On December 6, a panel of the U.S. Court of Appeals for the D.C. Circuit unanimously upheld the constitutionality of the anti-circumvention provisions contained in Section 1201 of the Digital Millennium Copyright Act of 1998. In Green v. U.S. Department of Justice, the D.C. Circuit determined that Section 1201 is a content-neutral law that poses no more than incidental restrictions on speech content – and it does not target specific viewpoints. The decision is an important vindication of copyright owners' right to exercise control over who can access their valuable creative content.
Online services that offer licensed access to copyrighted movies, TV shows, and music recordings for viewing or listening typically use "technological protection measures" (TPMs) such as encryption and scrambling to ensure that only paying subscribers can access such content. Section 1201 supports copyright owners' right to control access to their creative works by prohibiting the use of, or trafficking in, technologies that are intended to defeat or bypass TPMs.
The two plaintiffs in Green v. U.S. Department of Justice want to publish works or create and sell devices intended to bypass – or at least provide examples or instructions regarding how to bypass – security measures for accessing copyrighted works. The plaintiffs in Green raised pre-enforcement First Amendment challenges to Section 1201, claiming that the law is a facially overbroad restriction on protected speech and that application of the law would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of TPMs.
In a February 2022 Perspectives from FSF Scholars entitled "D.C. Circuit Should Affirm the Constitutionality of Anti-Circumvention Rights," I discussed the Green case and wrote that Section 1201 is "a speech-neutral law intended to aid copyright owners in preventing bad actors from misappropriating the value of their property" and that "[t]he D.C. Circuit ought to affirm Section 1201's constitutionality with flying colors." On December 6, the court rightly did so.
The D.C. Circuit determined that it lacked jurisdiction to hear the plaintiffs' facial First Amendment challenges because the lower court had only dismissed a request for a preliminary injunction against the enforcement of Section 1201 and not made a final decision on the merits. And the court affirmed the lower court's dismissal of plaintiff Matthew D. Green's request for a preliminary injunction because Mr. Green lacked standing to bring his facial challenge to the law. At oral argument in the case, the government conceded that Mr. Green's proposed course of conduct would not run afoul of DMCA, and thus the court concluded that Mr. Green faced no credible threat of prosecution.
Regarding the merits of plaintiffs' as-applied challenges, the D.C. Circuit rightly concluded that the statute does not target speech based on its communicative content. The court stated that "[t]he DMCA's anticircumvention and antitrafficking provisions target not the expressive content of computer code, but rather the act of circumvention and the provision of circumvention-enabling tools." As a content-neutral law, the court therefore subjected Section 1201 to intermediate scrutiny, and it determined that the law easily passes the test.
The D.C. Circuit concluded that Section 1201 furthers an important governmental interest in combatting massive piracy in the digital environment and in creating a legal platform for launching the global digital marketplace for copyrighted works. Additionally, the court wrote that "[t]he government's evidence makes clear that 'without adequate protection against infringing serial copying,' content owners 'would not disseminate their valuable copyrighted [digital] content.'"
These conclusions by the D.C. Circuit in Green regarding the essential role of anti-circumvention rights in safeguarding and promoting the creation and marketing of creative works are correct. Free State Foundation President Randolph May and I discuss the same basic points in our October 2020 Perspectives from FSF Scholars, "Congress Should Preserve Anti-Circumvention Rights: The Online Market for Movies and Music Depends on DMCA Section 1201.")
In sum, the D.C. Circuit was absolutely right to reject the flimsy First Amendment claims raised in Green. Constitutionally-protected free speech is an indispensable part of American freedom. But those bedrock rights were nowhere jeopardized by Section 1201. And the case was not a close call.
P.S. Another recent judicial decision interpreting Section 1201's anti-circumvention provisions is analyzed in my September 2020 Perspectives from FSF Scholars, "Court Ruling Reinforces Copyright Owners' Anti-Circumvention Rights."
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