From today's D.C. Circuit decision in Green v. U.S. Dep't of Justice, written by Judge David Tatel and joined by Judges Judith Rogers and Justin Walker:
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….
[T]he Digital Millennium Copyright Act (DMCA) … "back[s] with legal sanctions the efforts of copyright owners to protect their works from piracy behind digital walls such as encryption codes or password protections." … First, the statute's anticircumvention provision prohibits "circumvent[ing] a technological measure that effectively controls access to a [copyrighted work]." 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." 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.
The statute's second principal provision—the antitrafficking provision—works 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." Those who violate either the anticircumvention or antitrafficking provision are subject to civil actions and criminal sanctions….
