Green v. United States Department of JusticeGreen v. United States Department of Justice
- Reporters:
- Before:
- Henderson, Millett, Pillard
Opinion for the Court filed by Circuit Judge PILLARD.
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
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 implies an “author‘s consent to a reasonable use of his copyrighted works” by other speakers. Harper & Row, 471 U.S. at 549 (quoting Horace G. Ball, Law of Copyright and Literary Property 260 (1944)). Fair use has historically limited copyright owners’ exclusive rights in order to facilitate certain uses of information by nonowners. In the Copyright Act of 1976, which gave copyright holders “a bundle of exclusive rights” to their copyrighted work, Congress codified fair use as an affirmative defense to a claim of copyright infringement. Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 526-27 (2023) (quoting Harper & Row, 471 U.S. at 546). The fair use doctrine permits the use of copyrighted work “for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research,”
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 typically cannot be resolved “without a trial.” Georgia v. Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).
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 creative genius” could soon be accessed “quickly and conveniently via the Internet.” S. Rep. No. 105-190, at 8 (1998). Spurred by that accurate forecast and obligated to implement two World Intellectual Property Organization treaties, Congress erected new legal guardrails to facilitate those advances. After all, “without reasonable assurance that they will be protected against massive piracy,” copyright owners could hardly be expected to make their works readily available on the internet or in digital form. Id.
Enter the Digital Millenium Copyright Act (DMCA),
The first provision is the Act‘s anticircumvention provision, which forbids “circumvent[ing] a technological measure that effectively controls access to a work protected” by copyright law.
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
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 earlier draft of the DMCA that did not include explicit protections for fair use). If the Act entitled owners of information to “lock up” all access—as it might in a fully digitized environment—would-be fair users of information could be relegated to negotiating access on terms set by the monopoly rights-holders. Nimmer, supra, at 717-19. The Act‘s drafters sought to avoid such threat to fair uses by balancing the right against circumvention with access protections for certain non-infringing uses.
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
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.”
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
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 works and claim a First Amendment defense to liability under the DMCA.
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.
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 employed.‘” United States v. Hansen, 599 U.S. 762, 770 (2023) (quoting United States v. Williams, 553 U.S. 285, 293 (2008)). Only if “a substantial number of its applications are unconstitutional, judged in relation to the statute‘s plainly legitimate sweep,” will a law fail for overbreadth. United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash. State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449 n.6 (2008)). The unconstitutional applications must be “realistic, not fanciful,” and “substantially disproportionate” to the statute‘s lawful applications. Hansen, 599 U.S. at 770. Unless the ratio between a statute‘s unlawful applications and its lawful ones is so “lopsided” as to support an overbreadth
Plaintiffs’ facial overbreadth challenge is especially disfavored because
of lock picks for breaking into bookstores identified with the expressive conduct of reading the stores’ books. Gov‘t Br. 24. The overbreadth doctrine is an awkward tool with which to attack the DCMA, because “[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).” Virginia v. Hicks, 539 U.S. 113, 124 (2003).
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
The “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property
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 massive scale.” Id. at 22. Plaintiffs do not argue that any of those applications of the statute violate the First Amendment.
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.
Plaintiffs’ insistence that their examples establish unconstitutional applications of the DMCA substantially disproportionate to the statute‘s legitimate sweep is unpersuasive. Even assuming their putative overbreadth showing were adequate on its own terms, it rests on a series of faulty premises.
First, plaintiffs posit that the First Amendment protects the “right to access and learn from digital works,” not
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 review would be exempted from the theater‘s no-photographing rule. That would be a significant extension of the First Amendment. See generally Gideon Parchomovsky & Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483, 1522 (2007) (invoking such an example in support of conclusion that “rightsholders owe no affirmative ‘duty’ to make their works available for” fair use). Fair use “has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair user‘s preferred technique or in the format of the original. Universal City Studios, 273 F.3d at 459; see Houchins v. KQED, Inc., 438 U.S. 1, 12 (1978) (holding that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information” (emphasis omitted) (quoting Zemel v. Rusk, 381 U.S. 1, 16-17 (1965))).
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 scrutiny. See Appellants’ Br. 49-51. They briefly suggest application of strict scrutiny—that certain applications of section 1201(a) would “interfere with third-party commentary on political debates, which is at the heart of democratic governance and thus
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)).
As to the first two intermediate-scrutiny factors, section 1201(a) furthers a substantial governmental interest in fostering the widespread availability of copyrighted digital work on a content-neutral basis, and that interest would be sharply curtailed in the absence of enforceable technological protections. Id. As to the third factor, plaintiffs have made no plausible allegations that section 1201(a)‘s protection against circumvention of digital locks somehow unnecessarily burdens the hypothetical teacher‘s speech. Indeed, any constitutionally cognizable burden is slight; the posited demonstration presumably could proceed if the teacher inserted his DVD into the classroom player and fast-forwarded to the relevant scene.
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
Section 1201(a) is constitutionally applied as to a wide range of non-expressive conduct that involves circumvention and trafficking, and its application to copyrighted expression readily withstands First Amendment scrutiny. We need not rule out the prospect that section 1201(a) might be unconstitutionally applied to certain speakers to conclude that plaintiffs have not plausibly identified a single such application, let alone shown that unconstitutional applications predominate over constitutional ones. Plaintiffs’ highly particularized yet underdeveloped examples simply do not add up to the “lopsided ratio” of unconstitutional applications required to sustain a facial challenge. Hansen, 599 U.S. at 770.
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.
Plaintiffs cast the Librarian of Congress‘s authority to grant exemptions to the anticircumvention provision as akin to a censor‘s speech-licensing power. As they see it, section 1201(a) bars fair users from circumventing technological protections unless and until they obtain a licensing body‘s approval of the content of their intended speech. And they claim that the Librarian of Congress‘s authority to grant exemptions is “unbounded,” insufficiently checked by prompt judicial review, and invites content and viewpoint-based discrimination. Appellants’ Br. 30-39. For support, they point to the Librarian of Congress‘s grant of permission in the 2015 Final Rule for university students whose course of study requires close analysis of film and media excerpts to circumvent motion pictures’ technological controls in order to obtain clips for educational purposes. They argue that the exemption discriminates against students enrolled in massive open online classes by failing to include them. Id. at 35.
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.
It is generally fair to say that what the fair use defense does for copyright infringement, the exemptions do for section 1201(a). In the context of copyright infringement liability, the fair use defense avoids “rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” Andy Warhol Found., 598 U.S. at 527 (quoting Stewart, 495 U.S. at 236). Similarly, Congress in section 1201(a) enacted some permanent exemptions and a dynamic regulatory exemption scheme to blunt the anticircumvention provision‘s incidental burdens on noninfringing—i.e., fair—uses. The parallel is highlighted by the way the statutory standard for triennial rulemaking borrows liberally from the doctrine of fair use. Indeed, the Librarian‘s final rules resemble a series of ex ante determinations as to which activities are likely to qualify as fair uses that would be adversely affected by the anticircumvention provision if not exempted.
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 burden of going to and prevailing in court to suppress the speech rests on the censor. Id. Content neutral preconditions, in contrast, need not satisfy those procedural requirements and will survive a facial prior-restraint challenge so long as they “contain adequate standards to guide the official‘s decision and render it subject to effective judicial review.” Boardley v. U.S. Dep‘t of Interior, 615 F.3d 508, 517 (D.C. Cir. 2010) (quoting Thomas, 534 U.S. at 323).
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
Generally applicable laws that are not aimed at expression or conduct commonly associated with expression do not pose those censorship dangers. In City of Lakewood, the Supreme Court explained that a law requiring building permits and an ordinance requiring soda vendors to obtain permits to place machines on public property are not vulnerable to speech-licensing challenges “prior to an allegation of actual misuse.” Id. at 761. The Court recognized those laws could be abused to censor, “such as when an unpopular newspaper seeks to build a new plant,” but held they are “too blunt a censorship instrument” to be facially subject to the prior restraint doctrine‘s exacting review. Id. Licensing schemes that are not “most likely to be in fact an instrument of censorship” are better addressed through as-applied challenges. The Tool Box v. Ogden City Corp., 355 F.3d 1236, 1242 (10th Cir. 2004) (en banc).
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, Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130 (1992), or required a government board‘s prior approval of theatrical productions proposed to be staged at a town‘s theater, Se. Promotions, Inc., 420 U.S. at 548. In contrast, as discussed, the anticircumvention provision regulates conduct—the act of circumventing technological locks—not expression.
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
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 copyrighted software in order to conduct their own repairs and maintenance on their devices. See 86 Fed. Reg. at 59,640/1 (codified at
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
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 class presentation could purchase the movie on a DVD and play the relevant segment on his classroom‘s player. Plaintiffs themselves tellingly frame the stakes of their challenge as “who gets to make high quality copies for fair use in their own speech“—not who gets to speak, or what they may say. Oral Arg. Rec. 0:25-0:43 (emphasis added).
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 1201(a), which might incidentally burden certain means of expression, but neither targets expression nor in fact prevents speakers from conveying their messages.
Our holding does not insulate the Librarian‘s exemption determinations from judicial review. As-applied challenges remain
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For the foregoing reasons, the judgment of the district court is affirmed.
So ordered.