The Electronic Frontier Foundation (EFF), on behalf of various putative plaintiffs, challenged 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, 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.
On June 27, the District Court of DC issued its decision, granting in part and denying in part defendants’ motion to dismiss a challenge brought by security researchers, represented by EFF, to Section 1201’s anticircumvention and antitrafficking provisions.
The court dismissed the claims that Section 1201 is a facially overbroad First Amendment violation and that it is an unconstitutional prior restraint.
It 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 court noted that it must take the facts alleged by plaintiffs in the complaint as true and construe them in the light most favorable to the plaintiffs; at this juncture, any facts supporting the government’s assertion that “the anti-trafficking restriction in [section] 1201(a)(2) would be less effective if individuals and companies such as [p]laintiffs were allowed to disseminate decryption technologies, even if they intended the dissemination to serve a limited purpose,” and that they “would undermine the effectiveness of access controls, thus interfering with the online market for copyrighted works by deterring copyright owners from making works available online at all” were not in the record.
Finally, the court 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.