D.C. Circuit Upholds DMCA as Constitutional Over Software Coders’ Challenge

A per curiam opinion from the District of Columbia Court of Appeals issued last week sided with the federal government in upholding the constitutionality of the Digital Millennium Copyright Act (DMCA). The challenge came from two software researchers concerned that code they wrote that either teaches users to circumvent certain technological measures or does so itself, would land them in hot water with the law.

The panel’s published opinion recounted how John Hopkins University computer science professor and security researcher Matthew Greene sought to publish an academic book “to instruct readers in the methods of security research,” including “examples of code capable of bypassing security measures. Co-plaintiff Andrew Huang sought to create and sell a hardware device capable of circumventing High-Bandwidth Digital Content Protection. The motivation for both plaintiffs’ projects was educational, at least in part, the court noted.

The opinion considered whether the district court correctly rejected their bids for preliminary injunctive relief that contested the law’s conditionality as applied to their particular circumstances. The panel, addressing the constitutionality of the DMCA for only the second time, said that there was no likelihood of imminent harm. In so finding, the court partly pointed to the government’s assertion that the publication and hardware device would not run afoul of the law.

Turning to the likelihood of the appellants’ success on the merits, the court first said that computer code is speech protected by the First Amendment, and second, that the DMCA is a content neutral regulation. As a content neutral regulation, the panel opined that the statute easily satisfies the applicable intermediate scrutiny test, partly because it furthers the legitimate government interest of protecting copyrighted online material.

The plaintiffs are represented by the Electronic Frontier Foundation and Wilson Sonsini Goodrich & Rosati and the government by the United States Department of Justice.