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DMCA Constitutional Challenge Appealed Too Soon, D.C. Cir. Says

Dec. 6, 2022, 6:51 PM

An academic and an engineer can’t yet appeal the overall constitutionality of the Digital Millennium Copyright Act’s bar on circumventing digital security measures, the D.C. Circuit said Tuesday.

Researcher Matthew Green and inventor Andrew Huang also failed to convince the US Court of Appeals for the District of Columbia Circuit to revive their bids for an injunction barring prosecution for actions they fear runs afoul of the DMCA. The government conceded that the computer security book authored by Green wouldn’t be illegal, and Huang will likely fail to show applying the ban to his hacking software to be unconstitutional, the court said.

The closely watched case challenging the 1998 law will return to D.C. federal court where Huang will continue to argue that the DMCA is unconstitutional as applied to his case. He and his company AlphaMax LLC plan to sell a device that will let users edit HD video in a way that requires circumventing security encryption.

The D.C. Circuit ruled it didn’t have jurisdiction over Green’s and Huang’s claims that the DMCA’s circumvention ban is unconstitutional on its face. The US District Court for the District of Columbia only ruled on their as-applied challenges—not on the provision’s constitutionality as a whole—so there was no final ruling to appeal, the court said.

The DMCA was created to combat online piracy as internet use proliferated. Its core provisions protect platforms from liability for copyright infringement by users if they comply with its notice-and-takedown regime. It also created a separate offense for circumventing anti-copying technical measures regardless of infringement, and authorized the Copyright Office to lay out exceptions such as educational purposes.

Digital locks, called “technological protective measures” in the statute, can include anything from password protections for viewing a movie to file encryption on a DVD. A gamer who bypasses these locks to repair certain parts of an Xbox console or a security researcher identifying and publishing vulnerabilities in software could potentially face DMCA liability.

No ‘Credible Threat of Prosecution’

Green, a computer security researcher at Johns Hopkins University, and Andrew Huang, an electrical engineer and hacker, sued the Justice Department and the US Copyright Office in 2016. They argued that the circumvention ban, contained in Section 1201 of the DMCA, is an unconstitutional restriction on free speech.

Green claimed that he could face legal liability for writing and publishing a book about security flaws in computer software that includes hacking code. Huang and his company AlphaMax LLC want to create software that allows users to edit HD video, but requires circumventing certain encryption for HDMI signals.

The district court denied both plaintiffs preliminary injunctions that would have blocked prosecution during the course of litigation, finding they were unlikely to succeed. The D.C. Circuit affirmed, agreeing that the injunctions to protect Green and Huang’s activity were unwarranted for different reasons.

The court said Green lacked standing to obtain an injunction because there was no “credible threat of prosecution” over his planned book, as the government during oral arguments conceded it would be legal.

‘No Meaningful Response’

The likelihood of success was critical to Huang’s injunction bid because it was a First Amendment claim, the court said.

The code Huang was trying to protect qualified as First Amendment protected speech, the court conceded. But the ban blocking it addresses the function of circumventing code—not targeting expression of any particular content or viewpoints—so the restraint is analyzed with “intermediate scrutiny,” a lower standard than if the government were regulating based on content.

As a content-neutral restriction, the government needed only to show a legitimate interest unrelated to suppressing free expression. Huang’s briefing “offers no meaningful response” to the government claim that fighting mass piracy qualified because it focused on whether the US satisfied the tougher “strict scrutiny” standard.

Circuit Judge David S. Tatel wrote the opinion, joined by Judges Justin R. Walker and Judith W. Rogers.

The Electronic Frontier Foundation and Wilson Sonsini Goodrich & Rosati PC represented Green and Huang.

The case is Matthew D. Green et al. v. US Department of Justice et al., D.C. Cir., No. 21-5195, 12/6/22.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editor responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com