Medical Imaging & Technology Alliance v. Library of CongressMedical Imaging & Technology Alliance v. Library of Congress
Michael B. Kimberly argued the cause for appellants. With him on the briefs were Peter Tolsdorf and Alex C. Boota.
Michael Pepson and Ryan P. Mulvey were on the brief for amicus curiae Americans for Prosperity Foundation in support of appellants.
Michael A. Tilghman II, Cory L. Andrews, John M. Masslon II, David Y. Chung, and Elizabeth B. Dawson were on the brief for amici curiae the National Association of Manufacturers and Washington Legal Foundation in support of appellants.
Laura E. Myron, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Daniel Tenny, Attorney.
Before: RAO and CHILDS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Dissenting opinion filed by Circuit Judge CHILDS.
Irrespective of whether the Library is an “agency,” however, Congress has specified that copyright regulations under Title 17 of the U.S. Code are subject to the APA. The Copyright Act of 1976 provides that “all actions” of the Register of Copyrights under Title 17—which includes rules that must be approved by the Librarian—are governed by the APA. See
This interpretation treats Congress‘s scheme of copyright regulation as a coherent whole and accords with background principles for judicial review of administrative action. Accordingly, we reverse and remand for the district court to assess the APA claims in the first instance.
I.
A.
Although best known as the Nation‘s library, the Library of Congress quietly exercises significant regulatory authority over copyrights. The Library houses the U.S. Copyright Office, which is headed by the Register of Copyrights. The Copyright Act of 1976 conferred broad authority on the Register to make copyright rules and reorganized Title 17 of the U.S. Code. See
At issue in this case is a rule promulgated under the Digital Millennium Copyright Act. See
To implement that directive, the DMCA created a private right of action against anyone who “circumvent[s] a technological measure that effectively controls access to a work protected under” federal copyright law.
Triennial DMCA rulemaking proceeds as follows. First, the Register makes a “recommendation” to the Librarian about whether the “users of a copyrighted work are, or are likely to be[,] ... adversely affected” by the anti-circumvention provision “in their ability to make noninfringing uses ... of a particular class of copyrighted works.” Id. The Register must determine whether certain proposed uses “are or are likely to be noninfringing” under the Copyright Act and whether “the prohibition is causing, or ... is likely to cause, an adverse impact on those uses.” See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 86 Fed. Reg. 59627, 59628 (Oct. 28, 2021). The Register‘s adverse impact determination turns on five factors: the extent to which the copyrighted works are available for use; the availability of the works for certain nonprofit purposes; the impact of the anti-circumvention provision on paradigmatic fair uses; the effect of circumvention on the market for the copyrighted works; and additional “appropriate” considerations. See
After assessing the Register‘s recommendation and the requisite statutory factors, the Librarian determines whether the anti-circumvention provision should be waived for a specific class of copyrighted works. Id.
B.
This suit was brought by two trade associations: the Medical Imaging & Technology Alliance and the Advanced Medical Technology Association. They represent manufacturers of advanced medical devices such as surgery assisting robots, CT scanners, and MRI machines. The manufacturers develop custom software for their devices and use technological protective measures to shield their copyrighted computer programs from unwanted access.
When the devices break down, however, the technological protections may restrict users such as hospitals and health care providers from employing their own servicemen to troubleshoot and fix the devices. Instead, users must rely on the device manufacturers’ technicians for diagnostics, repairs, and maintenance. Some
In 2020, two independent service operators petitioned the Copyright Office for an exemption from the DMCA‘s anti-circumvention provision. They claimed the manufacturers’ technological protections were blocking access to “error logs, configuration files, and other unprotected works” in addition to the copyrighted software. This prevented the independent service operators from performing diagnosis, maintenance, and repairs on medical devices, functions that were particularly critical during the COVID-19 pandemic. The independent operators also alleged that the device manufacturers were using their technological protective measures to monopolize the maintenance services market and force hospitals to pay more for licensed repairmen. The independent operators insisted their repair services were “fair use[s]” and that they should be able to lawfully access the manufacturers’ software and other data files.
The Register solicited comments on an exemption that would allow independent service operators to bypass technological protective measures on medical devices for the purpose of diagnosis, modification, or repair. Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 Fed. Reg. 65293, 65307 (Oct. 15, 2020). The trade associations opposed the proposed exemption, arguing the independent service operators sought access to the device manufacturers’ software for purely commercial purposes, which were not fair use. Nevertheless, in a report submitted to the Librarian, the Register recommended granting the exemption. She first concluded the independent service operators’ maintenance and repair services were noninfringing “fair uses” of the copyrighted software under the relevant statutory factors. Next, the Register found the exemption was justified because, under the five DMCA factors in
In the final triennial rule, the Librarian incorporated the Register‘s recommendation and granted the exemption, which permits the circumvention of technological protective measures on “[c]omputer programs that are contained in and control the functioning of a lawfully acquired medical device or system, and related data files, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system.” 37 C.F.R. § 201.40(b)(15).
C.
The trade associations sued the Library and the Librarian, seeking declaratory and injunctive relief. They claimed the Librarian violated the APA by granting the exemption, the Librarian acted ultra vires, and the Librarian‘s exercise of rulemaking power was unconstitutional because it was either a legislative decision rendered without bicameralism and presentment or an executive rulemaking performed by a congressional officer.
The district court granted the Library‘s motion to dismiss, rejecting each of the trade associations’ claims. Med. Imaging & Tech. All. v. Libr. of Cong., No. CV 22-499, 2023 WL 2387760, at *8-9 (D.D.C. Mar. 7, 2023). First, the court held the APA claims were barred by sovereign immunity. Id. at *9. The district court concluded that although the APA waives sovereign immunity for non-monetary claims against federal
Second, the district court rejected the trade associations’ ultra vires claim because the Librarian did not “plainly act[] in excess of her delegated powers and contrary to a specific prohibition in the statute that is clear and mandatory.” Id. at *13 (cleaned up). And finally, the court held the DMCA rulemaking did not run afoul of the separation of powers. Id. at *14.
The trade associations abandon their constitutional arguments on appeal, but they maintain that DMCA rules are reviewable under the APA because the Library is an “agency” insofar as it engages in executive rulemaking functions. In the alternative, the trade associations contend the Librarian acted ultra vires. We consider these legal issues and the district court‘s grant of the motion to dismiss de novo. See Kim v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011).
II.
The threshold question is whether the challenged DMCA rule is reviewable under the APA. We conclude that it is. The APA provides that “[a]gency action made reviewable by statute” is “subject to judicial review.”
A.
The parties and the district court analyzed the question of reviewability by focusing on whether the Library was part of Congress. The APA provides a cause of action and a waiver of sovereign immunity for non-monetary claims against an “agency” or “an officer ... thereof,”
This framing, however, fails to account for the fact that Congress can provide for APA review of the DMCA regulations by statute, regardless of whether the Library is an “agency.” The APA provides a general framework for review of agency action, but Congress may, and often does, apply this framework to other government actions. For instance, the Sentencing Reform Act of 1984 explicitly extended provisions of the APA to the U.S. Sentencing Commission, even though the Commission was arguably not an APA “agency.”1 See Wash. Legal Found., 17 F.3d at 1449-50.
Congress conferred authority for the triennial rules at issue here in the DMCA, which added the following provision to Title 17: “[T]he Librarian of Congress, upon the recommendation of the Register of Copyrights, ... shall make the determination in a rulemaking proceeding” whether to waive the anti-circumvention provision for certain classes of copyrighted works. Id.
Reading the two statutes as a comprehensive statutory scheme, DMCA rules are also subject to the APA under
Because the DMCA and the Copyright Act address the rulemaking authority of the Register and Librarian, the two statutes are in pari materia and should be construed “as if they were one law.” United States v. Freeman, 44 U.S. (3 How.) 556, 564 (1845). “[I]t is ... the most rudimentary rule of statutory construction ... that courts do not interpret statutes in isolation, but in the context of the corpus juris of which they are a part, including later-enacted statutes.” Branch v. Smith, 538 U.S. 254, 281 (2003) (plurality opinion). The DMCA establishes new rulemaking authority within Title 17, supplementing the regulatory scheme established by the Copyright Act.2
Although the Copyright Act emphasizes the Register‘s role in rulemaking
Because triennial DMCA rules are subject to the APA, sovereign immunity poses no barrier to the trade associations’ suit. Waivers of the United States’ sovereign immunity must be “unequivocally expressed.” United States v. Nordic Vill. Inc., 503 U.S. 30, 33 (1992) (cleaned up). But there is no dispute that the APA unambiguously waives sovereign immunity for non-monetary claims.
B.
Recognizing that the APA applies to the triennial rules is the most coherent interpretation of the scheme of copyright regulation established by Congress in the Copyright Act and the DMCA. Moreover, this interpretation comports with longstanding background principles of judicial review.
When Congress authorizes agencies to regulate or to administer the law subject to specific legal requirements, such executive action is ordinarily subject to judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967). “[T]he power of ... agencies is circumscribed by the authority granted,” and courts have the responsibility to determine whether “individual rights” have been infringed “by the exertion of unauthorized administrative power.” Stark v. Wickard, 321 U.S. 288, 309-10 (1944). Agencies must operate within the legal authority conferred by Congress, and when those limits are transgressed, an individual may seek recourse in the Article III courts.
This tradition of judicial review follows from the Constitution‘s structure of separated powers and long predates the APA. As Chief Justice Marshall recognized, “[t]he very essence of civil liberty ... consists in the right of every individual to claim the protection of the laws.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803). He later wrote that “in a government of laws and of principle,” when an official takes an action against
Congress‘s “historic practice” of providing for judicial review of administrative action reflects the importance of an independent check on the exercise of executive power. Bowen v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670-73 (1986). Of course, Congress may, subject to constitutional limitations, withhold judicial review. Id. at 672-73; cf. Patchak v. Zinke, 138 S. Ct. 897, 906 (2018) (recognizing Congress‘s power to “strip[] federal jurisdiction over a class of cases“). But absent such a legislative decision, courts have the power and the duty to review agency action for conformity with the law.
Reading section 701(e) to provide for judicial review of triennial DMCA rules aligns with fundamental principles regarding the protection of individual rights against unlawful government action. To begin with, the Copyright Act and the DMCA give the Register and Librarian significant authority to “promulgate copyright regulations” and “apply the statute to affected parties.” See Intercollegiate Broad., 684 F.3d at 1342. As we have recognized, and no party disputes, these powers are “generally associated in modern times with executive agencies.” Id. When enacting regulations and enforcing the law, “the Library is undoubtedly a component of the Executive Branch.” Id. (cleaned up). Moreover, the triennial rules directly affect valuable property rights, such as a copyright holder‘s ability to limit access to a digital creation and to prevent intellectual property theft. The triennial rules also provide exemptions from civil and criminal liability that would otherwise attach to individuals who circumvent technological protective measures.
These background principles about the role of judicial review accord with our interpretation of the Copyright Act and the DMCA that the triennial rules, like other copyright regulations, are subject to the APA and are judicially reviewable.
C.
The Library raises a series of arguments for why judicial review is barred, but none addresses the essential connection between the Copyright Act and the DMCA. Nor does the Library seriously grapple with
First and foremost, the Library insists it is a component of “the Congress” and therefore not an “agency” for purposes of
Even if these cases generally classify the Library as a component of “the Congress” under the APA, Congress may still apply the APA to particular actions of the Librarian and Register by statute.4 It did precisely that in
Second, the Library relies upon the fact that the Librarian has been authorized to “make rules and regulations for the government of the Library” for over a century, yet she has never followed the APA‘s procedures when making such rules. Act of Feb. 19, 1897, ch. 265, 29 Stat. 538, 544 (now codified at
Third, the Library raises a series of statutory arguments for why the APA‘s waiver of sovereign immunity does not allow for a suit challenging the triennial rules. The Library maintains that applying the APA to the Library and its officers would render section 701(e) superfluous. There would have been no need for Congress to authorize judicial review in the Copyright Act if the APA‘s judicial review provisions already applied. But in light of our caselaw, we need not, and do not, reach the question of whether the Library is an “agency” within the meaning of the APA. Instead, we recognize that, regardless of whether the Library is an APA “agency,” section 701(e) applies the APA to “all actions” of the Register under Title 17, including regulations approved by the Librarian.
Relatedly, the Library stresses that the Register‘s participation in triennial rulemaking is not reviewable agency action because her recommendation is not “final“—it must be approved by the Librarian. On the Library‘s view, section 701(e) applies only to actions of the Register that require no further approval. But this argument proves too much because the Register has no final rulemaking authority.
In sum, none of the Library‘s counterarguments undermine our conclusion that the text and structure of the DMCA and the Copyright Act provide for APA review of triennial DMCA rules.
* * *
Congress provided that the APA applies to copyright rules under Title 17, which includes the triennial DMCA rule challenged here. This conclusion accords with the background principle favoring judicial review of administrative action and harmonizes the scheme of copyright regulation and judicial review established by the Copyright Act and the DMCA. We interpret the statutes “as a symmetrical and coherent regulatory scheme,” “reconciling many laws enacted over time, and getting them to ‘make sense’ in combination.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 143 (2000) (cleaned up).
The trade associations may challenge the triennial rule under the APA.7 We vacate the judgment and remand for the
So ordered.
CHILDS, Circuit Judge, dissenting:
The United States is immune from suit absent express consent to be sued. United States v. Sherwood, 312 U.S. 584, 586 (1941); FAA v. Cooper, 566 U.S. 284, 290 (2012) (“a waiver of sovereign immunity must be ‘unequivocally expressed’ in statutory text.“). Any ambiguities must be “construed in favor of immunity.” FAA, 566 U.S. at 290-91.
While I agree that under
One might argue that an express waiver is found in the APA, which provides for judicial review of final agency actions, but such an argument is barred by our Circuit‘s precedent holding that the Library of Congress is not an “agency” under the APA.1 See Clark v. Libr. of Cong., 750 F.2d 89, 102-03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of Cong. v. Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985); Wash. Legal Found. v. U.S. Sent‘g Comm‘n, 17 F.3d 1446, 1449 (D.C. Cir. 1994) (noting that Congress clearly subjected the Sentencing Commission to the APA‘s notice and comment provisions in the Sentencing Reform Act of 1984). Thus, to exercise judicial review over the Librarian, we must rely on another express statutory provision subjecting the Librarian to the APA or otherwise waiving sovereign immunity over the Librarian‘s actions. Congress has at times subjected non-agencies, such as the Sentencing Commission, to APA review. See supra note 1. But Congress has not expressly provided for APA review of the Librarian.
There is no statutory provision expressly waiving sovereign immunity over the Librarian or subjecting the Librarian to the APA, and, in my view, the majority‘s attempt to infer such a waiver by analogy to the Copyright Act violates longstanding principles of statutory interpretation that a waiver of sovereign immunity “must be construed strictly in favor of the sovereign” and “not enlarge[d] ... beyond what the language requires.” United States v. Nordic Vill., Inc., 503 U.S. 30, 34 (1992) (internal quotation marks omitted).
Moreover, even without the strong presumption against implied waivers of sovereign immunity, the majority‘s in pari materia argument is unsupported by “traditional
First, the in pari materia canon applies when the Court is interpreting ambiguous statutory language—not statutory silence. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768, 774 (2015) (“The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress‘s province. We construe [a statute‘s] silence as exactly that: silence.“); United Shoe Workers of Am., AFL-CIO v. Bedell, 506 F.2d 174, 189 n.96 (D.C. Cir. 1974) (“A statute is not in pari materia if its scope and aim are distinct or where a legislative design to depart from the general purpose or policy of previous enactments may be apparent“) (cleaned up); 73 Am. Jur. 2d Statutes § 87 (“However, the in pari materia rule of statutory construction, requiring statutes which relate to the same subject matter to be read and applied together, applies only when a statute is ambiguous.“). Congress could have unequivocally subjected the Librarian to the APA, in the DMCA, like it did in the Copyright Act of 1976 for the Register of Copyrights. See
Second, even accepting arguendo the majority‘s argument that the Registrar‘s recommendations to the Librarian should be subject to judicial review under the Copyright Act, that argument still falls short of showing that the Court can exercise review over the Librarian—the actual defendant in this lawsuit.
There are good reasons not to treat the Registrar‘s regulations, subject to the Librarian‘s approval, identically to mere recommendations that the Register provides to the Librarian to assist the Librarian in carrying out its statutory obligations to the DMCA. See
Because the Library of Congress is not an agency within the meaning of the APA and Congress has not otherwise expressly waived sovereign immunity over suits challenging the Librarian‘s actions, I would affirm the district court‘s holding that the trade associations’ claims are barred by sovereign immunity.