Matthew Green v. DOJ

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 12, 2022 Decided December 6, 2022
No. 21-5195
MATTHEW D. GREEN, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-01492)
Corynne McSherry argued the cause for appellants. With
her on the briefs were Kit Walsh, Brian M. Willen, and Lauren
Gallo White.
Rebecca Tushnet and Catherine Crump were on the brief
for amici curiae Copyright Scholars Pamela Samuelson and
Rebecca Tushnet in support of appellants.
Jack I. Lerner was on the brief for amici curiae
Kartemquin Educational Films and International Documentary
Association in support of appellants.
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Jonathan Skinner-Thompson was on the brief for amicus
curiae Accessibility, Security, and Repair Fair Users in support
of appellants.
Daniel Tenny, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Scott R. McIntosh, Attorney. Sonia M. Carson and
Adam C. Jed, Attorneys, entered appearances.
Eleanor M. Lackman and John Matthew DeWeese
Williams were on the brief for amici curiae Association of
American Publishers, Inc. et al. in support of appellees.
David Jonathan Taylor was on the brief for amici curiae
DVD Copy Control Association, Inc. et al. in support of
appellees.
Before: WALKER, Circuit Judge, and ROGERS and TATEL,
Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge TATEL.
TATEL, Senior Circuit Judge: In this digital age, when
content creators choose to make their copyrighted materials––
like books, movies, and music––available online, they employ
computer code to block unauthorized access, copying, and use.
To fortify the protection offered by that code, Congress enacted
the Digital Millennium Copyright Act, which makes it
unlawful to bypass such technological measures. The question
in this case, which comes to us at the preliminary injunction
stage, is whether the statute is likely to violate the First
Amendment rights of two individuals who write computer code
designed to circumvent those measures. The district court
answered no, and we agree.
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I.
In the 1990s, a growing number of digital tools facilitated
“massive piracy” by increasing “the ease with which digital
works [could] be copied and distributed worldwide virtually
instantaneously.” S. Rep. No. 105-190, at 8 (1996). Congress
feared that “copyright owners [would] hesitate to make their
works readily available on the Internet without reasonable
assurances that they [would] be protected.” Id. In order to
provide that protection and adapt copyright law to the digital
age, Congress enacted the Digital Millennium Copyright Act
(DMCA), 17 U.S.C. §§ 1201 et seq., which “backed with legal
sanctions the efforts of copyright owners to protect their works
from piracy behind digital walls such as encryption codes or
password protections.” Universal City Studios, Inc. v. Corley,
273 F.3d 429, 435 (2d Cir. 2001).
The DMCA accomplishes its goal through two principal
provisions. First, the statute’s anticircumvention provision
prohibits “circumvent[ing] a technological measure that
effectively controls access to a [copyrighted work].” 17 U.S.C.
§ 1201(a)(1)(A). A “technological measure,” also called a
“technological protection measure,” effectively controls access
to a work if it, “in the ordinary course of its operation, requires
the application of information, or a process or a treatment, with
the authority of the copyright owner, to gain access to the
work.” Id. § 1201(a)(3)(B). For example, Netflix requires a
password to access its digital movie catalog, and electronic
books contain code that prevents readers from copying the
book into another format. Circumvention occurs when
someone descrambles a scrambled work, decrypts an encrypted
work, or otherwise avoids, bypasses, removes, deactivates, or
impairs a technological measure, without authority from the
copyright owner. Id. § 1201(a)(3)(A). The statute’s second
principal provision––the antitrafficking provision––works
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together with the anticircumvention provision to target the
technological tools that facilitate circumvention. It prohibits
“manufacturing, importing, offering to the public, providing,
or otherwise trafficking in any technology, product, service,
device, component, or part thereof” if it (1) “is primarily
designed or produced for the purpose of circumventing a
technological measure that effectively controls access to a
[copyrighted] work;” (2) “has only limited commercially
significant purpose or use other than to circumvent;” or (3) “is
marketed . . . for use in circumventing.” Id. §§ 1201(a)(2)(A)–
(C) (cleaned up). Those who violate either the
anticircumvention or antitrafficking provision are subject to
civil actions and criminal sanctions. Id. § 1203(a).
In order to ensure that the DMCA does not interfere with
the fair use of copyrighted digital content, Congress included a
“‘fail-safe’ mechanism.” H.R. Rep. No. 105-551 (Part 2), at 36
(1998). Every three years “the Librarian of Congress, upon the
recommendation of the Register of Copyrights,” determines in
a rulemaking proceeding “whether persons who are users of a
copyrighted work are, or are likely to be in the succeeding 3-
year period, adversely affected by [the anticircumvention
provision].” 17 U.S.C. § 1201(a)(1)(C). If so, the statute
instructs the Librarian to grant an exemption for such uses for
a three-year period. Id. § 1201(a)(1)(D).
The Register also monitors “changes to the copyright
system spurred by digital technologies” and their impact on the
DMCA. U.S. Copyright Office, Section 1201 of Title 17 i
(2017). In 2017, in order to address “deep and widespread
debate among copyright stakeholders” regarding the continued
value of the statute, the Register conducted a “comprehensive
public study on the operation of section 1201.” Id. at ii–iii.
Emphasizing that “digital [content] marketplace[s] . . . succeed
only if copyright owners have the legal right to prohibit persons
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from evading electronic paywalls or other technical measures,”
the Register declined to recommend “broad changes” to the
DMCA. Id. at 44, 152. “[T]he statute’s overall structure and
scope,” it concluded, “remain sound.” Id. at iii.
Plaintiff Matthew Green, a security researcher and
computer science professor at Johns Hopkins University, wants
to publish an academic book “to instruct readers in the methods
of security research,” which will include “examples of code
capable of bypassing security measures.” Green Decl. ¶ 20. He
is concerned that including “instructions in both English and in
software code” for “circumvent[ing] technological protection
measures” would likely violate the DMCA. Id. ¶¶ 20–21.
Plaintiff Andrew “bunnie” Huang, an inventor and electrical
engineer, wants to create and sell a device called “NeTVCR.”
Huang Decl. ¶ 12. His device contains computer code capable
of circumventing High-Bandwidth Digital Content Protection,
a technological protection measure that prevents digital content
from being copied or played on unauthorized devices. Id. ¶¶ 4–
6, 12. He also intends to publish that computer code to
“communicate to others how the technology works and
encourage them to discuss edits to improve the code.” Id. ¶ 16.
Huang fears that distribution of the code contained in his
NeTVCR device “could [risk] prosecut[ion] under Section
1201(a)(1) or (a)(2).” Id. ¶ 11.
Claiming that the code they write qualifies as speech
protected by the First Amendment, Green and Huang brought
a pre-enforcement action challenging the DMCA on facial and
as-applied First Amendment grounds. The government moved
to dismiss all claims, and the district court partially granted the
motion. Concluding that Green and Huang failed to allege
“facts sufficient to state a claim that DMCA provisions are
unconstitutionally overbroad because they ‘have failed to
identify any significant difference’” between their facial and
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as-applied challenges, the district court dismissed all but the as-
applied First Amendment claims. Green v. DOJ, 392 F. Supp.
3d 68, 88 (D.D.C. 2019) (quoting City Council Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 802 (1984)). Three
months later, Green and Huang filed a preliminary injunction
motion, seeking relief for their surviving as-applied claims as
well as their dismissed facial claims. The district court
summarily denied an injunction for the dismissed claims. As to
Green’s as-applied challenge, the district court concluded that
his planned publication was unlikely to implicate section
1201(a) because the book would be designed, used, and
marketed for educational purposes rather than for the purpose
of circumvention. The district court then addressed Huang’s as-
applied claim. Favorably citing the Second Circuit’s analysis
in Universal City Studios, Inc. v. Corley––the only decision by
a circuit court to have squarely addressed the constitutionality
of the DMCA––the district court found that Huang was
unlikely to succeed on his as-applied claim and denied him
preliminary injunctive relief. Green and Huang now appeal the
district court’s dismissal of their facial challenge and denial of
injunctive relief.
II.
We start with two preliminary issues: subject-matter
jurisdiction and standing.
First, the government contends that Green and Huang’s
facial challenge is not properly before us because the district
court denied preliminary injunctive relief “based [only] on
plaintiffs’ as-applied challenge.” Appellees’ Br. 29. There is no
question that the usual route to appeal––28 U.S.C. § 1291,
which gives this court jurisdiction of timely appealed “final
decisions”––is unavailable here. The district court dismissed
only Green and Huang’s facial challenge, “clear[ly] signal[ing]
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that it intended [their as-applied claims] to continue.” Attias v.
Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017). Because
the district court’s order “le[ft] . . . more for the [district] court
to do,” it was not final and could not yet be appealed. North
American Butterfly Association v. Wolf, 977 F.3d 1244, 1253
(D.C. Cir. 2020) (internal quotation marks omitted).
Green and Huang nonetheless argue that we have
jurisdiction because the district court’s dismissal was
“inextricably bound to the subsequent preliminary injunction
ruling.” Appellants’ Reply Br. 3. It is true that “[o]n
interlocutory review of petitions for injunctive relief, this court
may reach the merits of a claim inextricably bound up with the
issues on appeal.” Arkansas Dairy Cooperative Association v.
Department of Agriculture, 573 F.3d 815, 832 (D.C. Cir. 2009)
(internal quotation marks omitted). We do so to determine
“‘whether there is any insuperable objection, in point of
jurisdiction or merits, to the maintenance of [the case], and if
so, to direct a final decree dismissing it.’” Id. at 833 (quoting
Munaf v. Geren, 553 U.S. 674, 691 (2008)). No such
insuperable objection is present here. Plaintiffs need not
succeed on their facial First Amendment challenge to succeed
on their as-applied claims. See Hodge v. Talkin, 799 F.3d 1145,
1156 (D.C. Cir. 2015). Declaring the DMCA facially
unconstitutional would resolve Green and Huang’s as-applied
claims, but not so in reverse, ensuring that their as-applied
claims remain anything but inextricably bound to their facial
challenge. We therefore lack jurisdiction over Green and
Huang’s facial challenge.
We next consider standing. A party seeking a preliminary
injunction “must show a substantial likelihood of standing.”
Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C.
Cir. 2015) (internal quotation marks omitted). In pre-
enforcement challenges, like this one, “a plaintiff satisfies the
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injury-in-fact [standing] requirement where he alleges ‘an
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and
there exists a credible threat of prosecution thereunder.’” Susan
B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting
Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). Green
seeks to publish an academic book “to instruct readers in the
methods of security research, including . . . examples of code
capable of bypassing security measures, for readers to learn
from, as well as instructions written in English.” Green Decl.
¶ 20. He plans to “offer [his] book for sale via typical
distribution channels,” highlighting “the detailed information it
contains about bypassing security measures,” and “to receive
royalties on its sale.” Id. ¶¶ 24–25. Because Green intends to
provide code able to circumvent technological protection
measures, he believes the book would likely violate the
antitrafficking provision. At oral argument, however,
government counsel made quite clear that in its view, Green’s
proposed course of conduct would not run afoul of the DMCA.
Asked by the court whether “[i]t’s legal for Green to publish
his book even if the book includes enough code to allow
someone to piece together a circumvention technology,”
counsel replied, “[t]hat is correct.” Oral Arg. Rec. 33.50–34.11.
The government’s concession ends any “credible threat of
prosecution” against Green, leaving him without standing to
obtain a preliminary injunction. See Food & Water Watch, 808
F.3d at 913 (“An inability to establish a substantial likelihood
of standing requires denial of the motion for preliminary
injunction.”). We shall therefore affirm the district court’s
denial of a preliminary injunction for Green.
III.
Confident of our jurisdiction, we turn to the merits, asking
whether Huang’s as-applied claim meets the requirements for
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a preliminary injunction: that “he is likely to succeed on the
merits, that he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips in his
favor, and that an injunction is in the public interest.” Winter v.
NRDC, 555 U.S. 7, 20 (2008). Given that this case presents
only questions of law, our review is de novo. In re Navy
Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (explaining
that “[w]e review the district court’s legal conclusions de
novo” in appeals from denials of preliminary injunctions).
“In First Amendment cases, the likelihood of success will
often be the determinative factor in the preliminary injunction
analysis.” Pursuing America’s Greatness v. FEC, 831 F.3d
500, 511 (D.C. Cir. 2016) (internal quotation marks omitted).
To succeed on the merits, Huang must show that the DMCA is
unconstitutional as applied to his alleged speech activity.
Edwards v. District of Columbia, 755 F.3d 996, 1001 (D.C.
Cir. 2014). We analyze as-applied First Amendment claims in
three steps. First, we “decide whether [the activity at issue] is
speech protected by the First Amendment.” Cornelius v.
NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788,
797 (1985). Second, we determine whether the regulation at
issue is content based or content neutral, i.e., “if it ‘applies to
particular speech because of the topic discussed or the idea or
message expressed.’” City of Austin v. Reagan National
Advertising of Austin, LLC, 142 S. Ct. 1464, 1471 (2022)
(quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
This sets the level of scrutiny we apply at the third step: strict
scrutiny for content-based statutes and intermediate scrutiny
for content-neutral statutes. Turner Broadcasting System,
Inc. v. FCC, 512 U.S. 622, 641–42 (1994).
Step one gives us no trouble. Huang wants to sell his
NeTVCR device. The device contains “code designed to
circumvent certain access controls,” which Huang will also
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publish so that those who own an earlier iteration of his device
may upgrade it, and the public may edit and improve his code.
Appellants’ Reply Br. 10; Oral Arg. Rec. 13.15–13.40.
According to Huang, writing and communicating computer
code capable of circumventing technological protection
measures qualifies as First Amendment protected speech. But
we have no need to address that question because the
government never challenged that proposition in its brief, and
at oral argument it conceded that “if you write code so
somebody can read it,” it is “expressive” speech. Oral Arg.
Rec. 48:32–48:55. All of our sister circuits to have addressed
the issue agree. See, e.g., Corley, 273 F.3d at 448 (“Instructions
that communicate information comprehensible to a human
qualify as speech whether the instructions are designed for
execution by a computer or a human (or both).”); Junger v.
Daley, 209 F.3d 481, 485 (6th Cir. 2000) (holding that
“[b]ecause computer source code is an expressive means for
the exchange of information and ideas about computer
programming,” it is protected by the First Amendment).
We turn then to whether the DMCA “‘target[s] speech
based on its communicative content’—that is, if it ‘applies to
particular speech because of the topic discussed or the idea or
message expressed.’” See City of Austin, 142 S. Ct. at 1471
(quoting Reed, 576 U.S. at 163). It does not. The DMCA’s
anticircumvention and antitrafficking provisions target not the
expressive content of computer code, but rather the act of
circumvention and the provision of circumvention-enabling
tools. See 17 U.S.C. § 1201(a)(1)(A) (“No person shall
circumvent a technological measure that effectively controls
access to a [copyrighted work.]”); id. § 1201(a)(2) (“No person
shall manufacture, import, offer to the public, provide, or
otherwise traffic in any [circumvention technology or
product].”). To be sure, the DMCA may incidentally make it
more difficult to express things with computer code if that code
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also facilitates circumvention, but that expressive activity is not
the statute’s target. As the Second Circuit explained in Corley,
the DMCA “is [not] concerned with whatever capacity [code]
might have for conveying information to a human being.” 273
F.3d at 454. Rather, it applies to code “solely because of its
capacity to instruct a computer.” Id.The Supreme Court’s recent free speech case, City of
Austin v. Reagan National Advertising of Austin, LLC, 142 S.
Ct. 1464 (2022), is virtually dispositive. There, the Court
rejected a First Amendment challenge to a city ordinance that
distinguished between signs advertising products not located
near the sign (prohibited) and signs advertising products
located near the sign (permitted). Rejecting the idea that “a
regulation cannot be content neutral if it requires reading the
sign at issue,” the Court emphasized that the ordinance cared
about the expressive message on a sign “only to the extent that
it informs the sign’s relative location”; “[a] sign’s substantive
message itself is irrelevant.” Id. at 1471–73.
The same logic applies here. Although the DMCA requires
reading computer code to determine what digital act the code
carries out, it is nonetheless content neutral because, in the
words of City of Austin, it cares about the expressive message
in the code “only to the extent that it informs” the code’s
function. Id. at 1473. The code’s “substantive message itself is
irrelevant.” Id. at 1472. Indeed, this case is easier than City of
Austin because the sign ordinance regulated speech as speech,
whereas the DMCA looks only to the code’s function, not its
expressive content. See Reed, 576 U.S. at 164 (quoting Ward v.
Rock Against Racism, 491 U.S. 781, 791 (1989)) (explaining
that content-neutral laws can be “‘justified without reference to
the content of the regulated speech’”). Accordingly, the DMCA
is content neutral and subject to intermediate scrutiny, a test it
easily survives.
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Under intermediate scrutiny, we will sustain a content-
neutral statute if “it furthers an important or substantial
governmental interest; if the governmental interest is unrelated
to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater
than is essential to the furtherance of that interest.” Turner, 512
U.S. at 662 (internal quotation marks omitted). Congress
enacted the DMCA to combat fears of “massive piracy” in the
digital environment. S. Rep. No. 105-190, at 8. It intended that
section 1201(a) would “create[] the legal platform for
launching the global digital on-line marketplace for
copyrighted works,” so that content owners would be willing
to “make available via the Internet . . . movies, music,
software, and literary works.” Id. at 2. In its 2017 study of
section 1201, the Register of Copyrights found that the DMCA
continues to serve the “essential” purpose of protecting “the
right of copyright owners to exercise meaningful control over
the terms of access to their works online,” and declined to
“recommend broad changes to the statute’s overall scope.”
U.S. Copyright Office, Section 1201 of Title 17 42–43, 152
(2017). The government’s evidence makes clear that “without
adequate protection against infringing serial copying,” content
owners “would not disseminate their valuable copyrighted
[digital] content.” Traw Decl. ¶ 3. Huang’s NeTVCR device
would, by design, “permit virtually anything displayable on a
modern television screen to be recorded in the clear and made
available online” by making obsolete the technological
protection measure it targets. U.S. Copyright Office, Section
1201 Rulemaking: Seventh Triennial Proceeding to Determine
Exemptions to the Prohibition on Circumvention 143 (2018).
This would “eviscerate virtually every single video content
delivery protection system exposing valuable copyrighted
video content to massive infringement,” Balogh Decl. ¶ 5,
gutting the government’s substantial interest in ensuring the
broadest distribution of copyrighted materials. Huang, who
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spends most of his brief addressing strict scrutiny, offers no
meaningful response and is thus unlikely to succeed on the
merits.
We have little left to say because “[i]n first Amendment
cases, the likelihood of success will often be the determinative
factor in the preliminary injunction analysis.” Pursuing
America’s Greatness, 831 F.3d at 511 (internal quotation
marks omitted). That is especially true here, given that Huang’s
arguments on the remaining preliminary injunction factors rest
entirely on his flawed claim that continued enforcement of the
DMCA imperils his First Amendment rights.
For the foregoing reasons, we affirm the district court’s
denial of Green and Huang’s motion for a preliminary
injunction and remand for further proceedings consistent with
this opinion.
So ordered.