Green v. United States Department of Justice

54 F.4th 738

Matthew D. GREEN, et al., Appellants

v.UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees

No. 21-5195

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 2022

Decided December 6, 2022

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.

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.

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.

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 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 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 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, 104 S.Ct. 2118, 80 L.Ed.2d 772 (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] 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...