                   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
