Three Years Later: 1st Amendment Challenge Over DMCA's Anti-Circumvention Provisions Can Move Forward

Almost exactly three years ago we wrote about how well known computer security professor Matthew Green and famed hardware hacker Bunnie Huang had teamed up with EFF and the law firm Wilson Sonsini to file a fascinating 1st Amendment challenge to the DMCA’s Section 1201. 1201 is the so-called “anti-circumvention” or digital locks provision of the DMCA, that says that it’s infringing to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof” that is designed to “circumvent” DRM or other “technological protection measures.” Basically, if there’s a digital lock on something — doing anything to get around it (or to help others get around it) is potentially a copyright violation even if (and this is important) the purpose and result of circumventing the DRM has nothing to do with infringing on copyright.

Even Congress knew that this part of the law was crazy when they passed it. It knew that this would lead to all sorts of perfectly reasonable activities suddenly being declared infringing — so it came up with a really annoying hack to deal with that. A triennial review, where every three years everyone could go beg the Copyright Office and the Librarian of Congress to grant categories of exemptions from Section 1201. Those exemptions only last for three years, so even if you get one, you need to keep applying.

The lawsuit took an interesting approach to challenging 1201. Noting that the Supreme Court has long held that fair use is a necessary safety valve to make copyright compatible with the 1st Amendment, they noted that 1201 does not allow fair use as a defense. And if it’s true that fair use is necessary to make copyright compliant with the 1st Amendment, then that should mean that 1201 is not constitutional.

The lawsuit has more or less sat in lawsuit purgatory for nearly three years when the court finally ruled that the case can move forward… in part. In a detailed 61-page opinion the court allowed some claims to move forward while dismissing other ones. It’s a victory that the case is moving forward, but among the dismissed claims were the general challenge to the constitutionality of 1201. That’s disappointing.

Green and Huang argued that 1201 violated their 1st Amendment rights, because the very threat of violating 1201 caused them to avoid working on various projects — and those projects were expressive in nature. The court buys that argument — and says that they have standing to make claims that their own expression was stifled by 1201 and the whole triennial review process. The DOJ argued that they hadn’t shown any actual injury, but the court points out that’s ridiculous:

First, plaintiffs have sufficiently alleged that their
proposed course of conduct is arguably proscribed by the DMCA.
With regard to section 1201(a)(1)(A)’s circumvention
prohibition, Dr. Green has alleged that he plans to circumvent
TPMs for purposes of his academic research… and Mr. Huang and Alphamax have alleged that they
plan to circumvent TPMs to create the NeTVCR… With regard to section 1201(a)(2)’s trafficking prohibition, Dr.
Green has sufficiently alleged that he plans to include
“detailed information regarding how to circumvent security
systems” in a book about his research, and he has
indicated that the “detailed information” will include computer
code…. (“I am now writing an academic book . . . . I would
like to include examples of code capable of bypassing security
measures, for readers to learn from.”)…. And Mr. Huang and Alphamax have alleged that they intend to disseminate
“information about how to build NeTVCR,”… which permits the reasonable inference that they will
disseminate the technological know-how and computer code
required to circumvent the TPMs that bar access to HDMI signals…. Accordingly, plaintiffs have put
forth a sufficiently “credible statement of intent to engage in
violative conduct.”

So, that’s good.

Also nice is that the court explicitly recognizes that “code is speech.”

The Court, as do defendants… agrees with
plaintiffs that the DMCA and its triennial rulemaking process
burden the use and dissemination of computer code, thereby
implicating the First Amendment. Although the question has not
been addressed by the D.C. Circuit, as other courts have explained, code “at some level contains expression, thus
implicating the First Amendment.”… Code is speech
precisely because, like a recipe or a musical score, it has the
capacity to convey information to a human.

However, the court rejects the straight up Constitutional challenge that 1201 itself is over-broad.

The Court is not persuaded that plaintiffs have alleged
facts sufficient to state a claim that DMCA provisions are
unconstitutionally overbroad because they “have failed to
identify any significant difference” between their claim that
the DMCA provisions are invalid on overbreadth grounds and their
claim that those provisions are unconstitutional when applied to
their proposed course of conduct…. Plaintiffs’ argument in both scenarios is that fair
use is constitutionally required and that the DMCA inhibits fair
use rights and thus is unconstitutional…. Plaintiffs allege a number of potential fair
uses that the DMCA burdens because the Librarian denied
exemptions requested by third parties in the 2015 triennial
rulemaking process…. Plaintiffs’ as-applied claims, however, arise out of the denials of exemptions
either they requested, or that would have covered their conduct…. Plaintiffs have not alleged that the DMCA
“will have any different impact on third parties’ interests in
free speech than it has on” their own. (“[W]hen, as here, the plaintiffs are
themselves engaged in protected activity—when the challenged
statute would have no greater impact upon the rights of
nonparties than it would have upon the rights of the parties
before the Court—there is no need to employ a traditional
overbreadth analysis.”). The Court therefore need not reach the
question of whether the “DMCA’s anti-circumvention and antitrafficking
provisions are plainly legitimate in the vast
majority of applications.”

In other words, the case can and should focus on the direct impact on Green and Huang based on what they were trying to do — and the claims failed (in the court’s opinion) to make a clear case how the statute itself was over-broad and unconstitutional. That at least leaves open the possibility of other cases making a better argument on that front.

It also rejects the claim that the Librarian of Congress violates the 1st Amendment in failing to grant certain exemptions.

The Court is not persuaded that plaintiffs have
sufficiently alleged facts to state a claim that the exemption
rulemaking process is an unconstitutional speech-licensing
regime because plaintiffs have not alleged that the rulemaking
process results in censorship through “suppressing disfavored
speech or disliked speakers,”

Indeed, the court then claims that the DMCA 1201 triennial review process is not “content-based” and therefore it’s not violating the 1st Amendment.

Plaintiffs have not alleged facts indicating that
the rulemaking defendants’ decision of whether to grant
exemptions in the 2015 rulemaking process was based on the
content of what those who sought exemptions wanted to say, their
viewpoint, or who they are…. The
allegations here are therefore entirely distinguishable from
speech licensing regimes where the scheme created a prior
restraint based on the content of what the speaker wanted to
express.

So, all in all a mixed bag. The case is still worth watching and could lead to some interesting rulings, but the bigger attempt to have the entire law declared unconstitutional seems to have hit a dead end.
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