The Volokh Conspiracy
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Computer Code Can Be Regulated Because of What It Does, Even If Not Because of What It Says
The D.C. Circuit rejects a First Amendment challenge to the Digital Millennium Copyright Act's anticircumvention and antitrafficking provisions.
From today's D.C. Circuit decision in Green v. U.S. Dep't of Justice, written by Judge David Tatel and joined by Judges Judith Rogers and Justin Walker:
In this digital age, when content creators choose to make their copyrighted materials—like books, movies, and music—available online, they employ computer code to block unauthorized access, copying, and use. To fortify the protection offered by that code, Congress enacted the Digital Millennium Copyright Act, which makes it unlawful to bypass such technological measures. The question in this case, which comes to us at the preliminary injunction stage, is whether the statute is likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent those measures. The district court answered no, and we agree….
[T]he Digital Millennium Copyright Act (DMCA) … "back[s] with legal sanctions the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections." … First, the statute's anticircumvention provision prohibits "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]." A "technological measure," also called a "technological protection measure," effectively controls access to a work if it, "in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work." For example, Netflix requires a password to access its digital movie catalog, and electronic books contain code that prevents readers from copying the book into another format. Circumvention occurs when someone descrambles a scrambled work, decrypts an encrypted work, or otherwise avoids, bypasses, removes, deactivates, or impairs a technological measure, without authority from the copyright owner.
The statute's second principal provision—the antitrafficking provision—works together with the anticircumvention provision to target the technological tools that facilitate circumvention. It prohibits "manufacturing, importing, offering to the public, providing, or otherwise trafficking in any technology, product, service, device, component, or part thereof" if it (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;" or (3) "is marketed … for use in circumventing." Those who violate either the anticircumvention or antitrafficking provision are subject to civil actions and criminal sanctions….
Plaintiff Matthew Green, a security researcher and computer science professor at Johns Hopkins University, wants to publish an academic book "to instruct readers in the methods of security research," which will include "examples of code capable of bypassing security measures." He is concerned that including "instructions in both English and in software code" for "circumvent[ing] technological protection measures" would likely violate the DMCA.
Plaintiff Andrew "bunnie" Huang, an inventor and electrical engineer, wants to create and sell a device called "NeTVCR." His device contains computer code capable of circumventing High-Bandwidth Digital Content Protection, a technological protection measure that prevents digital content from being copied or played on unauthorized devices. He also intends to publish that computer code to "communicate to others how the technology works and encourage them to discuss edits to improve the code." Huang fears that distribution of the code contained in his NeTVCR device "could [risk] prosecut[ion] under [the DMCA]."
Claiming that the code they write qualifies as speech protected by the First Amendment, Green and Huang brought a pre-enforcement action challenging the DMCA on facial and as-applied First Amendment grounds. [For procedural reasons, the facial challenge was not properly before the D.C. Circuit. -EV] … As to Green's as-applied challenge, the district court concluded that his planned publication was unlikely to implicate section 1201(a) because the book would be designed, used, and marketed for educational purposes rather than for the purpose of circumvention…. [But] the district court found that Huang was unlikely to succeed on his as-applied claim and denied him preliminary injunctive relief….
"In First Amendment cases, the likelihood of success will often be the determinative factor in the preliminary injunction analysis." To succeed on the merits, Huang must show that the DMCA is unconstitutional as applied to his alleged speech activity. We analyze as-applied First Amendment claims in three steps. First, we "decide whether [the activity at issue] is speech protected by the First Amendment." Second, we determine whether the regulation at issue is content based or content neutral, i.e., "if it 'applies to particular speech because of the topic discussed or the idea or message expressed.'" This sets the level of scrutiny we apply at the third step: strict scrutiny for content-based statutes and intermediate scrutiny for content-neutral statutes.
Step one gives us no trouble. Huang wants to sell his NeTVCR device. The device contains "code designed to circumvent certain access controls," which Huang will also publish so that those who own an earlier iteration of his device may upgrade it, and the public may edit and improve his code. According to Huang, writing and communicating computer code capable of circumventing technological protection measures qualifies as First Amendment protected speech. But we have no need to address that question because the government never challenged that proposition in its brief, and at oral argument it conceded that "if you write code so somebody can read it," it is "expressive" speech. All of our sister circuits to have addressed the issue agree…. "Instructions that communicate information comprehensible to a human qualify as speech whether the instructions are designed for execution by a computer or a human (or both).") … "[B]ecause computer source code is an expressive means for the exchange of information and ideas about computer programming," it is protected by the First Amendment ….
We turn then to whether the DMCA "'target[s] speech based on its communicative content'—that is, if it 'applies to particular speech because of the topic discussed or the idea or message expressed.'" It does not. The DMCA's anticircumvention and antitrafficking provisions target not the expressive content of computer code, but rather the act of circumvention and the provision of circumvention-enabling tools. To be sure, the DMCA may incidentally make it more difficult to express things with computer code if that code also facilitates circumvention, but that expressive activity is not the statute's target…. [T]he DMCA "is [not] concerned with whatever capacity [code] might have for conveying information to a human being." Rather, it applies to code "solely because of its capacity to instruct a computer."
The Supreme Court's recent free speech case, City of Austin v. Reagan National Advertising of Austin, LLC (2022), is virtually dispositive. There, the Court rejected a First Amendment challenge to a city ordinance that distinguished between signs advertising products not located near the sign (prohibited) and signs advertising products located near the sign (permitted). Rejecting the idea that "a regulation cannot be content neutral if it requires reading the sign at issue," the Court emphasized that the ordinance cared about the expressive message on a sign "only to the extent that it informs the sign's relative location"; "[a] sign's substantive message itself is irrelevant."
The same logic applies here. Although the DMCA requires reading computer code to determine what digital act the code carries out, it is nonetheless content neutral because, in the words of City of Austin, it cares about the expressive message in the code "only to the extent that it informs" the code's function. The code's "substantive message itself is irrelevant." Indeed, this case is easier than City of Austin because the sign ordinance regulated speech as speech, whereas the DMCA looks only to the code's function, not its expressive content. Accordingly, the DMCA is content neutral and subject to intermediate scrutiny, a test it easily survives.
Under intermediate scrutiny, we will sustain a content-neutral statute if "it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." Congress enacted the DMCA to combat fears of "massive piracy" in the digital environment. It intended that section 1201(a) would "create[ ] the legal platform for launching the global digital on-line marketplace for copyrighted works," so that content owners would be willing to "make available via the Internet … movies, music, software, and literary works." In its 2017 study of section 1201, the Register of Copyrights found that the DMCA continues to serve the "essential" purpose of protecting "the right of copyright owners to exercise meaningful control over the terms of access to their works online," and declined to "recommend broad changes to the statute's overall scope." U.S. Copyright Office. The government's evidence makes clear that "without adequate protection against infringing serial copying," content owners "would not disseminate their valuable copyrighted [digital] content."
Huang's NeTVCR device would, by design, "permit virtually anything displayable on a modern television screen to be recorded in the clear and made available online" by making obsolete the technological protection measure it targets. This would "eviscerate virtually every single video content delivery protection system exposing valuable copyrighted video content to massive infringement," gutting the government's substantial interest in ensuring the broadest distribution of copyrighted materials. Huang, who spends most of his brief addressing strict scrutiny, offers no meaningful response and is thus unlikely to succeed on the merits….
Congratulations to Daniel Tenny of the DoJ, who argued the case for the government.
