Lower Court 'Erred' in Dismissing Plaintiffs' DCMA Facial Challenge, Says Brief

Appellants Matthew Green, an associate professor at the Johns Hopkins Information Security Institute; Andrew Huang, an electrical engineer and hacker; and Alphamax, a video processing platform company, seek a reversal of the lower court’s decision to grant the DOJ’s motion to dismiss their case and remand the matter for further proceedings. The June 27, 2019, ruling (docket 1:16-cv-01492) by U.S. District Judge Emmet Sullivan for the District of Columbia granted in part and denied in part defendants DOJ, the Library of Congress and Copyright Office's motion to dismiss.

The plaintiffs, who want to engage in certain activities but fear they will be prosecuted under the “anti-circumvention” and “anti-trafficking” provisions of the DMCA, brought a pre-enforcement challenge to the provisions on First Amendment grounds both facially and as applied to their situations. They also claim that the librarian of Congress’ failure to include certain exemptions from the reach of the anti-circumvention provision in a 2015 final rule promulgated under a rulemaking procedure created by the DMCA violated the First Amendment and the Administrative Procedure Act (APA). Sullivan ruled that plaintiffs have standing to bring their claims, that their facial claims fail and that their “as-applied” claims survive DOJ’s motion to dismiss; he also ruled that the APA challenges fail.

The appellants said in the Wednesday brief that the district court erred in dismissing their facial challenge to Section 1201’s licensing scheme. Congress knew that Section 1201’s ban on circumvention would impair lawful, non-infringing speech, said the brief. Rather than narrowing the ban so that it would implicate only acts connected to copyright infringement, Congress “instead created a mechanism for would-be speakers to obtain temporary permission to circumvent, at the discretion of the Librarian of Congress,” said the brief.

The district court “refused to analyze” whether Section 1201 provided required procedural protections, because it found that the plaintiffs failed to allege the rulemaking “resulted in censorship based on ‘the content or viewpoint of speech by suppressing disfavored speech or disliked speakers,’” said the brief.

That was an error, the brief said, because the librarian is given “unbridled discretion and instructed to consider vague factors”; the plaintiffs “did explain in the complaint” how rulemaking led to improper distinctions based on content, speaker and media; and “even content-neutral speech-licensing regimes must have clear and definite standards to pass constitutional muster,” the brief said, citing Lakewood v. Plain Dealer Publishing Co.

A speech-licensing regime that requires would-be speakers to seek permission from the government “before engaging in protected expression -- or an activity with a ‘nexus to expression, or to conduct commonly associated with expression’ -- is a quintessential prior restraint subject to a facial challenge,” said the brief.

In the brief, appellants gave examples of how Section 1201 constitutes a speech-licensing regime because “would-be speakers must ask the government for permission before engaging in a host of lawful speech activities if they require the circumvention of a technological protection measure.” Certain filmmakers can’t use high-quality video clips in new creative works; independent repair shops can’t extract and share information about how smart appliances work and how to repair them; “print-disabled” users can’t make full use of e-books; and libraries and museums can’t preserve “born-digital” works that were never published in a physical medium, it said. The ban on circumvention is “a direct ban on First Amendment-protected acts of reading lawfully-acquired works, and a ban on a step in the chain of expression with a close nexus to speech,” it said.

Speech-licensing regimes that give government officials “unbounded discretion to approve or deny an applicant’s ability to engage in protected speech create an unacceptably high risk that officials will abuse that discretion”; or they may intimidate parties into “censoring their own speech, even if the discretion and power are never actually abused,” said the brief. To mitigate that risk, “speech-licensing regimes must include ‘narrow, objective, and definite standards to guide the licensing authority’ rendering it subject to effective judicial review,” it said.

Section 1201’s “lack of limits has led to precisely the confusing and unpredictable outcomes speech-licensing limits are intended to forestall,” said the brief. The librarian has used the “catch-all” provision to “deny or modify exemptions based on wide-ranging policy concerns that have nothing to do with copyright and that fall outside the competence of the Office and the Librarian,” it said. The librarian delayed by a year an exemption allowing car owners to access their vehicle’s software in order to repair them, “based on the concern that owners might ‘increase engine power or boost fuel economy’ and thus ‘increase vehicle emissions,’” it said.

Without standards “governing the exercise of discretion, a government official could decide who may speak and who may not based upon the content of the speech or viewpoint of the speaker,” the brief said. It cited an example in the 2015 rulemaking, in which the librarian considered the type of film an applicant wanted to make, “favoring documentary film over narrative film, and noncommercial over commercial film.”

Statutory exemptions in Section 1201 of the DMCA “already permit certain limited forms of reverse engineering, encryption research, and security testing, while forbidding a wide range of lawful and valuable research,” the brief said. The reverse engineering provision even provides an exemption for researchers to communicate their findings -- while continuing to prohibit anyone else from repeating them -- as it “permits information acquired through reverse engineering to be made available to others only by the person who acquired the information," the brief said.

Newsworthy information can be obtained through reverse engineering, such as “enabling important competition, discovering violations of privacy, or revealing shoddy coding that renders a vehicle or other device unsafe,” the brief said, “but the bizarre restriction on who may share the information demonstrates that Section 1201(a) is underinclusive and highlights the conflict between the statute and First Amendment interests,” it said. Section 1201(a)’s prohibitions target “far more than the ‘source of the “evil”’ [they] seek to remedy,” it said.