Conduct, Not Speech: The D.C. Circuit Upholds DMCA § 1201 in Green v. DOJ

A cryptographer and a hardware hacker argued that the DMCA's anti-circumvention rules censor lawful research and tinkering; the D.C. Circuit held that § 1201 regulates conduct and survives the First Amendment.

In Green v. United States Department of Justice, No. 23-5159 (D.C. Cir. Aug. 2, 2024), the U.S. Court of Appeals for the District of Columbia Circuit rejected a facial First Amendment challenge to Section 1201 of the Digital Millennium Copyright Act — the law that makes it unlawful to break the digital locks on copyrighted works and to traffic in the tools that do so. Writing for a unanimous panel (Judges Henderson, Millett, and Pillard), Judge Pillard held that the anti-circumvention and anti-trafficking provisions, 17 U.S.C. § 1201(a), regulate conduct rather than expression, and affirmed the district court’s dismissal of the constitutional claims. The decision capped litigation that the Electronic Frontier Foundation had pursued since 2016 on behalf of a prominent computer-security researcher and a celebrated hardware inventor.

At a glance

Court and date: U.S. Court of Appeals for the D.C. Circuit; decided August 2, 2024; docket No. 23-5159 (on appeal from the U.S. District Court for the District of Columbia).
Panel: Judges Henderson, Millett, and Pillard; opinion by Judge Pillard.
Holding: Section 1201(a)‘s anti-circumvention and anti-trafficking provisions regulate conduct — the act of breaking technological locks — not speech, and are not facially overbroad under the First Amendment.
Triennial exemptions: The Librarian of Congress’s authority to grant temporary exemptions through the triennial rulemaking is not an unconstitutional speech-licensing scheme or prior restraint.
Disposition: Affirmed.

The plaintiffs and what they wanted to do

The case was built around two technologists with very different projects, both blocked or chilled by § 1201. Dr. Matthew Green, a cryptographer at Johns Hopkins University, studies the security of real-world systems — communications platforms, financial-transaction devices, and networked medical hardware. To probe those systems for vulnerabilities, a researcher often must circumvent the technological measures that protect the underlying software, which can run headlong into § 1201(a)(1)‘s ban on circumvention. Green also wanted to publish a book describing his findings, raising the specter of the anti-trafficking provision.

Dr. Andrew “bunnie” Huang, an inventor, and his company Alphamax LLC, designed a device — later described in the litigation as the NeTVCR — to capture and manipulate digital high-definition video streams. Because mainstream video is wrapped in access controls such as HDCP, building and distributing a device that processes those streams implicates § 1201(a)(2)‘s prohibition on trafficking in circumvention technology.

The plaintiffs’ core constitutional theory was that fair use of copyrighted works is itself protected expression, and that by criminalizing circumvention even when undertaken to make a lawful fair use, § 1201 suppresses speech. They challenged the provisions facially as overbroad and attacked the triennial exemption process as a licensing regime that gives the government discretionary control over who may engage in expressive circumvention.

Conduct versus speech: the heart of the ruling

The D.C. Circuit’s analysis turned on a familiar but decisive line: the difference between regulating expression and regulating the conduct that may precede or accompany it. Circumvention, the court explained, is the act of defeating a technological lock; trafficking is the act of supplying the tools to do so. Neither, the court held, has any “necessary or ordinary function as a facilitator of speech.” Breaking a lock does not, in itself, communicate a particularized message; it is behavior that the government may regulate without triggering the strict scrutiny reserved for content-based speech restrictions.

Because § 1201(a) regulates conduct, the court applied the framework governing laws that incidentally burden expression rather than the demanding standard for direct speech restrictions. Under that framework, a facial overbreadth challenge fails unless a statute’s unconstitutional applications are substantial relative to its plainly legitimate sweep. The panel found § 1201’s legitimate sweep “extensive”: the provisions apply across a vast range of non-expressive contexts — preventing digital piracy, protecting device security, and governing repair and interoperability — that have nothing to do with suppressing speech. Even if some hypothetical fair-use circumventions might raise closer questions, the court reasoned, those applications survive intermediate scrutiny because would-be users retain alternative channels, including licensing the content, using screen capture, or re-creating material independently. The handful of arguably problematic applications could not render the statute substantially overbroad.

The as-applied claims and the triennial exemption

The facial holding did the heavy lifting, but the procedural backdrop shaped the case. Green had voluntarily dismissed his as-applied challenge after obtaining a 2018 triennial exemption covering good-faith security research, and the court noted that his planned book would not violate the anti-trafficking provision because it fell outside the statutory definition of a prohibited circumvention “product.” Huang’s as-applied theory had already been rejected at the preliminary-injunction stage and on the earlier 2022 appeal, where the court observed that his proposed device would defeat essentially every commercial video-protection system and that the anti-circumvention provision easily survived intermediate scrutiny as applied to that conduct.

The plaintiffs’ attack on the triennial rulemaking — the process by which the Librarian of Congress, on the recommendation of the Register of Copyrights, grants temporary exemptions every three years — fared no better. The plaintiffs characterized that process as a prior restraint: a scheme requiring government permission before one may engage in expressive activity. The D.C. Circuit disagreed. The rulemaking does not “directly regulate speech” and lacks a sufficient nexus to expression to qualify as a licensing scheme for First Amendment purposes. Section 1201(a), the court stressed, applies equally to would-be speakers, repair technicians, and outright pirates; an exemption regime that modulates a conduct rule is not the kind of pre-approval requirement that the prior-restraint doctrine forbids.

Open questions

What about a genuine fair-use-only circumvention? The court resolved a facial challenge and left open how a narrowly framed as-applied claim — by a litigant whose sole purpose is a clear fair use — might fare.
Does the triennial process adequately protect lawful uses? The opinion treats the rulemaking as a safety valve, but critics argue the three-year cycle and burden of proof leave researchers and tinkerers exposed between proceedings.
How does this interact with right to repair? The court repeatedly cited repair as a legitimate, non-expressive application of § 1201, even as repair advocates contend the same provisions obstruct lawful fixing of devices people own.

Implications

For security researchers: The triennial exemption — not the First Amendment — remains the primary path to lawful circumvention for good-faith research, making participation in the rulemaking strategically important.
For toolmakers and device designers: The anti-trafficking provision retains broad force; building circumvention-capable hardware or software carries real risk regardless of intended lawful uses.
For the right-to-repair movement: The decision channels reform toward Congress and the Copyright Office rather than the courts, reinforcing the centrality of the triennial process.
For First Amendment litigants: Framing circumvention as protected expression faces a steep climb; courts are inclined to treat it as conduct subject to ordinary regulation.

Frequently asked questions

Did the court strike down any part of the DMCA? No. The D.C. Circuit affirmed the dismissal of the facial First Amendment challenge, leaving § 1201’s anti-circumvention and anti-trafficking provisions fully intact.

Why didn’t the fair-use argument win? The court treated circumvention as conduct rather than speech, so the statute was measured against the standard for laws that incidentally burden expression. It concluded that § 1201’s legitimate applications vastly outweigh any potentially problematic ones, defeating the facial overbreadth claim, and that alternative channels remain available for those seeking to make fair uses.

What is the triennial exemption process, and did it survive? Every three years the Librarian of Congress, advised by the Register of Copyrights, may grant temporary exemptions allowing circumvention for specified purposes such as security research, education, or repair. The court held this process is not an unconstitutional licensing scheme or prior restraint because it regulates conduct and lacks a direct nexus to speech.