Medical Imaging & Technology Alliance v. Library of Congress

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MEDICAL IMAGING & TECHNOLOGY

ALLIANCE, et al.,

Civil Action No. 22-499 (BAH)

Plaintiffs,

Chief Judge Beryl A. Howell

v.

LIBRARY OF CONGRESS, et al.

Defendants.

MEMORANDUM OPINION

Nearly twenty-five years ago, Congress passed the Digital Millennium Copyright Act of

1998 (“DMCA”), 17 U.S.C. § 1201 et seq., to address the risks that the internet and new digital

technology posed to copyrighted works. At the same time, Congress also recognized that changing

marketplace realities and ever-evolving digital technologies might make some of the DMCA’s

tools to combat digital piracy harmful to innovation and non-infringing uses of copyrighted

materials. To provide flexibility in accommodating those varied policy interests, Congress

authorized the Librarian of Congress (“Librarian”) to promulgate exceptions every three years to

certain statutory proscriptions, including the DMCA’s prohibition on circumvention of

technological protection measures used by copyright owners to prevent access to their copyrighted

works (“TPMs”). This authority is at issue in this case.

On October 28, 2021, pursuant to her triennial rulemaking authority under the DMCA, the

Librarian adopted a final rule, effective the same date, that exempts parties accessing copyrighted

software for the purpose of diagnosis, maintenance, and repair of medical devices from the

statute’s proscription barring the circumvention of TPMs. Final Rule, Exemption to Prohibition

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on Circumvention of Copyright Protection Systems for Access Control Technologies, 86 Fed. Reg.

59,627, 59,628 (Oct. 28, 2021) (“Exemption”), codified at 37 C.F.R. § 201.40. Four months after

the Final Rule went into effect, plaintiffs—the Medical Imaging & Technology Alliance and the

Advanced Medical technology Association, which are membership-based trade associations for

manufacturers of medical imaging equipment manufacturers, see Compl. ¶¶ 16-17, ECF No. 1—

initiated this lawsuit against defendants, the Library of Congress (“Library”) and the Librarian to

challenge the Exemption. Specifically, plaintiffs seek to have the Exemption for repair of medical

devices set aside and declared to be unlawful and void, and any enforcement by defendants

enjoined, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the

Declaratory Judgment Act, 28 U.S.C. § 2201, and this Court’s inherent equitable powers. Id. ¶ 24,

Prayer for Relief. 1

Now pending are the parties cross-motions for summary judgment. See Pls.’ Mot. Summ.

J. (“Pls.’ Mot.”), ECF No. 10; Defs.’ Cross-Mot. Dismiss, ECF No. 16; Defs.’ Mem. Supp. Cross-

Mot. Dismiss (“Defs.’ Cross-Mem.”), ECF No. 16-1. For the reasons explained below,

defendants’ motion to dismiss is granted, and plaintiffs’ motion for summary judgment is denied.

I. BACKGROUND

The relevant statutory and regulatory scheme is described below, followed by a summary

of the factual and procedural background to this case.

A. Statutory and Regulatory Scheme

1

The Administrative Record (“AR”) in this case is voluminous and, in accordance with the local rules, the

parties filed a Joint Appendix, containing portions of the AR cited or otherwise relied upon for the pending

motions. See D.D.C. LCVR 7(n); Joint App’x at 1, ECF No. 24. The 9,410-page Joint Appendix is docketed in six

separate attachments, see ECF Nos. 24-1–24-6. For clarity, “AR” citations herein are to those documents from the

administrative record found in the Joint Appendix.

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The Copyright Act of 1976, 17 U.S.C. § 101 et seq., proscribes the unauthorized

reproduction of “original works of authorship fixed in any tangible medium of expression.” Id.

§ 102(a). “Works of authorship” covered by the Copyright Act include “literary work[s],” which

themselves include “computer program[s].” Id. §§ 101, 102(a)(1), 109(b)(1)(A). While the

purpose of the Copyright Act is “to encourage the production of works” that, without copyright

protection, could be “reproduce[d] more cheaply” by others, this protection is intended to

encourage the production of new creative works, not “stand in the way of others exercising their

own creative powers.” Google LLC v. Oracle America, 141 S. Ct. 1183, 1195 (2021). To this

end, the Copyright Act codifies the fair use doctrine, which limits copyright protections as

necessary to encourage “criticism, comment, news reporting, teaching . . . scholarship, [and]

research.” 17 U.S.C. § 107.

Anticipating the changing digital landscape, Congress passed the DMCA in 1998 to

facilitate electronic commerce, communications, development, and education while

simultaneously addressing the threats that the internet and new digital technology posed to

copyrighted works. S. Rep. No. 105-190, at 1–2 (1998); see also Egilman v. Keller & Heckman,

LLP, 401 F. Supp. 2d 105, 112 (D.D.C. 2005) (quoting Universal City Studios, Inc. v. Corley, 273

F.3d 429, 435 (2d Cir. 2001)) (“Congress enacted the DMCA in 1998 ‘to strengthen copyright

protection in the digital age.’”). Observing that “copyright owners will hesitate to make their

works readily available on the Internet without reasonable assurance that they will be protected

against massive piracy[,]” S. Rep. No. 105-190, at 8, the Senate Committee Report on the DMCA

explained that “the law must adapt in order to make digital networks safe places to disseminate

and exploit copyrighted materials.” Id. at 2. The DMCA accordingly “create[d] the legal platform

for launching the global digital on-line marketplace for copyrighted works.” Id. at 8.

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To combat digital privacy, the DMCA prohibits, inter alia, “circumvent[ing] a

technological measure that effectively controls access to a work protected under” the Copyright

Act. 17 U.S.C. § 1201(a)(1)(A) (“the anti-circumvention provision”). As defined in the anti-

circumvention provision, 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). Exceptions to the anti-circumvention provision are provided to allow

circumvention of a TPM (or another form of access control to a copyrighted work) in the following

instances: (1) in order for a school or library to determine whether to acquire a copyrighted product;

(2) for law enforcement purposes; (3) to identify and analyze elements necessary to achieve

interoperability of computer programs; (4) to engage in encryption research; (5) as necessary to

limit the Internet access of minors; (6) as necessary to protect personally identifying information;

or (7) to engage in security testing of a computer, computer system, or computer network. See 17

U.S.C. § 1201(d)–(j).

In addition to these statutory exceptions, the DMCA directs the Librarian to determine,

through triennial rulemaking proceedings, any categories of copyrighted materials that should be

exempted from the anti-circumvention provision for the next three-year period because the

restriction adversely prevents users of copyrighted works from making noninfringing use of

copyrighted material. See id. § 1201(a)(1)(C). As explained in the House Committee Report on

the DMCA, Congress was concerned that evolving “marketplace realities” might make access to

copyrighted materials unjustifiably difficult, so the triennial rulemaking requirement created a

“‘fail-safe’ mechanism” that allowed the Library to “monitor developments in the marketplace for

copyrighted materials,” and “selectively waive[]” the anti-circumvention provision for a particular

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category of materials for “limited time periods, [as] necessary to prevent a diminution in the

availability to individual users of [that] particular category of copyrighted materials.” H.R. Rep.

No. 105-551(II), at 36 (1998).

When engaging in the statutorily authorized triennial rulemaking authority, the Librarian

must comply with several requirements. First, the DMCA obligates the Librarian to make her

rulemaking determinations “upon the recommendation of the Register of Copyrights,” who in turn

must “consult with the Assistant Secretary for Communications and Information of the Department

of Commerce.” 17 U.S.C. § 1201(a)(1)(C). Second, the DMCA provides that exemptions to the

anticircumvention rule are authorized only if users are “adversely affected by” the rule “in their

ability to make noninfringing uses.” Id. In making this assessment during rulemaking, the

Librarian must examine the following enumerated factors: “(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 [access controls]

has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of

circumvention of [access controls] on the market for or value of copyrighted works; and (v) such

other factors as the Librarian considers appropriate.” Id. The Librarian must also “assess whether

the implementation of access controls impairs the ability of individuals to make noninfringing uses

of copyrighted works within the meaning of section 1201(a)(1).” Exemption, 86 Fed. Reg. 59,627,

59,628.

The Librarian is the final decisionmaker, but the Register is tasked with conducting the

rulemaking process and making recommendations on exemptions to the Librarian. The House

Committee Report explains that, “in recognition of the expertise of the Copyright Office, the

Register of Copyrights will conduct the rulemaking, including providing notice of the rulemaking,

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seeking comments from the public, consulting with the Assistant Secretary for Communications

and Information of the Department of Commerce and any other agencies that are deemed

appropriate.” H.R. Rep. No. 105-796, at 64. “To aid in this process, the Register develops a

comprehensive administrative record using information submitted by interested members of the

public, and makes recommendations to the Librarian concerning whether exemptions are

warranted based on that record.” 86 Fed. Reg. at 59,628. Proponents seeking an exception must

demonstrate “(1) that uses affected by the prohibition on circumvention are or are likely to be

noninfringing; and (2) that as a result of [a TPM], the prohibition is causing, or in the next three

years is likely to cause, an adverse impact on those uses.” Id. “The Register will recommend

granting an exemption only ‘when the preponderance of the evidence in the record shows that the

conditions for granting an exemption have been met.’” Id. Upon receiving these recommendations

from the Register, the Librarian then issues a Final Rule promulgating the temporary exemptions

for the next three-year period. See Exemption, 86 Fed. Reg. 59,627. 2

B. Exemption Adopted During Eighth Triennial Rulemaking Proceeding

The challenged exemption was adopted by the Librarian following a sixteen-month

rulemaking process involving formal notices, submission and consideration of proposals,

comments, a hearing, and a fulsome explanation by the Register regarding application of the

requisite statutory factors, as summarized below.

1. Notice of Proposed Rulemaking, Petitions and Comments

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During the three-year period beginning October 28, 2021, the Librarian adopted twenty-six exemptions for

classes of copyrighted works. See 86 Fed. Reg 59,627. Examples of classes of copyrighted works for which the

Librarian has granted an exemption include “computer programs that control motorized land vehicles” and “computer

programs that control smartphones, home appliances, or home systems” for diagnosis, maintenance, or repair, id. at

59,631, excerpts of audiovisual works for criticism and comment, id. at 59,632, and literary works for use with

assistive technologies for disabled individuals, id. at 59,633, 59,634.

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The eighth triennial rulemaking proceeding began on June 22, 2020, when the U.S.

Copyright Office (“the Office”) submitted a Notice of Inquiry, published in the Federal Register,

U.S. Copyright Office, seeking petitions for renewals of existing exemptions and proposals for

new exemptions. Notice of Inquiry, Exemptions to Permit Circumvention of Access Controls on

Copyrighted Works, 85 Fed. Reg. 37,399 (June 22, 2020) (“Notice”), AR at 45–49. Upon receipt

of twenty-seven petitions for new or expanded exemptions in response to the Notice, the Office

organized the petitions into seventeen proposed classes for exceptions, and then requested

comment. Notice of Proposed Rulemaking, Exceptions to Permit Circumvention of Access

Controls on Copyrighted Works, 85 Fed. Reg., 65,293, 65,302 (Oct. 15, 2020) (“NPRM”), AR at

50–67.

Two of the petitions noticed for comment were submitted by two so-called independent

service organizations (“ISOs”), which are non-manufacturer companies hired by hospitals and

other medical professionals to repair and maintain complex, computer-controlled medical

equipment. These ISOs petitioned for an exemption to allow TPMs in computer-controlled

medical equipment to be circumvented “for the purpose of diagnosis, maintenance, or repair of

such a device.” Summit Imaging, Inc.’s Petition for New Exemption under 17 U.S.C. § 1201, AR

at 2357 (“Summit Petition”); accord Transtate Equipment Company’s Petition for New Exemption

under 17 U.S.C. § 1201, AR at 2362 (“Transtate Petition”). The principal justification for the

exemption sought by these two ISOs was the strong public health interest in “maintain[ing] and

repair[ing] lifesaving equipment,” a need that “has been magnified by the current COVID-19

pandemic.” Summit Petition at 2, AR at 2357; see also Transtate Petition at 4, AR at 2365 (“The

ability to diagnose, maintain, and repair medical equipment is a public health priority, particularly

in the midst of a global health crisis. . . .).

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Plaintiffs’ members are “original equipment manufacturers” (“OEMs”), which develop and

manufacture medical devices, such as MRI machines, CT scanners, and defibrillators. Compl.

¶ 37. To allow the medical devices “to deliver their advanced capabilities safely and effectively,”

OEMs “design and write software embedded within the machines,” which software is comprised

of computer code that “is original copyrighted work created by the OEM” and protected by the

Copyright Act. Id. ¶¶ 37-38; see also 17 U.S.C. §§ 101, 102(a). These devices also store and relay

confidential patient data to providers connected to the network. Compl. ¶ 37. To safeguard their

copyrighted material and patient data, OEMs use a wide variety of TPMs to guard against

unauthorized access to their copyrighted material. Id. ¶¶ 37, 41, 45. According to plaintiffs, OEMs

rely on copyright protections to recoup their substantial investments and facilitate further

innovations to their medical devices, and absent such protections, they will not be able to continue

developing more effective and efficient devices. Id. ¶¶ 53-55. Due to the potential risks to patients

and providers posed by unauthorized access or release of sensitive patient information, the Food

and Drug Administration (“FDA”) strictly regulates OEMs and the medical devices they

manufacture. Id. ¶ 46.

ISOs provide third-party maintenance and repair services for these medical devices, though

these services are not necessarily authorized by OEMs. Id. ¶¶ 42-43, 47-50. To provide

maintenance services for these medical devices, ISOs must circumvent TPMs to access OEM

software. As Summit explained, “Unless hospitals or other owners of medical devices purchase

expensive service contracts from the manufacturer, they may be unable to repair their own

equipment (or have it repaired by an independent service provider) without risking a lawsuit

against them or their service provider for allegedly violating the anti-circumvention provisions of

the [DMCA].” Summit Petition at 2, AR at 2357; Transtate Petition, AR at 2363 (“This exemption

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is sought to allow for timely critical servicing activities required for medical systems and devices

. . . used by hospitals and other medical service providers to care for individuals in need of medica

attention.”). Plaintiffs counter that the primary reason ISOs circumvent TPMs is to “benefit [their]

commercial interests, resulting in greater market share and more profits.” Compl. ¶ 49.3

In soliciting comments regarding the submitted petitions, the Office combined several

petitions relating to repair of software-enabled devices, including the Summit and Transtate

petitions, into a single proposed class, noting that current exemptions already include repair-related

exemptions to access computer programs in automobiles, smartphones, and home systems and

appliances for repair-related purposes. 85 Fed. Reg. at 65,306, 65,307, AR at 63–64. The Office

scheduled three rounds of comments from: (1) proponents of petitions or neutral parties; (2)

opponents of petitions; and (3) proponents or neutral parties replying to arguments or facts raised

in other comments. Id. at 65,302, AR at 59. Transtate and Summit both submitted comments in

support of their petitions, AR at 2909–16; AR at 2917–53, while plaintiffs filed opposing

comments, AR at 4010–24; AR at 4095–30; AR at 4131–56. Transtate also submitted reply

comments. AR at 4507–12.

Plaintiffs criticized the Transtate and Summit exemption petitions as violating the basic

purposes of copyright law and damaging the market while providing only commercial gain to the

ISOs. As support, plaintiffs explained, first, that the proposed exemptions would only facilitate

competing maintenance and repair services, with nothing transformative about the ISOs’ intended

uses. See Compl., Ex. B, Medical Imaging & Technology Alliance Comments (“MITA

Comments”) at 8–9, ECF No. 1-2; Compl., Ex. C, Advanced Medical Technology Association

Comments (“AdvaMed Comments”) at 7–8, ECF No. 1-3; see also Compl., Ex. D, Philips North

3

Many OEMs, nonetheless, “provide service specifications to ISOs to enable them to perform maintenance

and repair services.” Id. ¶ 51.

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America, LLC Comments (“Phillips Comments”) at 7–8 & n.24, ECF No. 1-4. Second, plaintiffs

complained that, because the software at issue is innovative and required substantial investment of

time and labor made in anticipation of financial return, the proposed exemption would allow ISOs

to free-ride off the work of OEMs and discourage the production of further similar work. MITA

Comments 9; AdvaMed Comments 8–9. Third, plaintiffs asserted that the proposed exemption

would decrease the value of the copyrighted software and the medical devices that require the

software to function by making circumvention of TPMs protecting these devices more likely,

exacerbating cybersecurity risks and putting patient data and OEMs intellectual property at risk of

exposure. MITA Comments 9-10; AdvaMed Comments 8–11; see also Phillips Comments 9–10.

Finally, according to plaintiffs, by increasing TPM circumvention, the requested exemption could

damage the devices themselves and introduce dangers such as electrical shock, mechanical failure,

improper dosing, and burns. AdvaMed Comments 3, 11-15; MITA Comments 3-5; see also

Philips Comments 17-19.

2. Hearing

Following the close of the comment period, the Office held a hearing, after notice, on April

20, 2021, regarding the proposed exemption for repairing computer software. See Notice of Public

Hearings, Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 86

Fed. Reg. 8560, 8561 (Feb. 8, 2021), AR at 68–69. A representative from Transtate and a

representative from the International Association of Medical Equipment Remarketers and

Servicers testified. AR at 5627–5763. Plaintiffs did not participate. See id.

3. Register’s Recommendation

Based upon the evidence gathered and submitted during the rulemaking process, the

Register submitted her recommendation to the Librarian in October 2021. See Section 1201

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Rulemaking: Eighth Triennial Proceeding to Determine Exemptions to the Prohibition on

Circumvention: Recommendation of the Register of Copyrights (Oct. 2021), AR at 1571–1926.

The Recommendation concluded that “the prohibition on circumvention of TPMs is causing, or is

likely to cause, an adverse impact on the noninfringing diagnosis, repair, and maintenance of

medical devices and systems.” AR at 1802.

In explaining this recommendation, the Register considered four statutory factors guiding

the analysis of whether diagnosis, maintenance, and repair was likely to be a noninfringing use of

the copyrighted software under the fair use doctrine. AR at 1781–85.4 As to the first factor—“the

purpose and character of the use”— the Register concluded that, although device repair can be

commercialized, ISOs’ repair activities were intended to “restore” a device’s “functionality, not to

commercialize the embedded copyrighted software.” AR at 1782. Referencing her prior

conclusions that diagnosis, maintenance, and repair of other software-enabled devices “are likely

to be transformative uses,” the Register determined that the first factor weighed in favor of fair

use. Id.

The Register also found that the second factor—the nature of the copyrighted work—

favored a finding of fair use because ISOs and hospitals did not seek to use the copyrighted

software for its “expressive qualities,” but rather for the “functional and informational” purposes

of allowing them to operate the medical equipment. AR at 1783. As to the third factor—the

amount and substantiality of the copyrighted work used—the Register determined that it also

weighed in favor of finding fair use because the ISOs’ desired use is “necessary to accomplish the

4

The Copyright Act provides that “fair use of a copyrighted work” is “not an infringement of copyright,” 17

U.S.C. § 107, and outlines four factors “to be considered” in making a fair use determination: (1) “the purpose and

character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;”

(2) “the nature of the copyrighted work;” (3) “the amount and substantiality of the portion used in relation to the

copyrighted work as a whole;” and (4) “the effect of the use upon the potential market for or value of the copyrighted

work.” Id.

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transformative purpose[] of diagnosis, maintenance, and repair,” which the Register believed was

“reasonable” under the circumstances. AR at 1784.

Finally, the Register evaluated the fourth factor—the effect of the use on the market value

of the copyrighted work—and found that it also weighed in favor of finding fair use since

diagnosis, repair, and maintenance of software-enabled medical devices and systems would

minimally “effect [ ] the market for or value of the copyrighted works because medical device and

system software and data files are sold with the equipment and have no independent value separate

from the devices[.]” Id. The Register observed, however, that if an ISO or provider were to

“reproduce and retain additional copies of any copyrighted materials for use with other devices, or

enable permanent access to subscription-only services, those activities would remain prohibited

because they fall outside the scope of the proposed exemption.” AR at 1785.

Upon finding that the proffered uses by ISOs of the OEMs’ copyrighted software were

likely noninfringing, the Register next found that the prohibition against circumvention here was

“adversely affecting” the repair of the at-issue medical devices, pursuant to the statutory criteria

for an exception outlined in 17 U.S.C. § 1201(a)(1)(C). AR at 1802. With respect to the first

statutory factor—the availability for use of copyrighted works—the Register concluded that the

prohibition on circumvention for these types of medical devices “makes medical equipment

software and manuals less available for use in noninfringing diagnosis, maintenance, and repair,”

rejecting the plaintiffs’ comments that the medical device software is otherwise broadly licensed

and available. AR at 1799. As to the second and third statutory factors—the availability for use

of works for nonprofit purposes and the impact that anti-circumvention provision has on criticism,

comment, news reporting, teaching, scholarship, or research—the Register did not find “these

factors [ ] especially relevant to the determination.” AR at 1800–01. The Register accordingly

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sidestepped an OEM argument that the ISOs’ interest here is purely commercial-oriented,

observing instead that “repair of medical devices and systems that are no longer supported by

OEMs arguably preserves the availability for use of the equipment’s software and servicing

materials.” Id. As to the fourth statutory factor, the Register discounted plaintiffs’ concerns of

harms to the market, concluding that the narrow scope of the exemption and proposed ISO uses

“limit[s] any potential market harm” because repair of medical equipment “support[s] rather than

displace[s] the embedded computer programs,” and the device software has “no independent value

separate from the equipment [it] operate[s] or explain[s].” AR at 1800. Finally, as to the fifth

statutory factor—granting the Librarian discretion to consider additional factors as she deems

appropriate—the Register found relevant that the exemption could help address competitive

concerns related to OEMs dominating the repair market and the FDA’s determination that the

exemption did not pose a substantial safety or security concern. AR at 1801–02. The Register

accordingly recommended that the Librarian grant the requested exemption. Id. at 1804–06.

4. Librarian’s Final Rule Adopting Exemption

After considering the Register’s recommendation, the Librarian adopted the Exemption in

a final rule on October 28, 2021. Exemption, 86 Fed. Reg. 59,627, AR at 70–84. In relevant part,

the final rule exempts “computer programs that are contained in and control the functioning of a

lawfully acquired medical device or system, and related data files, when circumvention is a

necessary step to allow the diagnosis, maintenance, or repair of such a device or system” from the

anti-circumvention provision. 37 C.F.R. § 201.40(b)(15), AR at 83. The Exemption defines

“maintenance” as the “servicing of the device or system in order to make it work in accordance

with its original specifications and any changes to those specifications authorized for that device

or system,” id. at § 201.40(b)(15)(i), AR at 83, and defines “repair” as “the restoring of the device

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or system to the state of working in accordance with its original specifications and any changes to

those specifications authorized for that device or system.” Id. at § 201.40(b)(15)(ii), AR at 83. By

its terms then, the Exemption is solely limited to repair, diagnosis, and maintenance, and does not

exempt ISOs or other users from liability under other provisions of the DMCA. See id.

§ 201.40(b)(15), AR at 83.

C. Procedural History

On February 25, 2022, plaintiffs filed their Complaint for declaratory and injunctive relief,

alleging that the Librarian’s adoption in the Final Rule of the Exemption for repair of medical

devices violates the APA, as arbitrary and capricious and not in accordance with the law, Compl.

¶¶ 78–85, and contrary to the APA’s procedural requirements because the Librarian failed to

respond to critical comments, id. ¶¶ 86–91. Alternatively, plaintiffs claim that, if the APA is

inapplicable to the Library of Congress, the Librarian’s action should be deemed ultra vires as

outside the scope of her statutory authority and in violation of the constitutional separation of

powers. Id. ¶¶ 92–101 (citing Larson v. Domestic and Foreign Com. Corp., 337 U.S. 682 (1949)).

About one month after instituting this lawsuit, plaintiffs filed their motion for summary

judgment, Pls.’ Mot., to which defendants have responded by moving to dismiss, under Federal

Rule of Civil Procedure 12(b)(6), plaintiffs’ ultra vires and constitutional claims for failure to state

plausible claims, or in the alternative, cross-motion for summary judgment, under Federal Rules

of Civil Procedure 12(b)(1), 12(b)(6), and 56, because plaintiffs’ APA claims are barred under the

doctrine of sovereign immunity. See generally, Defs.’ Cross-Mem.; Defs.’ Opp’n Pls.’ Mot.

Summ. J., ECF No. 17. With the parties having filed their respective oppositions and replies, Pls.’

Consolidated Reply Supp. Mot. Summ J. & Opp’n Govt’s Mot. Dismiss, ECF No. 18; Defs.’ Reply

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Supp. Mot. Dismiss, ECF No. 20, and the joint appendix, Joint App’x, ECF No. 24, the parties’

cross-motions are ripe for resolution.

II. LEGAL STANDARD

“Article III of the Constitution prescribes that ‘[f]ederal courts are courts of limited subject-

matter jurisdiction’ and ‘ha[ve] the power to decide only those cases over which Congress grants

jurisdiction.’” Bronner ex rel. Am. Stud. Ass’n v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020)

(alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012));

see also Gunn v. Minton, 568 U.S. 251, 256 (2013) (“‘Federal courts are courts of limited

jurisdiction,’ possessing ‘only that power authorized by Constitution and statute.’” (quoting

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Absent subject-matter

jurisdiction over a case, the court must dismiss it. See Arbaugh v. Y & H Corp., 546 U.S. 500,

506–07 (2006) (citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004)); FED. R. CIV. P. 12(h)(3).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff

bears the burden of demonstrating the court’s subject-matter jurisdiction over the claim at issue.

Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015). When considering a motion to dismiss under

Rule 12(b)(1), the court must determine jurisdictional questions by accepting as true all

uncontroverted material factual allegations contained in the complaint and “‘constru[ing] the

complaint liberally, granting plaintiff[s] the benefit of all inferences that can be derived from the

facts alleged.’” Hemp Indus. Ass’n v. DEA, 36 F.4th 278, 281 (D.C. Cir. 2022) (second alteration

in original) (quoting Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011)). The court

need not accept inferences drawn by the plaintiff, however, if those inferences are unsupported by

facts alleged in the complaint or amount merely to legal conclusions. Id. at 288 (alteration in

original) (quotation marks omitted) (making clear that liberally construing complaint in plaintiff’s

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favor “does not entail accept[ing] inferences unsupported by facts or legal conclusions cast in the

form of factual allegations”).

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “[a]

plaintiff need not make ‘detailed factual allegations,’” but the “complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” VoteVets

Action Fund v. McDonough, 992 F.3d 1097, 1104 (D.C. Cir. 2021) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). A facially plausible claim pleads facts that are not “‘merely consistent

with’ a defendant's liability” but that “allow[ ] the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 556 (2007)); accord Atchley, v. AstraZeneca UK Limited, et al., 22 F.4th

204, 214 (D.C. Cir. 2022). In deciding a motion under Rule 12(b)(6), the court must consider the

whole complaint, accepting all factual allegations as true, “even if doubtful in fact.” Twombly,

550 U.S. at 555. Courts do not, however, “assume the truth of legal conclusions . . . nor . . . accept

inferences that are unsupported by the facts set out in the complaint.” Arpaio, 797 F.3d at 19

(internal citation omitted).

III. DISCUSSION

Defendants’ motion to dismiss all four of plaintiffs’ claims is predicated on a

straightforward three-pronged argument. First, they argue that Congress exempted itself and the

Library of Congress from APA review and thus sovereign immunity bars plaintiffs’ procedural

and substantive APA claims, in Counts I and II, under Rule 12(b)(1). Defs.’ Cross-Mem. at 16–

23. Second, plaintiffs have failed to plead, in Count III, a plausible statutory ultra vires claim

because they have not alleged the Librarian violated a specific prohibition in the DMCA that is

clear and mandatory. Id. at 37–40. Finally, defendants contend that the DMCA rulemaking

16

scheme, challenged in Count IV, does not violate the constitutional separation of powers because

the Librarian is appointed by the President in accord with the Appointments Clause, so the

regulatory scheme does not place unconstitutional power in Congress to legislate without proper

bicameralism and presentment. Id. at 41–44.

Defendants are right on all counts. First, plaintiffs’ APA claims are barred by sovereign

immunity because the Librarian’s decisions are not subject to APA review. Second, plaintiffs’

ultra vires claim fails because the Librarian’s promulgation of the Exemption does not amount to

the type of extreme statutory error required to state a plausible claim. Third, plaintiffs’

constitutional challenge is meritless because members of Congress do not participate in the

challenged rulemaking, and the Librarian of Congress and the Register of Copyrights are subject

to the control of the Chief Executive in carrying out these responsibilities.

A. Plaintiffs’ APA Claims Are Barred By Sovereign Immunity

The parties do not dispute that the United States is immune from suit absent express consent

to be sued. See United States v. Sherwood, 312 U.S. 584, 586 (1941). As noted, defendants

contend that the APA does not waive sovereign immunity for the Library, even when the Library

is engaging in rulemaking proceedings, requiring dismissal of plaintiffs’ APA challenges for lack

of jurisdiction. Defs.’ Cross-Mem. at 16–23.

This inquiry begins, as it must, with the statute’s text. The APA contains an express waiver

of sovereign immunity for “[a]n action . . . seeking relief other than money damages and stating a

claim that an agency or an officer or employee thereof acted or failed to act in an official capacity

or under color of legal authority shall not be dismissed . . . on the ground that it is against the

United States or that the United States is an indispensable party.” 5 U.S.C. § 702. The APA

defines “agency” as “each authority of the Government of the United States, whether or not it is

17

within or subject to review by another agency, but does not include—(A) the Congress . . . .” 5

U.S.C. §§ 701(b)(1), 551(1). The Library of Congress is indisputably part of Congress, see Pls.’

Mot. at 28–29; Defs.’ Cross-Mem. at 16–17, and, accordingly, pursuant to the plain text of Section

701(b)(1), the Library is excluded from the definition of an “agency.” See Kissinger v Reps.

Comm’n for the Freedom of the Press, 445 U.S. 136, 145 (1979) (holding that the Library “is not

an ‘agency’” within the meaning of the term used in the Freedom of Information Act (“FOIA”),

which uses the same definition of “agency” as the APA); see also Intel Corp. Inv. Pol’y Comm. v.

Sulyma, 140 S. Ct 768, 776 (2020) (“We must enforce plain and unambiguous statutory language

. . . according to its terms.”) (quotation marks omitted). The result is that the Library does not

qualify as an “agency” subject to the APA.

If the plain text were not enough, Congress’s decision to make the Copyright Office, which

is a component of the Library, subject to the APA—but not the Library of Congress as a whole—

confirms that Congress intended to exclude the Library from the APA. Specifically, after the APA

was passed, Congress amended U.S. copyright law to make the Copyright Office subject to the

APA. 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 [APA.]”); H.R. Rep. No. 94-1476 at 171 (1976), reprinted in 1976 U.S.C.C.A.N.

5659 (“Under an amendment to section 701 adopted by the Committee, the Copyright Office is

made fully subject to the [APA] . . . .”). If the APA already provided a statutory authorization for

review of the Librarian’s rulemaking decisions under the Copyright Act or the DMCA, section

706(b)’s addition would have been superfluous. See Hohn v. United States, 524 U.S. 236, 249

(1998) (“We are reluctant to adopt a construction making another statutory provision

superfluous.”). Instead, this precise congressional action making the Copyright Office subject to

18

the APA, but not the Library, reflects a specific choice to decline waiving sovereign immunity

under the APA as to the latter.

To put matters to rest, binding D.C. Circuit precedent makes crystal clear that the Library

is not an “agency,” as that term is defined in the APA and therefore not subject to the APA. See

Clark v. Libr. of Cong., 750 F.2d 89, 102-03 (D.C. Cir. 1984) (citing 5 U.S.C. § 701(b)(1)(A)

(“[T]he Library of Congress is not an ‘agency’ as defined under the [APA].”); Ethnic Employees

of Libr. of Cong. v. Boorstin, 751 F.2d 1405,1416 n.15 (D.C. Cir. 1985) (observing “that the

Library is not an agency under the Administrative Procedure Act”); Wash. Legal Found. v. U.S.

Sent’g Comm., 17 F.3d 1446, 1449 (D.C. Cir. 1994) (noting that “the Library of Congress . . . is

exempt from the APA because its provisions do not apply to ‘the Congress’—that is, the legislative

branch”).

Notwithstanding this clear textual evidence and binding precedent, plaintiffs assert that the

Library of Congress should only be exempt from the APA when acting in a “legislative” capacity,

in contrast to its role in the triennial rulemaking process under the DMCA. Pls.’ Mot. at 28–34.

Citing to dicta in several court decisions analyzing the Library of Congress’ structure under the

Appointments Clause, U.S. CONST., art. II, § 2, cl., 2, plaintiffs maintain that when exercising

functions similar to those of Executive Branch agencies, the Library should be treated like an

agency subject to the APA. Id. (citing Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd.,

684 F.3d 1332 (D.C. Cir. 2012); Live365, Inc. v. Copyright Royalty Bd., 698 F. Supp. 2d 25

(D.D.C. 2010); Eltra Corp. v. Ringer, 579 F.2d 294 (4th Cir. 1978)). Plaintiffs also attempt to

distinguish Clark v. Library of Congress by describing the Library as acting in a legislative

capacity in that case, whereas when engaging in triennial rulemaking under the DMCA, the Library

should qualify as an “agency” for purposes of the APA. Pls.’ Reply at 10 (second and third

19

alterations in original) (“[T]o determine the capacity in which the Library is acting, courts

‘consider each [of its] function[s] . . . separately and . . . determine the character of each, whether

legislative or executive.’ Eltra, 579 F.2d at 301. That explains the outcome in Clark.”).

Plaintiffs’ wishful reading of these cases does not withstand scrutiny. For starters, the issue

addressed in the cases plaintiffs cite concerned the validity of the Library’s structure under the

Appointments Clause, without touching on whether the Library should be treated as an “agency”

for the purposes of the APA when engaging in agency-like activities. See, e.g., Intercollegiate

Broad. Sys., 684 F.3d at 1342 (“We too hold that the Librarian is a Head of Department. . . .”);

Live365, 698 F. Supp. 2d at 43 (“[E]ven though the Library is codified under Title II and is a free

standing entity that operates independently from the Executive Branch in conducting its daily

operations, the Librarian appears to nonetheless qualify as a Head of Department. . . .”); Eltra

Corp., 579 F.2d at 301 (holding that Library “operat[es] in conformity with the Appointments

Clause”). To be sure, the Library does perform both executive and legislative functions. Eltra

Corp., 579 F.2d at 301 (“The Librarian performs certain functions which may be regarded as

legislative (i.e., Congressional Research Service) and other functions (such as the Copyright

Office) which are executive or administrative. Because of its hybrid character, it could have been

grouped code-wise under either the legislative or executive department.”).

Critically, however, none of these cases condition their holdings on whether the challenged

activity in question was legislative or executive in nature. Indeed, in Clark, the D.C. Circuit never

held that the Library is exempt from the APA based on the specific facts of that case, as plaintiffs

mistakenly argue. See Pls.’ Reply at 10 (“Thus, given the particular facts at issue in Clark, the

court held that the Library of Congress [was] not an ‘agency’ as defined under the Administrative

Procedure Act.” 750 F.2d at 102.”). Instead, the Court held that Congress did not waive sovereign

20

immunity with respect to the Library because it is not an “agency” as defined under the APA.

Clark, 750 F.2d at 102. 5

In a last gasp effort, plaintiffs urge that the D.C. Circuit implicitly overturned or modified

decades of precedent in Clark, Boorstin, and Washington Legal Foundation in Intercollegiate

Broadcasting Systems v. Copyright Royalty Board, when the D.C. Circuit held that the

appointment of Copyright Royalty Judges by the Librarian violated the Appointments Clause and

severed “the restrictions on the Librarian[‘s] . . . ability to remove the” judges to remedy that

violation. 684 F.3d at 1334. Yet, Intercollegiate never articulated this “hybrid” framework for

evaluating APA challenges to the Librarian’s actions as plaintiffs theorize. See Pls.’ Mot. at 28.

This is far too flimsy a basis to sustain the “substantial burden on a party advocating the

abandonment of an established precedent,” Saad v. Sec. & Exch. Comm’n, 980 F.3d 103, 107 (D.C.

Cir. 2020) (quotation marks omitted), and, consequently, plaintiffs’ invitation to recast decades of

D.C. Circuit precedent exempting the Library from APA review is declined. See Green v. U.S.

Dep’t of Justice, 392 F. Supp. 3d 68, 99 (D.D.C. 2019) (likewise rejecting argument that

Intercollegiate changed whether the Library was subject to APA review because plaintiffs

“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 . . . [when Congress] exempted [itself] from the APA’s definition of ‘agency’”).

For the foregoing reasons, the Library is not subject to the APA since Congress explicitly

declined to waive sovereign immunity for APA challenges to the Library’s actions. 6 Accordingly,

5

For the same reason, the fact that “the Library publishes all relevant documents in connection with its DMCA

rulemakings in the Federal Register and promulgates its final exemptions in the Code of Federal Regulations,” Pls.’

Mot. at 38, is immaterial, since such activity alters neither the statutory definition of an “agency,” under 5 U.S.C. §

701(b)(1), nor the scope of any APA waiver of sovereign immunity.

6

Plaintiffs make two additional textual arguments in support of their foreclosed reading of the definition of

“agency,” under 5 U.S.C. § 701(b)(1), but neither is persuasive and cannot override binding D.C. Circuit precedent to

21

the Court lacks jurisdiction to address the merits of plaintiffs’ substantive and procedural APA

challenges in Count I and II, which must be dismissed.

B. Plaintiffs Fail to Plead Plausible Ultra Vires and Constitutional Claims

Aside from asserting APA challenges, plaintiffs raise an ultra vires statutory challenge to

the Exemption and a constitutional challenge to the Library’s rulemaking authority under the

DMCA, in Counts III and IV, respectively. Given that the Library of Congress is part of the federal

government, however, these claims “must satisfy all the requirements for actions commenced

against the United States.” FDIC v. Meyer, 510 U.S. 471, 475 (1994) (“Absent a waiver, sovereign

immunity shields the Federal government and its agencies from suit.”). “‘In any suit in which the

United States is a defendant, there must be a cause of action, subject matter jurisdiction, and a

waiver of sovereign immunity.’” United Am., Inc. v. N.B.C.-U.S.A. Hous., Inc. Twenty Seven, 400

F. Supp. 2d 59, 61 (D.D.C. 2005) (quoting Presidential Gardens Assocs. v. United States, 175 F.3d

132, 139 (2d Cir. 1999)); see also First Vir. Bank v. Randolph, 110 F.3d 75, 77–78 (D.C. Cir.

1997) (outlining these three requirements). To be sure, plaintiffs have properly asserted that their

claims challenging the Librarian’s actions raise issues under the DMCA and the U.S. Constitution,

and thus are brought pursuant to the court’s federal question jurisdiction, 28 U.S.C. § 1331. See

Compl. ¶ 25. That begs the other critical questions, however, whether the United States has waived

the contrary. First, plaintiffs point to the strong presumption of judicial review of administrative action as militating

in favor of finding that the Library’s DMCA rulemaking actions are subject to APA review. Pls.’ Mot. at 31–32

(citing Mach Mining, LLC v. EEOC, 575 U.S. 480 (2015)). This argument fails to grapple with the overwhelming

weight of textual evidence favoring reading “the Congress” to include the Library. See Knapp Med. Ctr. v. Hargan,

875 F.3d 1125, 1128 (D.C. Cir. 2017) (cleaned up) (explaining that the presumption for judicial review of agency

action, “like all presumptions used in interpreting statutes, may be overcome by specific language that is a reliable

indicator of congressional intent”). Moreover, judicial review of the Librarian’s actions remains available under the

Larson-Dugan doctrine, Clark, 750 F.2d at 102 (“It is well-established that sovereign immunity does not bar suits for

specific relief against government officials where the challenged actions of the officials are alleged to be

unconstitutional or beyond statutory authority.”), which plaintiffs concede, Pls.’ Mot. at 36. Second, plaintiffs argue

that the canon of constitutional avoidance requires reading “agency” to include the Library because otherwise

“tremendous separation of powers problems” are raised, id. at 32–35, but this variation on their constitutional attack

on the Librarian’s DMCA rulemaking authority is meritless, as explained, infra in Part III.B.2.

22

sovereign immunity to permit the claims, and, if so, whether plaintiffs have adequately plead their

separate causes of action.

Plaintiffs maintain that sovereign immunity does not bar suit here under the Larson-Dugan

doctrine. In Larson v. Domestic & Foreign Commerce Corporation, the plaintiff sued the head of

the War Assets Administration, not for money damages, but for specific performance of the

delivery of surplus coal in accordance with plaintiff's contract with the government. 337 U.S. at

684–85. Finding that the Administrator’s action in refusing the coal shipment to the plaintiff was

not unconstitutional or ultra vires conduct outside the scope of the Administrator’s authority, nor

contrary to statute or order, id. at 703, the Supreme Court concluded that the Administrator’s

action “was, therefore, inescapably the action of the United States and the effort to enjoin it must

fail as an effort to enjoin the United States,” id.; see also id. at 688 (noting suit would be barred

“not because it is a suit against an officer of the Government, but because it is, in substance, a suit

against the Government over which the court, in the absence of consent, has no jurisdiction”). The

Court thus articulated, and made explicit in Dugan v. Rank, an exception to sovereign immunity

in actions seeking specific relief for “(1) action by [government] officers beyond their statutory

powers [or] (2) even though within the scope of their authority, the powers themselves or the

manner in which they are exercised are constitutionally void.” 372 U.S. 609, 621–22 (1963). “In

either of such cases the officer’s action ‘can be made the basis of a suit for specific relief against

the officer as an individual.’” Id. at 622 (quoting Malone v. Bowdoin, 369 U.S. 643, 647

(1962)); see also Dalton v. Specter, 511 U.S. 462, 472 (1994) (quoting Larson, 337 U.S. at 691

n.11) (emphasis in original) (summarizing Larson as holding “that sovereign immunity would not

shield an executive officer from suit if the officer acted either ‘unconstitutionally or beyond his

statutory powers’”); Pollack v. Hogan, 703 F.3d 117, 120 (D.C. Cir. 2012) (quoting Larson, 337

23

U.S. at 689, 693) (“Under [the Larson-Dugan] exception, ‘suits for specific relief against officers

of the sovereign’ allegedly acting ‘beyond statutory authority or unconstitutionally’ are not barred

by sovereign immunity.”).

Here, plaintiffs allege both types of Larson-Dugan violations. First, they say that the

Librarian acted beyond the express limits authorized by the DMCA by promulgating the

Exemption. Pls.’ Mot. at 38–39. Second, they argue that the Exemption’s promulgation was

unconstitutional because, in so doing, the Librarian either “unconstitutionally exercise[d]

executive authority (running afoul of separation-of-powers principles) or [ ] unconstitutionally

exercise[d] legislative authority (running afoul Article I’s bicameralism and presentment

requirements).” Pls. Mot. at 39. Resolving whether Larson-Dugan ultimately applies, however,

requires an assessment of the merits of plaintiffs’ underlying statutory and constitutional claims

and thus “the question of jurisdiction merges with the question on the merits.” Wash. Legal Found.

v. U.S. Sent’g Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996); see also Swan v. Clinton, 100 F.3d

973, 981 (D.C. Cir. 1996) (determining whether “the Larson-Dugan exception would be triggered

and hence no waiver of sovereign immunity is required” rested on “discussion of the central merits

question in the case, namely whether” challenged government action violated statute); Mashiri v.

Dep't of Educ., 724 F.3d 1028, 1032 (9th Cir. 2013) (quoting Wash. Legal Found., 89 F.3d at

901) (alterations in original) (following D.C. Circuit’s practice when finding that “the question of

‘[w]hether the Larson-Dugan exception’ applied ‘merge[d] with the question on the merits,’” and

therefore turning “to address the substantive merits of the mandamus claim before it’”). Each

claim is evaluated in turn.

24

1. The Librarian Did Not Exceed Her Statutory Authority Under the

DMCA.

Plaintiffs argue that the Librarian’s enactment of the Exemption was “well in excess of her

delegated authority and contrary to the specific requirements of the DMCA . . . for the same basic

reasons that the Exemption is substantively unlawful under the APA.” Pls.’ Mot. at 38. In other

words, plaintiffs’ theory underlying this claim is that the DMCA authorizes the Librarian to

promulgate exemptions only for “noninfringing uses . . . of a particular class of copyrighted

works,” 17 U.S.C. § 1201(a)(1)(C), but the Exemption authorizes uses purportedly failing to meet

this requirement because the sole purpose of the Exemption is to allow ISOs to engage in

commercial behavior. Pls.’ Mot. 16–20. Plaintiffs’ recycled APA argument falls well short of

pleading a plausible ultra vires claim.

At the outset, “[j]udicial review for ultra vires agency action rests on the longstanding

principle that if an agency action is unauthorized by the statute under which the agency assumes

to act, the agency has violated the law and the courts generally have jurisdiction to grant relief.”

Fed. Express Corp. v. U.S. Dep't of Com., 39 F.4th 756, 763 (D.C. Cir. 2022) (cleaned up); see

also Leedom v. Kyne, 358 U.S. 184, 188 (1958) (upon finding that the National Labor Relations

Board directly contravened a provision in the National Labor Relations Act, thereby making its

action unlawful “in excess of its delegated powers and contrary to a specific prohibition in the

Act,” holding that the district court had jurisdiction to set aside the unlawful agency action).

Pleading a plausible ultra vires claim is no simple task and has been described as “essentially a

Hail Mary pass—and in court as in football, the attempt rarely succeeds.” See Nyunt v. Chairman,

Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009); accord N. Am. Butterfly Ass’n v.

Wolf, 977 F.3d 1244, 1262 (D.C. Cir. 2020) (quotation marks omitted) (“Ultra vires review is

intended to be of extremely limited scope, and it represents a more difficult course than would

25

review under the [APA].”). With respect to claims, as here, that a government official’s action

was contrary or in excess of statutory authority, “such a ‘Kyne exception’ applies only when three

requirements are met: ‘(i) the statutory preclusion of review is implied rather than express; (ii)

there is no alternative procedure for review of the statutory claim; and (iii) the agency plainly acts

in excess of its delegated powers and contrary to a specific prohibition in the statute that is clear

and mandatory.’” DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503, 509 (D.C. Cir. 2019) (quoting

Nyunt, 589 F.3d at 449); see also Fed. Express Corp. v. U.S. Dep't of Com., 39 F.4th 756, 763

(D.C. Cir. 2022) (same). Here, given that, absent the availability of review under the APA, no

federal statute specifically precludes judicial review, and there is no alternative procedure for

review, the critical question—both to state a plausible claim and for the exercise of jurisdiction—

is whether the Librarian “plainly act[ed]” outside the scope of her delegated powers in

promulgating the Exemption.

Plaintiffs’ claim fails to satisfy the third “Kyne exception” requirement. “The third

requirement covers only extreme agency error, not merely garden-variety errors of law or fact.”

DCH Reg’l Med. Ctr., 925 F.3d at 509 (cleaned up); see also Doehla Greeting Cards v.

Summerfield, 227 F.2d 44, 47 (D.C. Cir. 1955) (quoting Larson, 337 U.S. at 703) (“Erroneous

action taken in the exercise of an admittedly validly delegated power is ‘inescapably the action of

the United States and the effort to enjoin it must fail as an effort to enjoin the United States.’”).

Ultra vires claims are accordingly “confined to extreme agency error where the agency has stepped

so plainly beyond the bounds of its statutory authority, or acted so clearly in defiance of it, as to

warrant the immediate intervention of an equity court.” Fed. Express Corp., 39 F.4th at 764

(cleaned up). “Only error that is patently a misconstruction of the [statute], that disregards a

26

specific and unambiguous statutory directive, or that violates some specific command of a statute

will support relief.” Id. (cleaned up).

Plaintiffs merely restate that the Librarian erred in her fair use analysis, which, even if true,

would amount to nothing more than a textbook error in statutory interpretation. The D.C. Circuit

has given clear instruction that an ultra vires claim “must show more than the type of routine error

in statutory interpretation or challenged findings of fact that would apply if Congress had allowed

APA review.” Fed. Express Corp., 39 F.4th at 765 (quotation marks omitted). Moreover,

plaintiffs’ claim appears even weaker when considering that a fair-use analysis is a highly fact-

specific determination involving consideration of four different factors. See Am. Soc’y for Testing

& Materials, et al. v. Public.Resource.Org, Inc., 896 F.3d 437, 448 (D.C. Cir. 2018) (explaining

that “each case raising the question” concerning “whether a particular use is fair . . . must be

decided on its own facts”) (quoting Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S.

539, 560 (1985)); see also supra n.4. The Librarian’s determination that diagnosis, maintenance,

and repair was likely to be a noninfringing use of the copyrighted software could not have been

“patent[] [ ] misconstruction of the” DMCA, Fed. Express Corp., 39 F.4th at 764, for this exact

reason: it was premised on a detailed balancing of the fair use factors to determine that the ISOs’

proffered uses of the OEMs’ copyrighted software were likely noninfringing, see AR at 1780–

1785. Even if plaintiffs believe that the Librarian’s reasoning was “terse and incomplete[,]” Pls.’

Mot. at 25, they have not demonstrated how that the Librarian has patently “disregard[ed] a

specific and unambiguous statutory directive” or “violate[d] some specific command of a statute.”

Fed. Express Corp., 39 F.4th at 764. At most, the Librarian and plaintiffs just have differing views

on the outcome of a fair use analysis here.

27

In short, plaintiffs have fallen well short of completing their “Hail Mary pass” of an ultra

vires claim, see Nyunt, 589 F.3d at 449, because they have not come close to showing that the

Librarian has plainly acted “in excess of [her] delegated powers and contrary to a specific

prohibition in the statute that is clear and mandatory.” Fed. Express Corp., 39 F.4th at 763

(quotation marks omitted).

2. The Librarian’s Rulemaking Authority Does Dot Violate the Separation

of Powers.

Finally, in Count IV, plaintiffs challenge the Librarian’s DMCA rulemaking authority as

an unconstitutional violation of the separation of powers. The doctrine of separation of powers

emanates from the Framers’ decision to separate “powers of the [ ] Federal Government into three

defined categories, legislative, executive, and judicial, to assure, as nearly as possible, that each

Branch of government would confine itself to its assigned responsibility.” INS v. Chadha, 462

U.S. 919, 951 (1983); see also U.S. CONST. art. I, § 1 (“All legislative Powers herein granted shall

be vested in a Congress of the United States”); U.S. CONST. art. II, § 1 (“The executive Power shall

be vested in a President of the United States[.]”); U.S. CONST. art. III, § 1 (“The judicial Power of

the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress

may from time to time ordain and establish[.]”). As relevant here, when exercising legislative

authority, Congress must follow the procedures outlined in Article I, section 7 of the Constitution:

passage by both Houses of Congress and presentment to the President. Chadha, 462 U.S. at 951.

Moreover, Congress cannot “reserve for itself the power of removal of an [executive branch]

officer” because “[t]o permit the execution of the laws to be vested in an officer answerable only

to Congress would, in practical terms, reserve in Congress control over the execution of the laws.”

Bowsher v. Synar, 478 U.S. 714, 726 (1986). Such wielding of executive power is unconstitutional

and, conversely, Congress also “may not transfer to another branch ‘powers which are strictly and

28

exclusively legislative.’” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019) (quoting Wayman

v. Southard, 23 U.S. 1, 42–43 (1825)).

At the same time, “the separation-of-powers principle, and the nondelegation doctrine in

particular, do not prevent Congress from obtaining the assistance of its coordinate Branches.”

Mistretta v. United States, 488 U.S. 361, 372 (1989). Thus, Congress “may confer substantial

discretion on executive agencies to implement and enforce the laws,” Gundy, 139 S. Ct. at 2123,

so long as it “lay[s] down by legislative act an intelligible principle to which the person or body

authorized to [act] is directed to conform,” Whitman v. Am. Trucking Associations, 531 U.S. 457,

472 (2001) (alteration in original) (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S.

394, 409 (1928)). Accordingly, assuming Congress “has supplied an intelligible principle to guide

the [agency’s] use of discretion,” Gundy, 139 S. Ct. at 2123, the agency’s lawful exercise of that

authority is an exercise of executive power. City of Arlington v. FCC, 569 U.S. 290, 304 n.4

(2013); see also Collins v. Yellen, 141 S. Ct. 1761, 1785 (2021) (cleaned up) (quoting Bowsher,

478 U.S. at 733) (“‘[I]nterpreting a law enacted by Congress to implement the legislative mandate

is the very essence of execution of the law.’”).

Plaintiffs’ argument is not that Congress unconstitutionally delegated to the Librarian

legislative power by giving her rulemaking authority under Section 1201 of the DMCA, but rather

that the Library faces a different Catch-22: “[I]f the Library functions as a component of the

legislative branch rather than the executive branch in the course of its DMCA rulemakings, either

it is unconstitutionally exercising executive authority (running afoul of separation-of-powers

principles) or it is unconstitutionally exercising legislative authority (running afoul [of] Article I’s

bicameralism and presentment requirements).” Pls.’ Mot. at 39. “Either way,” plaintiffs assert,

“the rulemaking is constitutionally ultra vires.” Id. Plaintiffs’ “either-or” reasoning is flawed.

29

The Library serves both executive and legislative functions and does not run afoul of

separation of powers principles so long as both executive and legislative power are not

simultaneously wielded when conducting those functions. Considering that the Librarian is

appointed and subject to removal by the President, and that plaintiffs do not challenge the

Librarian’s DMCA rulemaking authority as an unconstitutional delegation of legislative power,

the Librarian accordingly lawfully engages in executive power under Article II when promulgating

rules under the DMCA.

The Fourth Circuit’s decision in Eltra Corporation v. Ringer is instructive on this issue.

When faced with the argument that “the Office of the Register of Copyrights is . . . violative of

the Appointments Clause[,]” the Fourth Circuit concluded that the Clause was not violated because

“[t]he Register is appointed by the Librarian of Congress, who in turn is appointed by the President

with the advice and consent of the Senate,” and the “Librarian is an ‘Officer of the United States’”

within the meaning of the Clause, Eltra, 579 F.2d at 300; see also Intercollegiate, 684 F.3d at 1342

(holding that the “Librarian is a Head of Department” within the meaning of the Appointments

Clause). The court deemed “irrelevant that the Office of the Librarian of Congress is codified

under the legislative branch or that it receives its appropriation as a part of the legislative

appropriation” because the “Librarian performs certain functions which may be regarded as

legislative (i.e., Congressional Research Service) and other functions (such as the Copyright

Office) which are executive or administrative.” 579 F.2d at 301; accord Intercollegiate, 684 F.3d

at 416 (acknowledging that the Library of Congress “performs a range of different functions,

including some, such as the Congressional Research Service, that are exercised primarily for

legislative purposes”). “Because of its hybrid character,” the court continued, “it could have been

grouped code-wise under either the legislative or executive department.” 579 F.2d at 301. The

30

court concluded, however, that “such code-grouping cannot determine whether a given function is

executive or legislative.” Id. 7

Just as the Eltra plaintiff, plaintiffs have created a false dichotomy here because, even

though the Library performs some legislative functions, it also performs executive functions for

the purposes of the Constitution when promulgating regulations under the DMCA. Eltra correctly

concluded that the Librarian can perform both executive and legislative functions while still not

raising separation-of-powers problems because of its “hybrid” character. When promulgating

regulations under the DMCA and exercising executive functions, the Library thus need not comply

with Article I, section 7’s bicameralism and presentment requirements.

As defendants aptly point out, Defs.’Cross-Mem at 43, the critical flaw in plaintiffs’

argument is that Congress’s decision to categorize the Library as part of “the Congress” rather than

make this entity subject to APA review, either directly (as with the Copyright Office) or through

the definition of “agency” in 5 U.S.C. § 701(b)(1), has no bearing on whether the exercise of

authority in triennial rulemaking is either legislative or executive in function. Congress’s decision

simply reflects its choice to exempt the Librarian’s administrative actions from APA review, a

choice that Congress could revisit at any time by amending the APA’s definition of “agency.”

7

Defendants are correct, see Defs.’ Cross-Mem. at 42–43, that administrative bodies invalidated on separation-

of-powers grounds had direct participation by Congress or Members of Congress in the exercise of executive actions.

See, e.g., Metro. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 276–77

(1991) (invalidating a review board partly composed of members of Congress); Bowsher, 478 U.S. at 733–34

(invalidating investment of executive powers in an officer removable by Congress); Buckley v. Valeo, 424 U.S. 1,

140–41 (1976) (per curiam) (holding that Congress could not vest administrative powers in a commission for which

members were not appointed pursuant to the Appointments Clause, U.S. Const. art. II, § 2, cl. 2). No such

constitutional infirmity is present for the Library of Congress.

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III. CONCLUSION

For the foregoing reasons, defendants’ motion to dismiss is granted, and plaintiffs’ motion

for summary judgment is denied. An Order consistent with this Memorandum Opinion will be

entered contemporaneously.

Date: March 7, 2023

_________________________

BERYL A. HOWELL

Chief Judge

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