FSF, ITIF Hail D.C. Circuit for Defending Sec. 1201's Constitutionality

The Free State Foundation and the Information Technology and Innovation Foundation applauded Tuesday's unanimous decision by the U.S. Court of Appeals for the D.C. Circuit in Green v. U.S. for upholding the constitutionality of the anticircumvention provisions in Section 1201 of the Digital Millennium Copyright Act. The two plaintiffs in Green wanted to publish works or create and sell devices intended to bypass security measures for accessing copyrighted works. They raised pre-enforcement First Amendment challenges to Section 1201, claiming the law is a facially overbroad restriction on protected speech and its application would unconstitutionally restrict their rights to engage in their projects relating to the bypassing of "technological protection measures.” The question before the court was whether the DMCA “is likely to violate the First Amendment rights of two individuals who write computer code designed to circumvent those measures,” said the D.C. Circuit opinion (docket 21-5195). “The district court answered no, and we agree.” The D.C. Circuit “was absolutely right to reject the flimsy First Amendment claims raised in Green,” Seth Cooper, FSF director-policy studies and senior fellow, blogged Wednesday. Constitutionally protected free speech “is an indispensable part of American freedom,” but those bedrock rights “were nowhere jeopardized by Section 1201,” he said: “The case was not a close call.” The decision was “an important vindication of copyright owners' right to exercise control over who can access their valuable creative content,” said Cooper. The ITIF agrees the court “reached the right decision” because the public “does not have a right to circumvent subscription-based platforms to gain unfettered access to creators’ works free of charge,” said Senior Analyst Jaci McDole Tuesday. The Constitution “provides creators intellectual property rights for a reason,” she said. “Creators’ livelihoods depend on controlling how their works are distributed and sold. It’s welcome news that the court upheld those constitutional rights in the Green case.”