The Court of Appeals for the DC Circuit has issued a disappointing ruling in the case of Green v. DOJ. The ruling left intact a law that has stifled speech and innovation for decades and forced researchers, advocates, teachers, and tinkerers to beg for government permission to do their work. The silver lining: it left many issues in the case to be determined another day.
We partnered with law firm Wilson Sonsini to file this case in 2016 because Section 1201 of the Digital Millennium Copyright Act violates the First Amendment by threatening security research, remix video, media literacy education, access to culture for disabled people, and even the right to understand how your car works so you can repair it. Originally designed to inhibit copyright infringement of DVD, CDs, and books, the law has come to reach far more broadly, thanks to the proliferation of software. That’s because the law forbids accessing any copyrighted work – including the code in your devices – if you’d have to bypass a technical protection measure (aka DRM) to do it.
Section 1201’s prohibition was a departure from previous copyright law and the traditional rules that allow people to make fair uses and make use of the non-copyrightable ideas in a copyrighted work. While the law traditionally protected research, remix, and so on, Section 1201 makes that work impossible unless you fall within narrow exceptions or get permission (which must be renewed every three years) from the Copyright Office and Librarian of Congress. Our appeal was supported by amicus briefs from independent filmmakers, disability advocates, media literacy educators, copyright scholars, and those seeking to understand technology in order to exercise their right to repair.
The DC Circuit refused to consider either the challenge to the law on its face or most of the speech harms caused by the law, focusing instead on a narrower question of whether the First Amendment protected the plaintiffs’ rights to publish code that included instructions for circumvention. Dr. Green sought to publish a book on security research, including code snippets and other speech that would teach a reader how to circumvent access controls in the course of doing security research. Dr. bunnie Huang and his company Alphamax sought to publish code that would let people read the data in an encrypted video stream in order to analyze it, adapt it, and otherwise make lawful uses of it. bunnie also sought to use this technology himself for video analysis, translations, education, and archiving.
At oral argument, the government insisted that it wouldn’t prosecute Dr. Green for his book, even if it included code excerpts from which a circumvention technology could be created, and the Court took that to mean that Dr. Green no longer faces a credible threat of prosecution that would allow his claims to be heard. We’re glad the government has backed off from its prior positions with regard to Dr. Green, but that is cold comfort given the rest of the Court’s opinion and the Court’s refusal to decide the issue on the merits.
As for bunnie, the Court only considered the code he wanted to publish, not the First-Amendment-protected activities he wished to engage in himself. On the narrow issue of publishing the code, the Court concluded that this law could evade the appropriate level of First Amendment scrutiny based on the theory that it is “content-neutral.” It came to this conclusion despite the fact that the law concerns only information on a certain topic (circumvention) and provides exceptions for favored topics and speakers, including narrow categories of encryption researchers and limited reverse engineering topics. It also ignored that the impact of the law has been to suppress independent film, the ability of people with disabilities to read, access to knowledge, and more.
While the Court’s lack of consideration for the speech interests in this case is disappointing, some of the critical issues in the case remain to be heard another day. The Court refused to consider, at this time, the argument that the law is invalid on its face, not just as applied to the plaintiffs. We will continue to fight for the public’s right to read, speak, and create in the face of this absurdly restrictive law.
