Green v. U.S. Department of Justice

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________
)
MATTHEW GREEN, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 16-1492 (EGS)
)
U.S. DEPARTMENT OF JUSTICE, )
et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiffs Matthew Green, Andrew Huang, and Alphamax, LLC
seek to engage in certain activities for which they fear they
will be prosecuted under the “anti-circumvention” provision and
one of the “anti-trafficking” provisions of the Digital
Millennium Copyright Act (“DMCA”). Accordingly, they have
brought a pre-enforcement challenge to those two provisions
alleging that they violate the First Amendment to the United
States Constitution facially and as applied to their proposed
activities. They additionally claim that the Librarian of
Congress’s failure to include certain exemptions from the reach
of the anti-circumvention provision in a 2015 final rule
promulgated under a rulemaking procedure created by the DMCA
violated the First Amendment and the Administrative Procedure
Act (“APA”). They seek declaratory and injunctive relief.
Defendants——the United States Department of Justice,
Attorney General William Barr, the Library of Congress,
Librarian of Congress Carla Hayden, the United States Copyright
Office, and Register of Copyrights Karyn Temple Claggett 1——have
moved to dismiss plaintiffs’ claims for lack of subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and,
alternatively, for failure to state a claim under Federal Rule
12(b)(6). Upon consideration of defendants’ motion, the response
and reply thereto, the applicable law, and the entire record,
defendants’ motion to dismiss is GRANTED IN PART and DENIED IN
PART.
I. Background
A. Statutory Background
Congress enacted the DMCA, 17 U.S.C. § 1201 et seq., in
1998 to implement the World Intellectual Property Organization
Copyright Treaty and the World Intellectual Property
Organization Performances and Phonograms Treaty. S. Rep. No.
105-190, at 2 (1998). In implementing those treaties via the
DMCA, Congress was primarily responding to “the ease with which
digital works can be copied and distributed worldwide virtually
instantaneously.” Id. at 8. In short, Congress was concerned
1 Pursuant to Federal Rule of Civil Procedure 25(d), Attorney
General Barr has been substituted for former Attorney General
Loretta Lynch, and Register Claggett has been substituted for
former Register Maria Pallante as a defendant in this action.
2
with the pirating of copyrighted works in the digital world.
Three of the DMCA’s central provisions respond directly to that
concern.
The first——section 1201(a)(1)(A)——is an “anti-
circumvention” provision. It prohibits a person from
“circumvent[ing] a technological measure that effectively
controls access to a work protected under [Title 17, governing
copyright].” 17 U.S.C. § 1201(a)(1)(A). A “technological
measure”——often referred to as a “technological protection
measure” (“TPM”), Compl., ECF No. 1 ¶ 18——“effectively controls
access to a work” if it, “in the ordinary course of its
operation, requires the application of information, or a process
or a treatment, with the authority of the copyright owner, to
gain access to the work,” 17 U.S.C. § 1201(a)(3)(B). To
“circumvent a technological measure” means “to descramble a
scrambled work, to decrypt an encrypted work, or otherwise to
avoid, bypass, remove, deactivate, or impair a technological
measure, without the authority of the copyright owner.” Id. §
1201(a)(3)(A). Section 1201(a)(1)(A) thus prohibits persons from
bypassing technological barriers put in place to prevent access
to copyrighted works.
The second and third provisions——sections 1201(a)(2) and
1201(b)——are “anti-trafficking provisions.” That is, instead of
prohibiting the circumvention of TPMs, they prohibit the
3
dissemination of the technological means that enable such
circumvention. The anti-trafficking provision at issue in this
case, section 1201(a)(2), prohibits, in relevant part, a person
from “manufactur[ing], import[ing], offer[ing] to the public,
provid[ing], or otherwise traffic[king] in any technology,
product, service, device, component, or part thereof, that is
primarily designed or produced for the purpose of circumventing
a technological measure that effectively controls access to a
[copyrighted] work.” Id. § 1201(a)(2)(A). 2
The DMCA also includes certain fine-grained permanent
exemptions, some of which apply to the anti-circumvention
provision and to both anti-trafficking provisions, see, e.g.,
id. § 1201(e) (broadly exempting official law enforcement
activity); some of which apply to the anti-circumvention
provision and only one of the anti-trafficking provisions, see,
e.g., id. § 1201(j) (exempting security testing “solely for the
2 Section 1201(b), in relevant part, prohibits a person from
“manufactur[ing], import[ing], offer[ing] to the public,
provid[ing], or otherwise traffic[king] in any technology,
product, service, device, component, or part thereof, that is
primarily designed or produced for the purpose of circumventing
protection afforded by a technological measure that effectively
protects a right of a copyright owner under [Title 17, governing
copyright].” 17 U.S.C. § 1201(b)(1)(A). Although sections
1201(a)(2) and 1201(b) employ similar wording, section
1201(a)(2) is aimed at circumvention technologies that permit
access to a copyrighted work, whereas 1201(b) is aimed at
circumvention technologies that permit copyrighted works to
actually be copied. S. Rep. at 12.
4
purpose of good faith testing, investigating, or correcting, a
security flaw or vulnerability”); and some of which apply only
to the anti-circumvention provision see, e.g., id. § 1201(d)
(exempting nonprofit libraries, archives, and educational
institutions that seek to circumvent TPMs to determine whether
to purchase a copyrighted product).
Additionally, cognizant of its “longstanding commitment to
the principle of fair use,” H.R. Rep. No. 105-551, pt. 2, at 35
(1998) (“Commerce Comm. Rep.”), Congress sought to balance its
efforts to curtail digital piracy with users’ rights of fair use
by putting in place a triennial rulemaking process to exempt
certain noninfringing uses of certain classes of copyrighted
works from the anti-circumvention provision for three-year
periods. See 17 U.S.C. §§ 1201(a)(1)(B)-(E). Accordingly, every
three years, the Librarian of Congress, “upon the recommendation
of the Register of Copyrights, who shall consult with the
Assistant Secretary for Communications and Information of the
Department of Commerce and report and comment on his or her
views in making such recommendation, shall make the
determination in a rulemaking proceeding . . . of whether
persons who are users of a copyrighted work are, or are likely
to be in the succeeding 3-year period, adversely affected by the
[anti-circumvention provision] in their ability to make
noninfringing uses under [Title 17] of a particular class of
5
copyrighted works.” Id. § 1201(a)(1)(C). To make the relevant
determination, the Librarian must consider: “(i) the
availability for use of copyrighted works; (ii) the availability
for use of works for nonprofit archival, preservation, and
educational purposes; (iii) the impact that the prohibition on
the circumvention of technological measures applied to
copyrighted works has on criticism, comment, news reporting,
teaching, scholarship, or research; (iv) the effect of
circumvention of technological measures on the market for or
value of copyrighted works; and (v) such other factors as the
Librarian considers appropriate.” Id.
B. Factual Background
Plaintiff Matthew Green is a computer science professor at
Johns Hopkins University. Compl., ECF No. 1 ¶¶ 5, 75. Plaintiff
Andrew Huang is a Singapore-based electrical engineer who owns
and operates several technology-related business entities,
including plaintiff Alphamax, LLC. Id. ¶¶ 6-7, 88. Plaintiffs
seek to engage in certain activities that they fear will run
afoul of section 1201(a)(1)(A)’s circumvention prohibition and
section 1201(a)(2)’s trafficking prohibition, exposing them to
potential civil liability under the DMCA’s private right of
action, 17 U.S.C. § 1203, and potential criminal liability under
the DMCA’s criminal offense provision, 17 U.S.C. § 1204. Id. ¶¶
86-87, 109-10.
6
Specifically, Dr. Green “investigates the security of
electronic systems,” and “[h]e would like to include detailed
information regarding how to circumvent security systems” in a
forthcoming book, id. ¶ 75, but he “has declined to investigate
certain devices due to the possibility of litigation based on
[s]ection 1201,” id. ¶ 80. Dr. Green requested an exemption to
cover his security research as part of the 2015 triennial
rulemaking process, but the exemption that the Librarian of
Congress finally put in place was not broad enough to cover all
of his proposed research. Id. ¶¶ 78-79, 84-85.
Mr. Huang and Alphamax are the creators of “NeTV,” a device
for editing high-definition digital video. Id. ¶ 89. They seek
to create an “improved” NeTV——a “NeTVCR”——that would allow its
users “to save content for later viewing, move content to a
viewing device of the user’s choice, or convert content to a
more useful format.” Id. ¶¶ 90-91. To create the NeTVCR, Huang
and Alphamax have to circumvent the TPMs——High-Bandwidth Digital
Content Protection (“HDCP”)——that restrict the viewing of High-
Definition Multimedia Interface (“HDMI”) signals. Id. ¶¶ 92-93.
They have been deterred from doing so because of the risk of
prosecution under section 1201. Id. ¶¶ 109-10. Although Huang
and Alphamax did not apply for any exemptions to the anti-
circumvention provision in the 2015 triennial rulemaking, they
allege that if the Librarian of Congress had granted “several”
7
exemptions proposed by other parties, they “would be able to
circumvent HDCP as necessary to use the NeTVCR, without
violating the anti-circumvention provision of [s]ection 1201.”
Id. ¶ 108.
Wanting to engage in activity that would qualify as
prohibited circumvention and trafficking but fearing criminal
prosecution if they do so, Dr. Green, Mr. Huang, and Alphamax
have brought a pre-enforcement challenge to the two relevant
provisions of the DMCA on First Amendment grounds. See generally
id. ¶¶ 111-49. Specifically, they claim that both provisions are
facially overbroad, id. ¶¶ 111-20; that the anti-circumvention
provision amounts to an unconstitutional speech-licensing
regime, id. ¶¶ 121-28; and that both provisions are
unconstitutional as applied to their proposed activities. Id. ¶¶
129-49. They also contend that the Librarian of Congress’s
denial of exemptions that “would have applied to [Dr.] Green’s
security research,” id. ¶ 155; and that “would have applied to
[Mr.] Huang and Alphamax’s creation and use of NeTVCR,” id. ¶
162, violated both the First Amendment and the Administrative
Procedure Act (“APA”), id. ¶¶ 150-62. 3
3 Dr. Green has filed a motion for preliminary injunction,
seeking to bar the government from prosecuting him under the
DMCA during the pendency of this lawsuit. See Mot. for PI on
Behalf of Pl. Matthew Green Pursuant to Fed. R. Civ. P. 65(a),
ECF No. 16. The Court stayed that motion pending resolution of
8
C. Defendants’ Motion to Dismiss
Defendants have moved to dismiss all of plaintiffs’ claims.
See generally Defs.’ Mot. to Dismiss, ECF No. 15. Defendants
argue that plaintiffs’ First Amendment challenges to DMCA
sections 1201(a)(1)(A) and 1201(a)(2) should be dismissed under
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction because plaintiffs lack the standing
required to bring such challenges. Mem. in Supp. of Defs.’ Mot.
to Dismiss (“Defs.’ Mem. Supp.”), ECF No. 15-1 at 23-30. 4
Alternatively, defendants argue that those First Amendment
challenges to the DMCA provisions, along with the First
Amendment challenges to the Librarian of Congress’s 2015 final
rule, should be dismissed under Federal Rule 12(b)(6) for
failure to state a claim upon which relief can be granted. Id.
at 30-51. Defendants also argue that plaintiffs’ APA challenge
to the Librarian’s 2015 final rule should be dismissed under
Federal Rule 12(b)(1) for lack of subject matter jurisdiction
because the APA’s waiver of sovereign immunity “does not apply
to the Librarian’s [exemption] determination under the
§ 1201(a)(1)(C) rulemaking process.” Id. at 51-54.
the instant motion to dismiss. See Minute Entry of September 30,
2016.
4 When citing electronic filings throughout this Memorandum
Opinion, the Court cites to the ECF header page number, not the
original page number of the filed document.
9
The remainder of the Court’s Opinion proceeds as follows:
In Part II, the Court briefly discusses the relevant Standards
of Review. In Part III.A, the Court determines that the
plaintiffs have standing to bring their claims. In Part III.B,
the Court addresses plaintiffs’ first amendment challenges, and
finds that plaintiffs’ facial claims fail, but that plaintiffs’
as-applied claims survive defendants’ motion to dismiss. In Part
III.C, the Court determines that plaintiffs’ APA challenges
fail.
II. Standards of Review
A. Motion to Dismiss for Lack of Subject Matter
Jurisdiction
A motion to dismiss for lack of standing and a motion to
dismiss on sovereign immunity grounds are both reviewed under
Federal Rule of Civil Procedure 12(b)(1). Coulibaly v. Kerry,
No. 14-0189, 2016 WL 5674821, at *15 (D.D.C. Sept. 30, 2016);
Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). To
survive a Rule 12(b)(1) motion to dismiss, “the plaintiff bears
the burden of establishing jurisdiction by a preponderance of
the evidence.” Moran v. U.S. Capitol Police Bd., 820 F. Supp. 2d
48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (1992)). Because Rule 12(b)(1) concerns a court’s
ability to hear a particular claim, the court “must scrutinize
the plaintiff’s allegations more closely when considering a
10
motion to dismiss pursuant to Rule 12(b)(1) than it would under
a motion to dismiss pursuant to Federal Rule 12(b)(6).” Schmidt
v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65 (D.D.C.
2011). In so doing, the court must accept as true all of the
factual allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff, but the court need not
“accept inferences unsupported by the facts or legal conclusions
that are cast as factual allegations.” Rann v. Chao, 154 F.
Supp. 2d 61, 63 (D.D.C. 2001). Finally, in reviewing a motion to
dismiss pursuant to Rule 12(b)(1), the court “may consider such
materials outside the pleadings as it deems appropriate to
resolve the question whether it has jurisdiction to hear the
case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp.
2d 18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc.
v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).
B. Motion to Dismiss for Failure to State a Claim Upon
Which Relief Can Be Granted
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
11
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quotation marks omitted).
Despite this liberal pleading standard, to survive a motion
to dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quotation marks omitted). A claim is facially plausible when
the facts pled in the complaint allow the court “to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The standard does not amount to a
“probability requirement,” but it does require more than a
“sheer possibility that a defendant has acted unlawfully.” Id.
The court must give the plaintiff the “benefit of all
inferences that can be derived from the facts alleged,” Kowal v.
MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994),
considering “the facts alleged in the complaint, documents
attached as exhibits or incorporated by reference in the
complaint, and matters about which the Court may take judicial
notice,” Gustave-Schmidt v. Chao, 226 F. Supp. 2d 191, 196
(D.D.C. 2002). The court need not “accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set
out in the complaint” or “legal conclusions cast in the form of
factual allegations.” Kowal, 16 F.3d at 1276. Further,
“[t]hreadbare recitals of the elements of a cause of action,
12
supported by mere conclusory statements” are not sufficient to
state a claim. Iqbal, 556 U.S. at 678. Only a complaint that
“states a plausible claim for relief survives a motion to
dismiss.” Id. at 679.
III. Analysis
A. Standing
“Article III of the Constitution limits the jurisdiction of
the federal courts to ‘Cases’ and ‘Controversies.’” Susan B.
Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (quoting
U.S. Const., art. III, § 2). “‘One element of the case-or-
controversy requirement’ is that plaintiffs ‘must establish that
they have standing to sue.’” Clapper v. Amnesty Int’l USA, 133
S. Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811,
818 (1997)). The standing requirement “serves to prevent the
judicial process from being used to usurp the powers of the
political branches.” Id. To establish standing, “a plaintiff
must show (1) an ‘injury in fact,’ (2) a sufficient ‘causal
connection between the injury and the conduct complained of,’
and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a
favorable decision.’” Susan B. Anthony List, 134 S. Ct. at 2341
(quoting Lujan, 504 U.S. at 560-61).
The injury-in-fact requirement is only satisfied when an
injury is “‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Id. (quoting Lujan,
13
504 U.S. at 560). “An allegation of future injury may suffice if
the threatened injury is ‘certainly impending,’ or there is a
‘substantial risk that the harm will occur.’” Id. (quoting
Clapper, 133 S. Ct. at 1147, 1150 n.5). In the context of a
statute that contemplates criminal liability, plaintiffs do not
need to expose themselves to actual arrest or prosecution to be
subject to “certainly impending” injury. Babbitt v. United Farm
Workers Nat’l Union, 442 U.S. 289, 298 (1979). Instead, the
injury-in-fact requirement is satisfied when plaintiffs allege
“‘an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a
statute, and there exists a credible threat of prosecution
thereunder.” Susan B. Anthony List, 134 S. Ct. at 2342 (quoting
id.). “The party invoking federal jurisdiction bears the burden
of establishing these elements.” Lujan, 504 U.S. at 561
(citations omitted). “Since they are not mere pleading
requirements but rather an indispensable part of the plaintiff's
case, each element must be supported in the same way as any
other matter on which the plaintiff bears the burden of proof,
i.e., with the manner and degree of evidence required at the
successive stages of the litigation.” Id.
Here, defendants argue that plaintiffs fail to satisfy the
injury-in-fact requirement. They argue that plaintiffs’ proposed
course of conduct is not proscribed by the DMCA, that plaintiffs
14
are not subject to a credible threat of prosecution, and that
plaintiffs’ proposed course of conduct is not arguably affected
with a constitutional interest. Defs.’ Mem. Supp., ECF No. 15-1
at 24-27. None of these arguments is availing.
1. Proposed Course of Conduct Arguably Proscribed by
a Statute
First, plaintiffs have sufficiently alleged that their
proposed course of conduct is arguably proscribed by the DMCA.
With regard to section 1201(a)(1)(A)’s circumvention
prohibition, Dr. Green has alleged that he plans to circumvent
TPMs for purposes of his academic research, Compl., ECF No. 1 ¶¶
75-77, 80; and Mr. Huang and Alphamax have alleged that they
plan to circumvent TPMs to create the NeTVCR, id. ¶¶ 93, 109.
With regard to section 1201(a)(2)’s trafficking prohibition, Dr.
Green has sufficiently alleged that he plans to include
“detailed information regarding how to circumvent security
systems” in a book about his research, id. ¶ 75, and he has
indicated that the “detailed information” will include computer
code. Decl. of Matthew Green in Supp. of Mot. for PI, ECF No.
16-2 ¶ 19 (“I am now writing an academic book . . . . I would
like to include examples of code capable of bypassing security
measures, for readers to learn from.”). 5 And Mr. Huang and
5 It is appropriate to “consider materials outside the pleadings
in deciding whether to grant a motion to dismiss for lack of
jurisdiction.” Jerome Stevens Pharms., Inc., 402 F.3d at 1253.
15
Alphamax have alleged that they intend to disseminate
“information about how to build NeTVCR,” Compl., ECF No. 1 ¶
110, which permits the reasonable inference that they will
disseminate the technological know-how and computer code
required to circumvent the TPMs that bar access to HDMI signals,
see Rann, 154 F. Supp. 2d at 64 (“In reviewing a motion to
dismiss for lack of subject-matter jurisdiction under Rule
12(b)(1), the court must accept all the complaint’s well-pled
factual allegations as true and draw all reasonable inferences
in the plaintiff’s favor.”). Accordingly, plaintiffs have put
forth a sufficiently “credible statement of intent to engage in
violative conduct.” Act Now to Stop War and End Racism Coalition
v. District of Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009)
(“ANSWER”).
2. Credible Threat of Prosecution
Second, plaintiffs have sufficiently alleged that they are
subject to a “credible threat of prosecution” under the DMCA.
United Farm Workers, 442 U.S. at 298. In United Farm Workers,
the Supreme Court held that a “credible threat of prosecution”
existed to permit plaintiffs to challenge a state criminal law
prohibiting certain union practices because, even though the
criminal penalty provision had never been applied, the state had
“not disavowed any intention of invoking the criminal penalty
provision against unions that commit unfair labor practices.”
16
442 U.S. at 302. Thus, United Farm Workers only requires “a
conventional background expectation that the government will
enforce the law.” Seegars v. Gonzales, 396 F.3d 1248, 1253 (D.C.
Cir. 2005). But, not inaccurately, defendants point to a line of
cases in this Circuit suggesting that something more than the
government’s failure to disavow criminal prosecution under a
given statute is required to show a “credible threat of
prosecution.” See Defs.’ Mem. Supp., ECF No. 15-1 at 25-26.
That line starts with Navegar, Inc. v. United States, 103
F.3d 994 (D.C. Cir. 1997), where the court confronted a pre-
enforcement challenge to certain provisions of the Violent Crime
Control and Law Enforcement Act of 1994. 103 F.3d at 996-97. The
court held that there was a “credible threat of prosecution” as
to the provisions of the Act that, by their very terms, singled
out plaintiffs——certain gun manufacturers——as the “intended
targets.” Id. at 1000-01. But the court held that there was no
such “credible threat of prosecution” as to the provisions that
only generically referred to the characteristics of prohibited
weapons and that, consequently, “could be enforced against a
great number of weapon manufacturers or distributors.” Id. at
1001. In Seegars, the court acknowledged that Navegar’s
demanding “credible threat of prosecution” analysis was in
tension with the permissive United Farm Workers analysis and
Court of Appeals for the District of Columbia (“D.C. Circuit”)
17
cases following United Farm Workers and upholding pre-
enforcement review of First Amendment challenges to criminal
statutes. See 396 F.3d at 1253-54. Even though in Seegars the
court thought that a “special First Amendment rule for
preenforcement review of statutes seems to have no explicit
grounding in Supreme Court decisions,” id. at 1254, it still
decided to apply Navegar’s more demanding test in lieu of United
Farm Workers’ test outside of the First Amendment context
precisely because Navegar represented “the only circuit case
dealing with a non-First Amendment challenge to a criminal
statute.” Id. The court therefore drew a line between First
Amendment and non-First Amendment pre-enforcement challenges to
criminal laws.
The existence of that line is confirmed by the D.C.
Circuit’s post-Seegars decisions. In Parker v. District of
Columbia, 478 F.3d 370 (D.C. Cir. 2007) and Ord v. District of
Columbia, 587 F.3d 1136 (D.C. Cir. 2009), the court considered
non-First Amendment pre-enforcement challenges and applied the
heightened Navegar “credible threat of prosecution” test,
demanding that the plaintiff be able to point to “a special law
enforcement priority” that makes prosecution imminent, 587 F.3d
at 1141, or that the plaintiff indicate that he has been
“singled out or uniquely targeted” for prosecution. 478 F.3d at
375. In ANSWER, however, the court confronted a First Amendment
18
challenge to regulations governing the placement of posters in
the District of Columbia and held that a “credible threat of
prosecution” existed. 589 F.3d at 435-36. Although in ANSWER the
court noted that it was confronted with “somewhat more than the
conventional background expectation that the government will
enforce the law”——namely that a co-plaintiff was already subject
to an enforcement action under the regulations, id.——it nowhere
indicated that the “somewhat more” was required in the First
Amendment context. The D.C. Circuit’s more recent decision in
United States Telecom Association v. FCC, 825 F.3d 674 (D.C.
Cir. 2015) seems to confirm that the “somewhat more” is not
required, as it cited ANSWER solely for the proposition that
standing “‘to challenge laws burdening expressive rights
requires only a credible statement by the plaintiff of intent to
commit violative acts and a conventional background expectation
that the government will enforce the law.’” 825 F.3d at 739
(quoting ANSWER, 589 F.3d at 435) (emphasis added). Even though
in United States Telecom the court noted that that principle
applied with “particular force” when an agency rule, as opposed
to a statute, is challenged, id. (citing Chamber of Commerce v.
FEC, 69 F.3d 600, 604 (D.C. Cir. 1995)), it subsequently
emphasized that “‘courts’ willingness to permit pre-enforcement
review is at its peak when claims are rooted in the First
19
Amendment,’” Id. at 740 (quoting New York Republican State Comm.
v. SEC, 799 F.3d 1126, 1135 (D.C. Cir. 2015)).
The scenario currently before this Court falls on the
ANSWER-United States Telecom side of the line that Seegars drew,
not the Navegar-Parker-Ord side of that line, because plaintiffs
challenge DMCA sections 1201(a)(1)(A) and 1201(a)(2) on various
First Amendment grounds. In this First Amendment context, there
is a “credible threat of prosecution” so long as there is “a
conventional background expectation that the government will
enforce the law.” United States Telecom, 825 F.3d at 739. That
conventional background expectation exists here. Plaintiffs have
adequately alleged that the government has brought charges under
section 1201 in the past, Compl., ECF No. 1 ¶ 28, and past
enforcement “is good evidence that the threat of enforcement is
not chimerical,” Susan B. Anthony List, 134 S. Ct. at 2345
(internal quotation marks omitted). Additionally, the government
has not disavowed enforcement if plaintiffs undertake their
proposed course of conduct. See Susan B. Anthony List, 134 S.
Ct. at 2345; Humanitarian Law Project, 561 U.S. at 16; cf.
Johnson v. District of Columbia, 71 F. Supp. 3d 155, 162 (D.D.C.
2014) (holding that there was no “credible threat of
prosecution” in part because “the government has disavowed any
intention to prosecute”). Accordingly, plaintiffs have
20
sufficiently alleged that they are subject to a “credible threat
of prosecution” under the DMCA.
3. Proposed Course of Conduct Arguably Affected with
a Constitutional Interest
Finally, plaintiffs have alleged “an intention to engage in
a course of conduct arguably affected with a constitutional
interest.” United Farm Workers, 442 U.S. at 298. Defendants put
forth an extensive argument as to why plaintiffs’ proposed
course of conduct is not arguably affected with a constitutional
interest. See Defs.’ Mem. Supp. at 18-21; Reply in Supp. of
Defs.’ Mot. to Dismiss (“Defs.’ Reply”), ECF No. 19 at 7-11.
That argument reduces to the assertion that plaintiffs’ proposed
activities of circumvention and trafficking do not amount to the
speech or expressive conduct that implicates First Amendment
rights. But that is a premature merits argument: Whether
plaintiffs’ proposed course of conduct squarely implicates First
Amendment rights is certainly an important question in this
case, see supra Part III.B, but the resolution of that question
does not determine whether the conduct that plaintiffs would
engage in is at least arguably affected with a constitutional
interest. See Parker, 478 U.S. at 377 (“[W]hen considering
whether a plaintiff has Article III standing, a federal court
must assume arguendo the merits of his or her legal claim.”).
United States Telecom confirms that “arguably affected with a
21
constitutional interest” simply means that a plaintiff has
challenged a law on constitutional grounds. There, the court
held that a plaintiff had standing in the context of a pre-
enforcement First Amendment challenge to certain regulations
even though the court, on the merits, concluded that the
regulations did not “raise a First Amendment concern.” 825 F.3d
at 740-44. Logically, then, the standing inquiry only requires a
challenge to a given law on constitutional grounds. Because
plaintiffs have put forth such a challenge, their proposed
course of conduct is “arguably affected with a constitutional
interest.” United Farm Workers, 442 U.S. at 298.
Plaintiffs have thus “alleged an intention to engage in a
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder.” Id. Accordingly,
they have satisfied Article III standing’s injury-in-fact
requirement. Defendants have not challenged the remaining
standing requirements, and it appears to the Court that those
causality and redressability requirements are satisfied.
Accordingly, plaintiffs have standing as to their challenges to
the DMCA’s anti-circumvention and anti-trafficking provisions. 6
6 Having found that plaintiffs satisfy the United Farm Workers
injury-in-fact inquiry and the remaining requirements to
establish their standing to challenge DMCA sections
1201(a)(1)(A) and 1201(a)(2), the Court will not address the
22
B. First Amendment Challenges
Plaintiffs make various claims grounded in the First
Amendment. They allege that: (1) DMCA section 1201 is facially
overbroad, burdening “a substantial range of protected speech
that is disproportionate to its legitimate sweep,” Compl., ECF
No. 1 ¶¶ 111-20; (2) section 1201(a)(1) creates an
unconstitutional prior restraint and speech-licensing regime,
id. ¶¶ 121-28; and (3) the DMCA’s anti-circumvention and anti-
trafficking provisions violate the First Amendment as applied to
their proposed course of conduct, id. ¶¶ 129-49, and that the
Librarian of Congress violated the First Amendment when she
failed to grant certain exemptions potentially applicable to
plaintiffs’ proposed course of conduct as part of the 2015
rulemaking carried out pursuant to DMCA sections 1201(a)(1)(B)-
(D), id. ¶¶ 150-62.
The parties dispute the threshold First Amendment question:
Whether plaintiffs have alleged that they intend to engage in
conduct that is protected by the First Amendment. Defendants
first argue that plaintiffs have not alleged that the conduct
alternative argument that Dr. Green has standing to challenge
the DMCA provisions because his requested exemption was not
fully granted in the 2015 triennial rulemaking process. See
Pls.’ Opp’n to Mot. to Dismiss, ECF No. 18 at 17-18.
Additionally, defendants do not challenge plaintiffs’ standing
as to their facial First Amendment and APA claims vis-à-vis the
Librarian of Congress’s 2015 final rule, and it appears to the
Court that plaintiffs have standing to make those claims.
23
they intend to engage in—circumventing access controls in
violation of section 1201(a)(1)(A)—qualifies as protected speech
or expressive conduct. Defs.’ Mem. Supp., ECF No. 15-1 at 28.
Rather, according to defendants, it is the activities that would
take place after plaintiffs violate section 1201(a)(1)(A) that
is constitutionally protected—specifically, informing
manufacturers of security vulnerabilities, publishing a book
about circumventing security systems, and creating a device that
would allow copyrighted materials to be copied and altered in a
high resolution format. Id. Therefore, according to defendants,
circumventing access controls is not protected. Second,
defendants argue that plaintiffs have not alleged that any item
they wish to disseminate in violation of section 1201(a)(2)
qualifies as protected speech. Id. at 29. To support that
position, defendants principally rely on Zemel v. Rusk, 381 U.S.
1 (1965) and Houchins v. KQED, Inc., 438 U.S. 1 (1978). Defs.’
Mem. Supp., ECF No. 15-1 at 28-29, 31-32, 41-42; Defs.’ Reply,
ECF No. 19 at 13. In the former case, Mr. Zemel sought to travel
to Cuba to learn about the state of affairs in that country and
to become a better informed citizen, but the Secretary of State
refused to render the permission necessary for him to travel to
Cuba. Zemel, 381 U.S. at 3-4. Although the Court acknowledged
that the “Secretary’s refusal to validate passports for Cuba
renders less than wholly free the flow of information concerning
24
that country,” it reasoned that no First Amendment right was
implicated because the Secretary’s refusal to validate the
passports was “an inhibition of action.” Id. at 16. The Court
concluded that the “right to speak and publish does not carry
with it the unrestrained right to gather information.” Id. at
17. In Houchins, the Court held that no First Amendment right
was implicated by a county policy barring the media from
accessing a county jail where such access was requested “to
prevent officials from concealing prison conditions from the
voters and impairing the public’s right to discuss and criticize
the prison system and its administration.” 438 U.S. at 8. The
Court indicated that even if the First Amendment guarantees a
right to communicate or publish, it does not guarantee a right
to access information in the first place. See id. at 10-12.
Accordingly, defendants assert that in these cases the Supreme
Court made clear “that the subsequent use an individual intends
to make of certain information does not confer any First
Amendment right to acquire that information in the first place.”
Defs.’ Mem. Supp., ECF No. 15-1 at 28.
Plaintiffs respond that they have alleged a viable First
Amendment claim because they alleged that they: (1) “have
created computer programs that are designed to circumvent access
controls on certain copyrighted works” and “[s]ection 1201
burdens the right to create and use computer code,” Pls.’ Opp’n
25
to Mot. to Dismiss (“Pls.’ Opp’n”), ECF No. 18 at 27 (citing
Compl., ECF No. 1 ¶¶ 132, 139); (2) “seek to gather factual
information that they intend to share with the public” and
“[s]ection 1201 burdens the right to gather information,” id. at
28 (citing Compl., ECF No. 1 ¶¶ 78-82, 93, 98-106); (3) “seek to
create new information that they intend to share with others”
and “[s]ection 1201 burdens the right to create and share
information,” id. at 29 (citing Compl., ECF No. 1 ¶¶ 75, 90-91,
98-106); (4) “seek to disseminate the technological information
they have developed” and “[s]ection 1201 burdens the right to
publish speech,” id. at 31 (citing Compl., ECF No. 1 ¶¶ 75, 110,
112-13); (5) “[m]any people want to receive the information
[they] seek to offer” and “[s]ection 1201 burdens the right to
receive information,” id. at 31-32 (citing Compl., ECF No. 1
¶¶ 90-91, 100-01, 107). Defendants concede that Dr. Green’s
intended publication of decryption code is protected by the
First Amendment, but disagrees that any of the other activities
in which plaintiffs want to engage are protected. Defs.’ Reply,
ECF No. 19 at 12-16.
The Court, as do defendants, see id. at 10 n.6, agrees with
plaintiffs that the DMCA and its triennial rulemaking process
burden the use and dissemination of computer code, thereby
implicating the First Amendment. Although the question has not
been addressed by the D.C. Circuit, as other courts have
26
explained, code “at some level contains expression, thus
implicating the First Amendment.” United States v. Elcom, Ltd.,
203 F. Supp. 2d 1111, 1126 (N.D. Cal. 2002). Code is speech
precisely because, like a recipe or a musical score, it has the
capacity to convey information to a human. Universal Studios,
Inc. v. Corley, 273 F.3d 429, 448 (2d Cir. 2001); see also
Junger v. Daley, 209 F.3d 481, 485 (6th Cir. 2000) (“Because
computer source code is an expressive means for the exchange of
information and ideas about computer programming, we hold that
it is protected by the First Amendment.”); Universal City
Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 327 (S.D.N.Y.
2000) (“As computer code . . . is a means of expressing ideas,
the First Amendment must be considered before its dissemination
may be prohibited or regulated.”).
Additionally, it is at least arguable that the DMCA and its
triennial rulemaking process implicate the other First Amendment
interests to which plaintiffs point. Despite Zemel’s holding
that a law that inhibits access to information does not
implicate the First Amendment, elsewhere the Court has put that
holding under strain. See, e.g., First Nat’l Bank of Boston v.
Bellotti, 435 U.S. 765, 783 (1978) (“[T]he First Amendment goes
beyond protection of the press and self-expression of
individuals to prohibit government from limiting the stock of
information from which members of the public may draw.”). The
27
Court has also indicated that the activities of publishing and
sharing information fall within the First Amendment’s purview,
see Sorrell v. IMS Health Inc., 564 U.S. 552, 568 (2011) (“An
individual’s right to speak is implicated when information he or
she possesses is subjected to ‘restraints on the way in which
information might be used’ or disseminated.”) (quoting Seattle
Times Co. v. Rhineart, 467 U.S. 20, 32 (1984)), as does the
right to receive information and ideas, see Kleindienst v.
Mandel, 408 U.S. 753, 762-63 (1972) (“‘It is now well
established that the Constitution protects the right to receive
information and ideas.’”) (quoting Martin v. City of Struthers,
319 U.S. 141, 143 (1943)). The course of conduct that plaintiffs
intend to undertake——principally, using computer code to
circumvent TPMs to access copyrighted materials and sharing that
code with others, whether through books, articles, or otherwise,
see Pls.’ Opp’n, ECF No. 18 at 28-32——arguably implicates each
of these various First Amendment rights, as the DMCA’s
prohibition on circumvention and trafficking appears to burden
the accessing, sharing, publishing, and receiving of
information, with “information” understood as both the code that
does the circumventing and the TPM-protected material to which
the circumventing code enables access. Accordingly, it is
appropriate to consider plaintiffs’ First Amendment challenges.
28
1. Facial First Amendment Challenges to the
Anti-Circumvention and Anti-Trafficking
Provisions
Plaintiffs claim that the DMCA’s anti-circumvention and
anti-trafficking provisions are unconstitutionally overbroad,
Compl., ECF No. 1 ¶¶ 111-20, and that section 1201(a)(1)——the
portion of the statute that prohibits circumvention but puts in
place the triennial rulemaking process to exempt certain uses of
certain classes of copyrighted works from the anti-circumvention
provision——amounts to an unconstitutional prior restraint on
speech. Id. ¶¶ 121-28.
“Although facial challenges to legislation are generally
disfavored, they have been permitted in the First Amendment
context where the licensing scheme vests unbridled discretion in
the decisionmaker and where the regulation is challenged as
overbroad.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223
(1990) (citing City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 798, and n.15 (1984).
a. Plaintiffs Fail to State an Overbreadth Claim
Plaintiffs’ overbreadth argument proceeds in two steps:
Consistent with their as-applied fair use argument, see infra
Section III.B.2, plaintiffs contend that fair use is
constitutionally required, Pls.’ Opp’n, ECF No. 18 at 45 n.15,
and because the DMCA provisions burden a substantial number of
possible fair uses of copyrighted materials that third parties
29
might make, those provisions are unconstitutionally overbroad,
id. at 45-46. Defendants counter that section 1201(a) is not
subject to an overbreadth claim because the challenged
provisions do not directly regulate speech, Defs.’ Mem. Supp.,
ECF No. 15-1 at 30-32, and that an overbreadth claim is
inappropriate because plaintiffs do not adequately distinguish
their as applied fair use arguments from their overbreadth
arguments, id. at 33-34. Defendants also argue that even if the
Court reaches the merits of the overbreadth claim, that claim
still fails because the “DMCA’s anti-circumvention and anti-
trafficking provisions are plainly legitimate in the vast
majority of applications.” Id. at 34.
A First Amendment overbreadth challenge asserts that a law
is written so broadly that it inhibits the constitutionally
protected speech of third parties. Taxpayers for Vincent, 466
U.S. at 798. This type of facial First Amendment challenge “is
an exception to ordinary standing requirements, and is justified
only by the recognition that free expression may be inhibited
almost as easily by the potential or threatened use of power as
by the actual exercise of that power.” New York State Club
Ass’n, Inc. v. City of New York, 487 U.S. 1, 11 (1988) (citing
Thornhill v. Alabama, 310 U.S. 88, 97-98 (1940)). “[A] law may
be invalidated as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to the
30
statute’s plainly legitimate sweep.’” United States v. Stevens,
559 U.S. 460, 473 (2010) (quoting Washington State Grange v.
Washington State Republican Party, 552 U.S. 442, 449 n.6
(2008)). Application of the overbreadth doctrine is “strong
medicine” and should be employed “sparingly and only as a last
resort,” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973) because
“there must be a realistic danger that the statute itself will
significantly compromise recognized First Amendment protections
of parties not before the Court for it to be facially challenged
on overbreadth grounds,” Taxpayers for Vincent, 466 U.S. at 801.
The Court is not persuaded that plaintiffs have alleged
facts sufficient to state a claim that DMCA provisions are
unconstitutionally overbroad because they “have failed to
identify any significant difference” between their claim that
the DMCA provisions are invalid on overbreadth grounds and their
claim that those provisions are unconstitutional when applied to
their proposed course of conduct. See Taxpayers for Vincent, 466
U.S. at 802. Plaintiffs’ argument in both scenarios is that fair
use is constitutionally required and that the DMCA inhibits fair
use rights and thus is unconstitutional. Pls.’ Opp’n, ECF No. 18
at 45 n.15, 45-46. Plaintiffs allege a number of potential fair
uses that the DMCA burdens because the Librarian denied
exemptions requested by third parties in the 2015 triennial
rulemaking process. Compl., ECF No. 1 ¶ 39. Plaintiffs’ as-
31
applied claims, however, arise out of the denials of exemptions
either they requested, or that would have covered their conduct.
Id. ¶¶ 78, 107, 108. Plaintiffs have not alleged that the DMCA
“will have any different impact on third parties’ interests in
free speech than it has on” their own. Taxpayers for Vincent,
466 U.S. at 801; see also Waters v. Barry, 711 F. Supp. 1125,
1133 (D.D.C. 1989) (“[W]hen, as here, the plaintiffs are
themselves engaged in protected activity—when the challenged
statute would have no greater impact upon the rights of
nonparties than it would have upon the rights of the parties
before the Court—there is no need to employ a traditional
overbreadth analysis.”). The Court therefore need not reach the
question of whether the “DMCA’s anti-circumvention and anti-
trafficking provisions are plainly legitimate in the vast
majority of applications.” Defs.’ Mem. Supp., ECF No. 15-1 at
34.
Accordingly, defendants’ motion to dismiss plaintiffs’
overbreadth claim is GRANTED and that claim is DISMISSED.
b. Plaintiffs Fail to State a Prior Restraint
Claim
Plaintiffs allege that the triennial exemption process is a
speech-licensing regime and, as such, it lacks “the safeguards
the First Amendment requires,” Compl., ECF No. 1 ¶ 122, because
the rulemaking process “lacks definite standards,” Pls.’ Opp’n,
32
ECF No. 18 at 26, and because the process does not include the
requirements described by Freedman v. Maryland, 380 U.S. 51
(1965)——namely, prompt licensing decisions, expeditious judicial
review of those decisions, and a mandate that the censor go to
court to obtain a judicial order permitting the suppression of
speech, Pls.’ Opp’n, ECF No. 18 at 33, 35 (citing Freedman, 380
U.S. at 58-60). Defendants counter that “the triennial
rulemaking provided by section 1201(a)(1)(c) simply does not
qualify as a prior restraint on speech” because: (1) it created
exemptions based on class-by-class, as opposed to case-by-case,
determinations, Defs.’ Mem. Supp., ECF No. 15-1 at 40-41; (2) it
“does not impose direct limitations on an individual’s own
speech,” but rather ”restrict[s] access to someone else’s
copyrighted materials,” id. at 41; and (3) it is a mechanism for
granting exemptions to an otherwise constitutional prohibition
on circumvention, id. at 43-44. In any event, defendants argue,
if the exemption regime can be contemplated under prior
restraint doctrine, it is a content-neutral regime that
satisfies intermediate scrutiny. Id. at 43-45.
The question at this juncture is whether plaintiffs have
sufficiently alleged facts to state a facial claim that the
exemption rulemaking process is an unconstitutional speech-
licensing regime. A challenge to a law as a prior restraint on
speech is a challenge to that law because it results in
33
censorship: “[A] facial challenge lies whenever a licensing law
gives a government official or agency substantial power to
discriminate based on the content or viewpoint of speech by
suppressing disfavored speech or disliked speakers.” City of
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 758 (1988).
Whether there is a prior restraint on speech depends on whether
the licensor has “unconfined authority to pass judgment on the
content of speech.” Thomas v. Chicago Park Dist., 534 U.S. 316,
320 (2002).
The Court is not persuaded that plaintiffs have
sufficiently alleged facts to state a claim that the exemption
rulemaking process is an unconstitutional speech-licensing
regime because plaintiffs have not alleged that the rulemaking
process results in censorship through “suppressing disfavored
speech or disliked speakers,” Plain Dealer Pub. Co., 486 U.S. at
759, nor that the rulemaking defendants are “pass[ing] judgment
on the content of speech,” Thomas, 534 U.S. at 320. Rather,
plaintiffs allege that: (1) other applicants for exemptions in
the 2015 rulemaking process provided evidence of various
categories of protected and noninfringing speech activities that
were “adversely affected” by section 1201, Compl., ECF No. 1 ¶
39; (2) the circumvention ban “has an adverse effect on computer
research like [Dr.] Green’s,” id. at 79; (3) “[f]ear of
liability [and criminal prosecution] under [s]ection 1201
34
prevents [Dr.] Green from engaging in . . . research and
publishing the results, id. ¶¶ 86-87; and (4) “[f]ear of
prosecution under [s]ection 1201 deters [Mr.] Huang and
Alphamax” from engaging in the activities they want to engage
in, id. ¶¶ 109-10. Taking the facts alleged to be true and in
the light most favorable to plaintiffs, they have not alleged
that the rulemaking defendants, in declining to grant certain
exemptions, have engaged in censorship based on what plaintiffs
want to express, their viewpoint, or who they are.
Plaintiffs argue that they have stated a claim that the
exemption process is an unconstitutional speech-licensing regime
because it prohibits “a broad array of activities protected by
the First Amendment,” it “adversely affects legitimate
activity,” and “[t]he only way that citizens can overcome that
ban is to obtain the Government’s permission before they are
allowed to engage in activities.” Pls.’ Opp’n, ECF No. 18 at 34.
But plaintiffs’ arguments provide no support for their claim
because they do not argue that the exemption process results in
censorship based on what they want to express, their viewpoint,
or who they are. And as the Court will explain in detail, the
DMCA and its rulemaking process cannot be deemed content-based.
See infra Section III.B.2.a.
Plaintiffs contend that the alleged lack of safeguards in
the rulemaking process enables the rulemaking defendants to
35
“routinely use their discretion to favor some lawful speech over
others.” Pls.’ Opp’n, ECF No. 18 at 34. Defendants respond that
“[t]he exemption determination, as set forth in the statute, is
not focused on the speech of the particular individual who
proposed the exemption; rather, the Librarian must determine
whether the type of proposed use is in fact noninfringing under
copyright law, and the factors set forth in section
1201(a)(1)(C) have to do with the general market for copyrighted
works and the availability of those works for noninfringing
uses.” Defs.’ Reply, ECF No. 19 at 22. The Court agrees with
defendants. Plaintiffs have not alleged facts indicating that
the rulemaking defendants’ decision of whether to grant
exemptions in the 2015 rulemaking process was based on the
content of what those who sought exemptions wanted to say, their
viewpoint, or who they are. See generally Compl., ECF No. 1. The
allegations here are therefore entirely distinguishable from
speech licensing regimes where the scheme created a prior
restraint based on the content of what the speaker wanted to
express. See e.g., Plain Dealer Pub. Co., 486 U.S. at 758, 759
(ordinance creating a permitting scheme for the placement of
newsracks on public property where decision of whether to
approve the permit could be based on the content of the
newspaper); Freedman v. Maryland, 380 U.S. 51, 58 (1965)
36
(statute requiring the submission of motion pictures to censor
before they could be exhibited).
Because plaintiffs have failed to allege facts to state a
facial claim that the exemption rulemaking process has resulted
in censorship based on “the content or viewpoint of speech by
suppressing disfavored speech or disliked speakers,” Plain
Dealer Pub. Co., 486 U.S. at 758, the Court need not reach what
procedural protections would be required if the process were a
speech-licensing regime.
Accordingly, defendants’ motion to dismiss plaintiffs’
prior restraint claim is GRANTED and that claim is dismissed.
2. As-Applied First Amendment Challenges to the
Anti-Circumvention and Anti-Trafficking
Provisions
Plaintiffs allege that the anti-circumvention and anti-
trafficking provisions are unconstitutional as applied to Dr.
Green’s proposed circumvention and trafficking for purposes of
his security research and as applied to Mr. Huang’s and
Alphamax’s proposed circumvention and trafficking for purposes
of their creation, use, and dissemination of the NeTVCR. Compl.,
ECF No. 1 ¶¶ 129-49. Defendants argue that plaintiffs have
failed to state an as-applied challenge that survives
intermediate scrutiny. Defs.’ Mem. Supp., ECF No. 15-1 at 45-51.
For the reasons explained below, the Court is persuaded that
37
plaintiffs have adequately alleged as-applied First Amendment
claims.
a. The Anti-Circumvention and Anti-Trafficking
Provisions of the DMCA Trigger Intermediate
Scrutiny
To determine whether plaintiffs have alleged facts
sufficient to show that section 1201, as applied to their
intended conduct, violates the First Amendment, it is necessary
to determine what level of scrutiny applies to the intended
conduct. The level of scrutiny depends on whether the relevant
restriction is content-neutral or content-based. A content-based
restriction triggers strict scrutiny, “which requires the
Government to prove that the restriction furthers a compelling
interest and is narrowly tailored to achieve that interest.”
Arizona Free Enter. Club’s Freedom Club PAC v. Bennett, 564 U.S.
721, 734 (2011) (internal quotation marks omitted). A content-
neutral restriction, on the other hand, triggers intermediate
scrutiny, which only requires the government to prove that the
restriction serves a substantial governmental interest; that the
interest served is unrelated to the suppression of free
expression; and that the restriction does not burden
substantially more speech than is necessary to further the
government’s legitimate interest. Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 662 (1994) (citing Ward v. Rock Against
38
Racism, 491 U.S. 781, 799 (1989); United States v. O’Brien, 391
U.S. 367, 377 (1968)).
The Court is persuaded that the restrictions on speech here
are content-neutral, thereby triggering intermediate, rather
than strict, scrutiny. Even when conduct or activity is
sufficiently expressive to be appropriately designated as
“speech” that implicates First Amendment rights, that does not
mean that that expressive activity cannot be bifurcated into
separate speech and non-speech components. See O’Brien, 391 U.S.
at 376 (“[W]hen ‘speech’ and ‘nonspeech’ elements are combined
in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can
justify incidental limitations on First Amendment freedoms.”).
The expressive activity in which plaintiffs intend to engage
that runs afoul of the DMCA’s anti-circumvention and anti-
trafficking provisions——the use of code to circumvent TPMs and
the dissemination of that code to others——involves these
separate speech and non-speech components and, critically, the
DMCA targets only the non-speech component.
The Court of Appeals for the Second Circuit in Universal
City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001),
cogently explained the distinction between the speech and non-
speech components of expressive activity in the DMCA context.
The court explained that code capable of circumventing TPMs is
39
purely functional (i.e., non-speech) when it communicates a
decryption message through a computer. Corley, 273 F.3d at 451,
454. And because circumventing (the concern of section
1201(a)(1)(A)) is so closely linked with trafficking in code
capable of circumvention (the concern of section 1201(a)(2)),
the functional, non-speech aspect of code is implicated by both
of the DMCA’s prohibitions. See id. at 451-52 (citing Universal
City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 331-32
(S.D.N.Y. 2000)). In other words, because trafficking assuredly
results in circumvention, it is appropriate to consider the
functional, non-expressive use of code in the context of both
the anti-circumvention and anti-trafficking provisions. The
court then held that the DMCA and an injunction issued pursuant
to its anti-trafficking provisions prohibiting the posting of a
specific code capable of circumvention——DeCSS——was content-
neutral because only the functional, non-speech component of the
code was targeted:
[T]he target of the posting provisions of the
injunction——DeCSS——has both a nonspeech and a
speech component, and . . . the DMCA, as
applied to the Appellants, and the posting
prohibition of the injunction target only the
nonspeech component. Neither the DMCA nor the
posting prohibition is concerned with whatever
capacity DeCSS might have for conveying
information to a human being, and that
capacity, as previously explained, is what
arguably creates a speech component of the
decryption code. The DMCA and the posting
prohibition are applied to DeCSS solely
40
because of its capacity to instruct a computer
to decrypt CSS. That functional capability is
not speech within the meaning of the First
Amendment.
Id. at 454. Because the DMCA targeted only the non-speech
component of the expressive activity of using and disseminating
code and thereby only incidentally burdened the speech
component——the code’s ability to communicate to a human——the
restriction was deemed content-neutral. See id.
The same analysis is warranted in this case. As concerns
plaintiffs’ First Amendment right to use and disseminate
computer code, the appropriate analysis is indistinguishable
from that in Corley and from two district court decisions that
followed Corley. See 321 Studios v. Metro Goldwyn Mayer Studios,
Inc., 307 F. Supp. 2d 1085, 1101 (N.D. Cal. 2004) (“This Court
comes to the same conclusion as the courts who previously
considered this question, and determines that intermediate
scrutiny is the appropriate standard under which the DMCA should
be analyzed.”); United States v. Elcom Ltd., 203 F. Supp. 2d
1111, 1128-29 (N.D. Cal. 2002) (“Divorcing the function from the
message . . . is precisely what the courts have done in other
contexts . . . . Accordingly, the court concludes that
intermediate scrutiny, rather than strict scrutiny, is the
appropriate standard to apply.”). Thus, because the anti-
circumvention and anti-trafficking provisions target the
41
functional, non-speech component of plaintiffs’ use and
dissemination of code and only incidentally burden the ability
of the code to express a message to a human (i.e., the “speech”
component), those provisions are properly deemed content-
neutral. Those provisions are also properly deemed content-
neutral even when plaintiffs’ various other arguably-burdened
First Amendment rights are considered. Those expressive rights——
the rights to gather, share, publish, and receive information——
are only incidentally burdened for the same reason the right to
use and disseminate expressive code is only incidentally
burdened: The DMCA provisions target the functional, non-speech
capacity of code to communicate messages to a computer.
Accordingly, no matter which of plaintiffs’ First Amendment
rights is implicated, the DMCA provisions are appropriately
deemed content-neutral.
The Court is not persuaded by plaintiffs’ arguments to the
contrary. Plaintiffs argue that the anti-trafficking provision
bans speech about “the particular subject matter . . . of
circumventing TPMs, while allowing speech on every other subject
matter,” thereby making it a content-based restriction. Pls.’
Opp’n, ECF No. 18 at 38. But this argument was considered and
rejected in Corley and Elcom and should be here as well for the
reason explained by those courts and explained above: It
overlooks that the DMCA targets only the non-speech component of
42
plaintiffs’ proposed expressive activity and therefore cannot be
considered a content-based restriction. Corley, 273 F.3d at 454;
Elcom, 203 F. Supp. 2d at 1128-29. The code’s functional
capability——the target of the DMCA provisions——“is not speech
within the meaning of the First Amendment.” Corley, 273 F.3d at
454.
Plaintiffs also argue that the DMCA’s permanent exemptions
and the criteria that the DMCA directs the Librarian of Congress
to consider when deciding upon exemptions under the triennial
rulemaking process draw categorical distinctions and thus give
rise to a content-based statute. Pls.’ Opp’n, ECF No. 18 at 38-
39. But that argument fails because it overlooks that what the
DMCA directly targets is the functional, non-speech component of
expressive activity. That functional capability is not speech.
Corley, 273 F.3d at 454. Even if the statute and its rulemaking
process use certain categorical distinctions——for instance,
permanently exempting certain kinds of “reverse engineering” and
“encryption research” but not other activities from the reach of
the anti-circumvention and anti-trafficking provisions, Pls.’
Opp’n, ECF No. 18 at 38 (citing 17 U.S.C. §§ 1201(f)-(g)), and
directing the Librarian to consider the impact that the
prohibition on circumvention has “on criticism, comment, news
reporting, teaching, scholarship, or research” when deciding
upon triennial exemptions, id. (citing 17 U.S.C.
43
§ 1201(a)(1)(C)(iii)), those categorical distinctions are
overlaid on a regime that is regulating something that “is not
speech within the meaning of the First Amendment,” Corley, 273
F.3d at 454. In other words, plaintiffs identify various
categorical distinctions that arise in this statutory and
rulemaking context, but those categorical distinctions are
ultimately concerned with the functional, non-speech capability
of code to circumvent TPMs. Identifying categorical distinctions
does not convert a regulation of non-speech into a content-based
regulation of speech. Accordingly, because the target of the
DMCA is the functional, non-speech component of the expressive
activity in which plaintiffs intend to engage, the DMCA and the
rulemaking process remain content-neutral regulations with only
an incidental burden on the speech component of plaintiffs’
proposed expressive activity.
The conclusion that the various categorical distinctions in
play here do not give rise to a content-based statute and
rulemaking process is consistent with Reed v. Town of Gilbert,
135 S. Ct. 2218 (2015), which plaintiffs contend supports their
position. Pls.’ Opp’n, ECF No. 18 at 38. There, the Supreme
Court made clear that a court is required “to consider whether a
regulation of speech on its face draws distinctions based on the
message a speaker conveys.” 135 S. Ct. at 2227 (internal
quotation marks omitted). If the regulation is content-based on
44
its face, it is “subject to strict scrutiny regardless of the
government’s benign motive, content-neutral justification, or
lack of animus toward the ideas contained in the regulated
speech.” Id. at 2228 (internal quotation marks omitted). If the
regulation is not content-based on its face, it can still be
deemed content-based if it was enacted because of disagreement
with the message that the regulated speech conveys. Id. at 2227.
Here, the DMCA and its rulemaking process cannot be deemed
content-based at either step of the Reed inquiry. First, even
though categorical distinctions appear on the face of the
statute, those categorical distinctions are overlaid on a
regulation of the non-speech component of expressive activity
and thus are not the sort of facial subject matter- or message-
related distinctions that make a regulation content-based; that
is, the distinctions are not “based on the message a speaker
conveys.” Id. Second, as other courts have persuasively
concluded, with the DMCA and its triennial rulemaking, “Congress
was not concerned with suppressing ideas” but rather was
concerned with code’s functional ability to circumvent TPMs.
Elcom, 203 F. Supp. 2d at 1128.
45
b. Defendants Have Failed to Meet Their Burden of
Showing that the Anti-Circumvention and Anti-
Trafficking Provisions Do Not Burden
Substantially More Speech than Is Necessary
As content-neutral regulations of speech, the anti-
circumvention and anti-trafficking provisions trigger
intermediate, rather than strict, scrutiny. Subject to
intermediate scrutiny, the anti-circumvention and anti-
trafficking provisions will be upheld so long as they further a
substantial governmental interest; the interest furthered is
unrelated to the suppression of free expression; and the
provisions do not burden substantially more speech than is
necessary to further the government’s interest. Turner Broad.
Sys., Inc. 512 U.S. at 662 (citing Ward, 491 U.S. at 799;
O’Brien, 391 U.S. at 377). “To satisfy this standard, a
regulation need not be the least speech-restrictive means of
advancing the Government’s interest. ‘Rather, the requirement of
narrow tailoring is satisfied so long as the . . . regulation
promotes a substantial government interest that would be
achieved less effectively absent the regulation.’” Turner, 512
U.S. at 662 (quoting Ward, 491 U.S. at 799). And “the Government
. . . bears the burden of showing that the remedy it has adopted
does not ‘burden substantially more speech than is necessary to
further the government’s legitimate interests.’” Id. at 665
(quoting Ward, 491 U.S. at 799).
46
Plaintiffs do not dispute that the DMCA is aimed at
furthering a substantial interest and that that interest is
unrelated to the suppression of free expression. See Pls.’
Opp’n, ECF No. 18 at 42-44. Congress enacted the DMCA in large
part because of substantial fears of “massive piracy” of
copyrighted works in the digital environment. S. Rep. at 8.
Thus, the government’s interest is in “preventing trafficking in
devices and technologies that would undermine the access
controls that protect copyrighted works,” Defs.’ Mem. Supp., ECF
No. 15-1 at 50, and that interest is “unquestionably
substantial” and, moreover, “that interest is unrelated to the
suppression of free expression.” Corley, 273 F.3d at 454.
With only the third prong of the applicable test in
dispute, plaintiffs argue that the relevant DMCA provisions
burden substantially more speech than is necessary to further
the government’s interest. See Pls.’ Opp’n, ECF No. 18 at 43-44.
Defendants disagree, arguing that this prong is
satisfied because the anti-trafficking
restriction in § 1201(a)(2) would be less
effective if individuals and companies such as
Plaintiffs were allowed to disseminate
decryption technologies, even if they intended
the dissemination to serve a limited purpose.
After all, if [Dr.] Green were able to publish
decryption code as part of a publication
discussing his security research, there would
be no guarantee that the recipients of the
code would similarly restrict their use of the
code to security research or other likely
noninfringing uses. Similarly, even if [Mr.]
47
Huang and Alphamax intend that the NeTVCR
device they wish to commercially distribute
would be used by others for noninfringing
purposes, once the device was available, there
would be a far higher risk that others might
use the device in ways that would facilitate
copyright infringement, including piracy.
Such results would undermine the effectiveness
of access controls, thus interfering with the
online market for copyrighted works by
deterring copyright owners from making works
available online at all.
Defs.’ Mem. Supp., ECF No. 15-1 at 50.
Plaintiffs respond that this assertion is unsupported by
any factual allegations and is illogical. Pls.’ Opp’n, ECF No.
18 at 43. First, plaintiffs point out that in certain
manifestations of Dr. Green’s research or in many of the
NeTVCR’s applications, the risk of digital piracy is minimal.
Pls.’ Opp’n, ECF No. 18 at 43. According to plaintiffs, there is
no online marketplace for certain “subjects of Dr. Green’s
research” and that, as concerns NeTVCR, “many applications”
relate to “physical media played via an HDCP-enabled device,
which would have no effect on copyright owners’ decision to make
works available online.” Id. at 43. Defendants do not respond
directly to this argument, Defs.’ Reply, ECF No. 19 at 27,
pivoting instead to rebutting plaintiffs’ argument that the
various permanent exemptions to the anti-circumvention and anti-
trafficking provisions are “insufficient to accommodate fair use
and protected speech,” which demonstrates that those provisions
48
are not narrowly tailored, Pls.’ Opp’n, ECF No. 18 at 43-44,
pointing to their argument responding to plaintiffs’ claim that
the statute is constitutionally overbroad, Defs.’ Reply, ECF No.
19 at 27.
At this juncture, the question before the Court is whether,
assuming the facts alleged in the complaint to be true and taken
in the light most favorable to plaintiffs, plaintiffs have
alleged facts sufficient to show that the DMCA provisions, as
applied to their intended conduct, burdens substantially more
speech than is necessary to further the government’s legitimate
interests. And it is the government’s burden to demonstrate
that the provisions do not burden substantially more speech than
is necessary to further the government’s legitimate interest.
The Court is not persuaded that the government has met this
burden.
As to section 1201(a)(1)(A), defendants have conceded that
Dr. Green’s intended publication of decryption code is protected
by the First Amendment. Defs.’ Reply, ECF No. 19 at 12-16.
Although it is defendants’ burden, they have failed to meet that
burden because they have not explained why the provision does
not burden substantially more speech than is necessary to
further the government’s legitimate interests. See Defs.’ Mem.
Supp., ECF No. 15-1 at 45-47; Defs.’ Reply, ECF No. 19 at 24-29.
49
As to section 1201(a)(2), the government asserts that “the
anti-trafficking restriction in [section] 1201(a)(2) would be
less effective if individuals and companies such as [p]laintiffs
were allowed to disseminate decryption technologies, even if
they intended the dissemination to serve a limited purpose,” and
that they “would undermine the effectiveness of access controls,
thus interfering with the online market for copyrighted works by
deterring copyright owners from making works available online at
all.” Defs.’ Mem. Supp., ECF No. 15-1 at 50. This assertion
falls far short of demonstrating that “the remedy it has adopted
does not ‘burden substantially more speech than is necessary to
further the government’s legitimate interests.’” Turner, 512
U.S. at 665 (quoting Ward, 491 U.S. at 799). At this juncture,
none of the facts supporting the asserted risks identified by
the government, see Defs.’ Mem. Supp., ECF No. 15-1 at 50, are
in the record in this case. Accordingly, taking the facts
alleged in the complaint to be true and affording plaintiffs the
benefit of all reasonable inferences, plaintiffs have alleged
facts sufficient to state a claim that section 1201, as applied
to their intended conduct, violates the First Amendment. 7 Because
7
In another variant of an as-applied challenge, plaintiffs also
allege that the Librarian of Congress violated the First
Amendment when she failed to grant Dr. Green’s exemption request
in full and when she failed to grant “exemptions that would have
protected [Mr.] Huang and Alphamax’s creation and use of NeTVCR”
in the most recent triennial exemption rulemaking. Compl., ECF
50
plaintiffs have alleged facts sufficient to state a claim that
section 1201, as applied to their intended conduct, violates the
First Amendment, the Court need not, at this juncture, reach the
question of whether the anti-circumvention and anti-trafficking
provisions in the DMCA run afoul of the First Amendment because
plaintiffs have alleged that they would make non-infringing uses
of content protected by section 1201. Compl., ECF No. 1 ¶¶ 78,
100, 106, 109. Accordingly, defendants’ motion to dismiss
plaintiffs’ as-applied claims is DENIED.
C. The Triennial Rulemaking Process is Not Subject to the
Administrative Procedure Act
Plaintiffs claim that the Library of Congress, the
Librarian of Congress, the Copyright Office, and the Register of
Copyrights violated the APA by denying “portions of the
exemptions that apply to [Dr.] Green’s security research” and
No. 1 ¶¶ 151-52, 157-58. Defendants argue that these First
Amendment challenges to the Librarian’s most recent rulemaking
should be dismissed because the anti-circumvention provision is
constitutional as applied to plaintiffs, so any denial of an
exemption to that provision must also be constitutional. Defs.’
Mem. Supp., ECF No. 15-1at 51. Plaintiffs offer no rejoinder to
defendants’ argument that the Librarian’s denial of exemptions
did not violate the First Amendment. Accordingly, defendants’
unopposed argument can be treated as conceded. See Hopkins v.
Women’s Div., General Bd. Of Global Ministries, 238 F. Supp. 2d
174, 178 (D.D.C. 2002) (“It is well understood in this Circuit
that when a plaintiff files an opposition to a motion to dismiss
addressing only certain arguments raised by the defendant, a
court may treat those arguments that the plaintiff failed to
address as conceded.”) (citing FDIC v. Bender, 127 F.3d 58, 67-
68 (D.C. Cir. 1997)).
51
“the exemptions that would have applied to [Mr.] Huang and
Alphamax’s creation and use of NeTVCR” during the 2015 triennial
exemption rulemaking. Compl., ECF No. 1 ¶¶ 154, 161. An APA
claim against the Copyright Office and the Register of
Copyrights, however, does not lie here——a conclusion that
plaintiffs do not seriously contest. See Pls.’ Opp’n, ECF No. 18
at 52 n.17. Claims under the APA can only challenge “final
agency action.” 5 U.S.C. § 704. For an agency action to be
“final,” “the action must mark the consummation of the agency’s
decisionmaking process" and, “the action must be one by which
rights or obligations have been determined, or from which legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78
(1997) (internal quotation marks omitted). Because it is the
Librarian of Congress, who on behalf of the Library of Congress,
“consummates” the triennial exemptions to the DMCA’s
circumvention prohibition and is only obligated to consider “the
recommendation of the Register of Copyrights” in that exemption
process, 17 U.S.C. § 1201(a)(1)(C) (emphasis added), the
challenged “final” action at issue here is an action taken by
the Librarian and Library of Congress. Accordingly, the
statutory provision subjecting the actions of the Register of
Copyrights to the APA, see 17 U.S.C. § 701(e), does not permit
an APA claim against the Copyright Office or the Register of
52
Copyrights for agency action taken pursuant to the DMCA’s
triennial rulemaking process.
Thus, plaintiffs’ APA claims are restricted to claims
against the Library and Librarian of Congress. Defendants
contend that these claims still are not viable, arguing that the
APA claims should be dismissed for lack of subject matter
jurisdiction because the Library of Congress is not an “agency”
as that term is defined in the APA and, accordingly, the APA’s
waiver of sovereign immunity does not apply to the Librarian’s
exemption rulemaking. Defs.’ Mem. Supp., ECF No. 15-1 at 51.
Plaintiffs counter that the APA excludes “the Congress” from its
definition of “agency,” but the Library of Congress has a
“hybrid character” such that in the context of the DMCA’s
triennial rulemaking it is an Executive Branch agency subject to
review under the APA. Pls.’ Opp’n, ECF No. 18 at 50-51.
Plaintiffs further contend that not understanding the Library to
be an Executive Branch agency in connection with its rulemaking
authority “would raise grave constitutional questions.” Id. at
52-53.
The APA waives the sovereign immunity of the United States
for claims “in a court of the United States seeking relief other
than money damages” when those claims are made against “an
agency or an officer or employee thereof.” 5 U.S.C. § 702. “The
APA defines ‘agency’ as ‘each authority of the Government of the
53
United States, whether or not it is within or subject to review
by another agency, but does not include——(A) the Congress;
(B) the courts of the United States; (C) the governments of the
territories or possessions of the United States; (D) the
government of the District of Columbia.’” Franklin v.
Massachusetts, 505 U.S. 788, 800 (1992) (quoting 5 U.S.C.
§§ 701(b)(1), 551(1)).
Defendants contend that since the Library of Congress is
part of “the Congress,” it falls within “the Congress[‘s]”
exemption from the APA’s definition of “agency,” pointing to
abundant authority that would seem to support that conclusion.
Defs.’ Mem. Supp., ECF No. 15-1 at 51-52. In Clark v. Library of
Congress, 750 F.2d 89 (D.C. Cir. 1984), the court observed that
“the Library of Congress is not an ‘agency’ as defined under the
[APA]” in the context of determining that the plaintiffs relief
in the form of damages from the Librarian was barred by
sovereign immunity, but not certain non-monetary relief. 750
F.2d at 102-03. (citing 5 U.S.C. § 701(b)(1)(A)). And in Ethnic
Employees of Library of Congress v. Boorstin, 751 F.2d 1405
(D.C. Cir. 1985), the court likewise observed “that the Library
is not an agency under the Administrative Procedure Act.” 751
F.2d at 1416 n.15. In Boorstin, the court explained that the
Supreme Court in Kissinger v. Reporters Committee for Freedom of
the Press, 445 U.S. 136 (1980) had “noted that the Library of
54
Congress is not an agency under the Freedom of Information Act,”
and because the Freedom of Information Act incorporates the
APA’s definition of “agency,” it follows that the Library is not
an “agency” under the APA. 751 F.2d at 1416 n.15 (citing
Kissinger, 445 U.S. at 145); accord Terveer v. Billington, 34 F.
Supp. 3d 100, 122 n.10 (D.D.C. 2014).
Plaintiffs, however, note that both Clark and Boorstin were
cases involving the Library in its capacity as an employer,
Pls.’ Opp’n, ECF No. 18 at 51, and instead point to the more
recent D.C. Circuit case Intercollegiate Broadcasting System,
Inc. v. Copyright Royalty Board, 684 F.3d 1332 (D.C. Cir. 2012)
for the proposition that the Library of Congress has a “hybrid
character” such that when it performs certain functions it is
part of the Legislative Branch, but when it performs certain
other functions it is part of the Executive Branch. Pls.’ Opp’n
at 51 (citing 684 F.3d at 1341-42; Eltra Corp. v. Ringer, 579
F.2d 294, 301 (4th Cir. 1978)). In Intercollegiate, the court
needed to determine whether the Librarian is a “Head of
Department” within the meaning of the Constitution’s
Appointments Clause. 684 F.3d at 1341. The court acknowledged
that “Departments” in the Appointments Clause “are themselves in
the Executive Branch or at least have some connection with that
branch,” id. (citing Buckley v. Valeo, 424 U.S. 1, 127 (1976)),
and that the D.C. Circuit had previously referred to the Library
55
of Congress as a “congressional agency.” Id. (citing Keeffe v.
Library of Congress, 777 F.2d 1573, 1574 (D.C. Cir. 1985)). Even
so, the court concluded that “the Library of Congress is a
freestanding entity that clearly meets the definition of
“Department” that performs a range of functions, some of which
are primarily for legislative purposes, because the Librarian
“is appointed by the President with advice and consent of the
Senate and is subject to unrestricted removal by the President,”
id. (internal citations omitted), and because the Library’s
specific functions at issue in the case——“to promulgate
copyright regulations, to apply the statute to affected parties,
and to set rates and terms case by case,” id. at 1342——“are ones
generally associated in modern times with executive agencies
rather than legislators,” id. Accordingly, the court concluded
that “[i]n this role the Library is undoubtedly a component of
the Executive Branch.” Id. (internal quotation marks omitted).
Defendants respond that the question of “whether, for
constitutional purposes, the Library operates as an executive
agency”——the question addressed in Intercollegiate——is “entirely
separate” from the question of whether the Library is part of
“the Congress” that is exempt from the APA’s definition of
“agency.” Defs.’ Reply, ECF No. 19 at 30. Defendants note that
the term “Congress” in the APA is not ambiguous, nor is there
any dispute that the Library is part of Congress. Id. Defendants
56
also point out that “when Congress intends to subject actions by
a Library component to APA review, it does that expressly by
enacting statutory language to that effect.” Id. (citing 17
U.S.C. § 701(e)).
Plaintiffs further argue that Congress made the DMCA’s
triennial rulemaking process subject to APA review when it
enacted the DMCA, pointing to the House Commerce Committee’s
Report on the DMCA that states that the rulemaking proceeding
should be “consistent with the requirements of the
Administrative Procedure[] Act,” Pls.’ Opp’n, ECF No. 18 at 44.
(citing Commerce Comm. Rep. at 37); as well as President
Clinton’s statement upon signing the DMCA that “the Copyright
Office is, for constitutional purposes, an executive branch
entity,” id. (citing President William J. Clinton, Statement on
Signing the Digital Millennium Copyright Act, (Oct. 28, 1998));
and the fact that the final actions of the Register of
Copyrights, who works closely with the Librarian in the DMCA
rulemaking, are subject to APA review, id. (citing 17 U.S.C.
§ 701(e)). Defendants respond that the fact that Congress used
express statutory language to make the Register’s final actions
subject to APA review indicates that by not using similar
statutory language in the DMCA as to the Librarian’s final
exemption rulemaking actions, Congress intended to shield that
exemption rulemaking from APA review. Defs.’ Mem. Supp., ECF No.
57
15-1 at 52-53; Defs.’ Reply, ECF No. 19 at 30. Defendants also
argue that because the D.C. Circuit “held the APA did not apply”
when it considered another regulatory structure that involved
the Librarian acting on a recommendation of the Register of
Copyrights, that same conclusion is warranted in this case.
Defs.’ Mem. Supp., ECF No. 15-1 at 53-54 (citing Nat’l Ass’n of
Broadcasters v. Librarian of Congress, 146 F.3d 907, 913, 919
(D.C. Cir. 1998).
Intercollegiate suggests that the Court should consider the
question of whether in its role in the DMCA’s triennial
rulemaking process “the Library is undoubtedly a ‘component of
the Executive Branch,’” id. at 1341 (citing Free Enterprise
Fund, 130 S. Ct. at 3163), and if so, whether that affects the
exclusion of the Library as part of “Congress” as an agency
subject to the APA. The rulemaking process empowers the
Librarian to, among other things, determine whether the anti-
circumvention provision will, or is likely to, adversely affect
a person’s ability to make noninfringing uses of a class of
copyrighted works. See 17 U.S.C. § 1201(a)(1)(C). Just as the
Library in its role in Intercollegiate in promulgating copyright
regulations was “undoubtedly a ‘component of the Executive
Branch,’” so here too is it arguably a component of the
Executive Branch in its role in the triennial rulemaking
process.
58
However, plaintiffs have pointed to nothing in the text of
the APA, its legislative history, or legal precedent that
suggests that Congress did not intend to include the Library of
Congress when engaging in Executive Branch functions in “the
Congress” that it exempted from the APA’s definition of
“agency.” The fact that the legislative history of the DMCA
indicates that Congress intended the rulemaking proceedings to
be “consistent” with the APA does not persuade the Court that
Congress intended the APA to apply to the DMCA because Congress
has demonstrated that when it intends to make a Library
component subject to APA review, it does so through express
statements in legislative text, not arguably ambiguous
statements in legislative history. See 17 U.S.C. § 701(e)
(“Except as provided by section 706(b) and the regulations
issued thereunder, all actions taken by the Register of
Copyrights under this title are subject to the provisions of the
Administrative Procedure Act of June 11, 1946, as amended (c.
324, 60 Stat. 237, title 5, United States Code, Chapter 5,
Subchapter II and Chapter 7”). Furthermore, President Clinton’s
signing statement says nothing at all about whether the APA
should apply to the DMCA. Finally, since the DMCA was enacted in
1998, the Library, while adopting certain APA standards and
procedures, has not understood the triennial rulemaking process
to be subject to the APA. See U.S. COPYRIGHT OFFICE, SECTION 1201 OF
59
TITLE 17, A REPORT OF THE REGISTER OF COPYRIGHTS at 106, 108 (June 2017)
(noting that the Librarian’s determinations are not subject to
challenge under the APA because “[a]lthough the Register of
Copyrights issues a recommendation based on the information
generated in the rulemaking proceeding, it is the Librarian who
adopts the final rule [and] [t]he Library of Congress is not
subject to the APA.); 8 see also N.L.R.B. v. Canning, 573 U.S.
513, 525 (2014) (noting that “the longstanding ‘practice of the
government’ . . . is an important interpretive factor)
(citations omitted)).
Plaintiffs argue if the Library is “undoubtedly” a
“component of the Executive Branch” when it promulgates rules
but is deemed “the Congress” under the APA, then this creates a
separation of powers issue because Congress is
unconstitutionally exercising Executive Branch power when DMCA
exemptions are promulgated. Id. 51-53 (citing Metro. Washington
Airports Auth. V. Citizens for the Abatement of Aircraft Noise,
Inc., 501 U.S. 252, 299-300 (1991); Springer v. Philippine
Islands, 277 U.S. 189, 202 (1928)). Plaintiffs urge the Court to
avoid this constitutional problem by understanding the Library
8 In deciding a motion to dismiss, “a Court may take judicial
notice of historical, political, or statistical facts, or any
other facts that are verifiable with certainty.” Youkelsone v.
FDIC, 910 F. Supp. 2d 213, 221 (D.D.C. 2012) (citing Mintz v.
FDIC, 729 F. Supp. 2d 276, 278 n.2 (D.D.C. 2010)). Accordingly,
the Court GRANTS [20] motion to take judicial notice.
60
to be “an ‘agency’ for the purposes of the APA when it
promulgates rules under [s]ection 1201.” Id. at 53. Plaintiffs
have not, however, challenged the DMCA on the grounds that its
structure violates separation of powers. See generally Compl.,
ECF No. 1. Rather, plaintiffs ask this Court to alter the
meaning of “Congress” as an “agency” in the APA because of an
alleged separation of powers problem not alleged in the
Complaint and in an entirely different statute. The Court has no
basis to do so.
Accordingly, because the Library of Congress is not an
“agency” as that term is defined in the APA, and because
Congress did not expressly apply the APA to the DMCA,
defendants’ motion to dismiss plaintiffs’ APA claims is GRANTED
and those claims are DISMISSED.
IV. Conclusion
For the reasons stated above, defendants’ motion to dismiss
is GRANTED IN PART and DENIED IN PART. An appropriate Order
accompanies this Memorandum Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
June 27, 2019
61