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DC Circuit Court Rejects EFF’s Challenge to DMCA: Confirms Symbiotic Relationship of Copyright Law and Free Expression

August 2, 2024 (press release) –

Trafficking in Circumvention Technology is Akin to Selling Lock Picks to Break into Bookstores


Washington, DC – This morning the DC Circuit Court of Appeals issued its decision in Matthew Green v. DOJ, rejecting the Electronic Frontier Foundation’s (“EFF”) challenge to the DMCA’s prohibitions on circumventing technological measures that protect copyrighted works (“Section 1201” of Title 17, Copyright Law). The Association of American Publishers filed a comprehensive amicus brief in the case in partnership with the Entertainment Software Association, Motion Picture Association, Recording Industry Association of America, and News/Media Alliance, much of which is reflected in the court’s decision.

“The Court’s opinion is a forceful affirmation of the symbiotic relationship between copyright and free expression,” said Maria A. Pallante, President and CEO of the Association of American Publishers. “When enacting the DMCA more than 25 years ago, Congress understood that technological protections would be an increasingly important adjunct to legal protections for authors, publishers, and the lawful marketplace for creative works.  In rejecting the EFF’s arguments today, the Court rejected theories that would normalize piracy over public progress.”

Writing for the majority, Judge Pillard articulated a strong view of copyright as an engine of free expression and the anticircumvention and antitrafficking provisions of Section 1201 as a well-balanced policy for advancing copyright commerce in a digital era.

Here are Some Excerpts from the Opinion:  

  • The First Amendment and Copyright Clause appear, at first glance, to be in tension.  The First Amendment guarantees freedom of speech, but the Copyright Clause, by “securing for limited Times to Authors . . . the exclusive right to their respective writings . . . ,” has the “inherent and intended effect” of restricting some expression by others.  The tension is more apparent than real, however, insofar as the Copyright Clause bolsters the First Amendment by acting as an “engine of free expression.”  By creating a “marketable right to the use of one’s expression, copyright supplies the economic incentive to create and disseminate ideas.”  Consistent with the Copyright Clause, the First Amendment “securely protects the freedom to make—or decline to make—one’s own speech,” but it “bears less heavily when speakers assert the right to make other people’s speeches.”  The purpose of Copyright law to “promote the Progress of Science and useful Arts,”—in other words, to “promote the creation and publication of free expression,” —generally accords with the First Amendment’s aims. 
  • “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.
  • 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.
  • Plaintiffs’ facial overbreadth challenge is especially disfavored because section 1201(a) expressly regulates conduct—the circumvention of technological locks, and trafficking in means of circumvention—rather than speech.
  • The act of trafficking in circumvention technology is likewise not inherently expressive. As the government aptly notes, trafficking is no more identified with expression than is the sale of lock picks for breaking into bookstores identified with the expressive conduct of reading the stores’ books.
  • The “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property—a modern form of theft.  Even where the theft is in aid of constitutionally protected conduct, such as watching a movie or reading a book, the DMCA’s anticircumvention provision may apply consistently with the First Amendment.
  • 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.
  • If every work that the public might wish to access “could be pirated away” via circumvention, soon nothing worth reading would be published electronically.  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’ 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.
  • The DMCA’s anticircumvention provision is more akin to a routine prohibition on trespass, which is not conduct closely associated with expression.

EFF brought its challenge in 2016 on behalf of two individuals, Matthew Green and Andrew “bunnie” Huang, who argued that Section 1201 is unconstitutional under the First Amendment. The DC Circuit previously rejected their as-applied challenge in 2022 and today rejected their facial challenge, which argued that the statute is both unconstitutionally overbroad and a prior restraint on speech.

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