DMCA Survives Another First Amendment Challenge

The United States Court of Appeals for the District of Columbia Circuit recently issued its decision in Matthew Green v. DOJ, rejecting a First Amendment challenge to section 1201 of the Digital Millenium Copyright Act (“DMCA”). Section 1201 prohibits the circumvention of technological protections on copyrighted works and the distribution of the means to circumvent. Section 1201 also gives the Librarian of Congress the authority to conduct a triennial rulemaking to grant temporary exemptions to the general prohibition on circumvention in certain instances.

The Electronic Frontier Foundation represented the two plaintiffs, individuals Matthew Green and Andrew “bunnie” Huang, who initiated this dispute in 2016 by arguing that section 1201 is unconstitutional under the First Amendment. In 2022, the D.C. Circuit rejected their as-applied challenge and held that section 1201 is not likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent. Plaintiffs then sought outright invalidation of section 1201 as overbroad and a prior restraint on speech in violation of the First Amendment. Plaintiffs challenged section 1201’s anticircumvention and antitrafficking provisions, arguing that that fair use of copyrighted works is protected by the First Amendment and so section 1201 cannot validly prohibit circumvention by individuals for the purpose of making fair use of copyrighted works. Plaintiffs also challenged the Librarian of Congress’s authority to conduct a triennial rulemaking to grant temporary exemptions to the general prohibition on circumvention, asserting that such delegation of authority constitutes prior restraint on speech.

The Court rejected the plaintiff’s challenges. The Court held that section 1201 is not overly broad because its anticircumvention and antitrafficking provisions regulate conduct, not speech. Circumvention and the act of selling technology to enable circumvention of digital controls on software, embedded in a range of consumer goods, constitute non-expressive conduct. The Court also rejected plaintiffs’ challenge to the Librarian of Congress’s rulemaking authority, finding that the regulatory exemption process “is not a speech-licensing scheme,” as the “law neither directly regulates speech nor bears a ‘close enough nexus to expression, or to conduct commonly associated with expression,’ to threaten the sort of censorship risks against which the prior restraint doctrine guards.”

The Green v. DOJ decision comes at a time when the U.S. Copyright Office is actively engaged in the ninth triennial rulemaking under section 1201 and this decision confirms the constitutionality of that process.

Green v. United States Dep't of Just., No. 23-5159 (D.C. Cir. Aug. 2, 2024)