other District Court decisions, Green followed the Second Circuit's holding in Universal City Studios, Inc. v. Corley (2001) that Section 1201's anti-circumvention and anti-trafficking provisions implicate functional, non-speech aspects of computer codes used to circumvent TPMs, thus rendering those provisions content neutral. Corley held that Section 1201's prohibitions advance a substantial government interest in preventing mass digital piracy and it also held that interest is unrelated to the suppression of free expression. Green and other District Court decisions have followed Corley in this regard. 

As noted above, the District Court's July 2021 order addressed as-applied challenges that were not addressed by its June 2019 order. In short, the court rightly recognized – again – that Section 1201 furthers a substantial government interest in protecting copyrighted works on the Internet and it does not substantially burden more speech than necessary to accomplish that interest. For some solid analysis of the court's latest order, read Mr. Hartline's blog post.