USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 1 of 13
`
`
`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Argued September 12, 2022
`
`
`Decided December 6, 2022
`
`No. 21-5195
`
`MATTHEW D. GREEN, ET AL.,
`APPELLANTS
`
`v.
`
`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)
`
`
`
`
`Corynne McSherry argued the cause for appellants. With
`her on the briefs were Kit Walsh, Brian M. Willen, and Lauren
`Gallo White.
`
`Rebecca Tushnet and Catherine Crump were on the brief
`for amici curiae Copyright Scholars Pamela Samuelson and
`Rebecca Tushnet in support of appellants.
`
`Jack I. Lerner was on the brief for amici curiae
`Kartemquin Educational Films and International Documentary
`Association in support of appellants.
`
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 2 of 13
`
`2
`
`Jonathan Skinner-Thompson was on the brief for amicus
`curiae Accessibility, Security, and Repair Fair Users in support
`of appellants.
`
`Daniel Tenny, 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 Scott R. McIntosh, Attorney. Sonia M. Carson and
`Adam C. Jed, Attorneys, entered appearances.
`
`Eleanor M. Lackman and John Matthew DeWeese
`Williams 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. et al. in support of
`appellees.
`
`Before: WALKER, Circuit Judge, and ROGERS and TATEL,
`Senior Circuit Judges.
`
`Opinion for the Court filed by Senior Circuit Judge TATEL.
`
`
`
`TATEL, Senior Circuit Judge: In this digital age, when
`content creators choose to make their copyrighted materials––
`like books, movies, and music––available online, they employ
`computer code to block unauthorized access, copying, and use.
`To fortify the protection offered by that code, Congress enacted
`the Digital Millennium Copyright Act, which makes it
`unlawful to bypass such technological measures. The question
`in this case, which comes to us at the preliminary injunction
`stage, is whether the statute is likely to violate the First
`Amendment rights of two individuals who write computer code
`designed to circumvent those measures. The district court
`answered no, and we agree.
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 3 of 13
`
`3
`
`I.
`
`In the 1990s, a growing number of digital tools facilitated
`“massive piracy” by increasing “the ease with which digital
`works [could] be copied and distributed worldwide virtually
`instantaneously.” S. Rep. No. 105-190, at 8 (1996). Congress
`feared that “copyright owners [would] hesitate to make their
`works readily available on the Internet without reasonable
`assurances that they [would] be protected.” Id. In order to
`provide that protection and adapt copyright law to the digital
`age, Congress enacted the Digital Millennium Copyright Act
`(DMCA), 17 U.S.C. §§ 1201 et seq., which “backed with legal
`sanctions the efforts of copyright owners to protect their works
`from piracy behind digital walls such as encryption codes or
`password protections.” Universal City Studios, Inc. v. Corley,
`273 F.3d 429, 435 (2d Cir. 2001).
`
`The DMCA accomplishes its goal through two principal
`provisions. First, the statute’s anticircumvention provision
`prohibits “circumvent[ing] a technological measure that
`effectively controls access to a [copyrighted work].” 17 U.S.C.
`§ 1201(a)(1)(A). A “technological measure,” also called a
`“technological protection measure,” effectively controls access
`to a work if it, “in the ordinary course of its operation, requires
`the application of information, or a process or a treatment, with
`the authority of the copyright owner, to gain access to the
`work.” Id. § 1201(a)(3)(B). For example, Netflix requires a
`password to access its digital movie catalog, and electronic
`books contain code that prevents readers from copying the
`book into another format. Circumvention occurs when
`someone descrambles a scrambled work, decrypts an encrypted
`work, or otherwise avoids, bypasses, removes, deactivates, or
`impairs a technological measure, without authority from the
`copyright owner. Id. § 1201(a)(3)(A). The statute’s second
`principal provision––the antitrafficking provision––works
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 4 of 13
`
`4
`
`together with the anticircumvention provision to target the
`technological tools that facilitate circumvention. It prohibits
`“manufacturing, importing, offering to the public, providing,
`or otherwise trafficking in any technology, product, service,
`device, component, or part thereof” if it (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;” or (3) “is
`marketed . . . for use in circumventing.” Id. §§ 1201(a)(2)(A)–
`(C)
`(cleaned up). Those who violate
`either
`the
`anticircumvention or antitrafficking provision are subject to
`civil actions and criminal sanctions. Id. § 1203(a).
`
`In order to ensure that the DMCA does not interfere with
`the fair use of copyrighted digital content, Congress included a
`“‘fail-safe’ mechanism.” H.R. Rep. No. 105-551 (Part 2), at 36
`(1998). Every three years “the Librarian of Congress, upon the
`recommendation of the Register of Copyrights,” determines in
`a rulemaking proceeding “whether persons who are users of a
`copyrighted work are, or are likely to be in the succeeding 3-
`year period, adversely affected by [the anticircumvention
`provision].” 17 U.S.C. § 1201(a)(1)(C). If so, the statute
`instructs the Librarian to grant an exemption for such uses for
`a three-year period. Id. § 1201(a)(1)(D).
`
`The Register also monitors “changes to the copyright
`system spurred by digital technologies” and their impact on the
`DMCA. U.S. Copyright Office, Section 1201 of Title 17 i
`(2017). In 2017, in order to address “deep and widespread
`debate among copyright stakeholders” regarding the continued
`value of the statute, the Register conducted a “comprehensive
`public study on the operation of section 1201.” Id. at ii–iii.
`Emphasizing that “digital [content] marketplace[s] . . . succeed
`only if copyright owners have the legal right to prohibit persons
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 5 of 13
`
`5
`
`from evading electronic paywalls or other technical measures,”
`the Register declined to recommend “broad changes” to the
`DMCA. Id. at 44, 152. “[T]he statute’s overall structure and
`scope,” it concluded, “remain sound.” Id. at iii.
`
`Plaintiff Matthew Green, a security researcher and
`computer science professor at Johns Hopkins University, wants
`to publish an academic book “to instruct readers in the methods
`of security research,” which will include “examples of code
`capable of bypassing security measures.” Green Decl. ¶ 20. He
`is concerned that including “instructions in both English and in
`software code” for “circumvent[ing] technological protection
`measures” would likely violate the DMCA. Id. ¶¶ 20–21.
`Plaintiff Andrew “bunnie” Huang, an inventor and electrical
`engineer, wants to create and sell a device called “NeTVCR.”
`Huang Decl. ¶ 12. His device contains computer code capable
`of circumventing High-Bandwidth Digital Content Protection,
`a technological protection measure that prevents digital content
`from being copied or played on unauthorized devices. Id. ¶¶ 4–
`6, 12. He also intends to publish that computer code to
`“communicate to others how the technology works and
`encourage them to discuss edits to improve the code.” Id. ¶ 16.
`Huang fears that distribution of the code contained in his
`NeTVCR device “could [risk] prosecut[ion] under Section
`1201(a)(1) or (a)(2).” Id. ¶ 11.
`
`Claiming that the code they write qualifies as speech
`protected by the First Amendment, Green and Huang brought
`a pre-enforcement action challenging the DMCA on facial and
`as-applied First Amendment grounds. The government moved
`to dismiss all claims, and the district court partially granted the
`motion. Concluding that Green and Huang failed to allege
`“facts sufficient to state a claim that DMCA provisions are
`unconstitutionally overbroad because they ‘have failed to
`identify any significant difference’” between their facial and
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 6 of 13
`
`6
`
`as-applied challenges, the district court dismissed all but the as-
`applied First Amendment claims. Green v. DOJ, 392 F. Supp.
`3d 68, 88 (D.D.C. 2019) (quoting City Council Los Angeles v.
`Taxpayers for Vincent, 466 U.S. 789, 802 (1984)). Three
`months later, Green and Huang filed a preliminary injunction
`motion, seeking relief for their surviving as-applied claims as
`well as their dismissed facial claims. The district court
`summarily denied an injunction for the dismissed claims. As to
`Green’s as-applied challenge, the district court concluded that
`his planned publication was unlikely to implicate section
`1201(a) because the book would be designed, used, and
`marketed for educational purposes rather than for the purpose
`of circumvention. The district court then addressed Huang’s as-
`applied claim. Favorably citing the Second Circuit’s analysis
`in Universal City Studios, Inc. v. Corley––the only decision by
`a circuit court to have squarely addressed the constitutionality
`of the DMCA––the district court found that Huang was
`unlikely to succeed on his as-applied claim and denied him
`preliminary injunctive relief. Green and Huang now appeal the
`district court’s dismissal of their facial challenge and denial of
`injunctive relief.
`
`II.
`
`We start with two preliminary issues: subject-matter
`jurisdiction and standing.
`
`First, the government contends that Green and Huang’s
`
`facial challenge is not properly before us because the district
`court denied preliminary injunctive relief “based [only] on
`plaintiffs’ as-applied challenge.” Appellees’ Br. 29. There is no
`question that the usual route to appeal––28 U.S.C. § 1291,
`which gives this court jurisdiction of timely appealed “final
`decisions”––is unavailable here. The district court dismissed
`only Green and Huang’s facial challenge, “clear[ly] signal[ing]
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 7 of 13
`
`7
`
`that it intended [their as-applied claims] to continue.” Attias v.
`Carefirst, Inc., 865 F.3d 620, 625 (D.C. Cir. 2017). Because
`the district court’s order “le[ft] . . . more for the [district] court
`to do,” it was not final and could not yet be appealed. North
`American Butterfly Association v. Wolf, 977 F.3d 1244, 1253
`(D.C. Cir. 2020) (internal quotation marks omitted).
`
`Green and Huang nonetheless argue that we have
`jurisdiction because
`the district court’s dismissal was
`“inextricably bound to the subsequent preliminary injunction
`ruling.” Appellants’ Reply Br. 3. It is true that “[o]n
`interlocutory review of petitions for injunctive relief, this court
`may reach the merits of a claim inextricably bound up with the
`issues on appeal.” Arkansas Dairy Cooperative Association v.
`Department of Agriculture, 573 F.3d 815, 832 (D.C. Cir. 2009)
`(internal quotation marks omitted). We do so to determine
`“‘whether there is any insuperable objection, in point of
`jurisdiction or merits, to the maintenance of [the case], and if
`so, to direct a final decree dismissing it.’” Id. at 833 (quoting
`Munaf v. Geren, 553 U.S. 674, 691 (2008)). No such
`insuperable objection is present here. Plaintiffs need not
`succeed on their facial First Amendment challenge to succeed
`on their as-applied claims. See Hodge v. Talkin, 799 F.3d 1145,
`1156 (D.C. Cir. 2015). Declaring the DMCA facially
`unconstitutional would resolve Green and Huang’s as-applied
`claims, but not so in reverse, ensuring that their as-applied
`claims remain anything but inextricably bound to their facial
`challenge. We therefore lack jurisdiction over Green and
`Huang’s facial challenge.
`
`We next consider standing. A party seeking a preliminary
`injunction “must show a substantial likelihood of standing.”
`Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C.
`Cir. 2015) (internal quotation marks omitted). In pre-
`enforcement challenges, like this one, “a plaintiff satisfies the
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 8 of 13
`
`8
`
`injury-in-fact [standing] requirement where he alleges ‘an
`intention to engage in a course of conduct arguably affected
`with a constitutional interest, but proscribed by a statute, and
`there exists a credible threat of prosecution thereunder.’” Susan
`B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (quoting
`Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). Green
`seeks to publish an academic book “to instruct readers in the
`methods of security research, including . . . examples of code
`capable of bypassing security measures, for readers to learn
`from, as well as instructions written in English.” Green Decl.
`¶ 20. He plans to “offer [his] book for sale via typical
`distribution channels,” highlighting “the detailed information it
`contains about bypassing security measures,” and “to receive
`royalties on its sale.” Id. ¶¶ 24–25. Because Green intends to
`provide code able to circumvent technological protection
`measures, he believes the book would likely violate the
`antitrafficking provision. At oral argument, however,
`government counsel made quite clear that in its view, Green’s
`proposed course of conduct would not run afoul of the DMCA.
`Asked by the court whether “[i]t’s legal for Green to publish
`his book even if the book includes enough code to allow
`someone to piece together a circumvention technology,”
`counsel replied, “[t]hat is correct.” Oral Arg. Rec. 33.50–34.11.
`The government’s concession ends any “credible threat of
`prosecution” against Green, leaving him without standing to
`obtain a preliminary injunction. See Food & Water Watch, 808
`F.3d at 913 (“An inability to establish a substantial likelihood
`of standing requires denial of the motion for preliminary
`injunction.”). We shall therefore affirm the district court’s
`denial of a preliminary injunction for Green.
`
`III.
`
`Confident of our jurisdiction, we turn to the merits, asking
`whether Huang’s as-applied claim meets the requirements for
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 9 of 13
`
`9
`
`a preliminary injunction: that “he is likely to succeed on the
`merits, that he is likely to suffer irreparable harm in the absence
`of preliminary relief, that the balance of equities tips in his
`favor, and that an injunction is in the public interest.” Winter v.
`NRDC, 555 U.S. 7, 20 (2008). Given that this case presents
`only questions of law, our review is de novo. In re Navy
`Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (explaining
`that “[w]e review the district court’s legal conclusions de
`novo” in appeals from denials of preliminary injunctions).
`
`“In First Amendment cases, the likelihood of success will
`often be the determinative factor in the preliminary injunction
`analysis.” Pursuing America’s Greatness v. FEC, 831 F.3d
`500, 511 (D.C. Cir. 2016) (internal quotation marks omitted).
`To succeed on the merits, Huang must show that the DMCA is
`unconstitutional as applied to his alleged speech activity.
`Edwards v. District of Columbia, 755 F.3d 996, 1001 (D.C.
`Cir. 2014). We analyze as-applied First Amendment claims in
`three steps. First, we “decide whether [the activity at issue] is
`speech protected by the First Amendment.” Cornelius v.
`NAACP Legal Defense & Education Fund, Inc., 473 U.S. 788,
`797 (1985). Second, we determine whether the regulation at
`issue is content based or content neutral, i.e., “if it ‘applies to
`particular speech because of the topic discussed or the idea or
`message expressed.’” City of Austin v. Reagan National
`Advertising of Austin, LLC, 142 S. Ct. 1464, 1471 (2022)
`(quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
`This sets the level of scrutiny we apply at the third step: strict
`scrutiny for content-based statutes and intermediate scrutiny
`for content-neutral statutes. Turner Broadcasting System,
`Inc. v. FCC, 512 U.S. 622, 641–42 (1994).
`
`Step one gives us no trouble. Huang wants to sell his
`NeTVCR device. The device contains “code designed to
`circumvent certain access controls,” which Huang will also
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 10 of 13
`
`10
`
`publish so that those who own an earlier iteration of his device
`may upgrade it, and the public may edit and improve his code.
`Appellants’ Reply Br. 10; Oral Arg. Rec. 13.15–13.40.
`According to Huang, writing and communicating computer
`code capable of circumventing technological protection
`measures qualifies as First Amendment protected speech. But
`we have no need to address that question because the
`government never challenged that proposition in its brief, and
`at oral argument it conceded that “if you write code so
`somebody can read it,” it is “expressive” speech. Oral Arg.
`Rec. 48:32–48:55. All of our sister circuits to have addressed
`the issue agree. See, e.g., Corley, 273 F.3d at 448 (“Instructions
`that communicate information comprehensible to a human
`qualify as speech whether the instructions are designed for
`execution by a computer or a human (or both).”); Junger v.
`Daley, 209 F.3d 481, 485 (6th Cir. 2000) (holding that
`“[b]ecause computer source code is an expressive means for
`the exchange of information and ideas about computer
`programming,” it is protected by the First Amendment).
`
`We turn then to whether the DMCA “‘target[s] speech
`based on its communicative content’—that is, if it ‘applies to
`particular speech because of the topic discussed or the idea or
`message expressed.’” See City of Austin, 142 S. Ct. at 1471
`(quoting Reed, 576 U.S. at 163). It does not. The DMCA’s
`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. See 17 U.S.C. § 1201(a)(1)(A) (“No person shall
`circumvent a technological measure that effectively controls
`access to a [copyrighted work.]”); id. § 1201(a)(2) (“No person
`shall manufacture, import, offer to the public, provide, or
`otherwise
`traffic
`in any [circumvention
`technology or
`product].”). To be sure, the DMCA may incidentally make it
`more difficult to express things with computer code if that code
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 11 of 13
`
`11
`
`also facilitates circumvention, but that expressive activity is not
`the statute’s target. As the Second Circuit explained in Corley,
`the DMCA “is [not] concerned with whatever capacity [code]
`might have for conveying information to a human being.” 273
`F.3d at 454. Rather, it applies to code “solely because of its
`capacity to instruct a computer.” Id.
`
`The Supreme Court’s recent free speech case, City of
`Austin v. Reagan National Advertising of Austin, LLC, 142 S.
`Ct. 1464 (2022), is virtually dispositive. There, the Court
`rejected a First Amendment challenge to a city ordinance that
`distinguished between signs advertising products not located
`near the sign (prohibited) and signs advertising products
`located near the sign (permitted). Rejecting the idea that “a
`regulation cannot be content neutral if it requires reading the
`sign at issue,” the Court emphasized that the ordinance cared
`about the expressive message on a sign “only to the extent that
`it informs the sign’s relative location”; “[a] sign’s substantive
`message itself is irrelevant.” Id. at 1471–73.
`
`The same logic applies here. Although the DMCA requires
`reading computer code to determine what digital act the code
`carries out, it is nonetheless content neutral because, in the
`words of City of Austin, it cares about the expressive message
`in the code “only to the extent that it informs” the code’s
`function. Id. at 1473. The code’s “substantive message itself is
`irrelevant.” Id. at 1472. Indeed, this case is easier than City of
`Austin because the sign ordinance regulated speech as speech,
`whereas the DMCA looks only to the code’s function, not its
`expressive content. See Reed, 576 U.S. at 164 (quoting Ward v.
`Rock Against Racism, 491 U.S. 781, 791 (1989)) (explaining
`that content-neutral laws can be “‘justified without reference to
`the content of the regulated speech’”). Accordingly, the DMCA
`is content neutral and subject to intermediate scrutiny, a test it
`easily survives.
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 12 of 13
`
`12
`
`Under intermediate scrutiny, we will sustain a content-
`
`neutral statute if “it furthers an important or substantial
`governmental interest; if the governmental interest is unrelated
`to the suppression of free expression; and if the incidental
`restriction on alleged First Amendment freedoms is no greater
`than is essential to the furtherance of that interest.” Turner, 512
`U.S. at 662 (internal quotation marks omitted). Congress
`enacted the DMCA to combat fears of “massive piracy” in the
`digital environment. S. Rep. No. 105-190, at 8. It intended that
`section 1201(a) would “create[] the legal platform for
`launching
`the global digital on-line marketplace
`for
`copyrighted works,” so that content owners would be willing
`to “make available via
`the Internet . . . movies, music,
`software, and literary works.” Id. at 2. In its 2017 study of
`section 1201, the Register of Copyrights found that the DMCA
`continues to serve the “essential” purpose of protecting “the
`right of copyright owners to exercise meaningful control over
`the terms of access to their works online,” and declined to
`“recommend broad changes to the statute’s overall scope.”
`U.S. Copyright Office, Section 1201 of Title 17 42–43, 152
`(2017). The government’s evidence makes clear that “without
`adequate protection against infringing serial copying,” content
`owners “would not disseminate their valuable copyrighted
`[digital] content.” Traw Decl. ¶ 3. Huang’s NeTVCR device
`would, by design, “permit virtually anything displayable on a
`modern television screen to be recorded in the clear and made
`available online” by making obsolete the technological
`protection measure it targets. U.S. Copyright Office, Section
`1201 Rulemaking: Seventh Triennial Proceeding to Determine
`Exemptions to the Prohibition on Circumvention 143 (2018).
`This would “eviscerate virtually every single video content
`delivery protection system exposing valuable copyrighted
`video content to massive infringement,” Balogh Decl. ¶ 5,
`gutting the government’s substantial interest in ensuring the
`broadest distribution of copyrighted materials. Huang, who
`
`
`
`

`

`USCA Case #21-5195 Document #1976425 Filed: 12/06/2022 Page 13 of 13
`
`13
`
`spends most of his brief addressing strict scrutiny, offers no
`meaningful response and is thus unlikely to succeed on the
`merits.
`
`We have little left to say because “[i]n first Amendment
`cases, the likelihood of success will often be the determinative
`factor in the preliminary injunction analysis.” Pursuing
`America’s Greatness, 831 F.3d at 511 (internal quotation
`marks omitted). That is especially true here, given that Huang’s
`arguments on the remaining preliminary injunction factors rest
`entirely on his flawed claim that continued enforcement of the
`DMCA imperils his First Amendment rights.
`
`For the foregoing reasons, we affirm the district court’s
`denial of Green and Huang’s motion for a preliminary
`injunction and remand for further proceedings consistent with
`this opinion.
`
`So ordered.
`
`
`
`