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The Electronic Frontier Foundation (EFF) has received another defeat in its long-running lawsuit challenging the constitutionality under the First Amendment of the anti-circumvention and anti-trafficking provisions of section 1201 of the Copyright Act. This past July, Judge Emmet G. Sullivan of the U.S. District Court for the District of Columbia issued an opinion denying the EFF’s motion for a preliminary injunction on its remaining as-applied claims to prevent the U.S. Department of Justice from enforcing section 1201 against the EFF’s clients—a computer scientist and an electrical engineer who want to use and distribute decryption tools that can circumvent digital locks protecting access to copyrighted works. This followed Judge Sullivan’s previous opinion in the case dismissing the EFF’s attempts to strike down section 1201 on its face as failing to state a claim for which relief can be granted.
These clients, it should be noted, were never actually threatened with legal action, either civil or criminal, by anyone. The EFF instead filed a complaint for a pre-enforcement challenge under the First Amendment for certain actions its clients wished to take in the future that might incur liability under section 1201. Such pre-enforcement challenges, of course, are not unusual, and the Supreme Court has relaxed the standing requirements to assert them given the importance of the fundamental rights at stake. But the EFF’s claims here are especially interesting given that the organization purports to speak for the public interest. Ultimately, the EFF’s attempt to pit free speech and copyright protection against each other fails spectacularly, and Judge Sullivan easily decides that it is the government—and not the EFF—who represents the public interest in this lawsuit.
Technological Protection Measures and the First Amendment
Section 1201 grants rights to copyright owners over the digital locks—sometimes called technological protection measures (TPMs)—they may use to secure the online distribution of their works. Section 1201 protects two kinds of TPMs: access controls and copy controls. Access controls are things like scrambling, encryption, and passwords that protect access to a copyrighted work, while copy controls protect a work from being copied once access has been obtained. This lawsuit centers on a particular access control, specifically, the HDCP encryption that restricts access to content transmitted over an HDMI interface. This encryption interface is ubiquitous—in fact, every television in my house has a Fire TV Stick connected to it with an HDMI connection that utilizes HDCP.
Section 1201 prohibits both the act of circumventing an access control and the act of trafficking in a technology that allows others to circumvent an access control. The EFF’s clients wish to do both: The computer scientist wants to circumvent HDCP and publish a book detailing how he did it, and the electrical engineer wants to use and market a computer device that decrypts HDCP. The EFF’s complaint lists several counts alleging that the anti-circumvention and anti-trafficking provisions of section 1201 violate the First Amendment. The gist of the EFF’s position is that the First Amendment trumps digital locks, rendering them unconstitutional, because some users might engage in fair use of the copyrighted works that they protect.
If these arguments sounds familiar, it’s probably because the EFF raised them—and had them rejected by the Second Circuit—two decades ago in Universal City Studios v. Corley. The cases are quite comparable in how the EFF misstates First Amendment doctrine while insisting that free speech and copyright law are fundamentally at odds with one another. The Second Circuit in Corley held that the anti-trafficking provisions of section 1201 for access controls are constitutional because the “functional capability” of the decryption code at issue “is not speech within the meaning of the First Amendment.” Applying an intermediate scrutiny standard, it held that any incidental effect on free speech is justified by the government’s substantial interest “in preventing unauthorized access to encrypted copyrighted material” that avoids “burdening substantially more speech than is necessary to further the government’s legitimate interests.” The same, of course, can be said here with the EFF’s new clients.
EFF’s First Amendment Arguments Again Fall Flat
Whether there is even a First Amendment interest at stake when someone—like the EFF’s clients—circumvents a digital lock that protects access to a copyrighted work—like HDCP—is not clear. After all, the act of hacking is generally considered to be non-expressive conduct—not expressive speech protected by the First Amendment. The EFF attempts to bypass this inconvenient threshold issue by focusing on the free speech that might result once access to a copyrighted work has been obtained and the supposedly expressive component of the computer code that hacks the HDCP encryption itself. The EFF even goes so far as to argue that the triennial rulemakings, which promote free speech by exempting certain classes of copyrighted works from section 1201, somehow constitute a “prior restraint” violative of the First Amendment on its face.
These claims severely discount the ways in which section 1201 promotes the public interest by incentivizing the creation and dissemination of copyrighted works. As the legislative history notes, Congress enacted section 1201 because “copyright owners will hesitate to make their works readily available on the Internet without reasonable assurance that they will be protected against massive piracy.” One needs to look no further than the plethora of online content delivery platforms that have absolutely thrived over the past two decades to see that Congress got this one right. Movies, television shows, computer programs, photographs, books, video games, and other copyrighted works are now more available than ever. But rather than acknowledge these cultural triumphs, the EFF instead insists that digital locks do more harm than good.
When one considers how locks work in the physical world, the EFF’s position is especially superficial. The First Amendment does not allow you to pick the lock on the front door of a library in the middle of the night in order to break in and make fair use of the copyrighted books in the stacks. Just because you can make fair use of a copy to which you have access does not mean that there can be no restrictions on your access to the copy in the first place. The suggestion that the rules must be different in the online context is just internet exceptionalism. The EFF attempts to bolster this position by saying that section 1201 impermissibly upsets the “traditional contours” balancing free speech and copyright protection, but this misstates the reach of section 1201 and overstates the significance of fair use.
Section 1201 creates rights that are different in kind than the traditional exclusive rights granted to copyright owners under section 106. What violates section 1201 does not violate section 106, and vice versa. The EFF attempts to muddy the waters on this distinction by claiming that section 1201 should not apply when the ultimate use is noninfringing, such as with fair use. But this framing presupposes that section 1201 is concerned with fair use at all, which it is not. Indeed, section 1201(c)(1) expressly states that “[n]othing in this section shall affect . . . fair use.” This makes sense because section 1201 is concerned with certain technologies that violate copyright owners’ rights in TPMs—not with whatever use might occur after such a violation has occurred.
The fundamental problem with the EFF’s framing is simply this: Yes, computer code is speech that has an expressive component, but it has a functional, nonexpressive component as well. And just like how the functional aspects of a copyrighted work are not protected by the Copyright Act, the functional aspects of a computer program are not protected by the First Amendment because they are neither speech nor expressive conduct. Section 1201 targets only the functionality of the computer code at issue—the nonexpressive component that circumvents HDCP encryption. The section 1201 prohibitions might indirectly affect other speech or conduct that is expressive, but such incidental effects are allowable given the importance of protecting the exclusive rights granted to copyright owners.
The EFF Does Not Speak for the Public Interest—the Government Does
In evaluating the motion for a preliminary injunction, Judge Sullivan looks at whether the EFF is likely to succeed on the merits of its remaining as-applied challenges. The analysis also calls on the court to consider whether the EFF’s clients have demonstrated that they will suffer irreparable harm as well as the effect of the injunction on the balance of equities and the public interest. Judge Sullivan finds that the computer scientist is unlikely to succeed since he has already been granted an exemption from the anti-circumvention prohibitions at the last triennial rulemaking—which is ironic, given that the EFF claims that the rulemaking itself is unconstitutional—and his planned book project is educational in nature—not primarily for trafficking as section 1201 requires. However, Judge Sullivan does directly address the anti-circumvention and anti-trafficking provisions when analyzing the electrical engineer’s claims.
As in Corley, the EFF’s arguments again fail to persuade the court, and Judge Sullivan holds that the electrical engineer is not likely to succeed on the merits of his claims. That analysis is made particularly easy by the fact that the EFF inadvertently conceded two key elements by not challenging them earlier at the motion to dismiss stage: whether the government’s interest with section 1201 is substantial, and whether it relates to the censorship of free speech. Judge Sullivan agrees with the government on both of these elements, finding that the government’s interest in protecting copyrighted works online with section 1201 is “unquestionably substantial” and “unrelated to the suppression of free expression,” thus rejecting the EFF’s emphatic protestations to the contrary.
Turning to the final element on the merits, namely, whether Section 1201 burdens substantially more speech than is necessary, Judge Sullivan again agrees with the government: “the Court is persuaded that the government has met its burden to demonstrate that the anti-circumvention and anti-trafficking provisions . . . do not burden substantially more speech than is necessary to further the government’s interest.” Judge Sullivan rebuffs the EFF’s argument that the government is relying on generalized and speculative claims of harm, pointing to the evidence in the record that the “publication of hacking material for HDCP” would “eviscerate virtually every single video content delivery protection system exposing valuable copyrighted video content to massive infringement.” And to the EFF’s argument that copyright owners could still sue for infringement of the exclusive rights granted under section 106, Judge Sullivan counters that Congress enacted section 1201 so that copyrighted owners wouldn’t have to wait—they can instead combat digital piracy before their works are even copied by utilizing section 1201.
After finding that the EFF’s clients are unlikely to succeed on the merits, Judge Sullivan then turns to the rest of the preliminary injunction analysis. He observes that the EFF cannot demonstrate irreparable harm in the absence of an injunction because it failed to establish a likelihood of success on the merits. While normally separate factors to consider, Judge Sullivan then notes that the balance of equities and public interest merge where, as here, the federal government is the opposing party—“the government’s interest is the public interest.” Again, Judge Sullivan finds that the merits of the case are inseparable, and the EFF’s inability to demonstrate a likelihood of success on the merits is fatal. And, thus, it is the government’s position in supporting section 1201 that promotes the public interest in this case—not the EFF’s decades-long attempt to have its enforcement enjoined.
The case is certainly not over yet, but it’s not hard to read the writing on the wall. The EFF’s arguments will ultimately fail, just as they did twenty years ago in Corley. And fail they should. Congress was prescient in granting copyright owners rights over the digital locks that they use to secure their copyrighted works on the internet. The scale of online piracy has proven to be enormous, and copyright owners need every tool Congress can give them to nip piracy in the bud. Thankfully, Judge Sullivan recognizes that protecting copyright owners from digital piracy is itself in the public interest—not the EFF’s dangerous arguments that misconstrue how copyright protection promotes free speech interests and the public good.
Devlin Hartline is Legal Fellow at the Hudson Institute’s Forum for Intellectual Property in Washington, D.C. His research agenda spans a broad spectrum of doctrinal and political issues in intellectual property law, with particular focus on advancing and protecting the rights of creators and innovators. You can connect with him on Twitter: https://twitter.com/devlinhartline and on LinkedIn: https://www.linkedin.com/in/devlinhartline/.