Matthew D. Green v. United States Department of Justice

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2024 Decided August 2, 2024
No. 23-5159
M ATTHEW D. GREEN, ET AL.,
APPELLANTS
v.
UNITED S TATES D EPARTMENT OF J USTICE, 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.

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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 , M ILLETT and P ILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, 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.

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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.
I.
A.
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

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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
copyright owners’ exclusive rights in order to facilitate certain
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

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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.
Copyright Soc’y U.S.A. 209, 214 (1982).
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

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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.
B.
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

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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”
copyright owners’ use of “digital walls” to protect their
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

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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

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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
Copyright Protection Systems for Access Control
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

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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
copyright infringement, including fair use, under this title.” 17
U.S.C. § 1201(c)(1). The DMCA thus leaves fair use

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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
copyright law privileges as fair use.
C.
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.

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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

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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 &

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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

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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

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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
copyright. But, unless an anticircumvention exemption
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

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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

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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
copyright law’s fair use doctrine.
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,

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19
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.
A.
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

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20
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

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21
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
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

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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.

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23
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.

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24
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
copyright serves the First Amendment value of the “right not
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
copyright law validly protects. Consumers’ access to
copyrighted work routinely requires consent from the
copyright owner—typically obtained by paying for access
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

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25
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

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26
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)).

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27
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.

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28
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.
B.
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.

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29
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).

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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

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31
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.

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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,

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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

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34
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

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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

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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

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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.

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