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In the digital age economy, owners of valuable copyrighted media, including movies, TV shows, sound recordings, books, and images must be able to control who has access to their content. Section 1201 furthers that basic purpose, as I described in my February 2022 Perspectives from FSF Scholars, "D.C. Circuit Should Affirm the Constitutionality of Anti-Circumvention Rights":
Similar to how the law of trespass protects property owners against unauthorized access to their land, Section 1201 protects copyright owners against those who intentionally subvert TPMs in order to access their copyrighted content. Sections 1201(a) and 1201(b) prohibit the circumvention as well as the trafficking of services and devices that circumvent TPMs for controlling access to copyrighted content. Both provisions are directed toward technologies that are designed primarily to circumvent TPMs, have only limited commercially significant purposes other than circumventing TMPs, or are marketed or used in concert with a person with knowledge of intended use for circumventing TPMs.
During a prior appeal to the D.C. Circuit in Green, the Appellants raised both as-applied and facial First Amendment challenges to Section 1201. In a blog post titled "D.C. Circuit Affirms the Constitutionality of Anti-Circumvention Rights," I wrote about the court’s December 2022 decision that rejected as-applied challenges raised against Section 1201. In that instance, the court did not reach the merits of the facial challenge and remanded it to the trial court. Subsequently, the District of Columbia upheld the constitutionality of Section 1201. An appeal on the matter of the facial challenge was brought again before the D.C. Circuit, providing the occasion for the decision in Green that was issued on August 2.
In essence, the Appellants argued that Section 1201 was overbroad because it censors speech that is fair use of copyrighted works, and fair use is necessarily protected by the First Amendment. That is a thoughtful and clever argument, but as the D.C. Circuit wrote: "we disagree that the First Amendment necessarily shields all fair uses of copyrighted work from regulation." The court explained:
The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for. Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment's solicitude of speakers' control over their own speech. See Harper & Row, 471 U.S. at 559 (noting that copyright serves the First Amendment value of the "right not to speak").
If every work that the public might wish to access "could be pirated away" via circumvention, soon nothing worth reading would be published electronically. Id. Plaintiffs' premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers' access to copyrighted work routinely requires consent from the copyright owner- typically obtained by paying for access subject to certain limitations on use.
As the court recognized, there might conceivably be instances in which Section 1201 or the denial of an exemption from its strictures could give rise to successful as-applied First Amendment challenges. But overwhelmingly that is not likely the effect of the law. The statute is not content-based and it does not favor or disfavor any particular viewpoints. Its purpose is to protect the valuable copyrighted property from unauthorized access. The D.C. Circuit's decision in Green v. U.S. Department of Justice, including its handling of the fair use issue, is thoughtful and reasonable. In upholding the constitutionality of anti-circumvention rights, the court gets it right once again.
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