Appellants Press Their Section 1201 Constitutionality Challenge in Oral Argument
Section 1201(a) of the Digital Millennium Copyright Act “grants the power to a component of Congress,” the librarian of Congress, “to decide who may access works of authorship,” said Benjamin Margo of Wilson Sonsini in oral argument Monday (docket 23-5159) before the U.S. Appeals Court for the D.C. Circuit. He was arguing on behalf of the three plaintiff-appellants challenging Section 1201's constitutionality on First Amendment grounds (see 2311300055).
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The librarian retains “the power to decide who can access speech that might be in their lawful possession, and by extension, to decide who gets to make high-quality copies for fair use in their own speech,” said Margo. “This speech-licensing regime thus regulates not the location of news racks or the timing of an event at a Chicago park, but the content of speech,” he said.
The regime fails “minimal procedural requirements,” like those of book speech-licensing regimes, for multiple reasons, said Margo. It “lacks clear standards,” and fails the “constitutional test,” by allowing the librarian “to consider other factors as appropriate, without limit,” in his or her decision-making, he said.
The regime also offers no requirement for prompt decision-making, said Margo. “That could be a flexible requirement,” but the lack of any promptness requirement also “fails the test,” he said.
The regime has no provision for judicial review of the librarian’s final decision, said Margo. “If the scheme were organized so that the Copyright Office, and not the librarian, were the final decision-maker, there would be Administrative Procedure Act review,” he said. “As it happens, the librarian is protected by sovereign immunity,” he said.
The government countered that the DMCA “provides incentives for copyright owners to make their works readily available in digital form,” said DOJ attorney Brian Springer. The compromise that Congress struck in enacting the DMCA “was to allow restrictions on access to prevent the massive piracy that would result if consumers could easily create unencrypted digital copies and rapidly disseminate them across the globe at the click of a button,” he said.
Without the DMCA protections “that are challenged in this case,” manufacturers “could mass-produce devices that would wipe away access controls on every type of digital content imaginable,” said Springer. “Anyone could go to their local Best Buy or Walmart, buy such a device, and use it to create unencrypted copies of all varieties of movies, TV shows, music and ebooks,” he said.
The DMCA “is not a restriction on speech at all,” said Springer. It’s a restriction on the “conduct” of the “particular act” of circumvention, and also on the trafficking in devices that would “enable that circumvention,” he said.