Opinion

Matthew Green v. DOJ

Court: Court of Appeals for the D.C. Circuit
Filed: Aug 2, 2024
Status: Published
Cited by: 0 cases
Authority: More cited than 30.4%

rejecting prior restraint challenge where “absolutely no channel of communication is foreclosed. No speaker is silenced. And no message is prohibited.”

How later courts described this case

rejecting prior restraint challenge where “absolutely no channel of communication is foreclosed. No speaker is silenced. And no message is prohibited.”
holding that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information” (emphasis omitted) (quoting Zemel v. Rusk, 381 U.S. 1, 16-17 (1965))
noting that “a future as-applied challenge could argue” that a denial of a permit was “pretext for content-based discrimination”
affirming DMCA trafficking sentence based on sales of counterfeit “access cards” enabling nonsubscribers to watch satellite television

Written by the judges who cited it.

The opinion

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 6, 2024 Decided August 2, 2024

No. 23-5159

MATTHEW D. GREEN, ET AL.,

APPELLANTS

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-01492)

Benjamin D. Margo argued the cause for appellants. On

the briefs were Corynne McSherry, Mitchell L. Stoltz, Brian M.

Willen, and Lauren Gallo White.

John W. Crittenden was on the brief for amicus curiae

Legal Scholars in support of appellants.

Charles Duan was on the brief for amici curiae Public

Knowledge, et al. in support of appellants.

Jack I. Lerner was on the brief for amicus curiae

Kartemquin Educational Films and International Documentary

Association in support of appellants.

Vivek Krishnamurthy was on the brief for amicus curiae

Accessibility, Archival, and Security Fair Users in support of

appellants.

Brian J. Springer, 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 Daniel Tenny, Attorney.

John Matthew DeWeese Williams and Lucy Holmes

Plovnick 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. and Advanced Access

Content System Licensing Administrator, LLC in support of

appellees.

Before: HENDERSON, MILLETT and PILLARD, Circuit

Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: Twenty-six years ago, Congress

enacted the Digital Millenium Copyright Act to protect

copyrighted works made available online from digital piracy

and unauthorized access. Plaintiffs-Appellants, a computer

science professor and a tech inventor, say the Act is so plainly

unconstitutional that it cannot be applied to anyone. They

challenge the law’s prohibitions against circumvention of

technological protections on copyrighted works and

distribution of the means to circumvent. In their view, those

provisions violate the First Amendment’s free speech

protections by unduly stifling the fair use of copyrighted works.

Having abandoned their as-applied challenges, plaintiffs seek

outright invalidation of a central pillar of the Act as overbroad

and a prior restraint on speech in violation of the First

Amendment. We reject both facial challenges.

The First Amendment and Copyright Clause appear, at

first glance, to be in tension. The First Amendment guarantees

freedom of speech, see U.S. Const. amend. I, but the Copyright

Clause, by “securing for limited Times to Authors . . . the

exclusive right to their respective writings . . . ,” id. art. I, § 8,

cl. 8, has the “inherent and intended effect” of restricting some

expression by others, Golan v. Holder, 565 U.S. 302, 327-28

(2012). The tension is more apparent than real, however,

insofar as the Copyright Clause bolsters the First Amendment

by acting as an “engine of free expression.” Id. at 328 (quoting

Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539,

558 (1985)). By creating a “marketable right to the use of one’s

expression, copyright supplies the economic incentive to create

and disseminate ideas.” Id. (quoting Harper & Row, 471 U.S.

at 558). Consistent with the Copyright Clause, the First

Amendment “securely protects the freedom to make—or

decline to make—one’s own speech,” but it “bears less heavily

when speakers assert the right to make other people’s

speeches.” Eldred v. Ashcroft, 537 U.S. 186, 221 (2003). The

purpose of Copyright law to “promote the Progress of Science

and useful Arts,” U.S. Const. art. I, § 8, cl. 8—in other words,

to “promote the creation and publication of free expression,”

Eldred, 537 U.S. at 219—generally accords with the First

Amendment’s aims.

That said, to avoid impeding robust expression, courts

have long recognized a common-law doctrine of “fair use” that

implies an “author’s consent to a reasonable use of his

copyrighted works” by other speakers. Harper & Row, 471

U.S. at 549 (quoting Horace G. Ball, Law of Copyright and

Literary Property 260 (1944)). Fair use has historically limited

uses of information by nonowners. In the Copyright Act of

1976, which gave copyright holders “a bundle of exclusive

rights” to their copyrighted work, Congress codified fair use as

an affirmative defense to a claim of copyright infringement.

Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598

U.S. 508, 526-27 (2023) (quoting Harper & Row, 471 U.S. at

546). The fair use doctrine permits the use of copyrighted work

“for purposes such as criticism, comment, news reporting,

teaching, . . . scholarship, or research,” 17 U.S.C. § 107, and

enables “courts to avoid rigid application of the copyright

statute when, on occasion, it would stifle the very creativity

which that law is designed to foster,” Andy Warhol Found., 598

U.S. at 527 (quoting Stewart v. Abend, 495 U.S. 207, 236

(1990)).

Faced with First Amendment challenges to statutes that

regulate copyright, the Supreme Court has described fair use as

one of two “traditional First Amendment safeguards” designed

to strike a balance in copyright law. Eldred, 537 U.S. at 220.

The other referenced safeguard is copyright’s distinction

between uncopyrightable ideas and copyrightable expression,

codified at 17 U.S.C. § 102(b). That distinction ensures that

“every idea, theory, and fact in a copyrighted work becomes

instantly available for public exploitation” even though

particular means of expressing it do not. Eldred, 537 U.S. at

219. Copyright laws are not categorically invulnerable to First

Amendment challenge, but where “Congress has not altered the

traditional contours of copyright protection”—as where it aptly

respects the idea/expression dichotomy and fair use—the

Supreme Court has opined that “further First Amendment

scrutiny is unnecessary.” Id. at 221. Thus, fair use is a “built-

in First Amendment accommodation[]” in copyright law—

endowing fair use with some constitutional pedigree. Id. at

219.

In acknowledging that the fair use defense serves

constitutional values, we do not mean to suggest that Congress

lacks freedom to alter the contours of that defense. To the

contrary, the Supreme Court has consistently acknowledged

Congress’s power to “take a fresh look” should it disagree with

judicial application of fair use doctrine. Sony Corp. of America

v. Universal City Studios, Inc., 464 U.S. 417, 456 (1984). And

Congress has in fact done so at various points throughout the

nation’s history. For instance, while Justice Story once

recognized abridgment as one type of non-infringing fair use,

Folsom v. Marsh, 9 F. Cas. 342, 344-45 (C.C.D. Mass. 1841),

Congress later extended copyright’s protection to exclusive

abridgement rights, see Copyright Act of 1909 § 1(b), Pub. L.

60–349, 35 Stat. 1075 (1909); see also Paul Goldstein,

Derivative Rights and Derivative Works in Copyright, 30 J.

Fair use plays a key role in striking a balance between

expression and prohibition in copyright law. But because the

line between uses that are fair and those that are infringing

eludes crisp definition, creators relying on fair use as a defense

against claims of copyright infringement inevitably face some

uncertainty. Courts determine case by case whether use of a

copyrighted work constitutes fair use, sometimes based on

subsidiary factual determinations made by juries. See Google

LLC v. Oracle Am., Inc., 593 U.S. 1, 23-26 (2021). Indeed, the

Supreme Court has described reliance on a “potential fair use

defense” as a “roll [of] the dice,” subjecting the user of

copyrighted material to a “notoriously fact sensitive” analysis

that typically cannot be resolved “without a trial.” Georgia v.

Public.Resource.Org, Inc., 590 U.S. 255, 275 (2020).

That uncertainty risks chilling some privileged speech, but

it inheres in the contextual character of the fair use defense.

The Copyright Act directs courts determining whether a work

constitutes fair use to consider a non-exhaustive list of factors,

including:

(1) the purpose and character of the use, including

whether such use is of a commercial nature or is

for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion

used in relation to the copyrighted work as a

whole; and

(4) the effect of the use upon the potential market

for or value of the copyrighted work.

17 U.S.C. § 107. When those factors favor a finding of fair

use, that use is “not an infringement of copyright.” 17 U.S.C.

§ 107.

With the rise of streaming services and electronic readers,

the public enjoys unprecedented access to copyrighted

materials. Billions of people worldwide can stream

copyrighted TV shows into their homes, listen to copyrighted

music through the smartphones in their pockets, or

instantaneously download copyrighted novels onto an e-reader.

In the 1990s, Congress anticipated that “the movies, music,

software, and literary works that are the fruit of American

creative genius” could soon be accessed “quickly and

conveniently via the Internet.” S. Rep. No. 105-190, at 8

(1998). Spurred by that accurate forecast and obligated to

implement two World Intellectual Property Organization

treaties, Congress erected new legal guardrails to facilitate

those advances. After all, “without reasonable assurance that

they will be protected against massive piracy,” copyright

owners could hardly be expected to make their works readily

available on the internet or in digital form. Id.

Enter the Digital Millenium Copyright Act (DMCA), 17

U.S.C. § 1201 et. seq. The Act “backed with legal sanctions”

copyrighted works from piracy. Microsoft Corp. v. AT&T

Corp., 550 U.S. 437, 458 (2007) (quoting Universal City

Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001)).

Those walls, also called technological protection measures,

limit access to and use of copyrighted work. For example,

many subscription-based video or music streaming services

protect their copyrighted TV shows, movies, and music from

unauthorized access by requiring users to subscribe and log in,

and by encrypting the accessed media to prevent unauthorized

copying. As technology has become omnipresent in modern

life, an increasing number of consumer devices—including

smartphones, automobiles, insulin pumps, and smart home

appliances—contain copyrighted software shielded by

technological protection measures to prevent consumers from

accessing and manipulating it. See U.S. Copyright Office,

Section 1201 of Title 17: A Report of the Register of

Copyrights, at 88 (June 2017), https://perma.cc/D7EK-KAEJ.

The DMCA protects all those technological locks through two

main provisions at issue in this appeal.

The first provision is the Act’s anticircumvention

provision, which forbids “circumvent[ing] a technological

measure that effectively controls access to a work protected”

by copyright law. 17 U.S.C. § 1201(a)(1)(A). It prohibits

individuals from overcoming technological access controls on

copyrighted material, including by “descrambl[ing] a

scrambled work” or “decrypt[ing] an encrypted work” absent

“the authority of the copyright owner.” Id. § 1201(a)(3)(A).

Congress noted that “the conduct of circumvention was never

before made unlawful,” S. Rep. 105-190, at 12, but explained

the need for the new protection as akin to “making it illegal to

break into a house using a tool, the primary purpose of which

is to break into houses,” id. at 11. In other words, the

anticircumvention provision is designed to operate as a

prohibition against digital trespass.

The anticircumvention provision is subject to statutory and

regulatory exemptions. Section 1201 itself provides some

exemptions. For example, nonprofit libraries may overcome

technological controls to gain access to copyrighted work if

they do so “solely in order to make a good faith determination

of whether to acquire a copy of th[e] work” that is otherwise

not reasonably available. 17 U.S.C. § 1201(d). Other

exemptions apply to law enforcement and governmental

activities, encryption research, security testing, and

circumvention done for the sole purpose of preventing

collection of a user’s personally identifying information. Id.

§ 1201(e), (g)-(j).

Congress also created a rulemaking process to more

dynamically exempt categories of circumvention activity from

the DCMA. Under 17 U.S.C. § 1201(a)(1)(C), the Librarian of

Congress conducts a triennial rulemaking proceeding to grant

exemptions to people who are or are likely to be “adversely

affected” by the anticircumvention provision in their ability to

make noninfringing uses of copyrighted materials. In deciding

whether to propose exemptions, the Librarian of Congress acts

on the recommendation of the Register of Copyrights, who

must consult with the Assistant Secretary for Communications

and Information of the Department of Commerce. See id.

The culmination of each triennial rulemaking cycle is a

final rule that exempts identified types of uses of copyrighted

work from the anticircumvention provision. For example, in

the most recent final rule issued in 2021, the Librarian

exempted certain researchers’ use of “literary

works . . . distributed electronically” insofar as their use is

“solely to deploy text and data mining techniques on a corpus

of literary works for the purpose of scholarly research and

teaching.” Exemption to Prohibition on Circumvention of

Technologies (2021 Final Rule), 86 Fed. Reg. 59,627, 59,639/1

(Oct. 28, 2021) (codified at 37 C.F.R. § 201.40(b)(5)). Specific

uses of motion pictures are also exempted, including “in order

to make use of short portions of the motion pictures . . . for the

purpose of criticism or comment . . . for use in documentary

filmmaking” or where a film of any type makes use of the clip

for parody or for its biographical or historical significance. Id.

at 59,637/3 (codified at 37 C.F.R. § 201.40(b)(1)).

Congress envisioned this rulemaking process as a “fail-

safe” to ensure that the anticircumvention provision leaves

breathing room for noninfringing uses, including fair use, of

copyrighted content. See H.R. Rep. No. 105-551, pt. 2, at 36

(1998). Indeed, the triennial rulemaking scheme was

Congress’s response to concerns widely voiced during the

drafting of the DMCA that, if not carefully crafted, it might

“create a ‘pay-per-use’ society” without adequate protection

for noninfringing expression. Id. at 26; see also David

Nimmer, A Riff on Fair Use in the Digital Millenium Copyright

Act, 148 U. Penn. L. Rev. 673, 716-26 (2000) (explaining the

emergence of this “fail-safe” after legislative backlash to an

earlier draft of the DMCA that did not include explicit

protections for fair use). If the Act entitled owners of

information to “lock up” all access—as it might in a fully

digitized environment—would-be fair users of information

could be relegated to negotiating access on terms set by the

monopoly rights-holders. Nimmer, supra, at 717-19. The

Act’s drafters sought to avoid such threat to fair uses by

balancing the right against circumvention with access

protections for certain non-infringing uses.

The second provision of Section 1201 at issue in this

appeal—the antitrafficking provision—is not subject to the

triennial rulemaking cycle’s exemptions. That provision is, in

effect, a ban on trafficking in digital lock picks. It prohibits

“manufactur[ing], import[ing], offer[ing] to the public,

provid[ing], or otherwise traffic[king] in any technology,

product, service, device, [or] component” that: (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 a

technological measure that effectively controls access to a

[copyrighted] work,” or (3) is “marketed . . . for use in

circumventing a technological measure that effectively

controls access to a [copyrighted] work.” 17 U.S.C.

§ 1201(a)(2)(A)-(C). This provision has been used, for

example, to prevent hackers from publicly circulating a

computer program that breaks the encryption controlling

unauthorized access to or copying of DVDs. See Universal

City Studios, 273 F.3d at 435-36, 459-60.

Section 1201(c) clarifies that “[n]othing in this section

shall affect rights, remedies, limitations, or defenses to

U.S.C. § 1201(c)(1). The DMCA thus leaves fair use

undiminished as a defense against copyright liability. Defenses

against liability under the DMCA deploy fair use concepts, but

do not directly incorporate copyright law’s fair use standards.

Plaintiffs’ challenge depends on that gap: They claim that a

substantial amount of what the DMCA prohibits as

circumvention or trafficking facilitates expression that

Plaintiff Matthew Green, a computer science professor at

Johns Hopkins University, conducts research on security flaws

in widely used electronic systems and notifies manufacturers

of his findings. For example, he previously identified security

flaws in automotive anti-theft systems, website encryption, and

Apple’s iMessage system. Although section 1201(j) provides

an exemption for certain forms of “security testing,” Green

believed that exemption was “both overly narrow and vague,”

Compl. ¶ 79 (J.A. 30). So Green requested in the 2015

rulemaking cycle a broader exemption from the Librarian of

Congress to cover his research. But the 2015 final rule’s

security research exemption was, in Green’s view, likewise too

narrowly drawn.

Because he could not rely on the statutory or regulatory

exemptions, Green claimed, his fear of liability under section

1201(a) caused him to “decline to investigate certain devices,”

“chilled [him] from informing others of vulnerabilities,” and

“prevent[ed] Green from selling a book that might garner

significant commercial sales discussing how to circumvent

access controls.” Id. ¶¶ 80-87 (J.A. 30-31). Green claimed that

both his circumvention of access controls to conduct security

research and his publication of information about his work are

protected by the First Amendment, and that the DMCA is thus

unconstitutional as applied to those planned activities.

Plaintiffs Andrew “bunnie” Huang and his audiovisual

media company, Alphamax (collectively, Huang), also alleged

that section 1201(a) chills their constitutionally protected

expression. Huang seeks to create and commercially sell a

device he calls “NeTVCR,” which would allow users to save,

manipulate, convert, and edit high-definition digital video

streams. Id. ¶¶ 89-91 (J.A. 32). Those video streams—like

shows on Netflix, for example—are generally protected by a

technology called High-bandwidth Digital Content Protection

(HDCP), which prevents unauthorized copying or capturing of

copyrighted content by people lawfully streaming it on their

devices. The NeTVCR device operates by circumventing that

protection technology.

Huang claimed that his NeTVCR device would permit

users to “engage in new forms of protected and noninfringing

expression.” Id. ¶ 100 (J.A. 34). He identified hypothetical

expressive uses of the device such as using “a single TV screen

[to] display a live presidential debate and the text of a

commentator’s live blog,” creating a “side-by-side comparison

between two films . . . for media literacy education,” or using

a “single TV screen that simultaneously displays the coverage

of a live event by more than one news source.” Id. ¶ 100 (J.A.

34). Like Green, Huang unsuccessfully sought exemptions

from the Library of Congress. Id. ¶¶ 107-08 (J.A. 35). Without

those exemptions, Huang alleged, he is unconstitutionally

deterred by section 1201(a) from using or distributing the

NeTVCR device.

The plaintiffs sued to invalidate section 1201, urging that

the anticircumvention and antitrafficking provisions are

facially overbroad and that the Librarian of Congress’s

triennial rulemaking process is an invalid speech-licensing

regime—all in violation of the First Amendment. Id. ¶¶ 111-

28 (J.A. 36-38). They also brought as-applied challenges to the

anticircumvention and antitrafficking provisions, contending

that those prohibitions unconstitutionally burden their specific

expressive activities. Id. ¶¶ 129-49 (J.A. 38-41). And they

argued that the Librarian of Congress’s denial of their

requested exemptions in the 2015 rulemaking cycle violated

the First Amendment and Administrative Procedure Act. Id.

¶¶ 150-62 (J.A. 41-42).

The government moved to dismiss the complaint and

plaintiffs cross-moved for a preliminary injunction. The

district court stayed the preliminary injunction motion pending

its decision on the motion to dismiss. The court later granted

in part and denied in part the government’s motion to dismiss,

dismissing plaintiffs’ facial First Amendment challenges and

APA claims, but denying the motion to dismiss as to their as-

applied claims. Green v. U.S. Dep’t of Justice, 392 F. Supp. 3d

68, 85-100 (D.D.C. 2019).

The court dismissed the facial overbreadth challenge on

the basis of plaintiffs’ failure to allege that the DMCA would

“‘have any different impact on third parties’ interests in free

speech than it has on’ their own.” Id. at 88 (quoting Members

of City Council v. Taxpayers for Vincent, 466 U.S. 789, 802

(1984)). And it rejected plaintiffs’ contention that the triennial

rulemaking constituted a prior restraint, holding that it did not

effect any content-based censorship. Id. at 89-90. The court

concluded that plaintiffs failed to allege “facts indicating that

the rulemaking defendants’ decision of whether to grant

exemptions in the 2015 rulemaking process was based on the

content of what those who sought exemptions wanted to say,

their viewpoint, or who they are.” Id. at 90. The court also

dismissed plaintiffs’ APA claims, holding that the triennial

rulemaking process is not subject to the APA. Id. at 96-100.

(We later rejected that proposition in Medical Imaging &

Technology Alliance v. Library of Congress, 103 F.4th 830,

836 (D.C. Cir. 2024)).

But the district court denied the government’s motion to

dismiss plaintiffs’ as-applied First Amendment claims. The

court held that the government failed to meet its burden to show

that section 1201(a) does not encumber substantially more of

plaintiffs’ speech than necessary to further its interest—the test

required under intermediate scrutiny. Green, 392 F. Supp. 3d

at 94-95.

Plaintiffs then renewed their motion for a preliminary

injunction on their as-applied claims, which the district court

denied. Green v. U.S. Dep’t of Justice, No. 16-1492, 2021 WL

11637039 (D.D.C. July 15, 2021). By this time, the Librarian

of Congress in the 2018 rulemaking cycle had granted Green’s

request for an exemption allowing him to circumvent in

furtherance of his security research, so he no longer pressed his

as-applied challenge to the anticircumvention prohibition. And

the court concluded that sale of Green’s academic book would

not run afoul of the antitrafficking provision because it fell

outside of the definition of banned trafficking products as those

with “only limited commercially significant purpose or use

other than to circumvent” or that are marketed for the purpose

of circumvention. 17 U.S.C. § 1201(a)(2). With that provision

inapplicable to Green’s book, he was not likely to succeed on

the merits of his as-applied claim against the antitrafficking

provision. Green, 2021 WL 1167039, at *5-6.

As to Huang, assuming without deciding that his proposed

use and sale of his circumvention device counted as speech, the

district court held that the government satisfied its burden

under intermediate scrutiny to justify application of section

1201(a)’s anticircumvention and antitrafficking provisions to

his proposed conduct. Id. at *7-10. The court noted that

Huang’s technology, as described, would “eviscerate virtually

every single video content delivery protection system,” and

thus would expose anything displayable on a modern TV

screen or laptop to widespread piracy. Id. at *8. The court

accordingly held that, as applied to Huang, Section 1201(a)

does not burden substantially more speech than necessary.

We affirmed the district court’s denial of preliminary

injunctive relief in Green v. U.S. Dep’t of Justice, 54 F.4th 738

(D.C. Cir. 2022). We declined on that appeal to exercise

jurisdiction over the court’s earlier dismissal of the facial

claims because the court had not entered judgment on

plaintiffs’ still pending as-applied claims, so the order granting

in part the government’s motion to dismiss was not yet final

and appealable under 28 U.S.C. § 1291. Only the denial of the

preliminary injunction on the as-applied claims was appealable

on an interlocutory basis under 28 U.S.C. § 1292(a)(1). Green,

54 F.4th at 743-44. We affirmed as to Green on the ground that

he failed to establish a substantial likelihood of standing

because the publication and sale of his book would not violate

the antitrafficking provision. Id. at 744. And we held that

Huang’s as-applied claim was not likely to succeed on the

merits. The anticircumvention and antitrafficking provisions

“target not the expressive content of computer code, but rather

the act of circumvention and the provision of circumvention-

enabling tools,” so they are subject to intermediate scrutiny—

a test we held they “easily survive[].” Id. at 745-46.

On remand, plaintiffs voluntarily dismissed their as-

applied claims. Once the district court entered final judgment,

plaintiffs appealed the district court’s earlier order dismissing

their facial First Amendment challenges to section 1201(a) for

failure to state legally viable claims under Federal Rule of Civil

Procedure 12(b)(6). Those facial challenges are now before us

on de novo review. See, e.g., Rudder v. Williams, 666 F.3d 790,

794 (D.C. Cir. 2012).

II.

At the core of plaintiffs’ challenge to section 1201(a) of

the DMCA is its asserted incongruence with the fair use

exception to copyright infringement liability. An individual

who circumvents technological protection measures on a

copyrighted work to make fair use of the work is immunized

by the fair use defense from liability for infringing the

applies, her conduct may nonetheless violate the DMCA’s

anticircumvention provision. What good is the fair use

defense, the plaintiffs ask, if the DMCA prohibits them from

accessing the copyrighted works in the first place?

Consider a filmmaker making a fictionalized drama about

emergency responders to the September 11th attacks who

wants to stage a scene in which the responders’ families watch

real-life footage of the immediate aftermath of the attacks on a

television set. If use of copyrighted footage for that purpose

constitutes fair use, the filmmaker would not be liable for

infringement. See, e.g., Fioranelli v. CBS Broadcasting Inc.,

551 F. Supp. 3d 199, 240-41 (S.D.N.Y. 2021). But if the

filmmaker circumvented technological controls in order to

obtain the footage, the court’s fair use determination would not

shield against liability under the DCMA, unless her use of the

clip fell within one of the anticircumvention provision’s

statutory or regulatory exemptions. (As it happens, the use

would likely qualify under the 2021 Final Rule’s exemption

permitting circumvention to use clips for their “historically

significant nature,” 86 Fed. Reg. at 59,637/3 (codified at 37

C.F.R. § 201.40(b)(1)), but at the time of plaintiffs’ complaint,

that exemption only accommodated circumvention by

documentary filmmakers using those clips—not creators of

fictional films.) In other words, some individuals who seek to

make fair use of copyrighted work may find themselves

stymied, not by copyright infringement laws, but by the

DMCA’s prohibition on circumventing technological controls

in order to freely obtain high-quality and manipulable versions

of clips of copyrighted works.

In plaintiffs’ view, a mismatch in protection for fair use

under traditional copyright law and under the DMCA renders

the latter unconstitutional. They assert that all fair use is

protected by the First Amendment, so section 1201(a) cannot

validly prohibit circumvention by individuals for the purpose

of making fair use of copyrighted works. And they argue that

Congress’s explicit attempt to build fair-use accommodations

into section 1201(a) via the triennial rulemaking process

merely compounded the First Amendment injury: In its effort

to alleviate the Act’s burden on fair users, plaintiffs contend,

Congress transformed the Librarian of Congress into a censor

who wields broad discretion to grant exemptions to favored

messages and speakers.

Key to plaintiffs’ theory is their view that fair use of

copyrighted work is necessarily protected by the First

Amendment. We later explain why that assumption is

erroneous, but it is worth considering at the outset what it

would mean for plaintiffs’ theory if true.

If plaintiffs were right that would-be speakers have a

blanket First Amendment right to circumvent in the service of

uses that would be fair under copyright law, the triennial

rulemaking’s exemption scheme would be essentially

redundant: With or without a regulatory exemption, fair users

could circumvent technological protections of copyrighted

works and claim a First Amendment defense to liability under

the DMCA.

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. Recall that the

Supreme Court has referred to the use of copyrighted materials

under the protection of a “potential fair use defense” as a “roll

[of] the dice.” Public.Resource.Org., 590 U.S. at 275. The

9/11 drama’s creator, for example, may not be able to anticipate

with certitude that her use of archival footage would be

noninfringing, given that fair use turns on a “notoriously fact

sensitive” analysis. Id. A decision to include the archival

footage carries legal risk. In contrast, by promulgating general

rules in advance, the anticircumvention exemption scheme

gives the filmmaker clearer notice of the legality of specific

forms of circumvention, thus reducing the chill of legal

uncertainty under the DMCA relative to the chill inherent in

More fundamentally, if appellants were correct that the

First Amendment protected circumvention undertaken for fair

use ends, then section 1201(a)’s regulatory exemptions would

simply serve as an additional layer of protection for fair users,

providing up-front confirmation to those fair users who fall

within the scope of the exemptions that their circumvention is

permitted. What is more, even as to actions not covered by a

DMCA statutory or regulatory exemption, under plaintiffs’

view, the filmmaker would have a First Amendment right to

circumvent: She would be free to take her chances by

circumventing and proving that her use of the clip is fair use

and thus constitutionally protected. So it is hard to see how,

under plaintiffs’ view of the law, section 1201(a) operates to

chill speech.

But we disagree that the First Amendment necessarily

shields all fair uses of copyrighted work from regulation, and,

regardless, Congress’s objective to promote rather than chill

speech is no guarantee that its enactment survives a First

Amendment challenge. We accordingly proceed to address

why, under each doctrinal framework plaintiffs deploy, their

facial challenges fail. First, we explain that plaintiffs have not

satisfied the overbreadth doctrine’s exacting requirement to

demonstrate unconstitutional applications of section 1201(a)

that are substantially disproportionate to its lawful sweep.

Second, we explain why the anticircumvention provision’s

regulatory exemption scheme is not an unconstitutional prior

restraint on speech.

Plaintiffs contend that section 1201(a) “burden[s]”

expressive conduct that “consists substantially of

noninfringing speech that the First Amendment protects,”

rendering the section facially overbroad. Appellants’ Br. 47;

see Reply Br. 3-9. They emphasize that the anticircumvention

provision prevents non-parties such as some filmmakers and

teachers from accessing high-quality versions of copyrighted

works to engage in speech that would qualify as fair use—

speech that plaintiffs argue cannot be burdened without

running afoul of the First Amendment. Because plaintiffs

assert that section 1201(a)’s “applications to protected speech

outweigh its legitimate sweep,” they contend the law’s

anticircumvention and antitrafficking provisions are wholly

invalid. Reply Br. 24.

Facial invalidation of a statute for overbreadth is

disfavored. It “is ‘strong medicine’ that is not to be ‘casually

employed.’” United States v. Hansen, 599 U.S. 762, 770

(2023) (quoting United States v. Williams, 553 U.S. 285, 293

(2008)). Only if “a substantial number of its applications are

unconstitutional, judged in relation to the statute’s plainly

legitimate sweep,” will a law fail for overbreadth. United

States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Wash.

State Grange v. Wash. State Repub. Party, 552 U.S. 442, 449

n.6 (2008)). The unconstitutional applications must be

“realistic, not fanciful,” and “substantially disproportionate” to

the statute’s lawful applications. Hansen, 599 U.S. at 770.

Unless the ratio between a statute’s unlawful applications and

its lawful ones is so “lopsided” as to support an overbreadth

challenge, “courts must handle unconstitutional applications as

they usually do”—in as-applied challenges. Hansen, 599 U.S.

at 770. Accordingly, facial overbreadth challenges are by

design “hard to win.” Moody v. NetChoice, LLC, 144 S. Ct.

2383, 2397 (2024).

Plaintiffs’ facial overbreadth 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 DMCA defines circumvention as the act of

“descrambl[ing] a scrambled work, . . . decrypt[ing] an

encrypted work, or otherwise . . . avoid[ing], bypass[ing],

remov[ing], deactivat[ing], or impair[ing] a technological

measure.” 17 U.S.C. § 1201(a)(3)(A). The act of

circumvention is not inherently expressive because it does not

“‘inten[d] to convey a particularized message’ in a manner that

allows others to understand it.” Price v. Garland, 45 F.4th

1059, 1076 (D.C. Cir. 2022) (Henderson, J., concurring)

(quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)).

The act of trafficking in circumvention technology is likewise

not inherently expressive. As the government aptly notes,

trafficking is no more identified with expression than is the sale

of lock picks for breaking into bookstores identified with the

expressive conduct of reading the stores’ books. Gov’t Br. 24.

The overbreadth doctrine is an awkward tool with which to

attack the DCMA, because “[r]arely, if ever, will an

overbreadth challenge succeed against a law or regulation that

is not specifically addressed to speech or to conduct necessarily

associated with speech (such as picketing or demonstrating).”

Virginia v. Hicks, 539 U.S. 113, 124 (2003).

The plainly legitimate sweep of section 1201(a) is

extensive. Indeed, a large swath of conduct prohibited by the

statute is not even arguably related to expression. The DMCA

applies to circumvention, and the act of selling the technology

to enable circumvention, of digital controls on the software

embedded in a range of consumer goods, including

automobiles, smart appliances, and medical devices. Plaintiffs

note that some owners of those devices might seek to modify,

repair, or analyze information in the devices, requiring the

circumvention of technological protections. But regardless of

whether the act of bypassing those technological controls

ultimately facilitates fair or noninfringing uses, those uses are

themselves entirely non-expressive and unprotected by the

First Amendment. In itself, repairing a smart alarm clock is not

expressive conduct—so circumventing access controls on its

embedded software to do so is unprotected by the First

Amendment. 1

The Federal Circuit has held that the DMCA’s

anticircumvention and antitrafficking provisions only prohibit acts

with “a reasonable relationship between the circumvention at issue

and a use relating to a property right for which the Copyright Act

permits the copyright owner to withhold authorization.”

Chamberlain Grp., Inc. v. Skylink Techs., Inc., 381 F.3d 1178, 1204

(Fed. Cir. 2004). In other words, the court narrowly interpreted

section 1201(a) to include a required nexus with copyright

The “heartland” conduct the anticircumvention and

antitrafficking provisions criminalize is piracy of digital

property—a modern form of theft. Hansen, 599 U.S. at 782;

see, e.g., United States v. Whitehead, 532 F.3d 991 (9th Cir.

2008) (affirming DMCA trafficking sentence based on sales of

counterfeit “access cards” enabling nonsubscribers to watch

satellite television); United States v. Silvius, 559 F. App’x 490

(6th Cir. 2014) (affirming DMCA trafficking conviction based

on sales of microchips to enable users to bypass video game

consoles’ digital locks against pirated video games). Even

where the theft is in aid of constitutionally protected conduct,

such as watching a movie or reading a book, the DMCA’s

anticircumvention provision may apply consistently with the

First Amendment. See Oral Arg. Rec. 12:15-13:10 (plaintiffs’

counsel conceding that “it is permissible under the First

Amendment to prohibit” such theft).

Many legitimate applications of the challenged provisions

are undisputed by the plaintiffs. The government notes and

plaintiffs do not contest that the anticircumvention provision

bars individuals from hacking into a music streaming service

to access its catalogue for free. Gov’t Br. 21-22. Similarly, the

provision forbids overriding the time restriction on a digital

movie rental to have permanent access to it. And the

antitrafficking provision “prevents the distribution of tools that

would enable the sort of circumvention discussed above on a

infringement, thus excluding fair uses—which are by definition

noninfringing uses, see 17 U.S.C. § 107—from its scope. No other

court of appeals has adopted that interpretation. See MDY Indus.,

LLC v. Blizzard Enter., Inc., 629 F.3d 928, 943-52 (9th Cir. 2010)

(disagreeing with Chamberlain). Plaintiffs have not asked us to

interpret section 1201(a) as Chamberlain did, so we express no

opinion on that question in resolving this case.

massive scale.” Id. at 22. Plaintiffs do not argue that any of

those applications of the statute violate the First Amendment.

In addition, we have already sustained section 1201(a)

against Huang’s pre-enforcement First Amendment challenge

as applied to his proposed sale of a device that circumvents

most digital video streams’ protection technology. Green, 54

F.4th at 746-47. That device, we observed, would “eviscerate

virtually every single video content delivery protection

system,” exposing copyrighted video content to widespread

infringement and “gutting the government’s substantial

interest” in promoting the dissemination of copyrighted works.

Id. Additional examples abound.

Plaintiffs nonetheless insist there are “numerous specific

categories of third-party speech impermissibly burdened by

Section 1201(a),” which together “[o]vershadow” legitimate

applications of the law. Appellants’ Br. 45-46. They list a few

activities that they cast as speech burdened by the DMCA,

including: a documentary filmmaker using in her own film

copyrighted video clips she obtained via circumvention; a

visually impaired person enabling read-aloud functionality of

an e-book by circumventing its technological protections; and

a camera owner gaining access to encrypted photograph

metadata via circumvention rather than by purchasing the

camera manufacturer’s software containing the decryption

keys. Appellants’ Br. 46; Reply Br. 20. Plaintiffs do not

contend that those acts of circumvention are themselves

expressive conduct, but claim they are nonetheless entitled to

First Amendment protection. And, even as to their many

examples that plaintiffs concede fall within exemptions

promulgated by the Librarian of Congress, they claim the

rulemaking process itself is an unconstitutional burden on its

beneficiaries’ speech. Appellants’ Br. 46.

Plaintiffs’ insistence that their examples establish

unconstitutional applications of the DMCA substantially

disproportionate to the statute’s legitimate sweep is

unpersuasive. Even assuming their putative overbreadth

showing were adequate on its own terms, it rests on a series of

faulty premises.

First, plaintiffs posit that the First Amendment protects the

“right to access and learn from digital works,” not just the right

to make fair use of work via legitimate rights of access, and

they rely on that premise to argue that statutory protection of

barriers to access violates the First Amendment. Appellants’

Br. 24-25. The First Amendment protects a right to read, but it

does not grant unimpeded access to every reading material a

reader might wish for. Similarly, the First Amendment does

not guarantee potential fair users unfettered or privileged

access to copyrighted works they seek to use in their own

expression. To hold otherwise would defy the First

Amendment’s solicitude of speakers’ control over their own

speech. See Harper & Row, 471 U.S. at 559 (noting that

to speak”).

If every work that the public might wish to access “could

be pirated away” via circumvention, soon nothing worth

reading would be published electronically. Id. Plaintiffs’

premise that fair users are entitled to make unauthorized use of

copyrighted works assumes away the very entitlements

copyrighted work routinely requires consent from the

subject to certain limitations on use.

Plaintiffs’ argument to the contrary proves too much. On

their logic, a theatre critic wishing to run a photograph with his

review would be exempted from the theater’s no-

photographing rule. That would be a significant extension of

the First Amendment. See generally Gideon Parchomovsky &

Kevin A. Goldman, Fair Use Harbors, 93 Va. L. Rev. 1483,

1522 (2007) (invoking such an example in support of

conclusion that “rightsholders owe no affirmative ‘duty’ to

make their works available for” fair use). Fair use “has never

been held to be a guarantee of access to copyrighted material

in order to copy it by the fair user’s preferred technique or in

the format of the original. Universal City Studios, 273 F.3d at

459; see Houchins v. KQED, Inc., 438 U.S. 1, 12 (1978)

(holding that “[t]he right to speak and publish does not carry

with it the unrestrained right to gather information” (emphasis

omitted) (quoting Zemel v. Rusk, 381 U.S. 1, 16-17 (1965))).

Second, plaintiffs alternatively assert that when an

individual circumvents to obtain copyrighted work for use in

her own expression, that circumvention is constitutionally

protected as a “step in the creation of speech,” akin to filming

or newsgathering. Price, 45 F.4th at 1070. Even assuming that

some circumvention is constitutionally privileged because

necessary to constitutionally protected expression using the

copyrighted work, section 1201(a)’s provisions are not

automatically unconstitutional in those instances. After all,

even political speech may be subject to certain regulatory

constraints. See, e.g., Williams-Yulee v. Florida Bar, 575 U.S.

433, 444 (2015); United States v. O’Brien, 391 U.S. 367, 377

(1968). Identification of relevant conduct as First Amendment-

protected “merely launches our inquiry.” Price, 45 F.4th at

1067.

Plaintiffs have not made the showing needed to survive

that First Amendment inquiry. They largely concede that the

constitutionality of section 1201(a) as applied to their

hypothetical DMCA applications is controlled by intermediate

scrutiny. See Appellants’ Br. 49-51. They briefly suggest

application of strict scrutiny—that certain applications of

section 1201(a) would “interfere with third-party commentary

on political debates, which is at the heart of democratic

governance and thus . . . would demand (and fail) . . . strict

scrutiny,” id. at 42—but they are wrong that a content-neutral

failure to facilitate political commentary triggers strict First

Amendment scrutiny. Strict scrutiny applies to provisions that

are facially content-based or otherwise turn on the message

conveyed, which plaintiffs do not contend is the case here. See

City of Austin v. Reagan Nat’l Advert. of Austin, LLC, 596 U.S.

61, 69 (2022); Holder v. Humanitarian Law Project, 561 U.S.

1, 28 (2010). Plaintiffs briefly suggest that “certain exemptions

granted to third parties under Section 1201 engage in content-

and speaker-based discrimination” in distinguishing between

types of speakers (they mention exemption of documentary but

not narrative filmmakers). Appellants’ Br. 42. But they do not

base any argument for strict scrutiny on that characterization.

As alleged, none of plaintiffs’ potential applications of

section 1201(a) to third-party fair users would fail intermediate

scrutiny. For example, at oral argument they highlighted their

assertion that section 1201(a) would impermissibly burden the

speech of a fifth-grade teacher who wished to circumvent a

DVD’s encryption and extract a clip to screen during a lesson.

See Oral Arg. Rec. 29:01-30:02. Application of section

1201(a) to bar that circumvention would survive intermediate

scrutiny so long as “it furthers an important or substantial

governmental interest; . . . the governmental interest is

unrelated to the suppression of free expression; and . . . the

incidental restriction on alleged First Amendment freedoms is

no greater than is essential to the furtherance of that interest.”

Green, 54 F.4th at 746 (quoting Turner Broad. Sys., Inc. v.

FCC, 512 U.S. 622, 662 (1994)).

As to the first two intermediate-scrutiny factors, section

1201(a) furthers a substantial governmental interest in

fostering the widespread availability of copyrighted digital

work on a content-neutral basis, and that interest would be

sharply curtailed in the absence of enforceable technological

protections. Id. As to the third factor, plaintiffs have made no

plausible allegations that section 1201(a)’s protection against

circumvention of digital locks somehow unnecessarily burdens

the hypothetical teacher’s speech. Indeed, any constitutionally

cognizable burden is slight; the posited demonstration

presumably could proceed if the teacher inserted his DVD into

the classroom player and fast-forwarded to the relevant scene.

What is more, plaintiffs’ hypothetical teacher’s DVD use

is currently facilitated by a regulatory exemption permitting

him to circumvent for the hypothesized purpose. See 2021

Final Rule, 86 Fed. Reg. at 59,637/3 (codified at 37 C.F.R.

§ 201.40(b)(1)). Plaintiffs argue that the exemption intensifies

the claimed constitutional defect by burdening the teacher, or

someone else with the same interest, with periodic participation

in the rulemaking process. Appellants’ Br. 46. But exemptions

are generally applicable—benefitting all who fall within the

class, rather than only those who requested them—so as a

practical matter the onus of renewing popular and longstanding

exemptions may be widely shared. And consider that proof of

fair use, too, entails some procedural burden; just as that alone

does not render it an unconstitutional defense, the complaint

before us does not allege that the burden of seeking a regulatory

exemption renders the DMCA constitutionally flawed. At

bottom, as already noted, plaintiffs have not adequately

described any adverse effect of section 1201(a) on the

educator’s ability to teach his students that enables us to weigh

that cost against the government’s substantial interest in

protecting copyrighted works.

Section 1201(a) is constitutionally applied as to a wide

range of non-expressive conduct that involves circumvention

and trafficking, and its application to copyrighted expression

readily withstands First Amendment scrutiny. We need not

rule out the prospect that section 1201(a) might be

unconstitutionally applied to certain speakers to conclude that

plaintiffs have not plausibly identified a single such

application, let alone shown that unconstitutional applications

predominate over constitutional ones. Plaintiffs’ highly

particularized yet underdeveloped examples simply do not add

up to the “lopsided ratio” of unconstitutional applications

required to sustain a facial challenge. Hansen, 599 U.S. at 770.

We do not purport to pass on every circumstance in which

a speaker seeks to circumvent a copyrighted work’s

technological controls to make fair use of the work. It could be

that “incidental restriction[s] on alleged First Amendment

freedoms” posed by section 1201(a) are sufficiently material in

some situations that its application fails intermediate scrutiny.

Edwards v. Dist. of Columbia, 755 F.3d 996, 1001-02 (D.C.

Cir. 2014). And future litigants might plausibly argue that a

particular regulatory exemption discriminates based on the

content or viewpoint of speech and is therefore subject to strict

scrutiny. But plaintiffs do not raise those arguments here.

Recognizing that section 1201(a) might impose incidental

burdens on fair users that could be alleviated without

undercutting the statute’s protection of copyrighted works

distributed electronically, Congress delegated authority to the

Librarian of Congress to craft exemptions to the

anticircumvention provision. Plaintiffs urge that, in so doing,

Congress enacted an unconstitutional prior restraint on speech.

Plaintiffs cast the Librarian of Congress’s authority to

grant exemptions to the anticircumvention provision as akin to

a censor’s speech-licensing power. As they see it, section

1201(a) bars fair users from circumventing technological

protections unless and until they obtain a licensing body’s

approval of the content of their intended speech. And they

claim that the Librarian of Congress’s authority to grant

exemptions is “unbounded,” insufficiently checked by prompt

judicial review, and invites content and viewpoint-based

discrimination. Appellants’ Br. 30-39. For support, they point

to the Librarian of Congress’s grant of permission in the 2015

Final Rule for university students whose course of study

requires close analysis of film and media excerpts to

circumvent motion pictures’ technological controls in order to

obtain clips for educational purposes. They argue that the

exemption discriminates against students enrolled in massive

open online classes by failing to include them. Id. at 35.

As explained above, the Librarian of Congress determines

through a rulemaking proceeding whether and how the

anticircumvention provision has, or is likely to have, an

adverse effect on people’s ability to make noninfringing uses

of classes of copyrighted works. 17 U.S.C. § 1201(a)(1)(C).

The Librarian must consider existing and proposed exemptions

for such users every three years. To make exemption

determinations, the Librarian must consider: (1) “the

availability for use of copyrighted works,” (2) “the availability

for use of works for nonprofit archival, preservation, and

educational purposes,” (3) “the impact that [the

anticircumvention provision] has on criticism, comment, news

reporting, teaching, scholarship, or research,” (4) “the effect of

circumvention of technological measures on the market for or

value of copyrighted works,” and (5) “such other factors as the

Librarian considers appropriate.” Id. § 1201(a)(1)(C)(i)-(v).

It is generally fair to say that what the fair use defense does

for copyright infringement, the exemptions do for section

1201(a). In the context of copyright infringement liability, the

fair use defense avoids “rigid application of the copyright

statute when, on occasion, it would stifle the very creativity

which that law is designed to foster.” Andy Warhol Found.,

598 U.S. at 527 (quoting Stewart, 495 U.S. at 236). Similarly,

Congress in section 1201(a) enacted some permanent

exemptions and a dynamic regulatory exemption scheme to

blunt the anticircumvention provision’s incidental burdens on

noninfringing—i.e., fair—uses. The parallel is highlighted by

the way the statutory standard for triennial rulemaking borrows

liberally from the doctrine of fair use. Indeed, the Librarian’s

final rules resemble a series of ex ante determinations as to

which activities are likely to qualify as fair uses that would be

adversely affected by the anticircumvention provision if not

exempted.

Plaintiffs’ facial challenge to the Librarian’s exemption

authority requires us to determine, at the threshold, whether the

DMCA’s regulatory exemption scheme is an ex ante speech-

licensing regime, which would “bear[] a heavy presumption

against its constitutional validity.” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 225 (1990) (quoting Se. Promotions, Ltd.

v. Conrad, 420 U.S. 546, 558 (1975)). Only licensing laws

with “a close enough nexus to expression, or to conduct

commonly associated with expression, to pose a real and

substantial threat” of censorship are “vulnerable to facial

challenges.” City of Lakewood v. Plain Dealer Publ’g Co., 486

U.S. 750, 759 (1988). If the law is a prior restraint, and thus

amenable to a facial challenge, we must determine whether it

“condition[s] expression on a licensing body’s prior approval

of content.” Thomas v. Chicago Park Dist., 534 U.S. 316, 321

(2002). If it does, the law is subject to strict procedural

requirements, including prompt judicial review in which the

burden of going to and prevailing in court to suppress the

speech rests on the censor. Id. Content neutral preconditions,

in contrast, need not satisfy those procedural requirements and

will survive a facial prior-restraint challenge so long as they

“contain adequate standards to guide the official’s decision and

render it subject to effective judicial review.” Boardley v. U.S.

Dep’t of Interior, 615 F.3d 508, 517 (D.C. Cir. 2010) (quoting

Thomas, 534 U.S. at 323).

Plaintiffs’ speech-licensing claim fails at the threshold.

The DMCA’s authorization of regulatory exemptions does not

operate as a prior restraint on speech. Is it therefore not

susceptible to a facial First Amendment challenge.

Again, not all government licensing schemes are subject

to the “extraordinary doctrine” permitting facial First

Amendment challenges. Ward v. Rock Against Racism, 491

U.S. 781, 794 (1989) (quoting City of Lakewood, 486 U.S. at

772 (White, J., dissenting)). We entertain a facial speech-

licensing challenge only when a statute “ha[s] a close enough

nexus to expression, or to conduct commonly associated with

expression, to pose a real and substantial threat” of either of

two “identified censorship risks.” City of Lakewood, 486 U.S.

at 759. Those risks are twofold: The first is the chill that results

when speakers respond to unclear licensing standards by

attempting to conform their speech to the censor’s perceived

preferences. A second hazard of legal preconditions on

expression is that, “without standards to fetter the licensor's

discretion,” they invite content or viewpoint discrimination.

Id. at 758-59. Speakers relegated to as-applied challenges

against illegitimate enforcement may capitulate rather than

litigate or, if they sue, “the eventual relief may be ‘too little and

too late’” to effectively remedy opportunities for speech lost

while litigation is pending. Id. at 758.

Generally applicable laws that are not aimed at expression

or conduct commonly associated with expression do not pose

those censorship dangers. In City of Lakewood, the Supreme

Court explained that a law requiring building permits and an

ordinance requiring soda vendors to obtain permits to place

machines on public property are not vulnerable to speech-

licensing challenges “prior to an allegation of actual misuse.”

Id. at 761. The Court recognized those laws could be abused

to censor, “such as when an unpopular newspaper seeks to

build a new plant,” but held they are “too blunt a censorship

instrument” to be facially subject to the prior restraint

doctrine’s exacting review. Id. Licensing schemes that are not

“most likely to be in fact an instrument of censorship” are better

addressed through as-applied challenges. The Tool Box v.

Ogden City Corp., 355 F.3d 1236, 1242 (10th Cir. 2004) (en

banc).

The DMCA’s regulatory exemption process is not a

speech-licensing scheme. The law neither directly regulates

speech nor bears a “close enough nexus to expression, or to

conduct commonly associated with expression,” to threaten the

sort of censorship risks against which the prior restraint

doctrine guards. City of Lakewood, 486 U.S. at 759.

To begin, section 1201(a) has little in common with

paradigmatic prior restraints, which require prior governmental

approval before a person may lawfully speak. In Near v.

Minnesota ex rel. Olson, the foundational prior-restraint case,

the Supreme Court struck down a state law authorizing the

government to act in advance to “abate[]” the publication of

any “malicious, scandalous and defamatory newspaper,

magazine or other periodical.” 283 U.S. 697, 701-02 (1931).

Other classically unconstitutional prior restraints have

“requir[ed] a permit and a fee before authorizing public

speaking, parades, or assemblies” on a town’s public property,

Forsyth Cnty. v. Nationalist Movement, 505 U.S. 123, 130

(1992), or required a government board’s prior approval of

theatrical productions proposed to be staged at a town’s theater,

Se. Promotions, Inc., 420 U.S. at 548. In contrast, as discussed,

the anticircumvention provision regulates conduct—the act of

circumventing technological locks—not expression.

Section 1201(a) also lacks a sufficiently “close . . . nexus

to . . . conduct commonly associated with expression” to bring

it within the scope of the prior restraint doctrine. City of

Lakewood, 486 U.S. at 759. Plaintiffs cast section 1201(a) as

a speech-licensing regime because the anticircumvention

provision applies to some individuals who circumvent

technological locks “in order to facilitate their own subsequent

expression,” such as the Fioranelli filmmaker. Reply Br. 4.

Plaintiffs thus again analogize circumvention to the act of

taking photographs or making audio or video recordings—non-

communicative activities that, as “step[s] in the creation of

speech,” may be “protected as speech under the First

Amendment.” Price, 45 F.4th at 1070.

But that argument fails because circumventing copyright

works’ technological protections has no necessary or ordinary

function as a facilitator of speech. To the contrary, plaintiffs

do not even allege that section 1201(a) “largely targets” speech.

Cf. FW/PBS, Inc., 493 U.S. at 224. And for good reason. As

we have explained, the act of circumventing technological

protection measures often has no connection to speech at all.

Even many fair or noninfringing uses for which the Librarian

of Congress has authorized circumvention do not qualify as

expressive. For example, consider the Librarian of Congress’s

circumvention exemption for the repair of software-enabled

devices. The exemption allows owners of those devices—

ranging from MRI machines to smart alarm clocks to

vehicles—to circumvent technological protections on

copyrighted software in order to conduct their own repairs and

maintenance on their devices. See 86 Fed. Reg. at 59,640/1

(codified at 37 C.F.R. § 201.40(b)(15)). The repair of

consumer or medical devices is not expressive conduct.

Compare the scope of section 1201(a) with the ordinance

at issue in City of Lakewood to which plaintiffs analogize the

DMCA’s exemption regime. That local ordinance required

newspapers to apply annually for mayoral permission to place

news racks on city sidewalks. 486 U.S. at 753. The Court

concluded that the distribution of newspapers was “conduct

commonly associated with expression” and its regulation

therefore subject to facial challenge. Id. at 760. But using news

racks to distribute newspapers, unlike circumvention of

technological locks, has a necessary correlation with

expression: All newspaper racks distribute speech. They are,

in effect, mechanical pamphleteers. Id. at 761-62.

The DMCA’s anticircumvention provision is more akin to

a routine prohibition on trespass, which is not conduct closely

associated with expression. See S. Rep. 105-190, at 11

(comparing circumvention to “break[ing] into a house”). A

trespass law undoubtedly affects some expressive conduct, as

when political protestors trespass to stage a demonstration

where it might have maximal impact. Similarly, the DMCA’s

anticircumvention provision might preclude a student from

circumventing technological measures to cut a high-quality

clip of a copyrighted feature film to use in his class

presentation. But trespassing is not “necessarily associated

with speech,” because laws prohibiting trespass also “apply to

strollers, loiterers, drug dealers, roller skaters, bird watchers,

soccer players, and others not engaged in constitutionally

protected conduct.” Hicks, 539 U.S. at 123-24; see also

Thomas, 534 U.S. at 322 (upholding an ordinance requiring a

permit for large-scale events, noting that, “unlike the classic

censorship scheme,” it was “not even directed to

communicative activity as such, but rather to all activity

conducted in a public park”). The same is true of the

anticircumvention provision—a law that applies equally to

would-be speakers, repair technicians, and music or movie

pirates.

The Fifth Circuit’s decision in Moore v. Brown, 868 F.3d

398 (5th Cir. 2017) (per curiam), aptly illustrates the point.

There, an evangelical Christian regularly set up a large sketch

board in a public park in Dallas seeking to spread his message

by engaging passersby in conversation about his religion. Id.

at 401. He received a “criminal trespass warning” for violating

the city’s structure rule, which required a permit to erect in the

park any structures in excess of a certain size. Id. The structure

rule was not an unconstitutional speech-licensing law because

it “lack[ed] a close nexus to expression.” Id. at 405. Instead,

it simply reflected the city’s interests in keeping the small park

with its high pedestrian traffic free of all sorts of large

structures, including tents and tables as well as signs and sketch

boards. The practical burden the regulation posed for Mr.

Moore’s speech (and presumably that of many other would-be

speakers in varied circumstances) was not sufficient to subject

the law to facial challenge as a speech-licensing provision. Id.

Finally, we note that plaintiffs nowhere contend that the

challenged DMCA provisions prevent would-be fair users from

conveying their chosen messages. To the contrary, those

speakers often have alternative ways to obtain lawful access to

the copyrighted work for their fair use. A filmmaker who

wants to use a clip of a copyrighted news segment, for example,

could seek a license from the copyright owner, record the

segment with screen-capture technology, reenact it with actors,

or communicate the newsworthy event in a different way. A

teacher or student who wants to display a clip of a movie in his

class presentation could purchase the movie on a DVD and play

the relevant segment on his classroom’s player. Plaintiffs

themselves tellingly frame the stakes of their challenge as “who

gets to make high quality copies for fair use in their own

speech”—not who gets to speak, or what they may say. Oral

Arg. Rec. 0:25-0:43 (emphasis added).

Constitutional disapproval of prior restraints is a mismatch

for the DMCA’s authorization of regulatory exemptions. A

doctrine fashioned to prevent public officials from

preemptively silencing messages or speakers finds no purchase

where no message is disfavored and ample avenues of

expression remain open.

In Ward v. Rock Against Racism, for example, the

Supreme Court upheld a New York City noise control

regulation of concerts at a Central Park bandshell. 491 U.S. at

784. To avoid having to shut down concerts once they became

too loud, as it had done in the past, the city required all

performances to use city-provided sound equipment and

technicians. Id. at 784-88. The majority rejected the charge

that the law was a “quintessential prior restraint,” id. at 808

(Marshall, J., dissenting), stressing that it “grant[ed] no

authority to forbid speech, but merely permit[ted] the city to

regulate volume to the extent necessary to avoid excessive

noise,” id. at 795 n.5 (majority op.). Applying the same logic,

the Supreme Court declined to analyze as a prior restraint an

injunction imposing a buffer zone around an abortion clinic,

noting that the protestors were “not prevented from expressing

their message in any one of several different ways.” Madsen

v. Women’s Health Ctr., Inc., 512 U.S. 753, 763 n.2 (1994); see

also Hill v. Colorado, 530 U.S. 703, 734 (2000) (rejecting prior

restraint challenge where “absolutely no channel of

communication is foreclosed. No speaker is silenced. And no

message is prohibited.”). The same holds true of section

1201(a), which might incidentally burden certain means of

expression, but neither targets expression nor in fact prevents

speakers from conveying their messages.

Our holding does not insulate the Librarian’s exemption

determinations from judicial review. As-applied challenges

remain available to plaintiffs who plausibly allege that the

Librarian made a content- or viewpoint-based exemption

determination. See Boardley, 615 F.3d at 517 (noting that “a

future as-applied challenge could argue” that a denial of a

permit was “pretext for content-based discrimination”). But

plaintiffs’ facial challenge fails because section 1201(a) is not

a speech licensing law.

* * *

For the foregoing reasons, the judgment of the district

court is affirmed.

So ordered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.