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Green v. U.S. Dept. of Justice

On motion to dismiss, district court holds plaintiffs, software researcher and tech company, have standing to assert First Amendment as-applied challenges to anti-circumvention and anti-trafficking provisions of Digital Millennium Copyright Act, but dismisses their facial challenges to those provisions and their claim challenging Library of Congress’ decision not to issue certain exemptions requested by or relevant to them.

Matthew Green, a professor of computer science whose research focuses on the security of electronic systems, and Andrew Huang, who with his company, Alphamax, designed a device to allow its users to save content delivered through high-definition multimedia interface signals, brought suit against a number of government defendants, alleging that two provisions of the Digital Millennium Copyright Act violated the First Amendment, both facially and as applied to the activities they wanted to pursue. Green sought to include detailed information regarding how to circumvent security systems in a forthcoming book; Huang and Alphamax wanted to launch a product called NeTVCR. Both activities, they alleged, would violate (1) the DMCA’s anti-circumvention provision — 17 U.S.C. § 1201(a)(1)(A) — which prohibits a person from circumventing a technological measure that controls access to a work protected by copyright (also known as a technological protection measure, or TPM) and (2) one of the statute’s anti-trafficking provisions — 17 U.S.C. § 1201(a)(2) — which prohibits any person from manufacturing or offering to the public any product or technology for the purpose of circumventing a TPM. 

While the DMCA includes some express exemptions to these provisions, it also provides for a triennial rulemaking proceeding by the Library of Congress, through which the Library may exempt certain noninfringing uses of certain classes of copyrighted works from the anti-circumvention provision upon a determination that users of copyrighted works seeking to make noninfringing uses may be adversely affected in the succeeding three-year period by that provision. Green’s application for an exemption was denied. Huang and Alphamax did not apply for an exemption but alleged that the granting of exemptions requested by others that the Library denied would have enabled them to move forward with their NeTVCR device without fear of liability under the DMCA. 

Defendants — which included the U.S. Department of Justice, the Library of Congress and the U.S. Copyright Office — moved to dismiss plaintiffs’ claims for lack of subject matter jurisdiction under Federal Rule 12(b)(1) as well as failure to state a claim under Federal Rule 12(b)(6). 

As to the question of subject matter jurisdiction, defendants argued that plaintiffs lacked standing to assert their claims, insofar as their challenges to the DMCA did not fulfill the injury-in-fact requirement. In order to fulfill the injury-in-fact requirement in a preenforcement challenge, plaintiffs must show (1) that they have sufficiently alleged proposed conduct that is proscribed by a statute, (2) they face a “credible threat of prosecution” and (3) the conduct in which they seek to engage is “arguably affected by a constitutional interest.” 

Here, the court held that both Green, by stating his intention to include information on how to circumvent TPMs in an upcoming book, and Huang and Alphamax, by alleging their desire to create NeTVCR, had alleged a credible statement of intent to violate the statute. Turning to the second prong, defendants drew from a line of D.C. Circuit preenforcement cases to argue that plaintiffs had failed to allege either a “special law enforcement priority” to prosecute offenders like themselves or that they were “singled out or uniquely targeted” for prosecution and therefore failed to show a credible threat of prosecution to support standing. The court rejected this argument, however, and distinguishing preenforcement cases outside the First Amendment context from those with First Amendment implications, held that for the latter, plaintiffs need allege only a “conventional background expectation that the government will enforce the law.” Plaintiffs’ allegations that the government had previously brought charges under Section 1201 were therefore sufficient. Finally, the court held that plaintiffs’ claims, in which they alleged conduct in violation of the DMCA, were at least arguably imbued with a First Amendment interest, and it rejected defendants’ arguments to the contrary, on account of what the court saw as a low bar — that regardless of the merits of the claim, plaintiffs need only challenge a given law on constitutional grounds to overcome this hurdle. Accordingly, plaintiffs had standing to assert their claims. 

Proceeding to the issue of whether plaintiffs properly stated a claim for facial or as-applied violation of the First Amendment, the court held that they had not successfully alleged that the DMCA was facially unconstitutional but they had fairly stated an as-applied challenge to the statute’s burden on their proposed projects.  

As a threshold matter, defendants argued that plaintiffs’ proposed conduct did not fall within the ambit of First Amendment protections, i.e., that the conduct they wished to engage in — circumventing TPMs — was simply not constitutionally protected speech or expressive conduct. Defendants highlighted a line of cases in which the D.C. Circuit had drawn a distinction between the right to communicate or publish information — which the First Amendment clearly protects — and the right to acquire information, which is not so expressly protected. The court, however, looked to decisions outside the D.C. Circuit that have held computer code itself to contain “at some level expression, thus implicating the First Amendment,” and held plaintiffs’ allegations (and defendants’ concession) that the DMCA and the triennial rulemaking process burden the use and dissemination of computer code to “arguably implicate” First Amendment rights. 

The court then proceeded to address plaintiffs’ facial challenges and held that they stated neither an overbreadth claim nor a prior restraint claim. In order to successfully allege overbreadth, a plaintiff must identify how the statute burdens speech in a manner different from the burden identified in the advanced as-applied challenge. Plaintiffs’ identification of the Library’s refusals to grant other requested DMCA exemptions as proof of overbreadth failed this test in the court’s determination, as the plaintiffs did not identify any “different impact on third parties’ interests.” The court likewise rejected plaintiffs’ casting of the triennial rulemaking procedure as a speech-licensing regime because there was no allegation that the process resulted in any content-based suppression of speech or disfavored certain speakers. While the allegations pointed to certain “adverse effects” on research like Green’s, there was no allegation that these effects were “based on what plaintiffs want to express, their viewpoint, or who they are” and, accordingly, failed to allege that the DMCA’s rulemaking/exemption procedure acted as a prior constraint on speech.

Turning then to the as-applied challenges (to the DMCA’s application to Green for purposes of his security research and to Huang and Alphamax for the creation and dissemination of NeTVCR), the court held that plaintiffs had stated claims sufficient to survive intermediate scrutiny, thereby placing the burden on the government to demonstrate that the challenged DMCA provisions do not burden speech more than is necessary to further the government’s legitimate interest. The court engaged in an extensive analysis of the nature of the DMCA’s restrictions vis-a-vis plaintiffs’ proposed activities, namely, “the use of code to circumvent TPMs and the dissemination of that code to others,” which it identified as involving both “speech and non-speech components.” Noting that “a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitation on First Amendment freedoms,” the court observed that “critically, the DMCA targets only the non-speech component.” The DMCA provisions, because they target functional (as opposed to expressive) aspects of code, are therefore content-neutral. Turning to the Library’s triennial rulemaking, the court held that because the DMCA targets only the functional non-speech component of expressive activity, the rulemaking is similarly content-neutral. As a content-neutral restriction on speech, the DMCA must satisfy only intermediate scrutiny. Nevertheless, at this stage, the government defendants failed to show that the anti-circumvention and the anti-trafficking provisions in question did not burden substantially more speech than was necessary to further the government’s interest in preventing piracy of copyrighted works, mainly because none of the facts identified by the government in this regard were in the record. Accordingly, the claim survived.

Finally, the court dismissed plaintiff’s Administrative Procedures Act-based claims regarding the library’s triennial rulemaking. As regarding the Copyright Office defendants, they could not be held responsible, as the Office only provided recommendations to the Library of Congress in the process; it did not participate in the decision. In contrast, the Library was the ultimate decision-maker and thus responsible. However, as an entity of Congress, the Library not an “agency” as defined by the APA and therefore not subject to its requirements. Looking to express statutory language in which Congress had made a Library component subject to APA review, the court held that ambiguous statements in legislative history were insufficient to justify the application of the APA to the DMCA’s rulemaking where Congress had not made any application express in the statute. 

Summary prepared by Linna Chen and Erin Smith Dennis