Copyright Case

Green (EFF) v. DOJ

In 2016, the Electronic Frontier Foundation (EFF), on behalf of various putative plaintiffs, brought a pre-enforcement action challenging the constitutionality of the anti-circumvention provisions of the Digital Millennium Copyright Act (DMCA), contained in 17 U.S.C. 1201(a), 1203, and 1204, as well as the Library of Congress’ triennial rulemaking procedure. In particular, the EFF argued that the Library of Congress’ failure to grant exemptions for the use of motion picture clips for various allegedly non-infringing uses violated the First Amendment and the Administrative Procedure Act.

In 2019, the U.S. District Court for the District of Columbia granted in part and denied in part the Department of Justice’s motion to dismiss the case. The court dismissed the claims that Section 1201 is a facially overbroad First Amendment violation and that it is an unconstitutional prior restraint. The district court did hold that plaintiffs adequately pled an as-applied First Amendment challenge: the court determined that the anticircumvention and antitrafficking provisions trigger intermediate scrutiny because they are content-neutral, but they burden substantially more speech than is necessary to further the government’s interest.

The district court also held that the triennial rulemaking process is not subject to the Administrative Procedure Act. The court concluded that while the Copyright Act subjects the Register of Copyrights to the APA, the APA only applies to a “final agency action”, and the triennial rulemaking process is consummated by the Librarian of Congress (based on the recommendation of the Register). The Librarian, the court here held, is not subject to the APA.

In 2021, the U.S. District Court for the District of Columbia denied the plaintiffs’ request for preliminary injunction. The court eventually held that the government satisfied its burden under intermediate scrutiny to justify application of section 1201(a)’s anticircumvention and antitrafficking provisions. The plaintiffs then appealed the district court’s earlier order dismissing the facial First Amendment challenges.

On August 2, 2024, Judge Pillard of the U.S. Court of Appeals for the DC Circuit rejected the plaintiffs’ challenges, explaining that the plaintiff’s facial challenge “is especially disfavored because section 1201(a) expressly regulates conduct—the circumvention of technological locks, and trafficking in means of circumvention—rather than speech.” The opinion goes on to say that the “heartland” conduct the anticircumvention and antitrafficking provisions criminalize is piracy of digital property, which is “a modern form of theft.” Addressing the claim that the triennial rulemaking process itself is an unconstitutional burden on its beneficiaries’ speech, the court found it unpersuasive and notes “an irony of appellants’ challenge to the DMCA is that the triennial rulemaking exemption scheme—which identifies in advance and immunizes categories of likely fair uses—may be less chilling of the fair uses to which it applies than the after-the-fact operation of the fair use defense itself.”

Court: DC District Court

Court: US Court of Appeals for the DC Circuit

Status: The judgment of the district court in favor of the Department of Justice was affirmed by the US Court of Appeals for the DC Circuit on August 2, 2024.