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Phase number 21-5195, Matthew D. Green et al at balance versus United States Department of Justice et al.

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Ms.

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McSherry for the balance, Mr. Denny for the FLEs.

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Good morning, Ms.

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McSherry.

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I've advised the timekeeper that I'd like to save two minutes.

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May it please the court for a missionary for the appellants, Dr. Green and Dr. Huang.

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However well-intentioned, Section 1201 of the DMCA has burdened expressive activities from the beginning, and Congress knew it would.

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which is why it tried to fix that problem by building in a variety of statutory exemptions and hunting to the Library of Congress to take care of the rest.

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But that attempt to solve one First Amendment problem only created others and reinforces Section 1201's fatal flaws.

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Let me unpack.

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First, Section 1201 directly burdens core expressive activities

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like accessing and sharing information, publishing books, making films, understanding and teaching about code, engaging and sharing security research that protects all of us, and many other uses.

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Those burdens are content based on the face of the statute.

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It says some people... I'm sorry to interrupt you, but you talked about the face of the statute.

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Could you first start by responding to the government's argument that the only thing properly before us is the as applied challenge?

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I'm sorry.

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The as-applied challenge.

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We don't have jurisdiction to hear your facial challenge.

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That's incorrect, Your Honor.

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And the reason why is because the facial challenge and the court's ruling on that challenge is inextricably linked with its decision on the preliminary junction.

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But the government's point is they're not.

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One doesn't decide the other.

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They're independent.

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The facial challenge resolution doesn't resolve the... The facial challenge could resolve the as-applied, but the opposite's not true.

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I think the way the court should look at this.

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Is that right?

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What I just said, right or wrong?

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That's incorrect.

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So all of these challenges are before the court and the court should start with the facial challenge.

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Why are they inextricably wound up?

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The court's ruling on the

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I might back up.

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I think it helps a little bit to understand the procedural posture here.

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When we first brought our case five years ago, we moved for a preliminary injunction motion at the same time as the government moved to dismiss.

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The district court decided it did not want to reach our preliminary injunction motion until it resolved motion to discuss.

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Three years later, we got that ruling.

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I don't mean to, I am interrupting you, but it's because we know.

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I just wanted to explain why we're in this somewhat unusual posture that we're in.

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It was not necessarily our choice.

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But nonetheless, when we brought our second preliminary injunction motion, we brought it on all of the claims, including the previous ones.

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The court then denied that motion.

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But it denied the preliminary injunction motion for the dismissed claims for the simple reason that those claims had already been dismissed.

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deny that motion by referring back to it.

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And also in its court order, it refers to... Can I, let me take another shot at Judge Dale's original question.

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Let's say we find that you don't have jurisdiction, or we don't have jurisdiction on the claims that were dismissed.

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And we deny your preliminary injunction for the as applied claims.

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This goes back to the district court.

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Eventually there's a final judgment.

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You appeal.

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final judgment.

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And on that appeal to our court again, are you going to tell us that the claims on appeal, which were originally dismissed, are claims that you cannot win on because they are inextricably bound up with the claims you lost on the preliminary injunction decision?

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I think that we would be appealing both

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You're not going to make that argument, correct?

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You're going to say that you can still win on appeal of the dismissed claims after final judgment, even if you lost today on the preliminary injunction as applied.

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That is correct, Your Honor.

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That seems to answer the question of whether they are inextricably bound up.

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Well, I don't think that completely answers the question.

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And I would point out another basis for your court to review the facial challenge, which is that in First Amendment cases, the court has a special obligation to review the whole record and consider the whole record to ensure that there has not been a First Amendment injury.

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And I would submit to you that my clients are suffering ongoing First Amendment injury right now, having waited for five years to even be here.

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and able to get injective relief.

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We have ongoing injury happening, not just with respect to my client, with respect to all of the third parties who are not before the court right now.

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I'm going to shift topics unless Judge Taylor or Judge Rogers has a jurisdiction question.

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Let me give you a hypothetical.

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Let's say that I am able to develop a code that allows me

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to break into ATMs and get as much money from those ATMs as I want.

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Now, let's say I want to traffic in that code.

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I want to sell it or even just give it away.

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And I make this argument.

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There will be some times when the code is used

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by a person who has money in the bank and will only take out as much money as the person has in that bank.

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Sort of the fair use analogy.

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But of course, we all know there will be plenty of times when someone uses that code to take money from the ATM that is not the amount of money that person has in the bank.

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Do you think I would have a First Amendment right to traffic, to sell, to share that code?

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I think that if you wanted to engage in that activity, it would have to, if you wanted to share the code for purposes of educating others, then I think what you would have to do is you would apply first amendment scrutiny to that activity.

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Now it may be, we'll see what the results of that scrutiny was, but it would still be because code is, I think I understand your answer is that I said, would you have a first amendment right to sell that code?

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And your answer is maybe.

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My answer, well, my answer is you would have a First Amendment right to appeal, ask for first-minute scrutiny as to whether that activity was OK.

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I'm asking would you win in your First Amendment claim?

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And I think your answer is maybe.

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You don't have to answer.

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You don't have to say yes or no.

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It may be that the correct answer is maybe.

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I'm just wondering.

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I'm trying to avoid fighting the hypo, but I think really what you would be doing if you were sharing the code is you would be sharing instructions for how to do something.

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And that is activity that's infected with

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expressive purpose and therefore covered by the First Amendment.

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Maybe you would have a successful First Amendment.

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I think it might be a challenge as applied, but that's certainly not the situation that we have here with the DMCA because it reaches far, far beyond that.

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Let me ask one more question then I maybe I can get out of my colleague's way here.

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Based on the complaint, how much of the code did Dr. Green lead that he wants to include in the book?

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Some of it or all of it?

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What Dr. Green would like to do would be to include snippets of code.

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Just snippets.

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Just what?

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He would like to include sections of code enough to show how he circumvented.

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Would someone with that amount of code be able to use it effectively to access copyrighted materials?

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someone would be able to use that code to replicate its research.

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And so, potentially, yes.

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I mean, that is part of what you have to do to circumvent.

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So, what difference does it make if it's only part?

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Your whole point is he's going to release, he's going to deliver enough book, enough code for people to avoid copyright restrictions, right?

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In other words, if I picked up his book, I could use his code to download an e-book and not pay for it, right?

[00:08:45] Speaker 05:
Not necessarily, Your Honor.

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He does need to release enough for others to be able to replicate his work.

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So he would need to release enough so that they too could circumvent whether... Just answer my question about the e-book.

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Is there enough code in there for me to download a copyrighted e-book?

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I think if you were technically sophisticated and able to implement that code in a way that most people are not, possibly, but the idea that his audience is going to be other researchers

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and the public, not for purposes of engaging in any kind of infringing activity, but to actually share information that will help people be more secure.

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He can do that under the existing exemption he has.

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The only reason, maybe I'm wrong about this, but he has this exemption.

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He can do that.

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He's got this quote, temporary exemption.

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So he can do all that with his code.

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He can use it for research.

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What he can't do, or at least what he thinks the statute prohibits him from doing, is violate the anti-trafficking provision, right?

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That's what this is about from his point of view.

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In other words, if there's a potential violation of the statute for him, it's not of the anti-circumvention provision, because he has an exemption.

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It's the anti-trafficking provision, right?

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It is certainly primarily the anti-trafficking exemption.

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I would have... Why do you say primarily?

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In addition, so Dr. Greene is covered by a temporary exemption.

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But starting next fall, he and many, many other people are going to have to go back to the Library of Congress once again for permission to speak.

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But that's not before us now.

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Who knows what's going to happen?

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He claims now that the statute, the anti-trafficking provision, violates its First Amendment rights.

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And that's the question before us, right?

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with the code in his book.

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It's a sufficient amount of code for people to actually circumvent the copyright restrictions, right?

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That's what this is all about, isn't it?

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That's most of us about with respect to Dr. Green, if you choose not to reach the facial challenge.

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Yeah, let's assume we're not, exactly.

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Well, I didn't say exactly that that's right.

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I said, yes, my question is based on the as applied challenge, okay?

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And so, and Mr. Wong, your brief lists all kinds of different activities that people won't be able to undertake with this net VCR device, right?

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But these are all examples of other people's speech that could be facilitated from his point of view.

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What he's prohibited from doing is using this code he's got, this DCR thing.

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He can't sell that.

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That's what he says he can't do, right?

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And that's really, that's your First Amendment claim, isn't it?

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You can't make a First Amendment argument on behalf of people who aren't here.

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The question is, is his First Amendment right restricted?

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And your argument is, yes, he can't sell his, what do you call this thing?

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Something VCR, what is it called?

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It's the... The Net VCR.

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Isn't that what your case is about?

[00:12:25] Speaker 05:
No, Your Honor.

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So Dr. Wang, first of all, is burdened under A1 as well as A2, so not just trafficking, but his ability to access

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code for his own personal use.

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He wants to engage in digital analysis for his own personal use.

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Well, he could apply for an exemption.

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He could apply for a temporary exemption.

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He did apply for an exemption and it was refused, which is why he in particular raises questions about the speech licensing regime that Congress put in place in the form of the Library of Congress rulemaking.

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He tried to use that process.

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He went through all the burdens that process involves and he was denied.

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So he is concerned about that process as well, not just the traffic.

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And I would point out that the device that he wants to share, he wants to do two things.

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One is he would like to share code so that people who already have the net TV

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can upgrade there to a net TVCR.

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And also because he wants to share the code in such a way that others can edit, comment, redo it, make it better, make it more effective.

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So he wants to share code as well as marketing advice.

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But again, he has also burdened himself in engaging his own expressive activities and also in having received a pretty peremptory denial for his request from an exemption.

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The Library of Congress said,

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There aren't enough of you to be worried about this particular use, and therefore we're not going to give you an exemption, which is fine example of how

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the Library of Congress exercises pretty unbridled discretion with respect to what kinds of exemptions is going to, what kinds of exemptions it's not, which again is content-based in the statute.

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You can see it.

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It's written in there.

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The Library of Congress must favor some purposes over other purposes, some uses over other uses.

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And in practice, that's exactly what it does.

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You can make a documentary film, but you can't make a Western.

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or many kinds of narrative films.

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That's what happens.

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You can engage in some kinds of protective activities, some kinds of educational uses if you are teaching in K-12.

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So different rules apply to K-12 than apply to university professors.

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The history of the rulemaking, which is in the record, is riddled with these kinds of exemptions that are, in many cases, incomprehensible to the people who are trying to take advantage of them.

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They have to figure out how to comply.

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Do you think that the court's case from last, the Supreme Court's case from last term about the billboards, I think it was in Texas, the case I'm talking about.

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I'm sorry, I don't remember the name of it.

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The city of Austin billboards case.

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Do you think that the court is beginning to give lower courts guidance along the following lines?

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Content-based versus not content-based, intermediate scrutiny versus strict scrutiny, these are distinctions that confuse more than they clarify.

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The proper inquiry is a look into history,

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addition, perhaps analogies, uh, in order to find out, is this the type of speech that has historically been protected or was protected the time of the framing or the 14th amendment or, or not?

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Do you think that's the guidance that they're giving us?

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Or would I be reading way too much into city law?

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I think that what the court has been doing over the past decade, I might begin with throughout.

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I think what the court is trying to do is give guidance as to what you should look at when you're looking at a statute, and it should not just be the motive of the government, but whether certain kinds of speech are being called out, because the roots of the First Amendment

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is a care to ensure that we don't have a position where the government is favoring certain kinds of speech over others or certain kinds of speakers over others.

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So a caricature of Reed, which I'm not endorsing, but it would be, is it content-based or not content-based?

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Ah, in Reed, it's content-based.

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Therefore, we turn on the switch for strict scrutiny and the government loses.

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And City of Austin seems to cut back on having that much hinge on whether it's content-based.

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I don't think that's how I would interpret what the court is suggesting there.

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I think what the court is asking in City of Austin is, is this the kind of intervention, and is this the kind of rule that we should be worried about particularly?

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And trying to inform that.

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And I would suggest in this case, it's exactly what we have here.

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And two decades shows it.

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We have a government official exercising extraordinary discretion.

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Based on very unclear standards, they get to just consider adverse effects and such other factors as they might want to pay attention to.

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And it's very unclear.

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It changes every three years.

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The rules change every three years.

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And attorneys, student attorneys, and people all over the country then have to go to the office and go through a mini, basically a mini motion.

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And with briefing and defense and witness testimony and all of these things, and then wait for years.

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to find out if they get an exemption or not.

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That's what Dr. Wang had to do.

[00:18:00] Speaker 02:
Let me just focus on, I want to follow up on Dr. Walker's question about the City of Austin case.

[00:18:09] Speaker 02:
Okay, so if I'm looking at just Juan and just the anti-trafficking.

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So his device or his code, as I understand it,

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which he wants to sell will enable purchasers to circumvent copyright protection, right?

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To set aside the research, I understand your point about that and all the standards and that he wants to research, but just this part of the case.

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That is, he wants his code, he wants to sell a code that will enable people to circumvent the copyright, right?

[00:18:52] Speaker 05:
For non-infringing purposes, correct.

[00:18:55] Speaker 02:
Wait a minute.

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For non-infringing purposes, if I buy his code, am I going to be able to download an ebook for free?

[00:19:06] Speaker 05:
Not necessarily.

[00:19:07] Speaker 05:
What we would be able to do is be able to take your ebook that you already have and actually fully investigate the software in it and potentially improve on that software.

[00:19:18] Speaker 02:
So you're telling me then that his device

[00:19:22] Speaker 02:
So suppose I download a library book, okay?

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And let's assume that the library book is good for 21 days.

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Would I be able to circumvent that with his device, with his code?

[00:19:40] Speaker 05:
It would depend on the digital rights management that happens to be on the book.

[00:19:45] Speaker 05:
Potentially.

[00:19:47] Speaker 05:
But sometimes yes.

[00:19:50] Speaker 02:
I'm not a technologist.

[00:19:51] Speaker 02:
So we agree that this code, you're agreeing with me that this code can be used to circumvent a copyrighted vision, a copyrighted document or book, right?

[00:20:08] Speaker 02:
So, and let's assume, I assume for a minute, I agree with you that go to speech, because I don't think the government's disagreeing with you.

[00:20:17] Speaker 02:
As I read the briefs, it's all about whether it's content.

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It's not speech.

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So let's assume it is speech.

[00:20:25] Speaker 02:
Why isn't it completely controlled by the case Judge Walker mentioned, Austin, the city of Austin, because yes, you have to look at the code to see what it does, just as you had to read the sign in city of Austin.

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But it was a totally functional.

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All it did was it was completely functional.

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It was totally functional.

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That's all it didn't.

[00:20:46] Speaker 02:
I'm just looking for the language here.

[00:20:57] Speaker 02:
Yeah, see, ultimately, the distinction it made was not based on content, but on location.

[00:21:04] Speaker 02:
That was all.

[00:21:04] Speaker 02:
Just like here,

[00:21:06] Speaker 02:
It's not based on content, it's based on function, the ability to circumvent copyright.

[00:21:13] Speaker 02:
The cases seem identical.

[00:21:16] Speaker 05:
The distinction, Your Honor, is that what, with respect to whether it's content-based or not, we haven't reached intermediate scrutiny yet, but with respect to whether it's content-based or not, the difference here is that the code at issue here that he would like to provide directly and the regulation against it directly targets expressive activities, necessary predicates to speech.

[00:21:39] Speaker 05:
Whose expressive activity?

[00:21:41] Speaker 05:
Well, his own, for one thing, and other people's.

[00:21:46] Speaker 02:
Well, expressive in the sense of he is not able to share this.

[00:21:50] Speaker 02:
I'm not talking about that part of the case.

[00:21:52] Speaker 02:
I'm only talking about his desire to sell this to people who want to circumvent the copyright.

[00:21:58] Speaker 02:
That's all.

[00:21:58] Speaker 05:
So the sale of code is also expressive.

[00:22:02] Speaker 05:
I agree.

[00:22:04] Speaker 02:
I didn't remember I said to you, I'm willing to concede that it's expressive.

[00:22:09] Speaker 02:
I just don't understand why given the city of Austin, it's content.

[00:22:15] Speaker 02:
That's all.

[00:22:16] Speaker 05:
I think the difference between City of Austin and here, in City of Austin, the question there was is something was based entirely on location.

[00:22:26] Speaker 02:
But you had to read the sign to know whether that's what it was all about.

[00:22:30] Speaker 02:
And the court said that didn't make any difference.

[00:22:33] Speaker 02:
Correct.

[00:22:33] Speaker 02:
But I think that's just like here.

[00:22:34] Speaker 02:
You have to read the code to know what its purpose is.

[00:22:38] Speaker 02:
But its purpose is to circumvent.

[00:22:41] Speaker 02:
So it's not content.

[00:22:43] Speaker 05:
So in city of Austin, the question, whether that was the regulation itself does not call out content, it just calls out location.

[00:22:53] Speaker 05:
Here we have a regulation that specifically does call out content and on its face calls out expressive activities.

[00:23:02] Speaker 04:
I have a question about standing, but before we do that, Judge Rogers, do you have any questions?

[00:23:09] Speaker 01:
No, I think Judge Taylor's covered what I

[00:23:12] Speaker 04:
This is something of a friendly question, but to have standing, I think you need to show a credible threat of enforcement or a credible threat of prosecution.

[00:23:22] Speaker 04:
When asked the government about a sentence in a district court response when it's the government's term, but I want to read this sentence now so you can say why there's still a credible threat of prosecution in light of this sentence.

[00:23:37] Speaker 04:
This is from the government's response to the preliminary injunction motion, BCF 38,

[00:23:43] Speaker 04:
the district court h 35 government says the complaints sparse description of greens planned book.

[00:23:53] Speaker 04:
The void of any factual assertions that would bring the book within the ambit of the anti trafficking provision.

[00:24:03] Speaker 05:
So what Dr. Green's declaration explains is that he would like to write a book, and here is how he would like to market it.

[00:24:10] Speaker 05:
And it's clear from the marketing he might to do that barely construed the statute could apply its prohibition on marketing or commercial gain to Dr. Green's activities.

[00:24:20] Speaker 05:
I would also point out that the government has said twice that it might be fine with Dr. Green publishing his research.

[00:24:29] Speaker 05:
And even aside with whether we have

[00:24:31] Speaker 05:
the government's good behavior, which we know that we don't, to decide this.

[00:24:35] Speaker 05:
Secondly, the government's been explicit that it believes that Dr. Green can engage in his research and publish his book without actually providing examples of code, which suggests that the government only thinks that he's excluded from the statute if he promises not to publish any excerpts of the code.

[00:24:53] Speaker 04:
But presumably his declaration that he intends to publish enough code for it to be used circumvents

[00:25:01] Speaker 04:
was within the complaint or would have been covered by the government's position that the complaint is devoid of any factual assertions that would bring the book within the ambit of the anti-trafficking provision.

[00:25:19] Speaker 05:
I understand that the government says that, but that is not a fair reading of the statute.

[00:25:23] Speaker 05:
And we know that the way to read the statute is what it could reach, not what the government imagines it might reach or promises it will do or will not do.

[00:25:31] Speaker 05:
And frankly, the Library of Congress has conceded.

[00:25:35] Speaker 05:
I'm sorry.

[00:25:40] Speaker 05:
What we know is that he needs to share enough because of the, and this isn't his declaration, he needs to share excerpts of code so that other people can replicate his work and improve on his work.

[00:25:51] Speaker 05:
That is how security researchers engage in discourse.

[00:25:55] Speaker 05:
That's what they do.

[00:25:55] Speaker 04:
And- Sounds like your argument is there's a credible threat of prosecution because he is violating the statute.

[00:26:03] Speaker 04:
He wants to violate the statute.

[00:26:04] Speaker 04:
He wants to violate the statute as it's- It's not the entire Susan B. Anthony

[00:26:10] Speaker 04:
test for whether there's a credible threat of prosecution, right?

[00:26:13] Speaker 05:
I think that we're in a posture, and the district court also seemed to accept this posture, that if the government promises that it doesn't think there's a problem, there's not a problem.

[00:26:25] Speaker 05:
And that I think is not, it's

[00:26:29] Speaker 05:
from our position.

[00:26:30] Speaker 05:
Um, the question is whether the statute fairly construed inhibit speech.

[00:26:35] Speaker 05:
And it most certainly does.

[00:26:36] Speaker 05:
And in fact, what you also can see from, um, Dr. Green's, um, declaration, it's not only his speech, it's inhibited.

[00:26:43] Speaker 05:
There are people in his field that have simply left the field altogether.

[00:26:48] Speaker 04:
Judge Rogers, anything else?

[00:26:51] Speaker 01:
Nope.

[00:26:52] Speaker 04:
Thank you very much.

[00:26:54] Speaker 04:
Ms.

[00:26:55] Speaker 04:
McSherry.

[00:26:55] Speaker 04:
We'll hear from Mr. Tenney.

[00:27:00] Speaker 04:
We'll give you a couple minutes for rebuttal.

[00:27:10] Speaker 03:
Thank you, your honor.

[00:27:10] Speaker 03:
May it please the court, Daniel Tenney for the government.

[00:27:14] Speaker 03:
I'd like to start with what Mr. Wong wants to do, because I think that clarifies both the operation of the statute and its evident purpose.

[00:27:22] Speaker 03:
The technology he wants to sell would allow

[00:27:25] Speaker 03:
anybody who had access to any video stream.

[00:27:28] Speaker 03:
So if you rent a movie, if you buy a movie on a DVD, if you access it online, to strip away the content protection so that instead of having an encrypted copy of the movie or one subject to the access restrictions that the content provider attached to the movie, you would have access to a free unencrypted copy that could then be used by you however you want, could be rapidly disseminated around the world,

[00:27:55] Speaker 03:
over the internet at the click of a button.

[00:27:58] Speaker 03:
And that's what Congress didn't want people to be able to do.

[00:28:01] Speaker 03:
And the reasons that it wanted that was that it wanted digital providers to be willing to provide their works to the public without being afraid that they would be stolen.

[00:28:13] Speaker 03:
Right, that the copies would proliferate.

[00:28:16] Speaker 03:
And so that explains both the basis for the statute and why both

[00:28:23] Speaker 03:
you know in general and as applied to Mr. Wong by the statute is perfectly consistent with the first amendment.

[00:28:30] Speaker 04:
Can you address this this quote from that I read earlier from DOJ's response motion the district court the complaints sparse descriptions of Green's planned book are devoid of any factual assertions that would bring the book within the ambit of the anti-trafficking provision.

[00:28:50] Speaker 04:
Sure.

[00:28:50] Speaker 04:
Do you still agree?

[00:28:51] Speaker 04:
Yes, we do.

[00:28:52] Speaker 04:
So that means that Green has not described anything that he wants to do that would violate the anti-trafficking.

[00:29:02] Speaker 04:
That's correct, Your Honor.

[00:29:04] Speaker 04:
So if that's the government's position and Green's

[00:29:11] Speaker 04:
uh, complaint says he has a legal right to do what you say he has a legal right to do.

[00:29:15] Speaker 04:
That would seem to check the box for Green's likelihood of success on the merits.

[00:29:21] Speaker 04:
It's the first factor in the preliminary injunctioning, right?

[00:29:25] Speaker 04:
He's likely to succeed on the merits of his claim that he has a lawful right to publish the book he wants to publish.

[00:29:34] Speaker 03:
I don't understand.

[00:29:36] Speaker 03:
I mean, you can't bring a claim and say, here's the thing I want to do.

[00:29:39] Speaker 03:
And you get an injunction.

[00:29:40] Speaker 04:
Right.

[00:29:41] Speaker 04:
So that gets into the standing question.

[00:29:42] Speaker 03:
But well, no, I mean, he would.

[00:29:45] Speaker 03:
The claim on the merits is that the government is threatening to do something to him that's unconstitutional.

[00:29:49] Speaker 03:
That's his claim on the merits.

[00:29:51] Speaker 03:
And if he's wrong, that the government's doing anything to him at all, then then he doesn't have a First Amendment claim.

[00:29:58] Speaker 04:
And I'm open to being talked out of this.

[00:30:01] Speaker 04:
But it seems like the first inquiry is standing.

[00:30:03] Speaker 04:
So we first have to determine whether there's a credible threat of prosecution.

[00:30:07] Speaker 04:
The government's litigating position in this case would be one factor in that inquiry, but it's not necessarily dispositive.

[00:30:14] Speaker 04:
And if we get to the point where we find that there is a credible threat of prosecution in the future, and that therefore Green has standing, then we would address

[00:30:26] Speaker 04:
the four factors to go into whether he's entitled to a preliminary injunction.

[00:30:29] Speaker 04:
The first of those factors would be whether he's likely to succeed on the merits of his claim that it's legal for him to publish the book that he wants to publish.

[00:30:38] Speaker 04:
And at that stage, we would say it is legal for him to publish the book that he wants to publish if only because the government has conceived it that it is.

[00:30:50] Speaker 03:
I'm not trying to quibble here.

[00:30:51] Speaker 03:
The parties agree that it's legal for him to publish the book that he wants to publish.

[00:30:56] Speaker 03:
His claim is that the Digital Millennium Copyright Act is, in some respect, unconstitutional.

[00:31:03] Speaker 03:
That's what he's asking the district court to say.

[00:31:05] Speaker 03:
And he's asking the court to issue an injunction against the government.

[00:31:08] Speaker 02:
Can I just interrupt?

[00:31:10] Speaker 02:
It's a clarifying question here.

[00:31:12] Speaker 02:
So the code he wants to put in the book will not violate the anti-trafficking provision?

[00:31:18] Speaker 02:
Because council just told us that Green's code could be used by people who buy the book to circumvent the copyright.

[00:31:31] Speaker 03:
That's your whole theory, isn't it?

[00:31:34] Speaker 03:
I mean, I have a few responses.

[00:31:36] Speaker 03:
The answer to your direct question is no, we don't think the book would violate the provision.

[00:31:41] Speaker 03:
No, I'm talking about putting the code in the book.

[00:31:43] Speaker 03:
Well, I mean, the thing is, the code in the book is a book is something that's read by a human being, and then a human being, as I think opposing counsel also pointed out, a human being might take that code and turn it into something that that might start.

[00:31:57] Speaker 02:
Now I'm completely confused.

[00:31:59] Speaker 02:
OK, suppose it's a 100 page book.

[00:32:03] Speaker 02:
And 99 pages of it are all about computer code and general analysis and history and technology.

[00:32:12] Speaker 02:
But one page

[00:32:13] Speaker 02:
has his code, and if I bought the book, I could take that code, I buy his book for $30, and with that code, I could then circumvent the copyrighted materials that Congress is trying to protect.

[00:32:31] Speaker 02:
Isn't that what he's saying he wants to do and that the government, it would clearly violate the anti-trafficking provision?

[00:32:39] Speaker 02:
Well, I just want to go to that's if that's not true, then I've totally misunderstood this case.

[00:32:44] Speaker 03:
I think that is what he's saying he wants to do.

[00:32:47] Speaker 03:
I think the anti traffic provision is a bit narrower than the question suggests.

[00:32:51] Speaker 03:
So I just want to go to the text of the provision.

[00:32:53] Speaker 03:
If I might.

[00:32:54] Speaker 03:
It's traffic in any technology product service device component or part thereof.

[00:33:01] Speaker 03:
And then there are three, it has to satisfy one of three criteria.

[00:33:03] Speaker 03:
It's primarily designed to produce for the purpose of circumventing a technological measure.

[00:33:09] Speaker 03:
It has only limited commercially significant purpose or use other than to circumvent a technological measure or it's marketed by that person.

[00:33:16] Speaker 03:
for use in circumventing a technological measure.

[00:33:19] Speaker 03:
So the point is that, first of all, it's not even clear that a book is a product service device component in the same sense.

[00:33:27] Speaker 03:
It's not like a computer program that you click the mouse and then you use the book to circumvent.

[00:33:32] Speaker 03:
You are a programmer, you read the book, it provides information to you, and then maybe with that knowledge, or maybe by copying some of the text of the book, you would create yourself a product.

[00:33:43] Speaker 04:
I just want to get crystal clear on the record

[00:33:47] Speaker 04:
Is the following statement correct?

[00:33:49] Speaker 04:
It's legal for Green to publish his book, even if the book includes enough code to allow someone piece together a circumvention technology.

[00:34:01] Speaker 04:
Is that correct?

[00:34:03] Speaker 04:
That is correct.

[00:34:04] Speaker 04:
So this is the weirdest posture for a case.

[00:34:08] Speaker 04:
Green is saying that what he wants to do will violate the statute.

[00:34:14] Speaker 04:
And you're saying what he wants to do will not violate the statute.

[00:34:20] Speaker 04:
Yes.

[00:34:21] Speaker 04:
And the district court agreed with us.

[00:34:23] Speaker 04:
I guess my question is, what are we supposed to do with that?

[00:34:25] Speaker 04:
Why is there do you think he has standing to bring his as applied claim with regard to the anti-trafficking provision?

[00:34:32] Speaker 04:
No.

[00:34:33] Speaker 04:
And what's the argument for why he does not have standing to bring that claim?

[00:34:37] Speaker 03:
Well, because the claim, I mean, it would have to be that I mean, it would have to be that he wants to engage in conduct that violates the statute, which he doesn't.

[00:34:46] Speaker 04:
And that, you know, let me stop you there.

[00:34:50] Speaker 04:
Imagine we might have to write this.

[00:34:54] Speaker 04:
Imagine that the court concludes the statute does prohibit his book.

[00:35:01] Speaker 04:
Then he would.

[00:35:02] Speaker 04:
Then he would have standing.

[00:35:03] Speaker 04:
Well, I mean, then you would get to the credible threat of enforcement.

[00:35:06] Speaker 04:
So would there be a credible threat of enforcement?

[00:35:09] Speaker 03:
No.

[00:35:10] Speaker 04:
What's the argument for why in that situation, after the court has concluded that the statute prohibits his book, there is nevertheless not a credible threat of prosecution.

[00:35:21] Speaker 03:
I mean, I guess it gets me guess you.

[00:35:23] Speaker 03:
You'd have to say whether the government's consistent view is that it doesn't, then the government has said, we're not going to prosecute.

[00:35:32] Speaker 04:
I mean, it's only the government's view in this one case.

[00:35:34] Speaker 04:
I'm not sure it would bind a future US attorney.

[00:35:37] Speaker 04:
And even in this case, I'm not sure it's been the government's consistent view.

[00:35:40] Speaker 04:
I think it's not a criticism of you specifically, because there's a lot of paper has been filed on this case, one under the bridge.

[00:35:48] Speaker 04:
But I'm not even sure it's the government's consistent position in this case.

[00:35:52] Speaker 03:
I think it has been.

[00:35:54] Speaker 03:
I'm not aware of a circumstance where the government has taken a different position.

[00:35:58] Speaker 03:
Let me put this another way.

[00:35:59] Speaker 03:
If the government were to prevail in this appeal on the ground that Mr. Green's conduct that he as described, I'm not saying any conduct that might be different, but as described in the complaint and in his declaration in this case, if the government were to prevail in this appeal on that ground, then of course we couldn't then turn around and prosecute.

[00:36:21] Speaker 03:
Maybe you could speak for whoever the next attorney general is, but I don't think that the government having litigated against the same litigant and persuaded a court to reject that that would help us decide greens as applied anti trafficking claim.

[00:36:40] Speaker 04:
If what you just said is correct, what's the what's the best case to support that?

[00:36:44] Speaker 04:
I'm not saying you're wrong.

[00:36:45] Speaker 03:
I mean, I would think judicial estoppel cases would help there.

[00:36:48] Speaker 03:
I'm trying to remember the names of them.

[00:36:50] Speaker 03:
I think New Hampshire is one of them.

[00:36:52] Speaker 03:
But before we get there, because we're not asking you to dismiss his complaint, he wants a preliminary injunction.

[00:36:58] Speaker 03:
Does he have irreparable harm that during the pendency of this litigation, he's going to be prosecuted for that?

[00:37:05] Speaker 03:
I mean, that has to be an easier question.

[00:37:08] Speaker 03:
We just shouldn't have to tarry long on Dr. Green because he has basically two claims.

[00:37:14] Speaker 03:
One is circumvention where he has an exemption.

[00:37:16] Speaker 03:
The other is trafficking where the district court and the government agree that what he's doing doesn't violate the statute.

[00:37:22] Speaker 03:
So it should be clear enough that he doesn't get a preliminary injunction.

[00:37:25] Speaker 03:
How the district court handles whether to dismiss his case entirely and he can appeal from that later can be taken up at another time.

[00:37:32] Speaker 03:
So I think that should

[00:37:33] Speaker 03:
to put Dr. Green to one side.

[00:37:35] Speaker 03:
I want to focus on Mr. Wong.

[00:37:37] Speaker 02:
Wait, before you go into Mr. Wong, let me just ask you a question about both so that I understand what you just said.

[00:37:45] Speaker 02:
Maybe my oversimplification is the wrong way.

[00:37:47] Speaker 02:
Okay, they both have this line of code.

[00:37:51] Speaker 02:
They both have a line of code.

[00:37:53] Speaker 02:
And according to the record and what counsel has said, that code can be used by someone who gets it, buys it.

[00:38:01] Speaker 02:
or reads it in a book to circumvent a... Right?

[00:38:07] Speaker 02:
They both have that.

[00:38:09] Speaker 02:
They both have that capability.

[00:38:12] Speaker 03:
I think so.

[00:38:13] Speaker 03:
I want to be careful about exactly what it means to use code that's written in a book, but I understand where you're going.

[00:38:19] Speaker 02:
Yeah.

[00:38:20] Speaker 02:
Okay.

[00:38:20] Speaker 02:
So, and the difference between the two of them is that Wang's net VCR device is the code.

[00:38:29] Speaker 02:
That's it.

[00:38:30] Speaker 02:
whereas Green wants to put it in one page of a hundred page book.

[00:38:35] Speaker 02:
Is that what distinguishes, is that why Green's okay and Wong isn't?

[00:38:40] Speaker 02:
Suppose Green's book was only two pages.

[00:38:42] Speaker 03:
I think so, but there's a few distinctions that are baked into what you said.

[00:38:47] Speaker 03:
So I want to just unpack them a little bit to make sure we get all of them on the table.

[00:38:51] Speaker 03:
One is that what Wong is sending people is a computer program.

[00:38:58] Speaker 03:
and so you know you or I could take that computer program and click on the mouse and you know we know when we buy computer programs we can just use them and we don't have to read them or understand them or know what they say we just click them and they do things right and we hope we hope right they well they do things whether they're what we want is a different question um and and green is not

[00:39:23] Speaker 03:
selling or providing anything like that he's not saying here's a thing that you just sort of click the mouse right here and then it decrypts the video that's not what he's providing what he's saying is he's got some text and in the middle of that text he says here's the program and you would have to know what to do with the program and where to put it and how to install it into whatever else you're doing so that's one difference

[00:39:43] Speaker 03:
Now, the other difference is the purpose for which it's marketed and that's relevant on the text of the statute.

[00:39:50] Speaker 03:
The statute talks about whether the only commercially significant purpose or whether it's marketed for the purpose of circumventing.

[00:39:57] Speaker 03:
And what Green's trying to do, as I understand, and we take him at his word for this, is educate.

[00:40:02] Speaker 03:
He's not trying to circumvent.

[00:40:04] Speaker 03:
And the statute makes that textually relevant too.

[00:40:07] Speaker 03:
And so it's not so much the number of pages in the book.

[00:40:10] Speaker 03:
It's both the form in which the code is provided and the way in which it's marketed and who it's marketed to and for what purpose.

[00:40:21] Speaker 03:
And those are all relevant on the face of the statute.

[00:40:25] Speaker 03:
And so that's why they're so different.

[00:40:31] Speaker 01:
But I guess what's really confusing is after Congress has written a statute where it tries to define the term and what it means and gives you the three examples.

[00:40:43] Speaker 01:
Here in Judge Tatel's careful questioning of counsel, I thought it was conceded ultimately that there was enough in the book

[00:41:01] Speaker 01:
cobble it together so that a knowledgeable person could in fact circumvent the statutory restriction.

[00:41:14] Speaker 01:
And counsel said, well, it was also another problem.

[00:41:19] Speaker 01:
So I thought counsel was acknowledging that a literal reading, just because I don't tell you how to get from here to New York,

[00:41:30] Speaker 01:
doesn't mean I haven't given you enough information by at longitudinal latitude about what trains and planes go that way, doesn't mean I haven't undermined the whole purpose that Congress had in mind in trying to protect copyrighted materials

[00:42:02] Speaker 01:
And it seems to me your argument, and maybe this is correct, is that is way too broad of a concession.

[00:42:13] Speaker 01:
That even if you could cobble together from Green's book, that's not his purpose.

[00:42:25] Speaker 01:
And so there's no problem with the circumvention issue.

[00:42:30] Speaker 01:
Wong, on the other hand,

[00:42:32] Speaker 01:
is just sending it out there for me to use without cost.

[00:42:36] Speaker 01:
And I can click on the program and get the downloaded protected material.

[00:42:43] Speaker 01:
So I think it's an interesting argument, but I wonder, in other words, is the government's concession such that looking ahead to what might happen to this case in the future,

[00:43:02] Speaker 01:
It has taken this position that, at least when I first understood this case, did not necessarily follow from the plain text of the statute.

[00:43:15] Speaker 03:
Your Honor, if I might, I'd like to go back to the plain text of the statute and explain why the idea that anything that might ultimately have the effect of allowing people to circumvent can't be the outer bound here.

[00:43:31] Speaker 01:
But have you added a subjective intent provision here that even if people can do that, if I don't intend for them to be able to do that,

[00:43:45] Speaker 01:
in writing my book, that controls.

[00:43:52] Speaker 03:
John, we haven't added it.

[00:43:54] Speaker 03:
I'd just like to read, again, the three categories that Congress set out.

[00:43:58] Speaker 01:
The first is- For the purpose of.

[00:44:01] Speaker 01:
And just because I say it's not for that purpose, if it's obvious, it can be used for that purpose.

[00:44:10] Speaker 01:
Why isn't?

[00:44:12] Speaker 01:
You see, Congress is having added

[00:44:16] Speaker 01:
a requirement that the court find a specific intent to violate?

[00:44:22] Speaker 03:
I mean, Congress put in three categories, and they are intended to, I think, capture what you are concerned about here, which is the first category.

[00:44:36] Speaker 01:
But not according to your reading.

[00:44:40] Speaker 03:
I'm not sure my reading really parts company with what you're trying to get at, but if I could just go through them.

[00:44:49] Speaker 01:
So- No, but my point is, counsel, you're saying if Dr. Green doesn't intend to circumvent the statutory restriction, he avoids any fear of prosecution by the government.

[00:45:08] Speaker 03:
I don't think that's entirely true.

[00:45:12] Speaker 03:
I think that would probably take him out of 2A.

[00:45:14] Speaker 03:
I also have to deal with 2B and 2C.

[00:45:18] Speaker 03:
I think he easily satisfies those.

[00:45:20] Speaker 03:
So I'm not trying to say Dr. Green is going to be prosecuted here.

[00:45:23] Speaker 03:
But what Congress was trying to do is say, look, if you have a device and the purpose of your device, and this is A, if you design something to allow people to circumvent, you can't traffic in that.

[00:45:38] Speaker 03:
And then the second thing is, okay, if you have something and the only, there's very limited commercially significant purpose other than circumvention.

[00:45:48] Speaker 03:
So maybe you say, oh no, it's not to circumvent, it's for this totally different thing.

[00:45:51] Speaker 03:
You say, but the only reason anybody wants this device is that they want to circumvent.

[00:45:55] Speaker 03:
So they're buying it for that.

[00:45:56] Speaker 03:
then you can't do that either.

[00:45:58] Speaker 03:
That's B. And then C is if it's marketed for use in circumventing.

[00:46:01] Speaker 03:
So if you have something, even if it has a bunch of different purposes, when you say, hey, everybody, there's this great thing that you can use it to circumvent devices, you can't do that either.

[00:46:10] Speaker 03:
And there's reasons that Congress would want to do with that.

[00:46:12] Speaker 01:
So if you're reading a specific intent requirement and you read B as what the recipient's intent is, is irrelevant.

[00:46:25] Speaker 03:
I don't read B as having a specific intent requirement, and I don't know that it has to do with the recipient's intent other than the intent to do the thing that's described in B, which is if the recipient uses the technology to circumvent a technological measure, and it has limited commercially significant purpose other than that.

[00:46:44] Speaker 03:
then it's covered.

[00:46:45] Speaker 03:
And it makes perfect sense that Congress would do it this way.

[00:46:48] Speaker 03:
And this goes back to what I said at the beginning.

[00:46:51] Speaker 03:
What Congress wanted to avoid is that you sell devices so that people can just decide, OK, if I'm going to rent a movie, do I want to only have access to the movie on the terms that the person who rented it to me wanted to give it to me?

[00:47:05] Speaker 03:
Or do I instead want to have access to the movie in whatever way that I want?

[00:47:09] Speaker 03:
And I think a lot of people would buy, if both were legal, a lot of people would buy the second one.

[00:47:13] Speaker 03:
And Congress said, well, we don't want people to have that access.

[00:47:17] Speaker 03:
We don't want people to be able to take a movie that they rent for 48 hours and make a copy of it, or view it on a device other than the one that they were sold permission to view it on.

[00:47:27] Speaker 03:
And that's what Congress was getting at.

[00:47:29] Speaker 03:
That's consistent with the First Amendment.

[00:47:32] Speaker 03:
That covers what Mr. Wong wants to do.

[00:47:35] Speaker 03:
And that's why Mr. Wong is not entitled to relieve.

[00:47:41] Speaker 02:
OK.

[00:47:42] Speaker 02:
I understand your point about Dr. Green now.

[00:47:46] Speaker 02:
And about 20 minutes ago, I interrupted you when you were about to transition to Wong's case.

[00:47:52] Speaker 02:
So would you do that now?

[00:47:53] Speaker 02:
So as I understand that, as I understand the government's position, you're not, government doesn't argue that the code isn't speech, right?

[00:48:01] Speaker 02:
You're just arguing it isn't content, right?

[00:48:03] Speaker 03:
So the Second Circuit addressed this well in Corley.

[00:48:07] Speaker 03:
Your code has sort of a functional component and a speech component.

[00:48:11] Speaker 03:
So at least some code does.

[00:48:13] Speaker 03:
So some software can be exhibited in a way that's readable by human beings.

[00:48:18] Speaker 02:
Is this a difference between object and subject?

[00:48:23] Speaker 03:
It relates to the difference between source code and object code?

[00:48:27] Speaker 02:
I'm sorry, source code and object code.

[00:48:29] Speaker 03:
But the point essentially is

[00:48:32] Speaker 03:
Software is sort of a hybrid thing, at least in some forms.

[00:48:36] Speaker 03:
It's like, let's just take source code to make it simple.

[00:48:39] Speaker 03:
So source code is written in words, you know, or computer language.

[00:48:43] Speaker 03:
So programmers can read it.

[00:48:45] Speaker 03:
That's one thing that it does.

[00:48:46] Speaker 03:
So you could write it and a programmer could read your code.

[00:48:49] Speaker 03:
And that is what the Second Circuit said, and we agree is expressive if you write code so somebody can read it.

[00:48:54] Speaker 03:
The other thing it can do is without anybody reading it, it can give instructions to a computer to do something.

[00:49:01] Speaker 03:
And what Congress was worried about in this statute was that second thing, the functional thing.

[00:49:05] Speaker 03:
So Congress doesn't care if somebody can read it or not.

[00:49:09] Speaker 03:
If you high code that was just sort of ones and zeros and gibberish and unreadable by any human being, it wouldn't have any of the expressive content

[00:49:19] Speaker 03:
But Congress's interest in regulating it would be exactly the same, because what Congress cared about was the functional capacity of the code to instruct a computer to do something.

[00:49:29] Speaker 03:
And that's why this is not a content-based restriction, because it's not concerned about the expressive content.

[00:49:36] Speaker 03:
In fact, it doesn't matter whether the thing being regulated even has any expressive content.

[00:49:43] Speaker 03:
It's regulating conduct.

[00:49:45] Speaker 03:
the breaking of the protective measures and

[00:49:50] Speaker 03:
And its regulation of that may have the incidental effect of making it more difficult to express things if you express things with computer code that also has this conduct.

[00:50:00] Speaker 03:
But that's an incidental effect.

[00:50:02] Speaker 03:
That's not the target of the regulation.

[00:50:04] Speaker 03:
And that's what the Second Circuit said in Corley.

[00:50:07] Speaker 03:
And that's what's happening here.

[00:50:09] Speaker 03:
And that's why, in this case, it's easier than the city of Austin.

[00:50:12] Speaker 03:
Because city of Austin, at least, they were regulating speech as speech.

[00:50:14] Speaker 03:
They were saying, here's what you can say and here's what you cannot say.

[00:50:17] Speaker 03:
And here it just happens to limit in some circumstances.

[00:50:20] Speaker 03:
And then as we've discussed at some length, to the extent that they're regulating the expressive part, talking to other people, it's narrowed in significant ways.

[00:50:30] Speaker 02:
So what about Council's argument?

[00:50:32] Speaker 02:
I get that.

[00:50:33] Speaker 02:
I understand that.

[00:50:33] Speaker 02:
What about Council?

[00:50:34] Speaker 02:
Because when I asked Council about that in her argument, she said, oh, it's much broader than that.

[00:50:40] Speaker 02:
Mr. Wong wants other people to read his code and understand it.

[00:50:43] Speaker 02:
He wants to educate with it.

[00:50:45] Speaker 02:
What about all that?

[00:50:47] Speaker 03:
Right, so we're not saying that it doesn't have any effect on expression at all.

[00:50:52] Speaker 03:
We're saying it's an incidental effect and that it's amply justified by Congress's desire to regulate the functional capacity, the conduct that's involved.

[00:51:02] Speaker 03:
And the point is, yeah, you could have a program and you say you want people to read it, but if it also allows everybody to unlock every video that's sold by anybody with any encryption system whatsoever and then to make

[00:51:15] Speaker 03:
copies and distribute them all over the internet at the click of a button, the district court properly held that Congress's interest in doing that is sufficient to override his interest in having people read his code.

[00:51:27] Speaker 02:
And the difference between that and Greens is that Greens putting code in the book isn't anything like that, right?

[00:51:35] Speaker 02:
It requires knowledge.

[00:51:37] Speaker 02:
It requires someone who understands how to convert.

[00:51:39] Speaker 02:
It's not a device that you can

[00:51:41] Speaker 02:
hit a button and download a movie that's restricted, right?

[00:51:44] Speaker 02:
Exactly.

[00:51:45] Speaker 02:
That's the difference.

[00:51:46] Speaker 02:
That's the difference.

[00:51:47] Speaker 02:
All right.

[00:51:47] Speaker 02:
Thank you.

[00:51:47] Speaker 04:
That's the purpose of interpreting the statute.

[00:51:52] Speaker 04:
Statute uses the phrase, purpose of circumventing in A2A.

[00:52:00] Speaker 04:
And when we're trying to figure out the meaning of that word purpose, do we look to the purpose of Green's book

[00:52:08] Speaker 04:
or do we look to the purpose of the code in Greensboro?

[00:52:16] Speaker 03:
It's hard to divorce one from the other.

[00:52:22] Speaker 03:
The code as it appears in the book is designed to be read by a human being.

[00:52:30] Speaker 03:
It's not something that goes into a computer.

[00:52:33] Speaker 03:
And so the code within the book sort of has the same purpose that Green attributed to it also.

[00:52:39] Speaker 03:
I'm not sure how easily you could separate those.

[00:52:42] Speaker 04:
I'm not sure either.

[00:52:47] Speaker 04:
But Green says the purpose of his book is anti-circumvention.

[00:52:52] Speaker 04:
And the purpose of the code itself is circumvention.

[00:52:58] Speaker 04:
So it seems like the purpose of the book and the purpose of the code are opposites.

[00:53:03] Speaker 03:
Well, the purpose of the book is education.

[00:53:06] Speaker 03:
And the purpose of the code in the book is also education.

[00:53:09] Speaker 03:
What he wants.

[00:53:10] Speaker 04:
He says the purpose of the book is to educate people about preventing circumvention.

[00:53:18] Speaker 04:
And the code educates people about

[00:53:22] Speaker 04:
how to circumvent.

[00:53:25] Speaker 03:
Right.

[00:53:25] Speaker 03:
I'm not sure either of those things is covered by the statute.

[00:53:29] Speaker 02:
The point is, government, your position is it doesn't violate the statute, right?

[00:53:34] Speaker 02:
We would have a different case if you said, if the government's position was this violates the statute.

[00:53:38] Speaker 02:
Then we'd have to figure all this stuff out.

[00:53:40] Speaker 02:
But given what I've heard today, would the right disposition of this appeal be to say, to remand it to the district court, to dismiss

[00:53:50] Speaker 02:
Dr. Green's case?

[00:53:52] Speaker 02:
There's nothing he wants to do that violates the statute?

[00:53:57] Speaker 03:
I think that's what should ultimately happen in this case.

[00:54:00] Speaker 03:
I'm not sure that's the disposition of this appeal.

[00:54:02] Speaker 03:
This appeals to the appeal of the denial of a preliminary injunction.

[00:54:06] Speaker 03:
So you can just affirm and say he's not entitled to a preliminary injunction.

[00:54:10] Speaker 03:
Oh, I see.

[00:54:11] Speaker 03:
And that's why some of these questions we haven't fleshed out.

[00:54:13] Speaker 02:
But we don't have to get into the question under your theory of irreparable injury or likelihood of success on the merits or anything.

[00:54:20] Speaker 02:
what he alleges he wants to do does not violate the statute, period, right?

[00:54:25] Speaker 03:
Right.

[00:54:25] Speaker 03:
There are a number of legal doctrines you could use to make that point.

[00:54:29] Speaker 03:
I mean, irreparable injury is an easy one.

[00:54:32] Speaker 03:
He doesn't have any, you know, nothing's going to happen to him.

[00:54:37] Speaker 04:
And I suspect his attorney is going to get up in a moment, Ms.

[00:54:41] Speaker 04:
McSherry.

[00:54:41] Speaker 04:
And if I were her, I would say there is irreparable injury because

[00:54:45] Speaker 04:
you might get prosecuted by an attorney general a year from now or two years from now who's changed their mind about the meaning of this statute.

[00:54:53] Speaker 03:
I mean I guess I have a few responses to that but this is a preliminary injunction so he needs imminent direct role injury that's sort of the simplest answer that doesn't get into the loop of any of the statutory you know analysis um you you know

[00:55:10] Speaker 03:
We stand by our position about the statute.

[00:55:13] Speaker 03:
I'm not running away from it.

[00:55:15] Speaker 03:
But it's hard to imagine, given what's happened so far, that while this case is still pending, if the district court denied a preliminary injunction and this court affirmed on the ground that what he's doing either is not violating the statute or the government saying that it isn't,

[00:55:35] Speaker 04:
that there's a sufficiently non-speculative chance that someone's going to turn around and prosecute him while- And I guess that's actually the irreparable injury inquiry is, is there going to be irreparable harm between this moment and the conclusion of the district court's case?

[00:55:52] Speaker 03:
Right.

[00:55:52] Speaker 03:
And especially given what's happened, it just seems clear that's not true.

[00:55:55] Speaker 03:
That makes sense.

[00:55:57] Speaker 03:
Unless there are any further questions- Judge Schadl?

[00:55:59] Speaker 04:
Judge Rogers?

[00:56:00] Speaker 01:
No, thank you.

[00:56:01] Speaker 04:
Thank you very much, Mr. Tenney.

[00:56:06] Speaker 04:
make Sherry give you two minutes.

[00:56:11] Speaker 05:
No, it's been a long morning, so I will.

[00:56:13] Speaker 02:
So why is Dr. Green bringing this case?

[00:56:17] Speaker 02:
Why is Dr. Green still in this case?

[00:56:18] Speaker 02:
Yes, because the government just said, you know, everything he wants to do is okay.

[00:56:24] Speaker 02:
And if we put that in our opinion, doesn't that give Dr. Green all the protection he needs?

[00:56:30] Speaker 05:
Well, with respect, Your Honor, I actually think the government has been a little bit cagey about whether it's actually OK what Dr. Green wants to do.

[00:56:38] Speaker 02:
Well, it wasn't cagey just now.

[00:56:40] Speaker 02:
That's right.

[00:56:41] Speaker 02:
I tried to clarify.

[00:56:43] Speaker 02:
It's in F4, and it says no irreparable injury because the government has assured us

[00:56:51] Speaker 02:
that anything he says in his claim was to not violate the statute.

[00:56:56] Speaker 02:
Doesn't that satisfy him?

[00:56:58] Speaker 02:
Don't we just have to deal with Wong, then?

[00:57:00] Speaker 05:
Well, given that he has been waiting to publish his book for five years, and who knows how long it will be before this case actually ends, I think he does continue to have a credible risk, because we may have a new attorney general and a new government.

[00:57:13] Speaker 02:
Wait a minute.

[00:57:14] Speaker 02:
Do you think a future attorney general is going to look at a D.C.

[00:57:17] Speaker 02:
Circuit opinion that says,

[00:57:18] Speaker 02:
everything he wants to do is legal, and the government has said so, and is going to say, wait, I've changed my mind?

[00:57:24] Speaker 02:
We do this all the time in cases where we build into an opinion a representation made by the government.

[00:57:31] Speaker 02:
And I've never, ever heard of anybody thinking that wasn't sufficient to protect a client.

[00:57:36] Speaker 05:
Well, I do appreciate the government's representation.

[00:57:38] Speaker 05:
But what I want to be clear about is what Arthur Green needs to do, which is he needs to publish

[00:57:46] Speaker 05:
um, his research and also the code itself, because we'll find other vulnerabilities in that code.

[00:57:51] Speaker 02:
So it's Mr. Tanney just said he can do that.

[00:57:55] Speaker 05:
That's what he just said.

[00:57:57] Speaker 05:
Well, I'm glad I wish he had said that in a brief where the government had said so in a brief.

[00:58:02] Speaker 02:
Judge Walker quoted their statement in the district court where they said that.

[00:58:06] Speaker 02:
Um, that's correct.

[00:58:08] Speaker 05:
And I do think that helps alleviate Dr. Green's concerns.

[00:58:14] Speaker 05:
However,

[00:58:15] Speaker 02:
You're trying really hard not to win this case right away.

[00:58:19] Speaker 05:
Well, it's been a while.

[00:58:22] Speaker 02:
You want to talk about Wong?

[00:58:23] Speaker 02:
Why don't you use your, which I've consumed, I'm sorry for talking about Mr. Wong.

[00:58:30] Speaker 05:
Certainly.

[00:58:31] Speaker 05:
So I'd like to make two legal points because I think we focus somewhat on the facts.

[00:58:36] Speaker 05:
One is that we've talked a lot about whether the regulation is content-based or not.

[00:58:41] Speaker 05:
And we haven't talked a lot about whether the regulation can pass intermediate

[00:58:45] Speaker 05:
And I would just say that the government just now explained the whole purpose, the government's purpose in passing the digital lending copyright act was to protect the market for a particular set of works.

[00:58:58] Speaker 05:
Twenty years later,

[00:58:59] Speaker 05:
And this goes directly to burden.

[00:59:01] Speaker 05:
The reach of the Digital IAM Copyright Act, because it applies to copyrighted software, reaches far beyond any of the government's initial intent.

[00:59:11] Speaker 05:
And that goes to weighing whether we have a close fit to means and end.

[00:59:17] Speaker 05:
And related to that, the back and forth with the government leads me to invite

[00:59:25] Speaker 05:
the narrowing construction that we proposed.

[00:59:28] Speaker 05:
If the government is really only concerned with marketing for infringing purposes and with accessing for infringing purposes, then an easy way to get there that resolves the most part, the speech concerns here now and going forward is to adopt the narrowing construction.

[00:59:47] Speaker 05:
And the last point I'd like to make is that going back to your question regarding city of Austin,

[00:59:52] Speaker 05:
And whether we are getting guidance from the Supreme Court to really try to adhere in our jurisprudence to historically protected speech, it would submit to you that fair use is absolutely historically respected speech and protected speech.

[01:00:08] Speaker 05:
And we have that affirmed recently in the Golang case and before that in Eldred, which stressed the importance of fair use in balancing the copyright clause and the First Amendment.

[01:00:19] Speaker 05:
And that goes back to the Constitution

[01:00:21] Speaker 04:
Thank you very much, Ms.

[01:00:23] Speaker 04:
McSherry.