DMCA’s Section 1201 ‘Plausibly Violates’ First Amendment, D.C. Circuit Is Told

The Digital Millennium Copyright Act was supposed to deter unauthorized uses of copyrighted movies and music, but 25 years after its enactment, the statute’s Section 1201's reach is “virtually limitless,” said the reply brief Friday (docket 23-5159) in the U.S. Appeals Court for the D.C. Circuit of three plaintiff-appellants challenging the government on Section 1201's anti-trafficking and anti-circumvention provisions (see 2311300055).

Section 1201 “presents researchers, creators, filmmakers, artists, disabled people, and ordinary tinkerers with a Hobson’s choice,” said the brief. They can avoid “whole swathes of expressive activity,” or they can “march to the Library of Congress every three years for permission to engage in that expression,” it said.

A law that interferes with such a broad range of expression, and directly bans acts of reading and communication, “plausibly violates the First Amendment,” said the brief. It has survived First Amendment review only “because early courts that considered the statute’s constitutionality did so based on a limited record,” it said. They also did so with “inadequate guidance” from the U.S. Supreme Court, “and without occasion to directly consider the triennial process” by which the librarian of Congress grants exemptions to favored speakers, it said.

The plaintiffs have plausibly alleged that Section 1201 “burdens a broad array of expressive activity,” said the brief. To the extent that the D.C. Circuit believes the complaint falls short, “leave to amend must be granted unless any deficiencies cannot be cured by amendment,” it said.

The government has made “little attempt to engage” with the plaintiffs’ actual allegations and arguments, said the brief. It has relied instead on “conclusory assertions” and “gross misreadings” of the law, it said. It also has used “a tired cliche about a burglar breaking into a bookstore,” it said. The question isn’t whether Congress “may prohibit citizens from breaking a lock on a bookstore, but whether Congress may prohibit citizens from reading their own books in a way not intended by the books’ publishers,” it said. Congress also can’t empower “an unaccountable official to pick and choose what types of readers will be subject to that prohibition,” it said.