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 theirproposed course of conduct is arguably proscribed by the DMCA.With regard to section 1201(a)(1)(A)'s circumventionprohibition, Dr. Green has alleged that he plans to circumventTPMs for purposes of his academic research... and Mr. Huang and Alphamax have alleged that theyplan 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 securitysystems" in a book about his research, and he hasindicated that the "detailed information" will include computercode.... ("I am now writing an academic book . . . . I wouldlike to include examples of code capable of bypassing securitymeasures, 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 willdisseminate the technological know-how and computer coderequired to circumvent the TPMs that bar access to HDMI signals.... Accordingly, plaintiffs have putforth a sufficiently "credible statement of intent to engage inviolative conduct."

So, that's good.

Also nice is that the court explicitly recognizes that "code is speech."

The Court, as do defendants... agrees withplaintiffs that the DMCA and its triennial rulemaking processburden the use and dissemination of computer code, therebyimplicating the First Amendment. Although the question has notbeen addressed by the D.C. Circuit, as other courts have explained, code "at some level contains expression, thusimplicating the First Amendment."... Code is speechprecisely because, like a recipe or a musical score, it has thecapacity 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 allegedfacts sufficient to state a claim that DMCA provisions areunconstitutionally overbroad because they "have failed toidentify any significant difference" between their claim thatthe DMCA provisions are invalid on overbreadth grounds and theirclaim that those provisions are unconstitutional when applied totheir proposed course of conduct.... Plaintiffs' argument in both scenarios is that fairuse is constitutionally required and that the DMCA inhibits fairuse rights and thus is unconstitutional.... Plaintiffs allege a number of potential fairuses that the DMCA burdens because the Librarian deniedexemptions requested by third parties in the 2015 triennialrulemaking process.... Plaintiffs' as-applied claims, however, arise out of the denials of exemptionseither 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 infree speech than it has on" their own. ("[W]hen, as here, the plaintiffs arethemselves engaged in protected activity-when the challengedstatute would have no greater impact upon the rights ofnonparties than it would have upon the rights of the partiesbefore the Court-there is no need to employ a traditionaloverbreadth analysis."). The Court therefore need not reach thequestion of whether the "DMCA's anti-circumvention and antitraffickingprovisions are plainly legitimate in the vastmajority 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 havesufficiently alleged facts to state a claim that the exemptionrulemaking process is an unconstitutional speech-licensingregime because plaintiffs have not alleged that the rulemakingprocess results in censorship through "suppressing disfavoredspeech 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 thatthe rulemaking defendants' decision of whether to grantexemptions in the 2015 rulemaking process was based on thecontent of what those who sought exemptions wanted to say, theirviewpoint, or who they are.... Theallegations here are therefore entirely distinguishable fromspeech licensing regimes where the scheme created a priorrestraint based on the content of what the speaker wanted toexpress.

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.