Court Rejects Overstated First Amendment Challenge to Anti-Circumvention Rights

 On August 2, the U.S. Court of Appeals for the D.C. Circuit released a decision upholding the constitutionality of the anti-circumvention rights provisions in Section 1201 of the Digital Millennium Copyright Act (DMCA). At issue before the court in Green v. U.S. Department of Justice was a First Amendment facial challenge to Section 1201. The court's decision is an important vindication of the law that protects copyright owners from unlawful access to their intellectual property.

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. 

D.C. Circuit Affirms APA Reviewability of Copyright Exemptions Rules

On June 7, the U.S. Court of Appeals for the District of Columbia issued its decision in Medical Imaging & Technology Alliance v. Library of Congress. The case presents the question of whether copyright rules adopted under the Digital Millennium Copyright Act (DMCA) are reviewable under the Administrative Procedure Act (APA). In a 2-1 decision that brought to the fore the unusual structure and operation of the U.S. Copyright Office, the court answered "Yes."

The court's opinion was authored by Judge Neomi Rao. At issue in the case was a legal challenge to an exemption from the DMCA's anti-circumvention provisions that were granted by the Librarian of Congress following a triennial DMCA rulemaking. The exemption allowed for independent service operators to bypass technological protective measures (TPMs) on medical devices for purposes of diagnosis, modification, or repair of those devices. The Library of Congress disputed that its rulemaking was subject to APA review.

According to the D.C. Circuit:

In the Copyright Act [of 1976], Congress provided that copyright regulations are reviewable under the APA. The Act expanded the Register's rulemaking authority and provided that, with one exception not relevant here, "all actions taken by the Register of Copyrights under [Title 17] are subject to the provisions of the Administrative Procedure Act." 17 U.S.C. § 701(e). We have previously reviewed actions of the Register based on this provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878, 879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v. Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section 701(e) refers to actions of the Register, the Register is subordinate to the Librarian and 'shall act under the Librarian's ... direction and supervision." 17 U.S.C. § 701(a). More specifically, "[a]ll regulations established by the Register under [Title 17] are subject to the approval of the Librarian of Congress." Id. § 702…

Congress conferred authority for the triennial rules at issue here in the DMCA, which added the following provision to Title 17: "[T]he Librarian of Congress, upon the recommendation of the Register of Copyrights, ... shall make the determination in a rulemaking proceeding" whether to waive the anti-circumvention provision for certain classes of copyrighted works. Id. § 1201(a)(1)(C). In other words, the DMCA authorized a new type of copyright regulation that would be formulated by the Register and approved by the Librarian. 

 

Reading the two statutes as a comprehensive statutory scheme, DMCA rules are also subject to the APA under 17 U.S.C. § 701(e). The Copyright Act plainly applies the APA to "all actions" of the Register under Title 17, including rulemaking subject to the approval of the Librarian. See id. §§ 701(e), 702…

The court concluded that because Congress applied the APA's waiver of sovereign immunity to actions of the register and Librarian in adopting copyright regulations it is immaterial as to whether the Library is an "agency" under the APA. As the court recognizes, the Copyright Office is peculiarly subordinated to the Librarian of Congress and deemed an "agency" of Congress. The court acknowledged that the Librarian's decisions about the Library's internal workings are not reviewable under the APA, and the court's ruling in the case was limited to the issue of copyright regulation. But the essentially executive character of the copyright regulation adopted by the Librarian on the recommendation of the Register of Copyrights was noted in a commendable section on judicial review of administrative agency action for conformity with the law: 

Reading section 701(e) to provide for judicial review of triennial DMCA rules aligns with fundamental principles regarding the protection of individual rights against unlawful government action. To begin with, the Copyright Act and the DMCA give the Register and Librarian significant authority to "promulgate copyright regulations" and "apply the statute to affected parties.” See Intercollegiate [Broadcast System, Inc. v. Copyright Royalty Board, 684 F.3d 1332,1342 (D.C. Cir. 2012)]. As we have recognized, and no party disputes, these powers are "generally associated in modern times with executive agencies.” Id. When enacting regulations and enforcing the law, "the Library is undoubtedly a component of the Executive Branch." Id. (cleaned up). Moreover, the triennial rules directly affect valuable property rights, such as a copyright holder’s ability to limit access to a digital creation and to prevent intellectual property theft. The triennial rules also provide exemptions from civil and criminal liability that would otherwise attach to individuals who circumvent technological protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04. The exemptions are not left solely to the Librarian's discretion, but instead must be determined according to specific statutory criteria. Id. § 1201(a)(1)(C). There is no indication in the DMCA that Congress, having allocated this substantial regulatory power to the Librarian and Register and identified the legal criteria they must apply, would leave such power unchecked by judicial review. 

In sum, the court held that DMCA triennial rulemakings are subject to APA review. Judge Rao deserves credit for writing a well-reasoned and perceptive judicial opinion. 

Free State Foundation President Randolph May and I explored the structural history of the U.S. Copyright Office and its relationship with the Library of Congress in our book Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020).

D.C. Circuit Affirms the Constitutionality of Anti-Circumvention Rights

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."

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.