Matthew Green v. DOJMatthew Green v. DOJ
PILLARD, Circuit Judge: Twenty-six years ago, Congress enacted the Digital Millenium Copyright Act to protect copyrighted works made available online from digital piracy and unauthorized access. Plaintiffs-Appellants, a computer science professor and a tech inventor, say the Act is so plainly unconstitutional that it cannot be applied to anyone. They challenge the law‘s prohibitions against circumvention of technological protections on copyrighted works and distribution of the means to circumvent. In their view, those provisions violate the First Amendment‘s free speech protections by unduly stifling the fair use of copyrighted works.
Having abandoned their as-applied challenges, plaintiffs seek outright invalidation of a central pillar of the Act as overbroad and a prior restraint on speech in violation of the First Amendment. We reject both facial challenges.
I.
A.
The First Amendment and Copyright Clause appear, at first glance, to be in tension. The First Amendment guarantees freedom of speech,
That said, to avoid impeding robust expression, courts have long recognized a common-law doctrine of “fair use” that
Faced with First Amendment challenges to statutes that regulate copyright, the Supreme Court has described fair use as one of two “traditional First Amendment safeguards” designed to strike a balance in copyright law. Eldred, 537 U.S. at 220. The other referenced safeguard is copyright‘s distinction between uncopyrightable ideas and copyrightable expression, codified at
In acknowledging that the fair use defense serves constitutional values, we do not mean to suggest that Congress lacks freedom to alter the contours of that defense. To the contrary, the Supreme Court has consistently acknowledged Congress‘s power to “take a fresh look” should it disagree with judicial application of fair use doctrine. Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). And Congress has in fact done so at various points throughout the nation‘s history. For instance, while Justice Story once recognized abridgment as one type of non-infringing fair use, Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841), Congress later extended copyright‘s protection to exclusive abridgement rights, see Copyright Act of 1909 § 1(b), Pub. L. 60–349, 35 Stat. 1075 (1909); see also Paul Goldstein, Derivative Rights and Derivative Works in Copyright, 30 J. Copyright Soc‘y U.S.A. 209, 214 (1982).
Fair use plays a key role in striking a balance between expression and prohibition in copyright law. But because the line between uses that are fair and those that are infringing eludes crisp definition, creators relying on fair use as a defense against claims of copyright infringement inevitably face some uncertainty. Courts determine case by case whether use of a copyrighted work constitutes fair use, sometimes based on subsidiary factual determinations made by juries. See Google LLC v. Oracle Am., Inc., 593 U.S. 1, 23-26 (2021). Indeed, the Supreme Court has described reliance on a “potential fair use defense” as a “roll [of] the dice,” subjecting the user of copyrighted material to a “notoriously fact sensitive” analysis
That uncertainty risks chilling some privileged speech, but it inheres in the contextual character of the fair use defense. The Copyright Act directs courts determining whether a work constitutes fair use to consider a non-exhaustive list of factors, including:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
B.
With the rise of streaming services and electronic readers, the public enjoys unprecedented access to copyrighted materials. Billions of people worldwide can stream copyrighted TV shows into their homes, listen to copyrighted music through the smartphones in their pockets, or instantaneously download copyrighted novels onto an e-reader. In the 1990s, Congress anticipated that “the movies, music, software, and literary works that are the fruit of American
Enter the Digital Millenium Copyright Act (DMCA),
The first provision is the Act‘s anticircumvention provision, which forbids “circumvent[ing] a technological
The anticircumvention provision is subject to statutory and regulatory exemptions. Section 1201 itself provides some exemptions. For example, nonprofit libraries may overcome technological controls to gain access to copyrighted work if they do so “solely in order to make a good faith determination of whether to acquire a copy of th[e] work” that is otherwise not reasonably available.
Congress also created a rulemaking process to more dynamically exempt categories of circumvention activity from the DCMA. Under
The culmination of each triennial rulemaking cycle is a final rule that exempts identified types of uses of copyrighted work from the anticircumvention provision. For example, in the most recent final rule issued in 2021, the Librarian exempted certain researchers’ use of “literary works . . . distributed electronically” insofar as their use is “solely to deploy text and data mining techniques on a corpus of literary works for the purpose of scholarly research and teaching.” Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies (2021 Final Rule),
Congress envisioned this rulemaking process as a “fail-safe” to ensure that the anticircumvention provision leaves breathing room for noninfringing uses, including fair use, of copyrighted content. See H.R. Rep. No. 105-551, pt. 2, at 36 (1998). Indeed, the triennial rulemaking scheme was Congress‘s response to concerns widely voiced during the drafting of the DMCA that, if not carefully crafted, it might “create a ‘pay-per-use’ society” without adequate protection for noninfringing expression. Id. at 26; see also David Nimmer, A Riff on Fair Use in the Digital Millenium Copyright Act, 148 U. Penn. L. Rev. 673, 716-26 (2000) (explaining the emergence of this “fail-safe” after legislative backlash to an
The second provision of Section 1201 at issue in this appeal—the antitrafficking provision—is not subject to the triennial rulemaking cycle‘s exemptions. That provision is, in effect, a ban on trafficking in digital lock picks. It prohibits “manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, [or] component” that: (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 a technological measure that effectively controls access to a [copyrighted] work,” or (3) is “marketed . . . for use in circumventing a technological measure that effectively controls access to a [copyrighted] work.”
Section 1201(c) clarifies that “[n]othing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.”
C.
Plaintiff Matthew Green, a computer science professor at Johns Hopkins University, conducts research on security flaws in widely used electronic systems and notifies manufacturers of his findings. For example, he previously identified security flaws in automotive anti-theft systems, website encryption, and Apple‘s iMessage system. Although
Because he could not rely on the statutory or regulatory exemptions, Green claimed, his fear of liability under
Plaintiffs Andrew “bunnie” Huang and his audiovisual media company, Alphamax (collectively, Huang), also alleged that
Huang claimed that his NeTVCR device would permit users to “engage in new forms of protected and noninfringing expression.” Id. ¶ 100 (J.A. 34). He identified hypothetical expressive uses of the device such as using “a single TV screen [to] display a live presidential debate and the text of a commentator‘s live blog,” creating a “side-by-side comparison between two films . . . for media literacy education,” or using a “single TV screen that simultaneously displays the coverage of a live event by more than one news source.” Id. ¶ 100 (J.A. 34). Like Green, Huang unsuccessfully sought exemptions from the Library of Congress. Id. ¶¶ 107-08 (J.A. 35). Without those exemptions, Huang alleged, he is unconstitutionally deterred by
The plaintiffs sued to invalidate
The government moved to dismiss the complaint and plaintiffs cross-moved for a preliminary injunction. The district court stayed the preliminary injunction motion pending its decision on the motion to dismiss. The court later granted in part and denied in part the government‘s motion to dismiss, dismissing plaintiffs’ facial First Amendment challenges and APA claims, but denying the motion to dismiss as to their as-applied claims. Green v. U.S. Dep‘t of Justice, 392 F. Supp. 3d 68, 85-100 (D.D.C. 2019).
The court dismissed the facial overbreadth challenge on the basis of plaintiffs’ failure to allege that the DMCA would “‘have any different impact on third parties’ interests in free speech than it has on’ their own.” Id. at 88 (quoting Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 802 (1984)). And it rejected plaintiffs’ contention that the triennial rulemaking constituted a prior restraint, holding that it did not effect any content-based censorship. Id. at 89-90. The court concluded that plaintiffs failed to allege “facts indicating that the rulemaking defendants’ decision of whether to grant exemptions in the 2015 rulemaking process was based on the content of what those who sought exemptions wanted to say, their viewpoint, or who they are.” Id. at 90. The court also dismissed plaintiffs’ APA claims, holding that the triennial rulemaking process is not subject to the APA. Id. at 96-100. (We later rejected that proposition in Medical Imaging & Technology Alliance v. Library of Congress, 103 F.4th 830, 836 (D.C. Cir. 2024)).
But the district court denied the government‘s motion to dismiss plaintiffs’ as-applied First Amendment claims. The court held that the government failed to meet its burden to show that
Plaintiffs then renewed their motion for a preliminary injunction on their as-applied claims, which the district court denied. Green v. U.S. Dep‘t of Justice, No. 16-1492, 2021 WL 11637039 (D.D.C. July 15, 2021). By this time, the Librarian of Congress in the 2018 rulemaking cycle had granted Green‘s request for an exemption allowing him to circumvent in furtherance of his security research, so he no longer pressed his as-applied challenge to the anticircumvention prohibition. And the court concluded that sale of Green‘s academic book would not run afoul of the antitrafficking provision because it fell outside of the definition of banned trafficking products as those with “only limited commercially significant purpose or use other than to circumvent” or that are marketed for the purpose of circumvention.
As to Huang, assuming without deciding that his proposed use and sale of his circumvention device counted as speech, the district court held that the government satisfied its burden under intermediate scrutiny to justify application of
We affirmed the district court‘s denial of preliminary injunctive relief in Green v. U.S. Dep‘t of Justice, 54 F.4th 738 (D.C. Cir. 2022). We declined on that appeal to exercise jurisdiction over the court‘s earlier dismissal of the facial claims because the court had not entered judgment on plaintiffs’ still pending as-applied claims, so the order granting in part the government‘s motion to dismiss was not yet final and appealable under
On remand, plaintiffs voluntarily dismissed their as-applied claims. Once the district court entered final judgment, plaintiffs appealed the district court‘s earlier order dismissing their facial First Amendment challenges to
II.
At the core of plaintiffs’ challenge to
Consider a filmmaker making a fictionalized drama about emergency responders to the September 11th attacks who wants to stage a scene in which the responders’ families watch real-life footage of the immediate aftermath of the attacks on a television set. If use of copyrighted footage for that purpose constitutes fair use, the filmmaker would not be liable for infringement. See, e.g., Fioranelli v. CBS Broadcasting Inc., 551 F. Supp. 3d 199, 240-41 (S.D.N.Y. 2021). But if the filmmaker circumvented technological controls in order to obtain the footage, the court‘s fair use determination would not shield against liability under the DCMA, unless her use of the clip fell within one of the anticircumvention provision‘s statutory or regulatory exemptions. (As it happens, the use would likely qualify under the 2021 Final Rule‘s exemption permitting circumvention to use clips for their “historically significant nature,”
In plaintiffs’ view, a mismatch in protection for fair use under traditional copyright law and under the DMCA renders the latter unconstitutional. They assert that all fair use is protected by the First Amendment, so
Key to plaintiffs’ theory is their view that fair use of copyrighted work is necessarily protected by the First Amendment. We later explain why that assumption is erroneous, but it is worth considering at the outset what it would mean for plaintiffs’ theory if true.
If plaintiffs were right that would-be speakers have a blanket First Amendment right to circumvent in the service of uses that would be fair under copyright law, the triennial rulemaking‘s exemption scheme would be essentially redundant: With or without a regulatory exemption, fair users could circumvent technological protections of copyrighted
An irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself. Recall that the Supreme Court has referred to the use of copyrighted materials under the protection of a “potential fair use defense” as a “roll [of] the dice.” Public.Resource.Org., 590 U.S. at 275. The 9/11 drama‘s creator, for example, may not be able to anticipate with certitude that her use of archival footage would be noninfringing, given that fair use turns on a “notoriously fact sensitive” analysis. Id. A decision to include the archival footage carries legal risk. In contrast, by promulgating general rules in advance, the anticircumvention exemption scheme gives the filmmaker clearer notice of the legality of specific forms of circumvention, thus reducing the chill of legal uncertainty under the DMCA relative to the chill inherent in copyright law‘s fair use doctrine.
More fundamentally, if appellants were correct that the First Amendment protected circumvention undertaken for fair use ends, then
But we disagree that the First Amendment necessarily shields all fair uses of copyrighted work from regulation, and, regardless, Congress‘s objective to promote rather than chill speech is no guarantee that its enactment survives a First Amendment challenge. We accordingly proceed to address why, under each doctrinal framework plaintiffs deploy, their facial challenges fail. First, we explain that plaintiffs have not satisfied the overbreadth doctrine‘s exacting requirement to demonstrate unconstitutional applications of
A.
Plaintiffs contend that
Facial invalidation of a statute for overbreadth is disfavored. It “is ‘strong medicine’ that is not to be ‘casually
Plaintiffs’ facial overbreadth challenge is especially disfavored because
The plainly legitimate sweep of section 1201(a) is extensive. Indeed, a large swath of conduct prohibited by the statute is not even arguably related to expression. The DMCA applies to circumvention, and the act of selling the technology to enable circumvention, of digital controls on the software embedded in a range of consumer goods, including automobiles, smart appliances, and medical devices. Plaintiffs note that some owners of those devices might seek to modify, repair, or analyze information in the devices, requiring the circumvention of technological protections. But regardless of whether the act of bypassing those technological controls ultimately facilitates fair or noninfringing uses, those uses are themselves entirely non-expressive and unprotected by the First Amendment. In itself, repairing a smart alarm clock is not expressive conduct—so circumventing access controls on its embedded software to do so is unprotected by the First Amendment.1
Many legitimate applications of the challenged provisions are undisputed by the plaintiffs. The government notes and plaintiffs do not contest that the anticircumvention provision bars individuals from hacking into a music streaming service to access its catalogue for free. Gov‘t Br. 21-22. Similarly, the provision forbids overriding the time restriction on a digital movie rental to have permanent access to it. And the antitrafficking provision “prevents the distribution of tools that would enable the sort of circumvention discussed above on a
In addition, we have already sustained section 1201(a) against Huang‘s pre-enforcement First Amendment challenge as applied to his proposed sale of a device that circumvents most digital video streams’ protection technology. Green, 54 F.4th at 746-47. That device, we observed, would “eviscerate virtually every single video content delivery protection system,” exposing copyrighted video content to widespread infringement and “gutting the government‘s substantial interest” in promoting the dissemination of copyrighted works. Id. Additional examples abound.
Plaintiffs nonetheless insist there are “numerous specific categories of third-party speech impermissibly burdened by Section 1201(a),” which together “[o]vershadow” legitimate applications of the law. Appellants’ Br. 45-46. They list a few activities that they cast as speech burdened by the DMCA, including: a documentary filmmaker using in her own film copyrighted video clips she obtained via circumvention; a visually impaired person enabling read-aloud functionality of an e-book by circumventing its technological protections; and a camera owner gaining access to encrypted photograph metadata via circumvention rather than by purchasing the camera manufacturer‘s software containing the decryption keys. Appellants’ Br. 46; Reply Br. 20. Plaintiffs do not contend that those acts of circumvention are themselves expressive conduct, but claim they are nonetheless entitled to First Amendment protection. And, even as to their many examples that plaintiffs concede fall within exemptions promulgated by the Librarian of Congress, they claim the rulemaking process itself is an unconstitutional burden on its beneficiaries’ speech. Appellants’ Br. 46.
First, plaintiffs posit that the First Amendment protects the “right to access and learn from digital works,” not just the right to make fair use of work via legitimate rights of access, and they rely on that premise to argue that statutory protection of barriers to access violates the First Amendment. Appellants’ Br. 24-25. The First Amendment protects a right to read, but it does not grant unimpeded access to every reading material a reader might wish for. Similarly, the First Amendment does not guarantee potential fair users unfettered or privileged access to copyrighted works they seek to use in their own expression. To hold otherwise would defy the First Amendment‘s solicitude of speakers’ control over their own speech. See Harper & Row, 471 U.S. at 559 (noting that copyright serves the First Amendment value of the “right not to speak“).
If every work that the public might wish to access “could be pirated away” via circumvention, soon nothing worth reading would be published electronically. Id. Plaintiffs’ premise that fair users are entitled to make unauthorized use of copyrighted works assumes away the very entitlements copyright law validly protects. Consumers’ access to copyrighted work routinely requires consent from the copyright owner—typically obtained by paying for access subject to certain limitations on use.
Plaintiffs’ argument to the contrary proves too much. On their logic, a theatre critic wishing to run a photograph with his
Second, plaintiffs alternatively assert that when an individual circumvents to obtain copyrighted work for use in her own expression, that circumvention is constitutionally protected as a “step in the creation of speech,” akin to filming or newsgathering. Price, 45 F.4th at 1070. Even assuming that some circumvention is constitutionally privileged because necessary to constitutionally protected expression using the copyrighted work, section 1201(a)‘s provisions are not automatically unconstitutional in those instances. After all, even political speech may be subject to certain regulatory constraints. See, e.g., Williams-Yulee v. Florida Bar, 575 U.S. 433, 444 (2015); United States v. O‘Brien, 391 U.S. 367, 377 (1968). Identification of relevant conduct as First Amendment-protected “merely launches our inquiry.” Price, 45 F.4th at 1067.
Plaintiffs have not made the showing needed to survive that First Amendment inquiry. They largely concede that the constitutionality of section 1201(a) as applied to their hypothetical DMCA applications is controlled by intermediate
As alleged, none of plaintiffs’ potential applications of section 1201(a) to third-party fair users would fail intermediate scrutiny. For example, at oral argument they highlighted their assertion that section 1201(a) would impermissibly burden the speech of a fifth-grade teacher who wished to circumvent a DVD‘s encryption and extract a clip to screen during a lesson. See Oral Arg. Rec. 29:01-30:02. Application of section 1201(a) to bar that circumvention would survive intermediate scrutiny so long as “it furthers an important or substantial governmental interest; . . . the governmental interest is unrelated to the suppression of free expression; and . . . the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Green, 54 F.4th at 746 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994)).
What is more, plaintiffs’ hypothetical teacher‘s DVD use is currently facilitated by a regulatory exemption permitting him to circumvent for the hypothesized purpose. See 2021 Final Rule, 86 Fed. Reg. at 59,637/3 (codified at
We do not purport to pass on every circumstance in which a speaker seeks to circumvent a copyrighted work‘s technological controls to make fair use of the work. It could be that “incidental restriction[s] on alleged First Amendment freedoms” posed by section 1201(a) are sufficiently material in some situations that its application fails intermediate scrutiny. Edwards v. Dist. of Columbia, 755 F.3d 996, 1001-02 (D.C. Cir. 2014). And future litigants might plausibly argue that a particular regulatory exemption discriminates based on the content or viewpoint of speech and is therefore subject to strict scrutiny. But plaintiffs do not raise those arguments here.
B.
Recognizing that section 1201(a) might impose incidental burdens on fair users that could be alleviated without undercutting the statute‘s protection of copyrighted works distributed electronically, Congress delegated authority to the Librarian of Congress to craft exemptions to the anticircumvention provision. Plaintiffs urge that, in so doing, Congress enacted an unconstitutional prior restraint on speech.
As explained above, the Librarian of Congress determines through a rulemaking proceeding whether and how the anticircumvention provision has, or is likely to have, an adverse effect on people‘s ability to make noninfringing uses of classes of copyrighted works.
Plaintiffs’ facial challenge to the Librarian‘s exemption authority requires us to determine, at the threshold, whether the DMCA‘s regulatory exemption scheme is an ex ante speech-licensing regime, which would “bear[] a heavy presumption against its constitutional validity.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (quoting Se. Promotions, Ltd. v. Conrad, 420 U.S. 546, 558 (1975)). Only licensing laws with “a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat” of censorship are “vulnerable to facial challenges.” City of Lakewood v. Plain Dealer Publ‘g Co., 486 U.S. 750, 759 (1988). If the law is a prior restraint, and thus amenable to a facial challenge, we must determine whether it “condition[s] expression on a licensing body‘s prior approval of content.” Thomas v. Chicago Park Dist., 534 U.S. 316, 321 (2002). If it does, the law is subject to strict procedural requirements, including prompt judicial review in which the
Plaintiffs’ speech-licensing claim fails at the threshold. The DMCA‘s authorization of regulatory exemptions does not operate as a prior restraint on speech. Is it therefore not susceptible to a facial First Amendment challenge.
Again, not all government licensing schemes are subject to the “extraordinary doctrine” permitting facial First Amendment challenges. Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989) (quoting City of Lakewood, 486 U.S. at 772 (White, J., dissenting)). We entertain a facial speech-licensing challenge only when a statute “ha[s] a close enough nexus to expression, or to conduct commonly associated with expression, to pose a real and substantial threat” of either of two “identified censorship risks.” City of Lakewood, 486 U.S. at 759. Those risks are twofold: The first is the chill that results when speakers respond to unclear licensing standards by attempting to conform their speech to the censor‘s perceived preferences. A second hazard of legal preconditions on expression is that, “without standards to fetter the licensor‘s discretion,” they invite content or viewpoint discrimination. Id. at 758-59. Speakers relegated to as-applied challenges against illegitimate enforcement may capitulate rather than litigate or, if they sue, “the eventual relief may be ‘too little and too late‘” to effectively remedy opportunities for speech lost while litigation is pending. Id. at 758.
The DMCA‘s regulatory exemption process is not a speech-licensing scheme. 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. City of Lakewood, 486 U.S. at 759.
To begin, section 1201(a) has little in common with paradigmatic prior restraints, which require prior governmental approval before a person may lawfully speak. In Near v. Minnesota ex rel. Olson, the foundational prior-restraint case, the Supreme Court struck down a state law authorizing the government to act in advance to “abate[]” the publication of any “malicious, scandalous and defamatory newspaper, magazine or other periodical.” 283 U.S. 697, 701-02 (1931). Other classically unconstitutional prior restraints have “requir[ed] a permit and a fee before authorizing public speaking, parades, or assemblies” on a town‘s public property,
Section 1201(a) also lacks a sufficiently “close . . . nexus to . . . conduct commonly associated with expression” to bring it within the scope of the prior restraint doctrine. City of Lakewood, 486 U.S. at 759. Plaintiffs cast section 1201(a) as a speech-licensing regime because the anticircumvention provision applies to some individuals who circumvent technological locks “in order to facilitate their own subsequent expression,” such as the Fioranelli filmmaker. Reply Br. 4. Plaintiffs thus again analogize circumvention to the act of taking photographs or making audio or video recordings—non-communicative activities that, as “step[s] in the creation of speech,” may be “protected as speech under the First Amendment.” Price, 45 F.4th at 1070.
But that argument fails because circumventing copyright works’ technological protections has no necessary or ordinary function as a facilitator of speech. To the contrary, plaintiffs do not even allege that section 1201(a) “largely targets” speech. Cf. FW/PBS, Inc., 493 U.S. at 224. And for good reason. As we have explained, the act of circumventing technological protection measures often has no connection to speech at all. Even many fair or noninfringing uses for which the Librarian of Congress has authorized circumvention do not qualify as expressive. For example, consider the Librarian of Congress‘s circumvention exemption for the repair of software-enabled devices. The exemption allows owners of those devices—ranging from MRI machines to smart alarm clocks to vehicles—to circumvent technological protections on
Compare the scope of section 1201(a) with the ordinance at issue in City of Lakewood to which plaintiffs analogize the DMCA‘s exemption regime. That local ordinance required newspapers to apply annually for mayoral permission to place news racks on city sidewalks. 486 U.S. at 753. The Court concluded that the distribution of newspapers was “conduct commonly associated with expression” and its regulation therefore subject to facial challenge. Id. at 760. But using news racks to distribute newspapers, unlike circumvention of technological locks, has a necessary correlation with expression: All newspaper racks distribute speech. They are, in effect, mechanical pamphleteers. Id. at 761-62.
The DMCA‘s anticircumvention provision is more akin to a routine prohibition on trespass, which is not conduct closely associated with expression. See
The Fifth Circuit‘s decision in Moore v. Brown, 868 F.3d 398 (5th Cir. 2017) (per curiam), aptly illustrates the point. There, an evangelical Christian regularly set up a large sketch board in a public park in Dallas seeking to spread his message by engaging passersby in conversation about his religion. Id. at 401. He received a “criminal trespass warning” for violating the city‘s structure rule, which required a permit to erect in the park any structures in excess of a certain size. Id. The structure rule was not an unconstitutional speech-licensing law because it “lack[ed] a close nexus to expression.” Id. at 405. Instead, it simply reflected the city‘s interests in keeping the small park with its high pedestrian traffic free of all sorts of large structures, including tents and tables as well as signs and sketch boards. The practical burden the regulation posed for Mr. Moore‘s speech (and presumably that of many other would-be speakers in varied circumstances) was not sufficient to subject the law to facial challenge as a speech-licensing provision. Id.
Finally, we note that plaintiffs nowhere contend that the challenged DMCA provisions prevent would-be fair users from conveying their chosen messages. To the contrary, those speakers often have alternative ways to obtain lawful access to the copyrighted work for their fair use. A filmmaker who wants to use a clip of a copyrighted news segment, for example, could seek a license from the copyright owner, record the segment with screen-capture technology, reenact it with actors, or communicate the newsworthy event in a different way. A teacher or student who wants to display a clip of a movie in his
Constitutional disapproval of prior restraints is a mismatch for the DMCA‘s authorization of regulatory exemptions. A doctrine fashioned to prevent public officials from preemptively silencing messages or speakers finds no purchase where no message is disfavored and ample avenues of expression remain open.
In Ward v. Rock Against Racism, for example, the Supreme Court upheld a New York City noise control regulation of concerts at a Central Park bandshell. 491 U.S. at 784. To avoid having to shut down concerts once they became too loud, as it had done in the past, the city required all performances to use city-provided sound equipment and technicians. Id. at 784-88. The majority rejected the charge that the law was a “quintessential prior restraint,” id. at 808 (Marshall, J., dissenting), stressing that it “grant[ed] no authority to forbid speech, but merely permit[ted] the city to regulate volume to the extent necessary to avoid excessive noise,” id. at 795 n.5 (majority op.). Applying the same logic, the Supreme Court declined to analyze as a prior restraint an injunction imposing a buffer zone around an abortion clinic, noting that the protestors were “not prevented from expressing their message in any one of several different ways.” Madsen v. Women‘s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994); see also Hill v. Colorado, 530 U.S. 703, 734 (2000) (rejecting prior restraint challenge where “absolutely no channel of communication is foreclosed. No speaker is silenced. And no message is prohibited.“). The same holds true of section
Our holding does not insulate the Librarian‘s exemption determinations from judicial review. As-applied challenges remain available to plaintiffs who plausibly allege that the Librarian made a content- or viewpoint-based exemption determination. See Boardley, 615 F.3d at 517 (noting that “a future as-applied challenge could argue” that a denial of a permit was “pretext for content-based discrimination“). But plaintiffs’ facial challenge fails because section 1201(a) is not a speech licensing law.
* * *
For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.