Claiming that the code they write qualifies as speech protected by the First Amendment, Appellants brought a pre-enforcement action challenging the DMCA on facial and as-applied First Amendment grounds. The government moved to dismiss all claims, and the district court partially granted the motion. The district court dismissed all, but the as-applied First Amendment claims. The district court summarily denied an injunction for the dismissed claims. Appellants appealed the district court’s dismissal of their facial challenge and denial of injunctive relief.
 
The DC Circuit affirmed the district court’s denial of Appellants’ motion for a preliminary injunction and remanded for further proceedings. The court first addressed jurisdiction and held that declaring the DMCA facially unconstitutional would resolve Appellants’ as-applied claims, but not so in reverse, ensuring that their as-applied claims remain anything but inextricably bound to their facial challenge. The court, therefore, held that it lacked jurisdiction over Appellants’ facial challenge.
 
In regards to the Appellant, that wants to publish an academic book “to instruct readers in the methods of security research,” which will include “examples of code capable of bypassing security measures, the court held that the government’s concession ends any “credible threat of prosecution” against Appellant, leaving him without standing to obtain a preliminary injunction. Moreover, the court held that the other Appellant’s arguments on the remaining preliminary injunction factors rest entirely on his flawed claim that continued enforcement of the DMCA imperils his First Amendment rights. View “Matthew Green v. DOJ” on Justia Law