WASHINGTON (CN) — Judges in the District of Columbia Circuit on Monday appeared skeptical that they could narrow part of a 1998 digital copyright law without allowing an increase in piracy.
The Digital Millennium Copyright Act prohibits circumventing digital locks on copyrighted work, either through a decryption key or by other means. Thanks to a “safety valve” within the law, once every three years, one can petition the U.S. Copyright Office for permission to circumvent specific digital locks and exercise fair use — for educational or filmmaking purposes, for instance.
In their respective lines of work, the petitioners, Johns Hopkins University computer security researcher Matthew Green and Alphamax LLC owner Andrew Huang, both circumvent such digital locks, too: Green works to find weaknesses in certain code, which requires him to read the copyrighted code in question, and Huang’s company develops devices for editing and analyzing digital video streams.
Asking the appellate court to revive their claims, the petitioners argue that the block on circumvention violates the First Amendment by creating a burdensome “speech-licensing regime.” The scheme also leaves room for discrimination, they say, noting that librarian of Congress, who is nominated by the president and approved by the Senate, determines who's allowed to circumvent locks.
U.S. Circuit Judge Patricia Millett was receptive to that argument, but the Obama appointee struggled to understand how the act of circumvention counted as speech or how the statute violated the First Amendment.
In a back-and-forth with the petitioners’ attorney, Benjamin Margo of the New York firm Wilson Sonsini, Millett challenged the attorney's interpretation of the Supreme Court case Lakewood v. Plain Dealer Publishing Co.
The high court held in the 1988 case that a statute otherwise unrelated to expression could be challenged as harming free speech only if it has a “close enough nexus to expression or conduct commonly associated with expression.”
Given sole discretion over exemption petitions, the librarian of Congress can and has discriminated against would-be speakers, Margo said. He also underscored that petitions can be made only once every three years and that the librarian's final decisions are not subject to judicial review.
Millett seemed doubtful that Lakewood applies because the act of circumvention is only a step toward expression, not expression itself. The judge noted that in Lakewood, by distinction, the high court determined that newspaper stands counted as a “close enough nexus” because of their role in disseminating newspapers.
U.S. Circuit Judge Karen Henderson, a George H. W. Bush appointee, was even more critical of Margo’s position. If the court were to upend current regulations, she said, it could make it easier for people to circumvent digital locks to steal and sell copyrighted works.
She asked Margo whether online piracy counted as speech, to which Margo said yes — then specified that while piracy is speech, theft is not.
Among petitions the librarian has denied, Margo said, were those from narrative filmmakers seeking clips from copyrighted works and elementary and high school teachers using clips from films for literacy or critical media courses. Other similar petitions made by documentary filmmakers and university professors were granted, Margo said, without clear explanation.
Justice Department attorney Brian Springer urged the panel to affirm the lower court’s 2019 ruling granting the department's motion to dismiss, in which Senior U.S. District Judge Emmet Sullivan found the petitioners had failed to make a facial claim that the law in question created an “unconstitutional speech-licensing regime” under the First Amendment.
Springer argued that the Digital Millennium Copyright Act was created to prevent piracy and that it had not restricted speech as the petitioners claim.
Judge Henderson noted that the statue “knocks out” any fair use unless exempted by the librarian of Congress.
Springer argued that the statute already allowed people to read, comment and parody copyrighted works, and said Margo’s argument would allow for an extreme expansion of fair use. He defended the statute and said any possible limits on expression were “downstream effects” that should not be resolved by overturning it.
The panel, which also included the Obama-appointed U.S. Circuit Judge Cornelia Pillard, will issue a ruling after the next term begins in September.
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