54 F.4th 738
D.C. Cir.2022Background:
- Congress enacted the DMCA (17 U.S.C. §1201) to curb large-scale digital piracy by prohibiting (a) circumvention of technological protection measures and (b) trafficking in tools primarily designed to enable circumvention.
- The DMCA includes a triennial rulemaking (Librarian/Register) to adopt temporary exemptions for noninfringing uses of circumvention technologies.
- Plaintiffs: Matthew Green (wants to publish an academic security book including example code) and Andrew "bunnie" Huang (wants to sell a NeTVCR device with code that can circumvent HDCP and publish that code). They brought pre-enforcement facial and as-applied First Amendment challenges to §1201.
- The district court dismissed the facial challenge and denied a preliminary injunction on the as-applied claims; Green and Huang appealed.
- This court held it lacked jurisdiction over the facial challenge; affirmed denial of preliminary injunction for Green (no standing after government concession) and for Huang (unlikely to succeed on merits) and remanded.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over facial challenge | Plaintiffs say dismissal is appealable and inextricably tied to injunction denial | Government says district order was not final so no §1291 appeal | Court: No jurisdiction over facial challenge (order not final) |
| Standing (Green) | Green intends to publish code in book and faces credible threat of prosecution | Government conceded Green's proposed publication would not violate DMCA | Held: Green lacks standing for injunction (no credible threat) |
| Is code protected speech? | Code is expressive and entitled to First Amendment protection | Government conceded source code can be expressive when written for human readers | Held: Treated as expressive speech for purposes of the claim (not disputed) |
| Is the DMCA content-based and unconstitutional as-applied to Huang? | Huang: DMCA targets expressive code and must satisfy strict scrutiny | Government: DMCA targets conduct/function (circumvention and trafficking), not expression; content-neutral and survives intermediate scrutiny | Held: DMCA is content-neutral (targets function), furthers important anti-piracy interest, and survives intermediate scrutiny; Huang unlikely to succeed |
Key Cases Cited
- Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) (analyzing constitutionality of DMCA anticircumvention provisions and treating code as expressive but regulable by function)
- City of Austin v. Reagan Nat’l Advertising of Austin, LLC, 142 S. Ct. 1464 (2022) (content-neutral regulation can require reading expressive content so long as it targets nonexpressive attributes)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (test for whether a law is content based)
- Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) (intermediate-scrutiny test for content-neutral speech regulations)
- Winter v. Nat. Res. Def. Council, 555 U.S. 7 (2008) (preliminary injunction standard)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (pre-enforcement standing: credible threat of prosecution suffices)
- Cornelius v. NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788 (1985) (framework for assessing whether activity is protected speech)
- Junger v. Daley, 209 F.3d 481 (6th Cir. 2000) (holding computer source code is an expressive medium entitled to First Amendment protection)
- City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789 (1984) (overbreadth/facial challenge standards)