DC Circuit Rejects First Amendment Challenge to the DMCA and the Librarian of Congress’s Rulemaking Authority

On August 2, 2024, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Matthew Green v. DOJ, rejecting a First Amendment challenge to section 1201 of the Digital Millenium Copyright Act (“DMCA”). The DC Circuit held that section 1201—which prohibits the circumvention of technological protections on copyrighted works and the distribution of the means to circumvent—regulates conduct, not speech, and therefore does not implicate the First Amendment. The Court also held that the Librarian of Congress’s authority to conduct a rulemaking to grant temporary exemptions to circumvent in certain instances does not violate the First Amendment.

In 2016, the Electronic Frontier Foundation initiated this dispute by challenging the DMCA on behalf of two individuals, Matthew Green and Andrew “bunnie” Huang, who argued that section 1201 is unconstitutional under the First Amendment. In 2022, the D.C. Circuit rejected their as-applied challenge and held that the DMCA is not likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent. Having abandoned their as-applied challenge, plaintiffs then sought outright invalidation of section 1201 as overbroad and a prior restraint on speech in violation of the First Amendment.

At the heart of their challenge, plaintiffs argued 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.     

The Court held, however, that section 1201’s anticircumvention and antitrafficking provisions are not facially overbroad because they 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 uses that “are themselves entirely non-expressive.” 

The Court also found plaintiffs’ assumption that fair use of copyrighted works is necessarily protected by the First Amendment to be “erroneous.” While “the First Amendment protects a right to read,” the Court held that it “does not grant unimpeded access to every reading material a reader might wish for,” or “guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression.”

Finally, the Court denied plaintiffs’ constitutional challenge to the Librarian of Congress’s authority under section 1201 to conduct a triennial rulemaking to grant temporary exemptions to the prohibition on circumvention. Under section 1201, the Librarian, upon the recommendation of the Register of Copyrights, may adopt temporary exemptions for particular classes of works as to which users are, or are likely to be in the next three years, “adversely affected” in their ability to make noninfringing uses due to the prohibition on circumventing access controls. The Court rejected plaintiffs’ claims that this delegation of authority constitutes prior restraint on speech, holding that “[t]he DMCA’s 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.”  

Takeaway

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. In October 2024, the Register of Copyrights will release her recommendation to the Librarian regarding the temporary exemptions to the prohibition on circumvention that have been proposed in the pending rulemaking. Based on that recommendation, the Librarian will then issue regulations to adopt temporary exemptions for the succeeding three-year period. The D.C. Circuit’s decision in Green v. DOJ confirms the constitutionality of that process.

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