392 F. Supp. 3d 68
D.C. Cir.2019Background
- Plaintiffs Matthew Green (security researcher/professor), Andrew Huang, and Alphamax (maker of the NeTV device) seek to engage in activities that would circumvent TPMs (e.g., HDCP) and to publish/distribute code and devices enabling such circumvention; they fear civil and criminal liability under the DMCA (§§1201(a)(1)(A), 1201(a)(2)).
- Plaintiffs filed a pre-enforcement First Amendment challenge (facial and as-applied) to the DMCA anti‑circumvention and anti‑trafficking provisions and also challenged the Librarian of Congress’s 2015 triennial exemption rulemaking under the First Amendment and APA.
- Defendants (DOJ, Library of Congress, Copyright Office and officials) moved to dismiss for lack of standing and for failure to state a claim; defendants also argued the APA does not permit review of the Librarian’s exemption decisions.
- The court found plaintiffs have Article III standing to bring their challenges (credible threat of prosecution, intent to engage in arguably protected conduct, and causation/redressability).
- The court held plaintiffs’ facial overbreadth and prior‑restraint claims failed and were dismissed, but denied dismissal of plaintiffs’ as‑applied First Amendment claims to the DMCA provisions.
- The court dismissed plaintiffs’ APA challenge because the Library of Congress is not an “agency” under the APA; Congress did not clearly make the Librarian’s triennial exemption decisions subject to the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to bring pre‑enforcement First Amendment challenge to §§1201(a)(1)(A) & 1201(a)(2) | Plaintiffs intent to bypass TPMs and publish code creates a credible threat of prosecution; injury is imminent | No credible threat; conduct not proscribed or protected | Court: standing satisfied (credible threat established; First Amendment context lowers burden) |
| Whether DMCA code/circumvention activity implicates First Amendment | Code, gathering, creating, publishing, and receiving info are protected speech; §1201 burdens these rights | Circumvention/gathering access is non‑speech action (Zemel/Houchins); code’s functional aspect is unprotected | Court: Code and dissemination implicate First Amendment; defendants concede some publication is protected |
| Facial challenges: overbreadth and prior restraint to §1201 and triennial exemption process | Statute/rulemaking unduly burdens fair use and lacks Freedman safeguards; overbroad on its face | Statute regulates non‑speech functional conduct and exemption process is class‑based, not a censoring licensing scheme | Court: Facial overbreadth and prior restraint claims dismissed (no adequate showing of content‑based censorship or distinct impact on third parties) |
| As‑applied challenge (whether §1201 is constitutional applied to plaintiffs’ planned conduct) | §1201 burdens substantially more speech than necessary (intermediate scrutiny fails given burdens on noninfringing uses and publication) | §1201 serves substantial interest in preventing piracy; trafficking restrictions necessary to prevent undermining of TPMs and markets | Court: Denied dismissal of as‑applied claims — DMCA treated as content‑neutral (intermediate scrutiny); defendants failed at motion stage to show statute is narrowly tailored and does not burden substantially more speech than necessary |
| Whether Librarian’s triennial exemption decision is reviewable under the APA | Librarian’s rulemaking should be subject to APA review; Library acts as an executive actor in rulemaking | Library of Congress is part of "the Congress" excluded from APA definition of agency; Congress did not expressly subject Librarian’s exemption decisions to APA | Court: APA claim dismissed — Library of Congress is not an "agency" under the APA for these actions; plaintiffs’ APA claims against Librarian fail |
Key Cases Cited
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (standing for pre‑enforcement First Amendment challenges)
- Clapper v. Amnesty Int'l USA, 568 U.S. 398 (standing; requirements for threatened injury)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (Article III standing standards)
- Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289 (pre‑enforcement standing where credible threat exists)
- Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir.) (heightened "credible threat" test outside First Amendment context)
- Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir.) (code has speech and functional components; DMCA targets non‑speech functional aspect; intermediate scrutiny)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (intermediate scrutiny for content‑neutral regulation)
- Ward v. Rock Against Racism, 491 U.S. 781 (narrow‑tailoring/least‑restrictive requirement for content‑neutral rules)
- United States v. O'Brien, 391 U.S. 367 (regulation of conduct with incidental burden on speech)
- Freedman v. Maryland, 380 U.S. 51 (procedural safeguards required for prior restraints)
- Reed v. Town of Gilbert, 576 U.S. 155 (content‑based regulation analysis)
- Zemel v. Rusk, 381 U.S. 1 (no First Amendment right to access information in some contexts)
- Houchins v. KQED, Inc., 438 U.S. 1 (no general First Amendment right to access government facilities)
- United States Telecom Ass'n v. FCC, 825 F.3d 674 (D.C. Cir.) (pre‑enforcement standing in First Amendment challenges)