In response to concerns about piracy and ownership in the digital era, Congress created a new class of right—a right to control access to copyrighted works, even legitimately acquired copies of such works. It also prohibited trafficking in technology that can circumvent technological measure that protect these works. These new rights alone would have made fair uses of digital materials nearly impossible, so Congress added exceptions for certain favored uses and users, such as law enforcement. It also provided a process by which the public can petition for three-year exemptions to liability under Section 1201 for circumvention. As a whole, Section 1201 blocks access to information—a prerequisite for speech—and its exceptions, far from resolving the First Amendment issues, are impermissible content-based distinctions.
The district court framed Section 1201 as a restriction on conduct with an incidental effect on speech. However, accessing information is a speech activity under Supreme Court precedent such as Sorrell v. IMS Health, where the court struck down a law prohibiting pharmacies from using prescriber-identifying information. And lower courts examining “ag-gag laws” (laws that limit access to and recording of agricultural facilities) have similarly found information gathering to be speech activity. In the same way, accessing information in copyrighted works that have been lawfully acquired, is speech, not conduct.
Further, when laws include exceptions based on the content of speech prohibited, such laws are subject to strict scrutiny as impermissible content discrimination. For example, Regan v. Time struck down a law that prohibited reproductions of currency but had exceptions for historical and newsworthy purposes. Similarly, Section 1201 has permanent exceptions that favor certain types of uses, such as law enforcement. And the Office through the triennial review process has engaged in content discrimination in the exemptions it grants, for example favoring circumventing videos for non-fiction uses but forbidding it in fictional uses. This content-based restriction of speech should be subject to strict scrutiny under the First Amendment.