[00:00:00] Speaker 02:
Case number 23-5159, Matthew D. Green et al.

[00:00:05] Speaker 02:
at balance versus United States Department of Justice et al.

[00:00:08] Speaker 02:
Mr. Margot for the balance, Mr. Springer for the employees.

[00:00:12] Speaker 01:
Mr. Margot, good morning.

[00:00:14] Speaker 05:
Good morning, your honor.

[00:00:15] Speaker 05:
May it please the court.

[00:00:17] Speaker 05:
17 USC section 1201 a grants the power to a component of Congress to decide who may access works of authorship.

[00:00:26] Speaker 05:
That is the power to decide who can access speech that might be in their lawful possession and by extension to decide who gets to make high quality copies for fair use in their own speech.

[00:00:36] Speaker 05:
This speech licensing regime thus regulates not the location of news racks or the timing of an event in a Chicago park, but the content of speech.

[00:00:44] Speaker 05:
It fails minimum procedural requirements applicable to speech licensing regimes for three reasons.

[00:00:49] Speaker 05:
First, it lacks clear standards.

[00:00:52] Speaker 05:
The Romanet 5 catch-all exception is enough alone to fail the constitutional test by allowing the librarian to consider other factors as considered appropriate without limit.

[00:01:05] Speaker 05:
Second, there's no requirement of prompt decision making.

[00:01:09] Speaker 05:
That can be a flexible requirement, as was seen in this circuit's case in Boardley in 2010.

[00:01:13] Speaker 05:
But nonetheless, the lack of any promptness requirement fails the test.

[00:01:18] Speaker 05:
And finally, there's no provision for judicial review of the librarian's final decision.

[00:01:23] Speaker 05:
If the scheme were organized so that the copyright office and not the librarian were the final decision maker, there would be administrative procedure act review.

[00:01:31] Speaker 05:
As it happens, the librarian is protected by sovereign immunity.

[00:01:35] Speaker 03:
Mr. Mango, if the statute, instead of having the criteria that it has for the Library of Congress to issue periodic exemptions, it just said the Library of Congress will issue periodic exemptions to make advance determinations on categories of speech that are clearly fair use, would you have the same objection that you're raising here?

[00:02:03] Speaker 05:
Yes, Your Honor.

[00:02:03] Speaker 05:
That sounds like fewer standards or less clear standards rather than more clear standards.

[00:02:08] Speaker 05:
It might be worse constitutionally.

[00:02:10] Speaker 05:
And just a point about the fair use right considered so important in Eldred and Golan.

[00:02:14] Speaker 05:
It's an individualized right to mount an affirmative defense.

[00:02:17] Speaker 05:
It's notoriously fact specific.

[00:02:19] Speaker 05:
It's adjudicated by judges, and the common law is developed that way.

[00:02:22] Speaker 05:
And dispensing fair use in gross in advance to broad

[00:02:28] Speaker 05:
categories of speakers is content discrimination, not a salutary.

[00:02:33] Speaker 03:
That's a puzzling answer to me, because it doesn't dispense, presumably, with a fair use.

[00:02:41] Speaker 03:
If the fair use defense is a First Amendment right, then why isn't that available, whatever the statute says?

[00:02:52] Speaker 05:
Your Honor, if this court were to follow the federal circuit,

[00:02:56] Speaker 05:
In the Chamberlain garage door opener case, that's not how the government interprets the statute.

[00:03:01] Speaker 05:
That's not how the librarian interprets the statute.

[00:03:03] Speaker 05:
But if there were an affirmative defense to say, my 1201A circumvention is not linked to infringement, either because I only want to read the work or because I want to make fair use of the work, that would satisfy the Constitution with respect to the overbreath claim.

[00:03:17] Speaker 05:
That would leave untouched the problem of speech licensing and the standardless decision-making process.

[00:03:22] Speaker 03:
Why would it, if the standard were the fair use standard, why is that standardless decision making?

[00:03:30] Speaker 03:
To say, on the one hand, anybody who brings their claim to the court would get a court adjudication regarding fair use.

[00:03:39] Speaker 03:
But in order to give people extra comfort, the Librarian of Congress is going to do categorical ex ante fair use

[00:03:51] Speaker 03:
exemptions and everybody else who might be more particular or might not have been addressed or might not have the money to bring a petition to the Library of Congress would still have their fair use defense.

[00:04:03] Speaker 03:
I'm not sure why it's a problem to have the ex ante effort to alleviate that burden.

[00:04:12] Speaker 05:
If the librarian had a broader standard to apply?

[00:04:15] Speaker 03:
If the standard were the fair use doctrine.

[00:04:18] Speaker 05:
Were the fair use doctrine?

[00:04:22] Speaker 05:
That might be a clear enough standard if the Roman at five catch-all consideration that allows exogenous policy considerations to creep in.

[00:04:29] Speaker 05:
If it was only the fair use standard, that might be sufficient.

[00:04:32] Speaker 05:
There would also be a requirement of prompt decision making and the requirement of prompt judicial review to make sure those standards were reasonably applied.

[00:04:47] Speaker 02:
You talk about it being speech licensing.

[00:04:52] Speaker 02:
But what it's licensing is circumvention.

[00:04:58] Speaker 02:
Circumvention is to the end of engaging in speech.

[00:05:02] Speaker 02:
But what's being licensed is circumvention.

[00:05:05] Speaker 02:
Is your position that all circumvention barred by this statute is speech?

[00:05:13] Speaker 05:
Your Honor, circumvention is defined here as

[00:05:17] Speaker 05:
It can be defined as bypassing or accessing a work that's protected by a technical measure.

[00:05:23] Speaker 05:
Nothing more is required than to somehow bypass.

[00:05:26] Speaker 02:
It is the bypassing or decrypting.

[00:05:31] Speaker 02:
It is the act of getting to something that is a circumvention.

[00:05:37] Speaker 02:
It's not the something that you get to.

[00:05:41] Speaker 02:
It's the act of getting there.

[00:05:43] Speaker 02:
It's not the destination that's regulated here.

[00:05:46] Speaker 02:
This, you could think of this as, you know, barring, driving around on roads that are blocked off for construction instead of staying on the main way, right?

[00:05:58] Speaker 02:
You can't do that regardless of your destination.

[00:06:02] Speaker 02:
This is about the process of getting to something in this speech.

[00:06:05] Speaker 02:
But what I'm asking you is circumvention, the process of getting to something that they may want to read or look at.

[00:06:15] Speaker 02:
the process itself categorically speech the process of circumventing is only applicable to accessing a copyrighted work it's simply so close to understand that but you just said the circumvention is to access something now that work

[00:06:35] Speaker 02:
No doubt is the speech of the copyright holder, no doubt.

[00:06:39] Speaker 02:
And so I'm really struggling to understand here whether you're saying the mechanical or technical acts of engaging in circumvention to get that, to get to the goal is itself, is the circumvention itself speech?

[00:06:58] Speaker 05:
So, Your Honor, if I have the DCSS... Can you just tell me yes or no?

[00:07:03] Speaker 05:
And then I promise I will let you explain, but I'm just my brain... We're not arguing that the decryption key is speech.

[00:07:08] Speaker 05:
We're not arguing that the act of unlocking it is expressive, but it is part of the speech process.

[00:07:14] Speaker 02:
Is the act of bypassing protective measures, technological protective measures, speech?

[00:07:22] Speaker 05:
The act of reading is getting to it.

[00:07:26] Speaker 02:
You can read it when you get there.

[00:07:28] Speaker 02:
Is the act of getting to it speech?

[00:07:32] Speaker 05:
It's either part of the speech process or its conduct so closely.

[00:07:36] Speaker 02:
So your argument is that all acts of circumvention are themselves speech.

[00:07:43] Speaker 05:
My argument is that circumvention is so closely related to reading that it's closer than news.

[00:07:50] Speaker 02:
is circumvention.

[00:07:51] Speaker 02:
And you said this was a speech licensing regime.

[00:07:54] Speaker 02:
But what sounds like you mean is what they're licensing here is technological means of being able to engage in speech.

[00:08:05] Speaker 02:
That's your objection.

[00:08:07] Speaker 02:
That's different than a speech licensing regime.

[00:08:09] Speaker 05:
Well, Your Honor, I think it's so closely related that it's more closely related than reserving a soccer field in a park.

[00:08:15] Speaker 05:
It's more closely related than figuring out where your news racks are going to be.

[00:08:19] Speaker 02:
it's why show me what tell me why it's more closely related because if

[00:08:25] Speaker 05:
If something is protected by a technological protection measure, there is no way to read the work without, by definition, circumventing, even if you merely bypass or avoid the technological measure.

[00:08:35] Speaker 02:
So that doesn't make it more related or not.

[00:08:37] Speaker 02:
There's no way of putting newspapers out on newspaper racks without actually putting racks out there first, right?

[00:08:44] Speaker 02:
But the placement of the rack, if I just wanted to engage in putting

[00:08:51] Speaker 02:
old, unused newspaper racks littering them across the city.

[00:08:56] Speaker 02:
No intention of putting newspapers on them.

[00:08:59] Speaker 02:
That would not be speech, assuming I'm not doing this some sort of performative art.

[00:09:03] Speaker 02:
So that would not be speech.

[00:09:04] Speaker 02:
I just want to, I want to, I got a thousand of these in my garage.

[00:09:08] Speaker 02:
I want to get rid of them.

[00:09:08] Speaker 02:
I'm just going to put them all around the speech, the city.

[00:09:11] Speaker 02:
That of course would not be speech.

[00:09:14] Speaker 02:
That, of course, would not be speech.

[00:09:16] Speaker 02:
Can we agree on that?

[00:09:17] Speaker 05:
It is not speech to place objects on the ground for no speech purpose.

[00:09:21] Speaker 02:
Even if they are actually designed to hold newspapers.

[00:09:25] Speaker 02:
Well, if it's... That's what they're designed for.

[00:09:27] Speaker 05:
If somebody else designed them and I'm merely dumping them in a garbage dump, that's not speech.

[00:09:31] Speaker 02:
Right, so the reason the protections were for newspaper rights was because they were going to be displaying speech.

[00:09:39] Speaker 02:
Precisely.

[00:09:39] Speaker 02:
But the licensing, a rule against putting things out there

[00:09:44] Speaker 02:
is not itself a speech licensing regime.

[00:09:47] Speaker 02:
You have to show that the function, and in that case, the sole function, design, and purpose for putting them there was to put newspapers onto them.

[00:09:56] Speaker 05:
Well, Your Honor, I think the analogy would be a law forbidding placing news racks.

[00:10:00] Speaker 05:
And of course, they're going to be, I mean, you could imagine a case where somebody is dumping a news rack.

[00:10:05] Speaker 05:
Although here, I don't think you can.

[00:10:07] Speaker 05:
I don't think it's possible to read a work

[00:10:09] Speaker 05:
protected by a technological protection measure without authorization unless you bypass or avoid the measure.

[00:10:17] Speaker 02:
There's all kinds of people who want to bypass and avoid things so they can steal them and make money.

[00:10:23] Speaker 02:
They may never even read them.

[00:10:24] Speaker 02:
They just want to sell them.

[00:10:26] Speaker 02:
That's not speech.

[00:10:28] Speaker 02:
Is it stealing it to sell to make money?

[00:10:31] Speaker 02:
Is that speech?

[00:10:32] Speaker 05:
The act of reading the work is speech.

[00:10:36] Speaker 02:
I'm imagining someone here engaged in piracy measures and so they want to decrypt or circumvent whichever verb you want to pick out of the list.

[00:10:47] Speaker 02:
They want to do it so they can get access to this material.

[00:10:52] Speaker 02:
It's a very highly anticipated book that hasn't been released yet.

[00:10:57] Speaker 02:
And they want to sell it because they can make a lot of money.

[00:11:02] Speaker 02:
They have no intention of actually even reading it.

[00:11:04] Speaker 02:
They just want access to this document so they can ramp the copyright holder, sell it, and make a lot of money in a bootleg market.

[00:11:13] Speaker 02:
Is there anything involved in that that is speech?

[00:11:17] Speaker 05:
Yes, Your Honor.

[00:11:18] Speaker 05:
Piracy is speech, but forbidding it doesn't violate the First Amendment, as we learned from Eldred and Golan.

[00:11:23] Speaker 02:
What case holds it?

[00:11:23] Speaker 02:
Piracy is stealing is speech.

[00:11:26] Speaker 02:
So if I steal books out of a bookstore, I'm engaged in speech?

[00:11:31] Speaker 05:
If you physically steal a book with the intention of reading it?

[00:11:34] Speaker 02:
No, I didn't say that.

[00:11:36] Speaker 02:
I said I physically steal books out of a bookstore.

[00:11:38] Speaker 02:
Is that speech?

[00:11:40] Speaker 05:
If you're physically just moving paper with no, and you're not reading it at all, and you're not distributing it to anyone.

[00:11:46] Speaker 02:
My hypothetical was I'm physically stealing this copy of a book, electronic book of some sort.

[00:11:52] Speaker 02:
I'm physically stealing it.

[00:11:54] Speaker 02:
I said I didn't want to read it.

[00:11:56] Speaker 02:
I just want to sell it.

[00:11:57] Speaker 02:
I'm going to make a hot dollar off of selling this on the internet.

[00:12:01] Speaker 02:
You said all piracy is speech, and I'm questioning that.

[00:12:05] Speaker 02:
I don't understand why piracy is different than theft.

[00:12:06] Speaker 05:
Piracy in the sense of distributing speech is speech.

[00:12:09] Speaker 05:
It's just permissible to prohibit it under the First Amendment.

[00:12:12] Speaker 02:
And so if I go in and steal books out of a bookstore.

[00:12:19] Speaker 05:
Right.

[00:12:19] Speaker 02:
And then I keep them in my house.

[00:12:22] Speaker 02:
Is that speech?

[00:12:25] Speaker 05:
If a book is stolen and no one's ever going to read it, perhaps that is not speech.

[00:12:29] Speaker 02:
But if I steal it and then sell it, that is speech.

[00:12:33] Speaker 05:
If I steal it to sell it, stealing is conduct necessary.

[00:12:36] Speaker 02:
What is your best case that stealing books and selling them is itself speech?

[00:12:40] Speaker 05:
Well, I go to the logic of Golan and Eldred where copyright grew up at the same time and has the same tradition as the First Amendment.

[00:12:47] Speaker 02:
I don't think I have any cases involved stealing and selling.

[00:12:50] Speaker 05:
I don't have a case where anyone cared whether distributing pirated goods was speech, because it is permissible under the First Amendment to prohibit it.

[00:13:03] Speaker 03:
So your argument, I think we sort of got into a further line of questioning when Judge Millett was asking you, what is the speech that's at issue?

[00:13:14] Speaker 03:
And am I right that it is speech, fair use

[00:13:20] Speaker 03:
that depends on circumvention.

[00:13:24] Speaker 03:
That's the speech you're talking about?

[00:13:26] Speaker 05:
The speech is both the act of reading the media and the act of taking fair use copies of parts of it to create your own speech.

[00:13:34] Speaker 05:
So it's not that the decryption key, DCSS, is speech.

[00:13:38] Speaker 05:
It's that my DVD in my house contains speech.

[00:13:40] Speaker 05:
I want to read it.

[00:13:41] Speaker 05:
And I want to take various clips of it for use in my own speech.

[00:13:45] Speaker 03:
So it's reading and or fair use.

[00:13:48] Speaker 03:
that depends on circumvention?

[00:13:51] Speaker 02:
Yes.

[00:13:52] Speaker 02:
Sorry, when you say, to make sure I understand that answer, when your decryption technology reads their encryption technology to unlock your access to the ebook, is that decryption technology reading the encryption technology itself speech?

[00:14:15] Speaker 05:
No, it's conduct that's necessary for the speech process.

[00:14:18] Speaker 02:
It's part of the speech process.

[00:14:19] Speaker 02:
To get to the end product for fair use.

[00:14:22] Speaker 02:
And you want to use that end product for fair use purposes.

[00:14:24] Speaker 05:
the necessary and immediately following obvious results of the step.

[00:14:30] Speaker 05:
Yes, the next step is speech.

[00:14:32] Speaker 02:
You put a whole lot of necessary and obvious that are neither necessary nor obvious to decryption, in my view.

[00:14:37] Speaker 05:
Well, Your Honor, decryption is not necessary for circumvention, nor is descrambling.

[00:14:43] Speaker 02:
Again, the acts of circumvention, whatever way you're doing it, whether you're decrypting or unscrambling or bypassing, going around any of those that are listed in the statute,

[00:14:53] Speaker 02:
You're not arguing that that's not the reading that you're talking about or the information gathering that you're talking about.

[00:15:00] Speaker 02:
It is only the copyrighted product at the end and the uses of that that you are claiming as speech.

[00:15:07] Speaker 05:
Correct.

[00:15:07] Speaker 05:
I'm not saying that the act of opening the book is itself expressive.

[00:15:11] Speaker 05:
It's just necessary to read the book and necessary for me to make fair use of parts of the book.

[00:15:19] Speaker 03:
And so can you give us examples of

[00:15:23] Speaker 03:
the kinds of fair use as to which circumvention is essential.

[00:15:33] Speaker 05:
Yes, Your Honor.

[00:15:34] Speaker 05:
The filmmaker Amiki talk about this, and we're on a motion to dismiss, of course.

[00:15:38] Speaker 05:
We have this in the complaint discussed in

[00:15:43] Speaker 05:
Anyway, in the complaint.

[00:15:46] Speaker 05:
So filmmakers take fair use clips of other films and take images that are used, documentarians, but also narrative filmmakers.

[00:15:54] Speaker 05:
Security researchers, like Professor Green, take the speech that's in objects or systems and then create scholarship citing that.

[00:16:04] Speaker 05:
And then there are, yes.

[00:16:06] Speaker 03:
Can you explain that again?

[00:16:07] Speaker 03:
The second one?

[00:16:08] Speaker 05:
Well, yes.

[00:16:09] Speaker 05:
So if Professor Green.

[00:16:10] Speaker 03:
Security researchers.

[00:16:11] Speaker 05:
Yes, if Professor Green or other security researchers have a piece of media or an object that's filled with code and code being the speech there, they read that, understand it, and then create research to inform the public or to inform those who could correct the security problem.

[00:16:29] Speaker 05:
There are also blind and print disabled people who merely want to read the speech.

[00:16:34] Speaker 05:
They may not be making fair use, but they're reading the speech.

[00:16:41] Speaker 03:
Is it a violation of the First Amendment to offer a product with limitations, like to offer a print book that isn't automatically read aloud to you, or a film that you're paying a low price for because you only get to watch it for a limited period of time, you don't get to copy and manipulate it?

[00:17:01] Speaker 03:
It seems like when you talk about ownership, you're reading a lot of things into ownership that were never offered or purchased.

[00:17:08] Speaker 05:
Yes, Your Honor, I agree that some of the examples that the government mentions without citation to any record, because we're just on the motion to dismiss record without discovery on page 21 of the at-the-least brief, these sound like the sorts of things that would be ordinary consumer uses of media.

[00:17:25] Speaker 05:
We don't know the details of those.

[00:17:27] Speaker 05:
They haven't been explored below.

[00:17:31] Speaker 05:
But we're not contending that.

[00:17:34] Speaker 05:
Creating a contract around reading a piece of speech that violates the First Amendment contracting parties.

[00:17:39] Speaker 03:
So you're reading disabled.

[00:17:42] Speaker 03:
I can't remember the phrase you used.

[00:17:44] Speaker 03:
But if somebody can't read their e-book without decrypting it so that they can make it more accessible, why isn't that subsumed by the acknowledgment you just made?

[00:17:54] Speaker 03:
It's not offered to them in that way.

[00:17:58] Speaker 05:
That case might be adjudicated that way.

[00:18:00] Speaker 05:
I don't know.

[00:18:01] Speaker 03:
But that's one of your examples.

[00:18:02] Speaker 03:
So your examples are filmmakers.

[00:18:06] Speaker 03:
If filmmakers are doing fair use, then they're not liable.

[00:18:11] Speaker 05:
Well, Your Honor, we're just saying, so for purposes of speech licensing claim, we're claiming that it's speech and that the librarian gets to pick winners and losers.

[00:18:20] Speaker 05:
It's to decide.

[00:18:21] Speaker 03:
But is your position that the librarians picking up winners or losers

[00:18:26] Speaker 03:
displaces a fair use defense that would otherwise be available?

[00:18:30] Speaker 05:
No, Your Honor.

[00:18:31] Speaker 03:
And so how does it disadvantage a filmmaker who is able to decrypt wants to fair use clips of someone else's film?

[00:18:42] Speaker 05:
I would point to the court to board Lee from 2010 there, the person who was required to get a speech license wasn't denied a license.

[00:18:50] Speaker 05:
He was allowed to leaflet in in the park.

[00:18:54] Speaker 05:
But nonetheless, the court overturned the regime that would have allowed arbitrary decision making except there.

[00:19:01] Speaker 03:
There's a ban on leafletting.

[00:19:02] Speaker 03:
If you don't have

[00:19:03] Speaker 03:
a license, whereas here, there's no ban on fair use.

[00:19:07] Speaker 03:
If you don't have a categorical exemption, the categorical exemption is saying, you don't even have to get into a situation in which someone goes after you and sues you for copyright infringement, because we're going to tell you upfront that this swat is fair use.

[00:19:20] Speaker 03:
But you still, as the filmmaker, Disney can still do fair use and make some parody of someone else's film.

[00:19:28] Speaker 03:
And if they get sued, they say, fair use.

[00:19:32] Speaker 05:
Your Honor, there is a categorical prohibition here.

[00:19:34] Speaker 05:
It's in 1201A.

[00:19:35] Speaker 05:
You're categorically prohibited from accessing a copyrighted work without the authorization.

[00:19:40] Speaker 05:
of the copyright owner if there is a technological protection measure on it.

[00:19:45] Speaker 05:
Some people get out of that prohibition because they gain the favor of the librarian.

[00:19:50] Speaker 05:
Some do not.

[00:19:51] Speaker 05:
And that is separate from copyright infringement.

[00:19:55] Speaker 05:
Those who try to make fair use when they're not able to circumvent, they have to tend to use lower quality media.

[00:20:03] Speaker 03:
So if you have a- And is quality of media First Amendment protected?

[00:20:08] Speaker 05:
Yes, absolutely.

[00:20:09] Speaker 05:
Two live crew in the Campbell case was entitled under the First Amendment to use a high quality sound recording of Roy Orbison's great guitar lick from Pretty Woman.

[00:20:18] Speaker 02:
If they weren't, if they had to... The case wasn't about what level.

[00:20:22] Speaker 02:
I mean, that was about whether parity was protected at all.

[00:20:26] Speaker 02:
It didn't say that you have a First Amendment right to the highest tech version of any medium, any, there was song or book or anything out there.

[00:20:38] Speaker 02:
There's no First Amendment right to that.

[00:20:41] Speaker 05:
Well, Your Honor, that case did say that you need to be able to take as much of the work as you need to make parity of it.

[00:20:46] Speaker 02:
That's very different from what quality form you're going to get it in.

[00:20:51] Speaker 02:
I don't understand why you say that there's a First Amendment right to get everything in the highest quality form in which it is available.

[00:20:59] Speaker 05:
I only said that there's a First Amendment right not to be prohibited by the government from using the high quality version in your lawful possession.

[00:21:08] Speaker 02:
Well, again, that just begs the question of what's in your lawful possession when you purchase an e-book.

[00:21:13] Speaker 02:
If you purchase it subject to conditions and requirements, then you only own what you purchased.

[00:21:19] Speaker 05:
Well, we're on a motion to dismiss and there's no ebook conditions or terms of service in the record here.

[00:21:24] Speaker 05:
That might be one of the examples.

[00:21:26] Speaker 02:
I think we can just take as given that nobody is selling the right to, if you could identify in your complaint an allegation or some copyright owner when they gave you access to an ebook or you had access to watch a movie on your Netflix, meant you had access to do it any way you wanted, regardless of the conditions,

[00:21:48] Speaker 02:
put on your acquisition of it, let me know.

[00:21:51] Speaker 02:
But I don't see that in your complaint.

[00:21:54] Speaker 02:
And if you don't, if it's not what you're buying, it's not what you're buying.

[00:21:57] Speaker 02:
It's like, you're like leasing a car here and you want to say, fine, now I can do anything I want with that car.

[00:22:03] Speaker 02:
And there's nothing you can do about it.

[00:22:05] Speaker 02:
And that's not how it is.

[00:22:06] Speaker 02:
It's still their property.

[00:22:07] Speaker 02:
You're just leasing it.

[00:22:08] Speaker 02:
You can't put nails in the wall of an apartment.

[00:22:11] Speaker 05:
I don't have any contracts relationship between the copyright owner of the people who made the songs on my DVDs or the movies.

[00:22:18] Speaker 05:
I own the DVDs.

[00:22:19] Speaker 05:
They contain speech.

[00:22:21] Speaker 02:
And I'm, I submit that reading the DVDs subject to the protections that are on them and subject to piracy law, piracy laws.

[00:22:29] Speaker 05:
Yes, your honor, which has a fair use provision in it, which is why it, you know, piracy is all fair use is protected by the first amendment.

[00:22:38] Speaker 05:
I think so, because that's how fair use is defined.

[00:22:40] Speaker 02:
Do we have to decide that to rule in your favor?

[00:22:43] Speaker 02:
That all fair use is constitutionally protected?

[00:22:45] Speaker 05:
No, Your Honor, because the way the government interprets this statute, there is no fair use defense at all.

[00:22:51] Speaker 02:
So you don't need to determine its extent.

[00:22:53] Speaker 02:
You're talking about speech licensing and integrally related to speech.

[00:22:56] Speaker 02:
But if in fact, a lot of the fair uses you allege in your complaint are not themselves constitutionally protected speech,

[00:23:06] Speaker 02:
unless we hold that every fair use, that one, they qualify as fair use, and two, that all fair use is constitutionally protected, we can't get to your theory of the case, can we?

[00:23:18] Speaker 02:
And that's a big question.

[00:23:19] Speaker 02:
The Supreme Court has said time and again in the VHS case, well, yeah, we think you can do this, but Congress can certainly revisit it.

[00:23:29] Speaker 02:
They don't normally say that when something's protected by the First Amendment.

[00:23:33] Speaker 05:
Well, your honor, I think we plausibly alleged examples of filmmakers and others who are making fair use.

[00:23:38] Speaker 05:
And it would also be possible for this court to merely say that the district court at J.A.

[00:23:43] Speaker 05:
286 and 87 was wrong in sidestepping the entire overbreath question by invoking Citizens for Vincent.

[00:23:51] Speaker 05:
Respectively, this isn't a Citizens for Vincent case.

[00:23:54] Speaker 05:
The as applied claims that are no longer in the case are different from the overbreath claim that remains.

[00:23:59] Speaker 02:
But can we even find that there's an overbreath claim without understand that the overbreath claims aren't allowed under the cop for fair use.

[00:24:06] Speaker 02:
There's not a fair use overbreath claim.

[00:24:08] Speaker 02:
There might be a First Amendment overbreath claim.

[00:24:10] Speaker 02:
So to have an overbreath claim, you're going to have to show that all the speech is not just fair use, but in fact is protected by the First Amendment.

[00:24:20] Speaker 02:
Right?

[00:24:20] Speaker 05:
Yes.

[00:24:21] Speaker 05:
On a record, once we have discovery, we would have to show a burden.

[00:24:24] Speaker 02:
First, you have to allege it in your complaint.

[00:24:26] Speaker 05:
Yes, Your Honor.

[00:24:27] Speaker 05:
And in the record.

[00:24:28] Speaker 02:
So how do I know that the examples that you have given, and post green, so we know that Mr. Wong's technology doesn't count as protected for these purposes.

[00:24:39] Speaker 02:
So where have you alleged that, or how do I know from the examples you've given of people who want to take longer clips than the licenses allow?

[00:24:50] Speaker 02:
We want to take, you know, to convert things from one format to another, from ebook to audiobook.

[00:24:59] Speaker 02:
How do I know that that is First Amendment protected speech?

[00:25:04] Speaker 05:
Well, Your Honor, in the record, the Copyright Office's 2017 report does acknowledge that there were fair uses and free speech rights burdened the Copyright Office.

[00:25:13] Speaker 02:
There were some, but you overbreath doesn't get to say that there were some that were burdened.

[00:25:17] Speaker 02:
It doesn't even have to say that 49% were burdened.

[00:25:20] Speaker 02:
Probably not even 51%.

[00:25:21] Speaker 02:
It has to be a lopsided ratio.

[00:25:24] Speaker 02:
So where do I get that from your complaint?

[00:25:27] Speaker 05:
Well, your honor, I would just say that overbent claims like Stevens was on a full criminal trial.

[00:25:31] Speaker 05:
These overbent claims tend to be on a thick record with summary judgment or trial.

[00:25:37] Speaker 05:
Our complaint alleges various uses that we assert are fair, whether if you taught up the exact percentage of people.

[00:25:45] Speaker 02:
Can you identify an example from your complaint that we can tell applying our green one precedent

[00:25:53] Speaker 02:
is a First Amendment violation.

[00:25:56] Speaker 02:
If you have one example of an actual First Amendment violation alleged in your complaint, post-screen.

[00:26:05] Speaker 02:
Is your honor suggesting that it would be so much detail that this court could- I'm asking, I'm not aware of any over-breath complaint because Mr. Green's out and Mr. Wong, we held in Green One, is not constitutionally protected.

[00:26:20] Speaker 02:
His technology is not constitutionally protected.

[00:26:22] Speaker 02:
So, and now you've got other allegations about them and about other people, but to state an over-breath claim, it seems to me that the one thing you should be able to do is identify one person whose speech

[00:26:36] Speaker 02:
that you seek to protect, we know is constitutionally protected.

[00:26:40] Speaker 02:
A very easy thing to do in the Stevens case.

[00:26:44] Speaker 02:
I just don't see it here.

[00:26:45] Speaker 05:
Well, Your Honor, Professor Green, I submit, has standing.

[00:26:48] Speaker 05:
The last panel said he lacked standing on the as-applied claims to get a preliminary injunction.

[00:26:54] Speaker 05:
Professor Green today is participating in 2024.

[00:26:56] Speaker 02:
The government has said his speech, his book selling is not, his book is not even the type of medium that's regulated here as circumvention.

[00:27:05] Speaker 05:
But for circumvention, he would rely on the 2024 rulemaking, giving him another exemption.

[00:27:10] Speaker 05:
He's participating in that now under the standards of standing.

[00:27:14] Speaker 02:
He may have gotten an exemption from the Librarian of Congress, bully for him.

[00:27:18] Speaker 02:
But where does that show me that you have precise conduct that actually violates the First Amendment?

[00:27:23] Speaker 02:
Do you agree that to state an over-breadth of claim, the complaint must, at a minimum, identify one person whose conduct is

[00:27:33] Speaker 02:
plainly protected by the First Amendment, that we can tell that from the face of the complaint?

[00:27:37] Speaker 05:
I believe that you have to plausibly allege, yes, but I think that fair use is so notoriously fact-specific that it would be too high a standard to say that you have to allege.

[00:27:46] Speaker 02:
So in this area, you want a special rule in this area that to state an over-breath claim, you don't have to identify anyone whose conduct is

[00:27:55] Speaker 02:
on the face of the complaint protected by the First Amendment just that you can allege facts that someone later down the line after discovery might or might not conclude possible as a First Amendment claim.

[00:28:09] Speaker 02:
That's the pleading standard.

[00:28:10] Speaker 05:
Not at all, Your Honor.

[00:28:11] Speaker 05:
I just want Twombly Nick Ball to apply to motions to dismiss and overbreath claims.

[00:28:15] Speaker 02:
But you want way more than normal Twombly Nick Ball.

[00:28:18] Speaker 02:
Overbreath is a special category.

[00:28:20] Speaker 02:
And I'm just not aware of a case in which it was considered by this court or the Supreme Court, or you can tell me any other appeals court where

[00:28:29] Speaker 02:
Nobody could identify a named plaintiff or anyone else listed, where we know there's a First Amendment problem.

[00:28:36] Speaker 02:
Might be, maybe not be, but we don't know.

[00:28:38] Speaker 04:
Narrative filmmakers.

[00:28:40] Speaker 02:
Overbreadth, because that requires a volume.

[00:28:42] Speaker 02:
And if we can't tell from the face of the complaint, we're not sure there's even one.

[00:28:45] Speaker 02:
Maybe, maybe not.

[00:28:46] Speaker 02:
How do I know that you've alleged an overbreadth claim, as opposed to maybe some as-applied claims?

[00:28:51] Speaker 05:
Your honor, narrative filmmakers were denied an exemption.

[00:28:54] Speaker 05:
K to 12 instructors were denied an exemption, whereas college professors were allowed the exemption.

[00:28:59] Speaker 02:
OK, so let's start again.

[00:29:00] Speaker 02:
So these K to 12 instructors, I get they want to use that copyright material at the end.

[00:29:06] Speaker 02:
Do these K to 12 instructors claim to have the technological capability themselves to circumvent?

[00:29:13] Speaker 05:
Yes.

[00:29:14] Speaker 02:
They have the circumvention capabilities?

[00:29:16] Speaker 05:
It's widely available, as in Corley.

[00:29:18] Speaker 05:
It was on the internet openly.

[00:29:20] Speaker 05:
Yes.

[00:29:21] Speaker 02:
So that they are ready to use this, they have the systems and they are ready to use this technology to circumvent.

[00:29:26] Speaker 02:
I understood from your description of them that they simply want to use this material and all you allege that they want to use this material in certain ways, not that they actually themselves wish to.

[00:29:34] Speaker 05:
No, if I'm on.

[00:29:35] Speaker 02:
And get the material as opposed to someone else getting the material and then they'd like to use it.

[00:29:39] Speaker 05:
No, if I'm a fifth grade teacher and I have a DVD in my house and I need to get a clip off the DVD, I want to show a 30 second clip of the DVD to my kids in the full definition.

[00:29:48] Speaker 05:
And to do that, I would need to get the CSS off the internet or some other commonly available tool.

[00:29:55] Speaker 02:
Okay.

[00:29:55] Speaker 02:
And then we know that that K to 12 is constant use that use contrary to the copyright holders intentions and desires is first amendment protected because of what?

[00:30:07] Speaker 05:
We know because it's fair use, because it would be a short clip.

[00:30:10] Speaker 02:
That's saying that all fair use is necessarily First Amendment protected, which the Supreme Court has never said.

[00:30:16] Speaker 05:
Your Honor, fair use is notoriously fact-specific.

[00:30:19] Speaker 05:
So I could invent a hypothetical where one fifth-grade teacher uses too long of a clip and it's not transformative use.

[00:30:24] Speaker 05:
That might not be fair use, whereas another fifth-grade teacher uses a short clip.

[00:30:28] Speaker 05:
And it's for a specific purpose that in context makes it clearly fair use.

[00:30:33] Speaker 05:
They might use it as a parody.

[00:30:34] Speaker 02:
But the fact of the slide is that make it First Amendment speech.

[00:30:37] Speaker 02:
When it's being done, when they want to copy something against the will of the copyright holder, and yet it is still First Amendment protected.

[00:30:45] Speaker 02:
Now, fair use.

[00:30:46] Speaker 02:
First Amendment protected.

[00:30:48] Speaker 05:
Yes, Your Honor.

[00:30:49] Speaker 05:
I believe that under Eldred and Golan, the fair use is considered to be an essential accommodation to the First Amendment baked into copyright law.

[00:30:58] Speaker 02:
It didn't exist initially with copyright law at all.

[00:31:02] Speaker 05:
Fair use, well, I believe it existed since Justice Story and Folsom versus Marsh.

[00:31:08] Speaker 02:
Do the first copyright statute have a fair use provision?

[00:31:11] Speaker 05:
The Copyright Act codified a pre-existing common law right that I believe goes back to England.

[00:31:17] Speaker 02:
Are you sure the common law right had a fair use provision?

[00:31:20] Speaker 05:
Yes, Your Honor.

[00:31:21] Speaker 02:
That's your best case for that.

[00:31:23] Speaker 05:
Folsom versus Marsh, Justice Story.

[00:31:27] Speaker 03:
I have a remedial question, which is if we were to agree with you that the Librarian of Congress Triennial Review is an unconstitutional licensing scheme and invalidated that, then the rest of the statute could stand.

[00:31:43] Speaker 05:
I believe it would only affect a 1201A circumvention regime because the trafficking portion, there's nothing in trafficking would be affected at all.

[00:31:51] Speaker 03:
And it would be, but it also would be severable from the anti-circumvention provision.

[00:31:56] Speaker 03:
Yes, Your Honor.

[00:32:00] Speaker 03:
And then would the remaining law be unconstitutional, the law that prohibited circumvention and trafficking?

[00:32:09] Speaker 05:
That would be unconstitutional only if we prevail on our overbreath claim.

[00:32:13] Speaker 03:
And why isn't your overbreath claim determined by the first appeal in this case?

[00:32:20] Speaker 05:
Because it wasn't considered there, the first panel said it did not have jurisdiction over that claim.

[00:32:25] Speaker 05:
So while I take it that on the preliminary injunction record, we have a holding that the net VCR can be constitutionally prohibited.

[00:32:35] Speaker 05:
That's essentially all we have there.

[00:32:37] Speaker 03:
The court said that the DMCA's incidental restriction

[00:32:43] Speaker 03:
on alleged First Amendment freedoms is no greater than is essential to the furtherance of the government's interest.

[00:32:49] Speaker 03:
Yes, Your Honor.

[00:32:50] Speaker 03:
That doesn't suffice to foreclose us from finding overbred?

[00:32:55] Speaker 04:
No, Your Honor.

[00:32:56] Speaker 04:
The last panel from the, I believe, one of the first sentences of the opinion and throughout makes clear that.

[00:33:01] Speaker 03:
No, I know formally they say we're not ruling on the overbred claim.

[00:33:04] Speaker 03:
We're only doing as applied.

[00:33:05] Speaker 03:
But I'm just looking at the rationale in that case.

[00:33:08] Speaker 05:
Yes, they were focused on the decryption key.

[00:33:11] Speaker 05:
The way they phrase it, it's that people who write code have a First Amendment right to write decryption code.

[00:33:17] Speaker 05:
So here, we're not talking about the decryption code.

[00:33:19] Speaker 05:
We're talking about the content of the DVD on my shelf.

[00:33:22] Speaker 05:
And we're talking about the fair use clips I'd like to show to my fifth grade class.

[00:33:26] Speaker 03:
So again, you're looking at the use, fair or otherwise, expressive uses of materials that are now behind an encryption wall.

[00:33:38] Speaker 05:
Yes, but both the reading and the use.

[00:33:41] Speaker 05:
So I read before I am incorporated into my own expression and both are protected.

[00:33:48] Speaker 01:
Why do you think if we invalidated the librarian as gatekeeper that it wouldn't be deprived of the escape hatch and you would be able to get past the protective measure?

[00:34:07] Speaker 05:
Your honor, typically when a statute is struck down for violating the First Amendment, the remedy tries to level up to allow more people to speak rather than leveling down.

[00:34:18] Speaker 05:
But also, even if the librarian is gatekeeper, we're struck down, and then the exception process were eliminated, it would eliminate this distinct First Amendment evil, which is having an unaccountable and standardless decision maker pick winners and losers.

[00:34:33] Speaker 01:
But wouldn't you then be without any way

[00:34:37] Speaker 01:
to get around the anti-circumvention provision.

[00:34:42] Speaker 05:
Yes, if that was the remedy, yes, our particular plaintiffs would be without the triennial exceptions until such time as Congress corrected the statute or amended the statute.

[00:34:54] Speaker 01:
And how would Congress do it?

[00:34:56] Speaker 01:
I'm sorry.

[00:34:56] Speaker 01:
So it wouldn't be severable.

[00:34:59] Speaker 05:
Well, Your Honor, I'm just going with your hypothesis.

[00:35:02] Speaker 05:
I apologize.

[00:35:02] Speaker 05:
I'm not sure if I understand.

[00:35:04] Speaker 05:
I believe that the whole circumvention portion of 121A.

[00:35:08] Speaker 01:
Let me try to make it clear.

[00:35:10] Speaker 01:
Right now, you have an avenue to get around the anti-circumvention provision.

[00:35:17] Speaker 01:
You're challenging that.

[00:35:19] Speaker 01:
And if we agree with you that that exemption

[00:35:23] Speaker 01:
with the librarian as gatekeeper, without the judicial review, without the prompt review, and so forth, is struck down, you're left with no way to get past the protective measure.

[00:35:38] Speaker 05:
Your Honor, in Boardley, Mr. Boardley got a license, but then he attacked the licensing regime, which this court struck down.

[00:35:45] Speaker 05:
I believe that the remedy there was that anyone could leaflet without a permit.

[00:35:49] Speaker 05:
They enabled more speech rather than restricting speech.

[00:35:55] Speaker 03:
But we wouldn't necessarily have to so hold.

[00:35:59] Speaker 03:
I mean, you answered my question about severability.

[00:36:02] Speaker 03:
Take away the triennial licensing

[00:36:07] Speaker 03:
scheme and just leave in place the ban on circumvention and trafficking, arguably that gives the readers and speakers that you're concerned with fewer, less guidance, less security against enforcement.

[00:36:24] Speaker 03:
But it does take away the Library of Congress's role, which I gather to be the core of your anti-prior restraint argument.

[00:36:35] Speaker 03:
So you sort of have like,

[00:36:38] Speaker 03:
restraining less speech, but introducing this ex ante control that you mistrust, or functionally restraining more speech, but with only the courts being the adjudicators.

[00:36:51] Speaker 03:
And you're favoring what I put second.

[00:36:53] Speaker 03:
Could I just describe second?

[00:36:54] Speaker 05:
Well, yes, for purposes of the speech licensing claim, I do believe that it needs to be, the triennial rulemaking would need to be invalidated.

[00:37:02] Speaker 05:
I look at, you know,

[00:37:05] Speaker 05:
sorry, the Town of Gilbert case, there were sign regulations that admirably allowed political and ideological science to be very big, bigger than other science.

[00:37:12] Speaker 05:
Nonetheless, that's content discrimination, and the ordinance was struck down.

[00:37:17] Speaker 03:
What other than the fifth other factors provisions really problematic, unguided?

[00:37:26] Speaker 03:
Reading it, it seems very much trying to codify something akin to Ferriero's, maybe even broader.

[00:37:33] Speaker 05:
I believe that that the statute could be corrected only by eliminating the Roman at the catch all it could or yes or by saying that essentially it.

[00:37:45] Speaker 05:
I mean if all it means is that the librarian may consider whether classes of works are being the prohibition is going to have a negative impact on speakers in the next 3 years and Roman at 5 just means if something's directly relevant to that then consider it.

[00:38:00] Speaker 05:
If it were narrowly construed like that to exclude bringing in auto emissions policy and the like, then that would be permissible.

[00:38:08] Speaker 03:
So that would be a full relief from your perspective.

[00:38:11] Speaker 03:
If it was just read in a kind of you stem generis way, that this B is to be read in the context of Roman at one through four and in the service of those, then reading it that way would cure the problem that you have.

[00:38:30] Speaker 05:
That would cure step one of the three steps in the speech licensing concern.

[00:38:33] Speaker 05:
Obviously, it wouldn't address promptness, and it wouldn't address prompt judicial review.

[00:38:39] Speaker 03:
I mean, I have to ask the government about it, but your concerns with promptness and prompt judicial review depend on understanding the act to displace any other fair use defense.

[00:38:54] Speaker 03:
Because you wouldn't need prompt judicial review

[00:38:58] Speaker 03:
of the Library of Congress ruling, if you retain in your pocket a fair use defense, you're just as good off, just as well off as you were before the Library of Congress tried to ease broad categories in terms of promptness and prompting review.

[00:39:20] Speaker 05:
The government doesn't interpret the statute to include a fair use defense at all.

[00:39:23] Speaker 03:
So does it interpret it to displace a fair use defense that you'd otherwise have?

[00:39:27] Speaker 05:
Well, if the government sues me for copyright infringement and 1201A circumvention, I have a fair use defense in their view for the former, but not for the latter.

[00:39:37] Speaker 05:
So however fair my use was, they can still get me if I use DCSS to decrypt my DVDs.

[00:39:43] Speaker 02:
You have a First Amendment defense, regardless.

[00:39:48] Speaker 02:
They can't take the First Amendment out of the MCA to challenge the application.

[00:39:52] Speaker 02:
You always have a First Amendment defense.

[00:39:54] Speaker 03:
So to the extent that you're correct, that fair use is supported by or is as strong as the First Amendment, then your concerns would seem to rise or fall with the extent to which you write about that.

[00:40:12] Speaker 03:
that wasn't very clear.

[00:40:14] Speaker 03:
So you've taken the position that fair use is and should be viewed as a First Amendment right?

[00:40:22] Speaker 03:
Yes, Your Honor, in the context of- What Judge Maleta is saying is that you would have a First Amendment defense to- You could try to make out a First Amendment defense.

[00:40:31] Speaker 03:
Right.

[00:40:32] Speaker 03:
If you are correct that you are engaging in, your client is engaging in fair use or third party, engaging in fair use and that fair use is

[00:40:42] Speaker 03:
is a First Amendment right, then it doesn't matter whether the Digital Millennium Copyright Act codifies that, because it's a constitutional entitlement that would remain.

[00:40:55] Speaker 05:
Well, Your Honor, that sounds like saying that we would have to bring an as-applied challenge rather than a facial challenge.

[00:41:02] Speaker 03:
Well, no, or if somebody tried to prosecute, just as was always the case with any law that

[00:41:09] Speaker 03:
to which you might have a First Amendment defense, you could say, no, no, First Amendment here.

[00:41:14] Speaker 03:
And so the, right?

[00:41:18] Speaker 05:
I could bring that defense.

[00:41:19] Speaker 05:
I'm worried about chilling, of course, because part of the concern about speech licensing regimes is that they cause people to self-censor in addition to.

[00:41:27] Speaker 03:
It seems like a very odd complaint to bring, where maybe the way to clarify my question is,

[00:41:36] Speaker 03:
If we read the Digital Millennium Copyright Act's triennial rulemaking as an effort to do some kind of advanced wholesale description of fair use categories to just ease people's concerns about chilling,

[00:41:57] Speaker 03:
And then if you're right that the First Amendment protects fair uses that might not be captured in those categories, to be worried about the Librarian of Congress rulemaking as something that's going to add a chill to someone's experience without those exemptions seems perverse.

[00:42:19] Speaker 03:
It seems very unlikely.

[00:42:24] Speaker 05:
It sounds like a well-intentioned provision that nonetheless places a government official in charge of picking winners and losers among speakers.

[00:42:33] Speaker 03:
Other than the tinkering with your car software to deal with exhaust, which I'm not sure where the reading or expression comes in, but what examples or hypotheticals do you have of the Library of Congress, Librarian of Congress,

[00:42:54] Speaker 03:
exercising the discretion that is given by the statute in a way that is chilling.

[00:43:04] Speaker 05:
Well, I mentioned the difference between K through 12 or adult GED teachers and university professors or the difference between narrative filmmakers and documentary filmmakers.

[00:43:14] Speaker 03:
If I'm a narrative filmmaker,

[00:43:17] Speaker 03:
And I'm not given an ex-ante categorical exemption.

[00:43:22] Speaker 03:
I'm not included within one of the rulemakings.

[00:43:25] Speaker 03:
But I still have a First Amendment right by your hypothesis to fair use.

[00:43:30] Speaker 03:
How am I disadvantaged?

[00:43:33] Speaker 05:
Because your insurance company, your production company, and the people who finance you will not agree ex ante that you are clearly allowed to do it.

[00:43:41] Speaker 05:
And so your speech will be chumped.

[00:43:42] Speaker 03:
But if we struck down those categories, though the Roman at one through five, if we struck down the Library of Congress, Librarian of Congress rulemaking, that would still be the case.

[00:43:52] Speaker 03:
That client, the narrative filmmaker, would be in the exact same jeopardy.

[00:43:57] Speaker 03:
Maybe I'm wrong about my fair use scope determination.

[00:44:01] Speaker 03:
Maybe I'm wrong that First Amendment

[00:44:03] Speaker 03:
that this is a First Amendment right.

[00:44:07] Speaker 03:
But that would be true with or without the librarian of Congress provision.

[00:44:12] Speaker 05:
Yes, Your Honor.

[00:44:13] Speaker 05:
The problem with the broad prohibition is limiting all speech that people have, limiting things that people have the right to do.

[00:44:20] Speaker 05:
The problem with the librarian being in charge is that people will try to anticipate the librarian's preferences, try to shade their speech toward what the librarian wants to hear, and that they're subject to content discrimination by the government.

[00:44:33] Speaker 03:
We don't have any examples of content discrimination.

[00:44:36] Speaker 03:
I mean, are you saying that the university versus K through 12 is content discrimination?

[00:44:41] Speaker 05:
I am, Your Honor.

[00:44:41] Speaker 05:
I wouldn't have a fifth grade course delivered to college students, nor would I display a documentary and describe it as a narrative film.

[00:44:49] Speaker 03:
But that doesn't add chill, if you are right, about the expressive fair use First Amendment protection.

[00:44:59] Speaker 05:
I agree that the librarian making the decision doesn't add general chill.

[00:45:04] Speaker 05:
It subjects me to content discrimination by the government, which will, among other things, lead me to try to speak in ways the government might approve of.

[00:45:16] Speaker 02:
I just want to make clear, your K through 12 teacher, it's not enough to have an overbreath.

[00:45:24] Speaker 02:
If we thought you had alleged an overbreath challenge to the circumvention provision,

[00:45:30] Speaker 02:
How have you alleged an over-breadth challenge to the trafficking provision?

[00:45:35] Speaker 02:
Because if the K-12 teacher cannot get that software you mentioned that they need, and I read our green decision to say, there isn't a First Amendment right there, your case falls apart.

[00:45:49] Speaker 02:
You have to take down trafficking to get anywhere on circumvention.

[00:45:56] Speaker 02:
And what is, how does your complaint allege over-breadth as to the trafficking provision given our decision or in light of our decision in green?

[00:46:07] Speaker 05:
Your honor, the trafficking and circumvention provisions rise and fall separately.

[00:46:11] Speaker 05:
It may be that we have not plausibly alleged that there are more cases of trafficking being unconstitutionally forbidden than constitutional.

[00:46:21] Speaker 02:
Okay, so if that falls out, if the trafficking challenge falls out,

[00:46:25] Speaker 02:
Although I'd like you to tell me if you think you have actually stated a claim there.

[00:46:27] Speaker 02:
But let's assume for my question that it falls out.

[00:46:30] Speaker 02:
Well, then how many of the people that you list in your complaint, the K through 12 teachers, can independently have the technology to decrypt circumvents otherwise access this information if they cannot get

[00:46:49] Speaker 02:
anything from, they can't buy anything, they can't get it, they cannot engage themselves in the decryption process.

[00:46:55] Speaker 05:
Your Honor, we allege in the complaint that, for example, the code that protects that trapezoid cable, the HDMI cable, is publicly available.

[00:47:03] Speaker 05:
The Corley case is all about how publicly available, easily available, the DVD decryption device is.

[00:47:09] Speaker 05:
Blu-ray has similarly been cracked publicly.

[00:47:12] Speaker 05:
So I would, as a factual matter, I think the K-5 teacher can simply decrypt it.

[00:47:18] Speaker 02:
Do they violate anything if they, are these things available for free or do they have to pay for them on the internet?

[00:47:23] Speaker 02:
I don't know the answer that you have to pay for them is that are they are they not involved in trafficking if they buy this stuff off the Internet.

[00:47:32] Speaker 02:
I could be wrong, I don't know exactly how it's defined, but it seems like a silly in in in the early we just don't let you sell it when the quarterly case itself, it was given away for free.

[00:47:41] Speaker 05:
That makes a difference.

[00:47:42] Speaker 02:
There's no allegations of complaint about this.

[00:47:44] Speaker 02:
So I'm trying to figure out that I understand why you say the K-12 teacher, what they want to do, and why you think that would fit within traditional fair use.

[00:47:53] Speaker 02:
And maybe you even have an argument or not.

[00:47:55] Speaker 02:
But maybe let's assume that that actually would be First Amendment protected speech if they did it, if they don't have the wherewithal without being able to use technology that is criminalized by the anti-trafficking provision.

[00:48:09] Speaker 02:
I don't see how your chill problems are gone, and I don't see how you can make a plausible allegation that there's all this speech to be engaged in if they just can't break in to do it.

[00:48:22] Speaker 05:
You're on the entire premise of the 1201 rulemaking.

[00:48:24] Speaker 05:
The whole reason why all these people get together every three years is because they know it's easy to do.

[00:48:29] Speaker 05:
Everybody is circumventing the question, and they have the tools.

[00:48:33] Speaker 05:
The triennial rulemaking does not permit traffickers.

[00:48:35] Speaker 02:
Everyone's already doing it and they already have the tools, then why are we here?

[00:48:39] Speaker 05:
Because they don't want to risk government prosecution.

[00:48:42] Speaker 02:
Exactly.

[00:48:43] Speaker 02:
Well, that's my question.

[00:48:44] Speaker 02:
If you don't take down the circumvention ban, they're going to have the same risk.

[00:48:48] Speaker 05:
I'm not sure I understand the question, Your Honor.

[00:48:50] Speaker 02:
Well, I'm assuming, the government can certainly tell me if I'm wrong, that at least purchasing something off the internet that is illegally trafficked may itself be unlawful.

[00:49:04] Speaker 02:
Assuming at least there's some sort of intent there, right?

[00:49:08] Speaker 02:
And if purchasing is, I'm not sure why downloading something that I know is unlawful and stolen isn't also covered by the trafficking ban.

[00:49:15] Speaker 02:
So if all the speech you want to allege over here in the circumvention claim just can't be accomplished as long as there's a trafficking ban, then there's really nothing to be protected there.

[00:49:27] Speaker 05:
Ron, I disagree.

[00:49:28] Speaker 05:
Well, one reason is that we allege on the complaint that- I'm very much misunderstanding this.

[00:49:31] Speaker 05:
Well, we allege in the complaint that these decryption tools can simply be figured out.

[00:49:36] Speaker 05:
Somebody can reverse engineer within their rights.

[00:49:38] Speaker 02:
No doubt there are people in this world who can.

[00:49:40] Speaker 02:
I promise you, I could not.

[00:49:43] Speaker 02:
There's brilliant K through 12 teachers.

[00:49:45] Speaker 02:
I had some great ones, but I can't assume, and I'm not going to assume, that all of them

[00:49:50] Speaker 02:
can do the math on their own to do this, or at least that there was such a volume of people out there who can do it that we've got an overbreath problem.

[00:50:00] Speaker 02:
I'm expecting that actually those people are pretty rare.

[00:50:04] Speaker 02:
Am I wrong?

[00:50:05] Speaker 02:
Can you do it?

[00:50:05] Speaker 05:
The people who can actually develop a decryption tool?

[00:50:08] Speaker 05:
Sure, it does sound like they're rare, but people are getting them all the time.

[00:50:12] Speaker 02:
So I'm assuming most people that you've identified in your complaint can't

[00:50:18] Speaker 02:
do it, either for mathematical ability, resources, time, can't do it.

[00:50:21] Speaker 02:
So saying that it can be done out there really isn't much by these incredibly sort of genius-minded people, it doesn't really help here.

[00:50:30] Speaker 02:
So now most of your people in your complaint, obviously Mr. Hamon can, but the other ones, if they can't do it, if they can't get the technology, there's nothing for us to help them with.

[00:50:45] Speaker 05:
Well, they do get the technology.

[00:50:47] Speaker 05:
That's the premise of the 1201A rulemaking.

[00:50:49] Speaker 05:
The filmmakers do it, as they mentioned in their meekest brief.

[00:50:52] Speaker 05:
And as alleged in the complaint, there would be no reason to apply for exemption.

[00:50:55] Speaker 05:
They do get it through exemption?

[00:50:58] Speaker 02:
Or are you talking that there's no exemption to trafficking?

[00:51:00] Speaker 02:
So I'm sorry, they're getting it off the internet.

[00:51:04] Speaker 05:
Well, trafficking has certain requirements.

[00:51:07] Speaker 05:
It's not that every single decryption key is a de facto trafficking violation.

[00:51:14] Speaker 05:
possible to have a key without having trafficked it.

[00:51:19] Speaker 05:
If it was given to people.

[00:51:21] Speaker 02:
It's pretty hard.

[00:51:21] Speaker 02:
I mean, suppose we have some sort of bonafide comes into possession of it, but it's not normally how that works.

[00:51:27] Speaker 02:
And people come into possession of stolen property.

[00:51:30] Speaker 02:
And if they know there's a trafficking ban out there, if we're assuming for this purpose is your trafficking ban fails, or at least you haven't stated an overbreath claim.

[00:51:39] Speaker 02:
Then and they know you told us they're all going to be chilled by it.

[00:51:43] Speaker 02:
So they must know then.

[00:51:46] Speaker 02:
What are we protecting?

[00:51:49] Speaker 05:
Well, so people go to get an exemption from the circumvention ban because they invest a considerable amount of hours and lawyer time over the course of more than a year to complete the process.

[00:51:59] Speaker 05:
There's a hearing.

[00:52:00] Speaker 05:
The reason they go through all that bother is because they know that if they get an exemption, they will be able to use it with off the shelf technology.

[00:52:07] Speaker 02:
that there's technology that does not violate the trafficking ban?

[00:52:12] Speaker 05:
I don't know whether all of the technology violates or doesn't violate the trafficking ban.

[00:52:16] Speaker 05:
Obviously, technology itself is not banned.

[00:52:18] Speaker 02:
All of the technology, by your hypothesis for the circumvention ban, has to circumvent these protections.

[00:52:25] Speaker 02:
Unless you come up with it yourself.

[00:52:27] Speaker 02:
What's the circumvention?

[00:52:28] Speaker 05:
There's no banned technology in the statute.

[00:52:31] Speaker 05:
It is banned acts by people.

[00:52:33] Speaker 05:
So I don't know, as on the motion to dismiss, I don't know how many of these tools were trafficked or not.

[00:52:42] Speaker 02:
The trafficking ban is putting things out there that would have like a primary purpose of circumvention.

[00:52:46] Speaker 02:
That's illegal.

[00:52:49] Speaker 05:
I don't know if, I mean, certainly this statute doesn't make DCSS the decryption key for DVDs.

[00:52:56] Speaker 05:
It doesn't make it illegal.

[00:52:58] Speaker 05:
It's not illegal to possess it.

[00:52:59] Speaker 05:
It's not, you know, but it's illegal to circumvent it without an exception.

[00:53:03] Speaker 02:
To use it.

[00:53:04] Speaker 05:
To use it.

[00:53:04] Speaker 05:
It is illegal to use it without an exception.

[00:53:06] Speaker 02:
That's my point.

[00:53:07] Speaker 02:
Okay.

[00:53:08] Speaker 02:
If you get an exemption from the Library of Congress, you can use, you can do the, you can use the key.

[00:53:12] Speaker 05:
Yes, Your Honor.

[00:53:12] Speaker 02:
No matter how you got it.

[00:53:13] Speaker 05:
Yes.

[00:53:14] Speaker 05:
And I don't think the librarian is aiding and abetting massive law breaking by doing so.

[00:53:19] Speaker 02:
And do you have an argument that you've stated an overbreath claim as to the trafficking provision?

[00:53:25] Speaker 05:
Yes, Your Honor.

[00:53:25] Speaker 05:
The previous panel disclaims jurisdiction over that claim.

[00:53:30] Speaker 05:
So I agree that there are fewer examples in our complaint of traffickers than there are of circumventers.

[00:53:35] Speaker 02:
Have you stated an overbreath claim?

[00:53:37] Speaker 05:
Yes, Your Honor.

[00:53:40] Speaker 05:
Because the statute

[00:53:43] Speaker 02:
Which, sorry, which examples, which specific concrete examples in your complaint show me, give me your best example of someone and you've identified in your complaint and the facts you provided in your complaint that show me that the trafficking provision, the trafficking provision only is applied to that person is unconstitutional.

[00:54:03] Speaker 05:
Your honor, if I may do that on rebuttal, that works for you.

[00:54:06] Speaker 04:
Sure.

[00:54:06] Speaker 04:
Thank you, your honor.

[00:54:12] Speaker 01:
Mr. Springer.

[00:54:16] Speaker 01:
Thank you.

[00:54:22] Speaker 00:
Good morning, your honors, and may it please the court.

[00:54:24] Speaker 00:
Brian Springer on behalf of the federal government.

[00:54:27] Speaker 00:
I'd like to just take a step back and contextualize what we're discussing here.

[00:54:31] Speaker 00:
The Digital Millennium Copyright Act provides incentives for copyright owners to make their works readily available in digital form.

[00:54:39] Speaker 00:
The compromise that Congress struck in the act was to allow restrictions on access,

[00:54:44] Speaker 00:
to prevent the massive piracy that would result if consumers could easily create unencrypted digital copies and rapidly disseminate them across the globe at the click of a button.

[00:54:56] Speaker 00:
Without the protections that are challenged in this case, manufacturers could mass produce devices that would wipe away access controls on every type of digital content imaginable.

[00:55:09] Speaker 00:
And anyone could go to their local Best Buy or Walmart, buy such a device and use it to create unencrypted copies of all variety of movies, TV shows, music and eBooks.

[00:55:22] Speaker 00:
I think one important thing to do here is to focus on what the digital Millennium Copyright Act actually prohibits.

[00:55:28] Speaker 00:
It's not a restriction on speech at all.

[00:55:31] Speaker 00:
It is a restriction on conduct on a particular act, namely the act of circumvention and then the trafficking in devices to enable that circumvention.

[00:55:42] Speaker 00:
So this is different than I think what many of the examples that are being talked about here about restrictions on actual speech.

[00:55:49] Speaker 00:
This is not a restriction on speech.

[00:55:51] Speaker 00:
It's directed to conduct.

[00:55:53] Speaker 03:
The appellants, they really lean on City of Lakewood and the idea that there was also not a restriction on speech.

[00:56:04] Speaker 03:
It was a restriction on conduct.

[00:56:05] Speaker 03:
But the conduct had such a relationship to speech that the court treated it.

[00:56:11] Speaker 03:
as a speech restriction.

[00:56:12] Speaker 03:
And they're doing the same thing here.

[00:56:13] Speaker 03:
It would actually be really helpful if you could address why that's wrong and whether there's any precedent that helps us see that.

[00:56:23] Speaker 00:
Sure.

[00:56:24] Speaker 00:
I think that Lakewood is a different circumstance because there we're talking about, you know, putting out racks so that you can distribute newspapers.

[00:56:32] Speaker 00:
So that has in and of itself sort of an inherent connection to speech itself, because without having the rack, you couldn't have the newspaper that you're putting out into the world.

[00:56:42] Speaker 00:
This is multiple steps away.

[00:56:44] Speaker 00:
And I don't think that the other side is disputing that there are

[00:56:47] Speaker 00:
many, many examples in which this statute can be applied to a situation that doesn't involve speech at all, whereas that was a situation where sort of every single instance would be an instance in which you're talking about speech, namely the distribution of newspapers.

[00:57:04] Speaker 00:
And here, again, particularly in light of this court's previous decision, there are many, many applications of this act that have nothing to do with speech and that don't implicate First Amendment concerns.

[00:57:16] Speaker 00:
We're talking about, again, a restriction on conduct that may have incidental effects on speech.

[00:57:21] Speaker 00:
And I think those are the cases that we should be looking to to think about this analysis, Your Honor.

[00:57:28] Speaker 01:
going to not be a restriction on speech when it results in total non-access to that speech?

[00:57:39] Speaker 00:
Sure.

[00:57:39] Speaker 00:
I don't actually think that it does turn into a situation where people aren't able.

[00:57:44] Speaker 00:
So for example, if somebody buys an e-book, they buy the e-book for the ability to actually read the text of the e-book.

[00:57:51] Speaker 00:
And nothing in the Digital Millennium Copyright Act is preventing them from doing that.

[00:57:55] Speaker 00:
They're able to do that.

[00:57:56] Speaker 00:
What plaintiffs want is to go beyond

[00:57:58] Speaker 00:
what these third parties have bargained for and examine the source code or use it in a different format.

[00:58:05] Speaker 01:
They want to engage in fair use.

[00:58:08] Speaker 00:
But Your Honor, I think the right way to think about this is that fair use has never been... The Supreme Court has never said that fair use by itself is sort of a free-floating First Amendment protection.

[00:58:21] Speaker 00:
The Supreme Court, whenever it has talked about fair use, it has done so in the context

[00:58:26] Speaker 00:
of a specific restriction or regulation of expression.

[00:58:30] Speaker 00:
And the Supreme Court has said that Congress has the ability to formulate the Fair Use Doctrine within the particular context of a particular case.

[00:58:40] Speaker 03:
Can you explain why that makes a difference?

[00:58:44] Speaker 03:
But just elaborate a little bit on what you're drawing on and why you think that makes a difference.

[00:58:49] Speaker 03:
You said that the First Amendment cases that recognize fair use are in the context of regulations of expression.

[00:58:55] Speaker 03:
I mean, they would put this together with Lakewood and say, here's regulation of expression.

[00:59:00] Speaker 03:
Sure.

[00:59:02] Speaker 00:
I think the right way to draw it out is so the Supreme Court's cases, you know, the two kind of most related cases that talk about this are Eldred and Golan.

[00:59:09] Speaker 00:
And both of those are copyright cases in which Congress

[00:59:13] Speaker 00:
For example, in one of the cases, I think, extended the period in which a copyright would be available.

[00:59:18] Speaker 00:
And so in that sort of situation, the Supreme Court explained that that in and of itself might be a regulation of expression and that it would block others from, you know,

[00:59:27] Speaker 00:
infringing on the copying of the copyright and that the First Amendment, the fair use protection is a built-in First Amendment protection to the ability to use that.

[00:59:38] Speaker 00:
So we're actually talking about there a regulation of expressive activity and here we're talking about a regulation of conduct

[00:59:46] Speaker 00:
and any effects are incidental, you know, they're downstream effects on the use of the work.

[00:59:53] Speaker 00:
And I think, you know, my colleague on the other side admitted that the act of circumvention itself is not an expressive, you know, that in and of itself is not expressive conduct, and that's what's being regulated by the Digital Millennium Copyright Act.

[01:00:07] Speaker 01:
It's conduct that prohibits speech.

[01:00:12] Speaker 00:
Your Honor, I don't think that's the right way to look at it.

[01:00:14] Speaker 00:
What is...

[01:00:16] Speaker 01:
That's how I look at it.

[01:00:18] Speaker 01:
And I don't see how with the precedent that says we're looking not just at whether something is conduct or not, but whether the nexus is so close to expression.

[01:00:32] Speaker 01:
And here, the conduct, which is no bypassing, no disabling of these technical protective measures,

[01:00:47] Speaker 01:
knocks out any fair use, except for the librarian as gatekeeper provision.

[01:00:54] Speaker 00:
Your honor, it doesn't knock out any fair use.

[01:00:56] Speaker 00:
It leaves the ability for people, for example, if somebody, as I mentioned before, you wanted to, you know, bought an ebook and wanted to comment on the book.

[01:01:04] Speaker 00:
They're still able to comment on the book they can read the book they can you know see its contents and then they can make commentary or reviews or parody or what you know any of these things that they want to do that the fair use sort of general things what what plaintiffs want is to go beyond that and to have the ability to use the.

[01:01:23] Speaker 00:
you know, the content in a particular format or to change it or look at the underlying source code.

[01:01:28] Speaker 00:
And that's just not what they bargained for.

[01:01:30] Speaker 00:
And it's not a First Amendment problem that they're restricted from doing that from, you know, having enforced the restrictions that the copyright owner put on the product that is being sold to the plaintiffs or to, you know, actually here we're talking about third party is not not about the plaintiffs.

[01:01:46] Speaker 01:
You think AI

[01:01:50] Speaker 01:
Is it affects this at all?

[01:01:53] Speaker 01:
Or have you thought about that?

[01:01:54] Speaker 01:
I know it isn't in here, but.

[01:01:56] Speaker 00:
So, Your Honor, I don't want to get out ahead of the Copyright Office and the Librarian of Congress.

[01:02:00] Speaker 00:
I believe that there are some discussions of AI in the current exemption rulemaking process.

[01:02:06] Speaker 00:
So I wouldn't want to get out ahead of exactly how these things interact with each other.

[01:02:10] Speaker 01:
I mean, would AI allow a movie maker to

[01:02:17] Speaker 01:
if he gets the exemption to copy a perfect copy of a movie so that someone watching it would not know that it wasn't the actual movie that had been made.

[01:02:30] Speaker 00:
I don't know, as a factual matter, if AI would allow someone to do that.

[01:02:35] Speaker 00:
I mean, I think you're pointing up exactly what the problems are that the digital millennium copyright is protecting against is the ability to just create these unencrypted, high-quality copies and distribute them around the world.

[01:02:47] Speaker 02:
Can you talk about why?

[01:02:54] Speaker 02:
So, Spemwork at present requires a

[01:02:57] Speaker 02:
I think a close nexus, clear nexus or close nexus between conduct and speech.

[01:03:03] Speaker 02:
Do you agree that this has that nexus or if not, why not?

[01:03:08] Speaker 00:
I don't think that there's that nexus here to the extent that a nexus is required.

[01:03:11] Speaker 00:
Again, we're sort of talking about, you know, a restriction on conduct with incidental effects on speech.

[01:03:17] Speaker 00:
I mean, I don't think at a minimum the plaintiffs have shown that there's any sort of nexus, especially because there are many situations

[01:03:23] Speaker 00:
For example, just somebody who rents a movie on Amazon that's available for 24 hours, without these protections, that person could use a device or by themselves circumvent those protections and just keep the copy of the movie forever.

[01:03:37] Speaker 00:
I don't think in that scenario, which is an extremely common scenario, that there would be any First Amendment implications at all, even if there might be in some kind of specific

[01:03:51] Speaker 00:
small sliver of instances, there might be a practical burden on someone's ability to engage in certain expressive activity.

[01:03:58] Speaker 02:
When I want to read something is not First Amendment protected?

[01:04:02] Speaker 00:
But Your Honor, again, the Digital Millennium Copyright Act doesn't prevent you from reading the material.

[01:04:07] Speaker 00:
It prevents the thing.

[01:04:09] Speaker 02:
I'm talking about the time limit.

[01:04:10] Speaker 02:
So I said when I read, but when I watch.

[01:04:14] Speaker 02:
Normally, we would say when you speak or when you read is actually very much First Amendment protected.

[01:04:18] Speaker 02:
And I assume the same thing when I watch something.

[01:04:21] Speaker 00:
But again, Your Honor, the Digital Millennium Copyright Act isn't preventing you from watching the movie or reading the book.

[01:04:27] Speaker 00:
You're able to do those things.

[01:04:28] Speaker 00:
You have to do it within the limits of what you paid for.

[01:04:31] Speaker 02:
Right, so I can't watch it when something comes up.

[01:04:33] Speaker 02:
So I can't watch it within 24 hours.

[01:04:35] Speaker 02:
And so now I have to go pay again.

[01:04:37] Speaker 00:
Your Honor, I think that that's just these sort of access restrictions are a familiar thing.

[01:04:42] Speaker 00:
I mean, I don't think anyone would think that there's a problem with that.

[01:04:44] Speaker 02:
A familiar thing doesn't mean that it's not a First Amendment thing.

[01:04:47] Speaker 00:
Well, your honor, I mean, a good example or something that's akin to this would be a movie theater that bans people from filming a movie while they're in the movie theater.

[01:04:55] Speaker 00:
I don't think that anyone would think that there's a First Amendment problem with enforcing that restriction.

[01:04:59] Speaker 00:
And that's similar to the sort of access controls that we have here.

[01:05:04] Speaker 02:
If I'm filming it so I can then use clips of it to teach my students in fifth grade, there is a First Amendment interest.

[01:05:11] Speaker 00:
But Your Honor, again, it would still be an incidental effect.

[01:05:14] Speaker 00:
And I don't think that it would be a First Amendment violation to enforce that restriction.

[01:05:20] Speaker 02:
This is just one thing I struggled with here.

[01:05:22] Speaker 02:
When everything seems so fact-intensive, how do we know that there's more people who want to hire it?

[01:05:32] Speaker 02:
just make money, then there are people who want to access this stuff for, I will say, legitimate sort of fair use in that sense, term of the people that they've identified.

[01:05:44] Speaker 02:
How do we, how do we know?

[01:05:45] Speaker 02:
You say, they say there's tons and tons of people.

[01:05:49] Speaker 02:
How do I know?

[01:05:50] Speaker 00:
So, you know, I have two sort of responses to that.

[01:05:54] Speaker 00:
The first response is that I think the examples

[01:05:58] Speaker 00:
that this court, in the first appeal, validated as being not a First Amendment problem, show the legitimate sweep of the statute.

[01:06:07] Speaker 00:
I mean, you can very easily imagine everyday conduct that people engage in, like renting a movie subject to restrictions, borrowing an e-book or an audiobook subject to restrictions, watching a DVD or Blu-ray, using a streaming music site.

[01:06:23] Speaker 00:
There's all these kind of everyday activities that people are engaged in.

[01:06:27] Speaker 00:
that would be lawful applications of the Digital Millennium Copyright Act, even I think on plaintiffs theory.

[01:06:33] Speaker 02:
But I would also just point to... So I get that the DMCA is implicated every day by lots of activities.

[01:06:40] Speaker 02:
What I don't understand from your explanation, and I get there's a real risk out there of people destroying the value of a copyright, technologically, because once I grab it, I can either

[01:06:53] Speaker 02:
release it all over the internet or maybe sell it and make money.

[01:06:56] Speaker 02:
So I get the danger to the copyright holder.

[01:06:59] Speaker 02:
But what I don't get is for an overbreath problem, we're supposed to know whether there's more bad stuff being stopped than good stuff being stopped.

[01:07:09] Speaker 02:
And that's what I don't have any sense of.

[01:07:13] Speaker 02:
And I'm just not even sure how to know that at this very early stage.

[01:07:20] Speaker 02:
This just seems like a weird sort of

[01:07:22] Speaker 02:
application of over-breadth doctrine because everything seems to be, it's gonna be very fact intensive.

[01:07:29] Speaker 02:
So how do I know they haven't shown that there's far more good uses that are being stopped than bad ones each day?

[01:07:39] Speaker 02:
That those delays are because somebody is learning disabled and can't process the information in a certain way.

[01:07:49] Speaker 02:
or can't be exposed to too much stimulation and so has to be exposed to things more slowly.

[01:07:53] Speaker 02:
Or the e-book to audiobook conversion is because somebody can't read.

[01:07:57] Speaker 02:
I mean, how do I know?

[01:07:59] Speaker 02:
Or they want to access the film, they need to slow it down and have some time to show it to their students and make longer clips out than the license is allowing.

[01:08:09] Speaker 02:
How do I know what those facts are?

[01:08:11] Speaker 02:
And if I don't know, how is this appropriate to decide at the pleading stage?

[01:08:16] Speaker 00:
Sure, I think this exposes one of the flaws in plaintiffs theory here and again is, you know, as you noted, it's their burden to show that this the sweep of the statute that there's a substantial number of illegitimate applications in comparison to the lawful applications.

[01:08:30] Speaker 00:
And I think the things you just mentioned about, for example, you know someone

[01:08:34] Speaker 00:
who needs an e-reader or is using it sort of in a class.

[01:08:39] Speaker 00:
The other side is just assuming that any time there's a fair use that that means that that is protected by the First Amendment.

[01:08:45] Speaker 00:
I think that assumption is incorrect.

[01:08:47] Speaker 00:
And so they haven't actually shown any applications in which this statute is unconstitutionally applied.

[01:08:53] Speaker 00:
Again, because we're talking about, if you look at what is actually restricted and regulated, it's the act of circumvention, which I don't think the other side is disputing that is non-expressive conduct.

[01:09:04] Speaker 00:
And so the only effects that we're talking about here are effects that are downstream effects on someone's ability to engage in certain protected activity.

[01:09:12] Speaker 02:
And that's what you said in your brief.

[01:09:15] Speaker 02:
But they disputed that this was a relevant comparison.

[01:09:19] Speaker 02:
Noah would say, you know,

[01:09:22] Speaker 02:
that a law prohibiting skeleton keys that would let you get into every bookstore that's otherwise locked is the First Amendment protected activity or fair use or anything like that, because the act of breaking in isn't, right?

[01:09:38] Speaker 00:
Yes, Your Honor.

[01:09:39] Speaker 00:
I mean, I think that's another example, similar to the example of, you know, being able to prohibit movie patrons from filming the movie while they're sitting in the movie theater.

[01:09:52] Speaker 00:
Unless there are further questions, we would ask that this court affirm.

[01:09:56] Speaker 01:
Thank you.

[01:09:56] Speaker 01:
Thank you.

[01:09:57] Speaker 01:
Does Mr. Margo have any time?

[01:09:59] Speaker 01:
All right, why don't you take two minutes?

[01:10:02] Speaker 05:
Thank you, Your Honor.

[01:10:04] Speaker 05:
Three quick points.

[01:10:05] Speaker 05:
First, certainly we don't contest that you have no First Amendment right to film the movie in the movie theater or to go into the county jail, as in the Hutchins case, or to go to Cuba.

[01:10:15] Speaker 05:
The government's not going to let you.

[01:10:17] Speaker 02:
What about the break into the bookstore?

[01:10:19] Speaker 02:
You know, it's the

[01:10:22] Speaker 02:
The next Harry Potter book is about to be released and you want to break in and get it?

[01:10:26] Speaker 05:
No, of course not, Your Honor.

[01:10:28] Speaker 05:
We don't have it.

[01:10:30] Speaker 02:
So how is this different?

[01:10:31] Speaker 02:
You're saying all these people want to break in.

[01:10:33] Speaker 05:
Because it's media in their lawful possession.

[01:10:36] Speaker 05:
The DVDs on my shelf are just mine.

[01:10:37] Speaker 05:
I don't have a contract with anybody.

[01:10:42] Speaker 02:
What you own is, I mean, you've purchased it subject to limitations.

[01:10:46] Speaker 05:
I have not purchased my DVD subject to any limitations from Walmart.

[01:10:50] Speaker 02:
When I decide to watch a movie on Netflix, it says you get it for 48 hours if you pay this price.

[01:10:55] Speaker 02:
Do I actually now own that movie and I can do anything I want with it or am I subject to that 48 hour limitation?

[01:11:01] Speaker 05:
We're not contending that, Your Honor, but we haven't had discovery into the scope.

[01:11:04] Speaker 02:
So the technology that allowed me to extend that 48 hour period to 72 hours or a week or forever

[01:11:13] Speaker 02:
You're not claiming that's that kind of decryption technology that would allow me to change the time limits on how long I can view my Netflix movie, but I don't have any First Amendment or fair use claim to that.

[01:11:26] Speaker 05:
No, I don't think so, Your Honor.

[01:11:27] Speaker 05:
We're talking about reading something in your lawful possession and then making fair use copies of it.

[01:11:33] Speaker 05:
I would want to mention that the parade.

[01:11:36] Speaker 02:
And when you get these download these ebooks, they don't come with any terms and conditions that you have to click on.

[01:11:42] Speaker 05:
Your Honor, if the government wanted to raise in discovery the idea of that.

[01:11:44] Speaker 02:
No, I'm just asking you.

[01:11:45] Speaker 02:
You're the one who has the complaints with the examples.

[01:11:48] Speaker 02:
When people download their e-books, my recollection is they have to click the term and condition agreement.

[01:11:54] Speaker 02:
Is that incorrect?

[01:11:56] Speaker 02:
Your plaintiffs say that doesn't happen, that in fact they're told this e-book is yours.

[01:11:59] Speaker 02:
You can do with it whatever you like.

[01:12:01] Speaker 05:
That's not alleged in the complaint, Your Honor.

[01:12:03] Speaker 05:
Certainly we don't say that contract remedies against somebody who violated the terms and conditions of an e-book site would violate the First Amendment.

[01:12:09] Speaker 02:
But no, I'm not asking that.

[01:12:11] Speaker 02:
What I'm asking is, so if you bought it pursuant to those limitations, you would not then actually possess the right to use it in any other way.

[01:12:19] Speaker 02:
Even if you have the, I now have this e-book, I've purchased this e-book.

[01:12:24] Speaker 02:
I have the technology here in my house to be able to turn it into audio.

[01:12:29] Speaker 02:
But if I click the terms and conditions, I'm assuming the terms and conditions that I cannot manipulate the format.

[01:12:38] Speaker 02:
You wouldn't, that would not be one of your examples then.

[01:12:42] Speaker 05:
Your honor, that's a harder case for us, of course.

[01:12:44] Speaker 02:
I don't possess.

[01:12:46] Speaker 05:
If you don't possess the e-book, you don't possess it.

[01:12:49] Speaker 02:
No, no, no.

[01:12:49] Speaker 02:
I possess the e-book, pursuant to the terms and conditions.

[01:12:54] Speaker 05:
Yes, your honor.

[01:12:54] Speaker 05:
If the idea is that you don't own the e-book.

[01:12:56] Speaker 02:
I own my condo, but if I own a condo, pursuant to homeowner association terms and conditions, I own the condo, but I own it with limitations.

[01:13:04] Speaker 02:
And I don't understand why this is any different here.

[01:13:07] Speaker 05:
Well, obviously what's different here we're saying is that you own the media in question and can lawfully access it but for 1201A.

[01:13:17] Speaker 02:
If I own a skeleton key, can I use it to break into bookstores?

[01:13:22] Speaker 05:
If you own the skeleton key, you can break into your own home.

[01:13:24] Speaker 05:
Yes, of course.

[01:13:25] Speaker 02:
That's not what I said.

[01:13:26] Speaker 05:
No, of course you can't break into bookstores.

[01:13:28] Speaker 02:
Right, so if you own something, there are limitations on all the things that we own and use.

[01:13:37] Speaker 02:
The copyright holder here has the right to control reproduction.

[01:13:43] Speaker 02:
full stop, right?

[01:13:44] Speaker 02:
That is what the copyright is.

[01:13:45] Speaker 02:
They have the right to control reproduction of their expression.

[01:13:50] Speaker 02:
And if what your clients wish to do is to use technology to break apart the protections that copywriter has put in to prevent reproduction of her expression, I don't know how it is any different from breaking into the bookstore to read something.

[01:14:08] Speaker 05:
Copyright recognizes a first sale doctrine, where if I buy a book from the bookstore and I take it home, I can do with it as I wish.

[01:14:15] Speaker 05:
The copyright holder doesn't have a permanent, dead-end control over it.

[01:14:18] Speaker 02:
And I xerox it and sell it on the marketplace?

[01:14:21] Speaker 05:
No, because that's one of the exclusive rights in 106.

[01:14:23] Speaker 02:
Exactly.

[01:14:24] Speaker 02:
Well, they've said, I've given this to you, but I have the exclusive right to, I'm selling this in the marketplace.

[01:14:32] Speaker 02:
But of course, you cannot reproduce it and sell it for your own purposes.

[01:14:38] Speaker 02:
then that's what all your clients want to do.

[01:14:41] Speaker 02:
They want to reproduce some part of this for their own purposes.

[01:14:45] Speaker 02:
They say maybe it's fair use or not, but they want to reproduce the copyright holder's expression for their own purposes.

[01:14:53] Speaker 02:
And that thereby denies the copyright holder control over the reproduction.

[01:14:58] Speaker 05:
Your Honor, copyright holders have always had the limited monopoly allowed by copyright subject to people's ability to dispose of their copies as they wish and for people to be able to copyright facts.

[01:15:08] Speaker 02:
Not as they wish, subject to certain limitations.

[01:15:11] Speaker 05:
Yes, Your Honor, subject to limitations on copying that is not fair use and that copies protectable elements of the work.

[01:15:18] Speaker 02:
So why isn't this saying this is a copyright limitation?

[01:15:20] Speaker 02:
This is a limitation Congress has, a power, a right Congress has given to the copyright holder to effectuate their actually pre-existing control over their own expression in a modern era.

[01:15:31] Speaker 05:
Because it makes no allowance for fair use or the idea expression distinction, the accommodations between copyright and the First Amendment.

[01:15:38] Speaker 02:
Can Congress change the scope of fair use

[01:15:41] Speaker 05:
I don't know, Your Honor, that that hasn't come up.

[01:15:47] Speaker 05:
The codification in the 76 Act is close to the common law version.

[01:15:52] Speaker 05:
I'm not saying that Congress has no scope to change any part of fair use.

[01:15:55] Speaker 02:
Your fulsome opinion said that abridgment of works was fair use.

[01:16:00] Speaker 02:
The original copyright only protected until you actually market something.

[01:16:04] Speaker 02:
And then Congress, of course, came along later, I think in 1909, and said abridgment is not fair use.

[01:16:08] Speaker 02:
That's part of the copyright holders

[01:16:11] Speaker 02:
rights so congress can actually narrow fair use your honor i think that's correct it's just not applicable here because here congress has eliminated fair use which is not permissible under eldred and golan so they can how do we know that the eliminations here as long as you always have the right to assert that a particular application is unconstitutional under the first amendment how do we know and it hasn't eliminated it you have the librarian process judge piller said you can try and argue it as a defense

[01:16:40] Speaker 02:
It's always a defense.

[01:16:43] Speaker 05:
Your Honor, I think that courts would be hesitant to find an act of Congress unconstitutional in a criminal case.

[01:16:50] Speaker 05:
As far as forward-looking, wanting to express yourself, I wouldn't advise.

[01:16:54] Speaker 02:
Courts do it all the time in the speech.

[01:16:55] Speaker 02:
A lot of the First Amendment precedent from the Supreme Court involves criminal prosecutions for speech.

[01:17:02] Speaker 02:
I don't know what you mean, courts wouldn't, if someone raised a First Amendment defense, courts wouldn't adjudicate that in a criminal case.

[01:17:08] Speaker 05:
That was Stevens.

[01:17:10] Speaker 05:
Yes, I agree that First Amendment defense exists.

[01:17:13] Speaker 05:
I just don't think it's sufficient to salvage the constitutionality with respect to the overbred claim.

[01:17:19] Speaker 05:
Very briefly, you asked about trafficking.

[01:17:22] Speaker 05:
I would say that the first panel does seem to believe that Bunny's device, the Net VCR, falls on the Grokster side of the line, not the Sony side of the line, the kind of thing that things would probably facilitate secondary infringement.

[01:17:35] Speaker 02:
Do you have a plaintiff here that has an anti-trafficking claim?

[01:17:39] Speaker 05:
A named plaintiff, right?

[01:17:41] Speaker 05:
Professor Green, there are no as applied challenges left in the case.

[01:17:45] Speaker 02:
No.

[01:17:46] Speaker 02:
OK.

[01:17:47] Speaker 02:
So is there a plaintiff that has?

[01:17:49] Speaker 02:
All right.

[01:17:50] Speaker 02:
So there's no as applied ones by Mr. Wong.

[01:17:53] Speaker 02:
What activity does he want to engage in that involves trafficking that isn't covered by our Green decision?

[01:17:59] Speaker 05:
Professor Green?

[01:18:00] Speaker 02:
No, sorry.

[01:18:01] Speaker 02:
Professor Wong.

[01:18:05] Speaker 05:
I'm not aware of anything alleged.

[01:18:07] Speaker 05:
There's nothing alleged in the complaint beyond the net VCR.

[01:18:10] Speaker 05:
I would caution, however, that the next person who tries to traffic might be developing a specific tool designed for fair use for repair shops to be able to access Toyota motors.

[01:18:20] Speaker 02:
Is there an allegation like that in the complaint?

[01:18:23] Speaker 05:
There is no allegation of specific fair use oriented trafficking of carefully crafted tools like that.

[01:18:29] Speaker 05:
No.

[01:18:31] Speaker 05:
Thank you.

[01:18:32] Speaker 01:
Thank you.