After Three-Year Wait, Court Allows First Amendment Challenge to Copyright Law to Proceed

On July 21, 2016, WSGR partnered with the Electronic Frontier Foundation (EFF), a leading digital rights nonprofit, to file a lawsuit pro bono challenging the constitutionality of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA): Green v. DOJ.¹ Nearly three years later, on June 27, 2019, the District Court for the District of Columbia issued a decision allowing portions of the lawsuit to proceed, an important first step in a case that seeks to help security researchers, inventors, artists, and others whose work may be impeded by the overbroad language of the DMCA.²

Background

Congress enacted the DMCA in 1998 in an attempt to address rising concerns about the piracy of digital copyrighted materials. As relevant to this lawsuit, Section 1201 broadly prohibits the circumvention of any “technological measure” that “controls access” to a copyrighted work.³ Many criticized the provision, arguing that it would have harmful, unintended consequences for a broad range of interest groups working towards safety, innovation, and progress.

Dr. Matthew Green and Dr. Andrew “bunnie” Huang are examples. Dr. Green is an esteemed computer science professor and security researcher at Johns Hopkins whose fears of litigation under Section 1201 have prevented him from conducting crucial device security research and from completing a forthcoming book. Huang is a prolific inventor and electrical engineer who has also hit a Section 1201 roadblock and has been unable to build upon an earlier invention due to the threat of prosecution.

The Claims and the Government’s Response

The lawsuit filed by EFF and WSGR raised seven constitutional and administrative law claims on behalf of Green and Huang:

1) Section 1201 is unconstitutionally overbroad; 2) Section 1201 is an unconstitutional prior restraint and speech licensing regime; 3) Section 1201 is unconstitutional as applied to Green; 4) Section 1201 is unconstitutional as applied to Huang; 5) Section 1201 is unconstitutional as applied to Alphamax (Huang’s company); 6) the denial of exemptions that would have applied to security research violated the First Amendment and the Administrative Procedure Act (APA); 7) the denial of exemptions that would have applied to fair uses of NetVCR (Huang’s new invention) violated the First Amendment and the APA.

The government moved to dismiss these claims.⁴

The Court’s Order: The Case Will Go On

On June 27, 2019, after the government’s motion had been pending for nearly three years, the District Court for the District of Columbia released a 61-page order containing both good news and bad news for plaintiffs. Most importantly, however, the court held the lawsuit would proceed.

In a big win for critics of Section 1201, the court held that Green and Huang satisfy the injury-in-fact requirement for Article III standing, meaning they have standing to challenge the statute on First Amendment grounds moving forward. In another big win, the court affirmed that “code is speech”—and thus protected by the First Amendment—and that using code to circumvent technical protection measures “arguably implicates” First Amendment rights as well. In so doing, the court dismissed the government’s assertion that Green and Huang’s desired acts of circumvention are not protected speech. Finally, although the court dismissed Green and Huang’s facial challenges to the DMCA as an unlawful prior restraint, it concluded their “as-applied” First Amendment challenges can move forward, denying the government’s motion to dismiss that claim.

Conclusion

While the order brought some disappointments, overall, the news that the case will proceed is a major win for Green, Huang, and others who currently face legal obstacles to circumventing access controls in pursuit of initiatives with far-reaching societal benefits.

For more information about the case or the court’s order, please contact Brian Willen, Lauren Gallo White, or any member of the firm’s internet strategy and litigation practice.

Compliments of Wilson Sonsini Goodrich & Rosati – A member of EACCNY