This case is about a security researcher and an inventor who are concerned that the pursuit of their professional goals will subject them to civil liability and criminal prosecution under the Digital Millennium Copyright Act (DMCA), 17 U.S.C. §§ 1201 et seq. That’s right: the potential of crippling civil judgments, and even jail time, just for doing their jobs. (And you think your job is tough.)

At issue in this case are the following provisions of the DMCA:

1. The statute’s anticircumvention provision prohibits “circumvent[ing] a technological measure that effectively controls access to a [copyrighted work].” 17 U.S.C. § 1201(a)(1)(A). In other words, this provision prohibits bypassing technological barriers put in place by content owners to prevent access to copyrighted works, such as a password that a streaming service requires for access to its content library or the code incorporated in an ebook to prevent readers from copying the book into another format.
2. The statute’s antitrafficking provisions prohibit “manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof” if it (1) “is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work;” (2) “has only limited commercially significant purpose or use other than to circumvent;” or (3) “is marketed ... for use in circumventing.” Id. §§ 1201(a)(2)(A) - (C) (cleaned up). 

These provisions work in tandem:  the former prevents the circumvention of technological means, and the latter prohibit the dissemination of technological means that enable such circumvention. Violators are subject to civil actions and criminal sanctions. Id. § 1203(a). 

The DMCA is a serious law. And the plaintiffs are serious people, with serious jobs, doing serious work that provides serious benefits to society.

Plaintiff Matthew Green is a cryptographer and computer science professor at Johns Hopkins Information Security Institute who investigates vulnerabilities in electronic systems. (Check out his blog, “A Few Thoughts on Cryptographic Engineering,”) Green wants to publish an academic book that includes instructions in both English and in software code for circumventing technological protection measures. (You can’t uncover security flaws without circumvention.) Green is concerned that publication of the book may run afoul of the DMCA.

Plaintiff Andrew “bunnie” Huang is an inventor, electrical engineer, self-described "hardware hacker" and the author of Hacking the Xbox: An Introduction to Reverse Engineering. Huang wants to sell a device (called NeTVCR) that will allow a user to record and modify video data from various sources, including streaming services (like Netflix) and video games. In order to do this, the device will contain computer code capable of circumventing High-Bandwidth Digital Content Protection, a technological protection measure that is employed by content owners to prevent their content from being copied or played on unauthorized devices. Huang contends that his device would allow customers to engage in new forms of protected and non-infringing expression (such as enabling a blogger to annotate with commentary a live presidential debate and allowing a film studies professor to create side-by-side comparison between two movies for classroom instruction). He also intends to publish his code so others can learn how the technology works and propose ways to improve the code. Huang fears that sale of the NeTVCR with this code could subject him to civil liability and prosecution under the DMCA.

The plaintiffs brought a pre-enforcement challenge against the government, alleging that the code they write qualifies as speech and that the DMCA violates the First Amendment facially and as applied to their proposed activities. First, plaintiffs contended that fair use is constitutionally required and that the challenged DMCA provisions were unconstitutionally overbroad because they burdened a substantial number of possible fair uses of copyrighted materials that third parties might make. Second, they argued that the portion of the statute that puts in place a triennial rulemaking process to create exemptions from the anti-circumvention provision (see 17 U.S.C. §§ 1201(a)(1)(B)-(E)) amounts to an unconstitutional prior restraint on speech. Finally, they argued that the DMCA provisions were unconstitutional as applied to their proposed activities. 

The district court dismissed the plaintiff's facial challenges and denied their motion for preliminary injunction on their as applied challenges. The plaintiffs appealed the denial of the injunction, and a panel for the D.C. Circuit affirmed.

With respect to Green, the court held that Green had not demonstrated - as required for a preliminary injunction - a substantial likelihood that he had standing because at oral argument the government "made quite clear" that Green’s publication of the book would not violate the DMCA. As a result, the "government’s concession ends any credible threat of prosecution against Green, leaving him without standing to obtain a preliminary injunction." It is worth noting that the the panel did not decide the issue on the merits. 

With respect to Huang, the court affirmed the denial of the injunction because he failed to demonstrate that he was likely to succeed on the merits. To determine whether the DMCA is unconstitutional as applied to Huang's proposed activities, the court was required to consider: (1) whether Huang's activity constituted speech protected by the First Amendment; (2) whether the challenged provisions of the DMCA were content based or content neutral, which determines the level of scrutiny applied in the third step (strict scrutiny for content-based statutes, and intermediate scrutiny for content-neutral statutes); and (3) whether the law passed muster under (as applicable) strict scrutiny or intermediate scrutiny.

On the first question, Huang argued that writing and communicating computer code capable of circumventing technological protection measures qualifies as First Amendment protected speech, and the government conceded as much. 

On the second question, the panel held that the 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." The panel found the Supreme Court's decision in City of Austin v. Reagan National Advertising of Austin, LLC to be "virtually dispositive." (See this post.) In that case, SCOTUS rejected a First Amendment challenge to a city ordinance that distinguished between signs advertising businesses located near the sign (which were permitted) from signs advertising businesses not located near the sign (which were prohibited). Of course, in order to apply the ordinance, you had to read the content of a sign to determine whether it advertised an on-site business. Despite this, the Supreme Court held that the regulation was content neutral since the ordinance cared about the expressive message on a sign “only to the extent that it informs the sign’s relative location” and since the sign’s "substantive message itself [was] irrelevant.”

According to the panel, by the logic of City of Austin, the DMCA was content neutral:

"Although the DMCA requires reading computer code to determine what digital act the code carries out, it is nonetheless content neutral because, in the words of City of Austin, it cares about the expressive message in the code 'only to the extent that it informs' the code’s function. The code’s 'substantive message itself is irrelevant.' Indeed, this case is easier than City of Austin because the sign ordinance regulated speech as speech, whereas the DMCA looks only to the code’s function, not its expressive content. ... Accordingly, the DMCA is content neutral and subject to intermediate scrutiny, a test it easily survives." (Citations omitted.)

The court acknowledged that the DMCA may impact speech, but that did not mean that the its restrictions are content-based:

"To be sure, the DMCA may incidentally make it more difficult to express things with computer code if that code also facilitates circumvention, but that expressive activity is not the statute’s target. As the Second Circuit explained in [Universal City Studios, Inc. v. Corley], the DMCA 'is [not] concerned with whatever capacity [code] might have for conveying information to a human being.' Rather, it applies to code 'solely because of its capacity to instruct a computer.'" (Cleaned up.)

Having determined that the DMCA was content neutral, the panel found that it passed constitutional muster under the intermediate scrutiny standard, which required the court to evaluate (1) whether the restriction serves a substantial governmental interest; (2) whether the interest served is unrelated to the suppression of free expression; and (3) whether the restriction does not burden substantially more speech than is necessary to further the government’s legitimate interest.

With respect to the first prong, the court held that the DMCA clearly furthers a substantial governmental interest since it serves to protect content owner's copyright interests, and “without adequate protection against infringing serial copying,” content owners “would not disseminate their valuable copyrighted [digital] content.” The panel did not expressly address the second and third prongs of the intermediate scrutiny test. Instead, it concluded its (relatively) short opinion with the following:

"Huang’s NeTVCR device would, by design, permit virtually anything displayable on a modern television screen to be recorded in the clear and made available online by making obsolete the technological protection measure it targets. This would eviscerate virtually every single video content delivery protection system exposing valuable copyrighted video content to massive infringement, gutting the government’s substantial interest in ensuring the broadest distribution of copyrighted materials. Huang, who spends most of his brief addressing strict scrutiny, offers no meaningful response and is thus unlikely to succeed on the merits." (Citations omitted and cleaned up.)

The case was remanded to the district court for further proceedings. A bad result for the plaintiffs, but the case may not end here. The Electronic Frontier Foundation, which is representing the plaintiffs, had this to say:

"While the Court’s lack of consideration for the speech interests in this case is disappointing, some of the critical issues in the case remain to be heard another day. The Court refused to consider, at this time, the argument that the law is invalid on its face, not just as applied to the plaintiffs. We will continue to fight for the public’s right to read, speak, and create in the face of this absurdly restrictive law."

Green v. United States Department of Justice

, __ F.4th __, No. 21-5195, 2022 WL 17419644 (D.C. Cir. Dec. 6, 2022)