Written by: Haim Ravia, and Dotan Hammer
The U.S. Court of Appeals for the District of Columbia Circuit upheld Section 1201 of the Digital Millennium Copyright Act (DMCA), rejecting a First Amendment challenge brought by the Electronic Frontier Foundation (EFF). Section 1201 prohibits circumventing technological protections on copyrighted works and distributing tools for such circumvention. It also empowers the Librarian of Congress to grant temporary exemptions through a triennial rulemaking process for specific cases, such as fair use, while still protecting the interests of copyright holders.
The EFF represented two plaintiffs, a computer science professor and a technology inventor, who argued that the fair use of copyrighted works is protected by the First Amendment. They contended that Section 1201 cannot lawfully prohibit circumvention to make fair use of such works. The plaintiffs claimed that these provisions excessively restricted their ability to engage in lawful, non-infringing activities like research, criticism, and education, which are protected by the fair use doctrine.
They also argued that the DMCA was overly broad, placing an undue burden on a substantial amount of protected speech and that the exemption process operated as an unconstitutional prior restraint on speech. Additionally, they asserted that the rulemaking process granted the Librarian of Congress too much discretion, potentially leading to discriminatory or arbitrary decisions.
The court rejected these arguments, ruling that the DMCA’s anti-circumvention provisions do not violate the First Amendment. The court found that these provisions regulate conduct, not speech and that the law is content-neutral, thus subject to intermediate scrutiny according to U.S. constitutional standards, which it passes. The court also ruled that the exemption process does not constitute an unconstitutional prior restraint on speech, as it does not directly regulate expression or pose a significant threat of censorship. The court affirmed that while the DMCA might incidentally burden some forms of speech, it does not prevent speakers from conveying their messages and does not violate constitutional protections.
Click here to read the decision in Matthew Green v. DOJ, No. 23-5159 (D.C. Cir. 2024).
