Medical Imaging & Technology Alliance v. Library of Congress

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 5, 2023 Decided June 7, 2024

No. 23-5067

MEDICAL IMAGING & TECHNOLOGY ALLIANCE AND

ADVANCED MEDICAL TECHNOLOGY ASSOCIATION,

APPELLANTS

v.

LIBRARY OF CONGRESS AND CARLA HAYDEN, IN HER OFFICIAL

CAPACITY AS LIBRARIAN OF CONGRESS,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-00499)

Michael B. Kimberly argued the cause for appellants. With

him on the briefs were Peter Tolsdorf and Alex C. Boota.

Michael Pepson and Ryan P. Mulvey were on the brief for

amicus curiae Americans for Prosperity Foundation in support

of appellants.

Michael A. Tilghman II, Cory L. Andrews, John M.

Masslon II, David Y. Chung, and Elizabeth B. Dawson were on

the brief for amici curiae the National Association of

2

Manufacturers and Washington Legal Foundation in support of

appellants.

Laura E. Myron, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were Brian

M. Boynton, Principal Deputy Assistant Attorney General, and

Daniel Tenny, Attorney.

Before: RAO and CHILDS, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

Dissenting opinion filed by Circuit Judge CHILDS.

RAO, Circuit Judge: This case raises the question of

whether copyright rules promulgated under the Digital

Millennium Copyright Act (“DMCA”) are reviewable under

the Administrative Procedure Act (“APA”). The DMCA

prohibits the circumvention of technological barriers that

restrict access to digital copyrighted works. The Librarian of

Congress promulgated an exemption to that anti-circumvention

provision, allowing some access to the software of advanced

medical devices. Trade associations representing medical

device manufacturers sued, claiming the exemption violated

the APA. The district court held the APA claims were barred

by sovereign immunity because the Library of Congress is part

of “the Congress” and therefore not an “agency” within the

meaning of the APA’s judicial review provision.

Irrespective of whether the Library is an “agency,”

however, Congress has specified that copyright regulations

under Title 17 of the U.S. Code are subject to the APA. The

Copyright Act of 1976 provides that “all actions” of the

Register of Copyrights under Title 17—which includes rules

3

that must be approved by the Librarian—are governed by the

APA. See 17 U.S.C. §§ 701(e), 702. And the DMCA authorizes

the Register and Librarian to promulgate a new category of

rules under Title 17. Reading the two statutes together, we

conclude that DMCA rules are subject to the APA just like

other copyright rules. The APA therefore provides the

necessary waiver of sovereign immunity for this suit.

This interpretation treats Congress’s scheme of copyright

regulation as a coherent whole and accords with background

principles for judicial review of administrative action.

Accordingly, we reverse and remand for the district court to

assess the APA claims in the first instance.

I.

A.

Although best known as the Nation’s library, the Library

of Congress quietly exercises significant regulatory authority

over copyrights. The Library houses the U.S. Copyright Office,

which is headed by the Register of Copyrights. The Copyright

Act of 1976 conferred broad authority on the Register to make

copyright rules and reorganized Title 17 of the U.S. Code. See

Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§ 101

et seq.). The Act specified that the Register acts under the

direction and supervision of the Librarian, 17 U.S.C. § 701(a),

and that “[a]ll regulations established by the Register under

[Title 17] are subject to the approval of the Librarian of

Congress,” id. § 702. As we have recognized, the Librarian is

a “Head of Department” within the Executive Branch.

Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684

F.3d 1332, 1342 (D.C. Cir. 2012).

At issue in this case is a rule promulgated under the Digital

Millennium Copyright Act. See Pub. L. No. 105-304, 112 Stat.

4

2860 (1998) (codified at 17 U.S.C. §§ 1201 et seq.). The

DMCA implemented two international treaties by providing

additional protections for digital copyrighted works. Digital

media had been eligible for copyright protection before the

DMCA, but advances in technology and the rise of the internet

facilitated piracy and unlawful reproduction on an

unprecedented scale. See Green v. U.S. Dep’t of Just., 54 F.4th

738, 741 (D.C. Cir. 2022). Although owners of digital

copyrights could protect their creations through technological

protective measures like passwords or encryption, these

barriers could be circumvented by new technologies and

devices. To address these problems, one of the treaties directed

signatories to “provide adequate legal protection … against the

circumvention of effective technological measures that are

used by authors” to protect their works. World Intellectual

Property Organization Copyright Treaty art. 11, Dec. 20, 1996,

2186 U.N.T.S. 121, 155.

To implement that directive, the DMCA created a private

right of action against anyone who “circumvent[s] a

technological measure that effectively controls access to a

work protected under” federal copyright law. 17 U.S.C.

§§ 1201(a)(1)(A), 1203(a). Congress also authorized criminal

penalties for violations of section 1201 done “willfully and for

purposes of commercial advantage or private financial gain.”

Id. § 1204. In effect, this anti-circumvention provision backed

private technological protective measures with the force of

federal law. Such protective measures, however, can also

frustrate third parties from making “fair use” of copyrighted

material, depriving society of innovations and other beneficial

noninfringing uses. See Green, 54 F.4th at 742. To mitigate the

potential adverse effects of the anti-circumvention provision,

Congress authorized the Librarian to identify “class[es] of

copyrighted works” to which the anti-circumvention provision

“shall not apply.” 17 U.S.C. § 1201(a)(1)(D). The Librarian

5

grants these exemptions in a rulemaking proceeding every

three years. Id. § 1201(a)(1)(C).

Triennial DMCA rulemaking proceeds as follows. First,

the Register makes a “recommendation” to the Librarian about

whether the “users of a copyrighted work are, or are likely to

be[,] … adversely affected” by the anti-circumvention

provision “in their ability to make noninfringing uses … of a

particular class of copyrighted works.” Id. The Register must

determine whether certain proposed uses “are or are likely to

be noninfringing” under the Copyright Act and whether “the

prohibition is causing, or … is likely to cause, an adverse

impact on those uses.” See Exemption to Prohibition on

Circumvention of Copyright Protection Systems for Access

Control Technologies, 86 Fed. Reg. 59627, 59628 (Oct. 28,

2021). The Register’s adverse impact determination turns on

five factors: the extent to which the copyrighted works are

available for use; the availability of the works for certain

nonprofit purposes; the impact of the anti-circumvention

provision on paradigmatic fair uses; the effect of circumvention

on the market for the copyrighted works; and additional

“appropriate” considerations. See 17 U.S.C.

§ 1201(a)(1)(C)(i)–(v).

After assessing the Register’s recommendation and the

requisite statutory factors, the Librarian determines whether the

anti-circumvention provision should be waived for a specific

class of copyrighted works. Id. § 1201(a)(1)(C). Although the

DMCA entrusts the Librarian with the ultimate decision, as a

practical matter, the Register performs most of the rulemaking

functions.

B.

This suit was brought by two trade associations: the

Medical Imaging & Technology Alliance and the Advanced

6

Medical Technology Association. They represent

manufacturers of advanced medical devices such as surgery

assisting robots, CT scanners, and MRI machines. The

manufacturers develop custom software for their devices and

use technological protective measures to shield their

copyrighted computer programs from unwanted access.

When the devices break down, however, the technological

protections may restrict users such as hospitals and health care

providers from employing their own servicemen to

troubleshoot and fix the devices. Instead, users must rely on the

device manufacturers’ technicians for diagnostics, repairs, and

maintenance. Some manufacturers provide limited software

access to independent service operators so they can perform

repairs. But in general, medical device manufacturers have

resisted allowing third-party servicers to access their software.

In 2020, two independent service operators petitioned the

Copyright Office for an exemption from the DMCA’s anti-

circumvention provision. They claimed the manufacturers’

technological protections were blocking access to “error logs,

configuration files, and other unprotected works” in addition to

the copyrighted software. This prevented the independent

service operators from performing diagnosis, maintenance, and

repairs on medical devices, functions that were particularly

critical during the COVID-19 pandemic. The independent

operators also alleged that the device manufacturers were using

their technological protective measures to monopolize the

maintenance services market and force hospitals to pay more

for licensed repairmen. The independent operators insisted

their repair services were “fair use[s]” and that they should be

able to lawfully access the manufacturers’ software and other

data files.

7

The Register solicited comments on an exemption that

would allow independent service operators to bypass

technological protective measures on medical devices for the

purpose of diagnosis, modification, or repair. Exemptions to

Permit Circumvention of Access Controls on Copyrighted

Works, 85 Fed. Reg. 65293, 65307 (Oct. 15, 2020). The trade

associations opposed the proposed exemption, arguing the

independent service operators sought access to the device

manufacturers’ software for purely commercial purposes,

which were not fair use. Nevertheless, in a report submitted to

the Librarian, the Register recommended granting the

exemption. She first concluded the independent service

operators’ maintenance and repair services were noninfringing

“fair uses” of the copyrighted software under the relevant

statutory factors. Next, the Register found the exemption was

justified because, under the five DMCA factors in 17 U.S.C.

§ 1201(a)(1)(C), the anti-circumvention provision was causing

or was likely to cause “an adverse impact on the noninfringing

diagnosis, repair, and maintenance of medical devices and

systems.”

In the final triennial rule, the Librarian incorporated the

Register’s recommendation and granted the exemption, which

permits the circumvention of technological protective

measures on “[c]omputer programs that are contained in and

control the functioning of a lawfully acquired medical device

or system, and related data files, when circumvention is a

necessary step to allow the diagnosis, maintenance, or repair of

such a device or system.” 37 C.F.R. § 201.40(b)(15).

C.

The trade associations sued the Library and the Librarian,

seeking declaratory and injunctive relief. They claimed the

Librarian violated the APA by granting the exemption, the

8

Librarian acted ultra vires, and the Librarian’s exercise of

rulemaking power was unconstitutional because it was either a

legislative decision rendered without bicameralism and

presentment or an executive rulemaking performed by a

congressional officer.

The district court granted the Library’s motion to dismiss,

rejecting each of the trade associations’ claims. Med. Imaging

& Tech. All. v. Libr. of Cong., No. CV 22-499, 2023 WL

2387760, at *8–9 (D.D.C. Mar. 7, 2023). First, the court held

the APA claims were barred by sovereign immunity. Id. at *9.

The district court concluded that although the APA waives

sovereign immunity for non-monetary claims against federal

agencies, “the Congress” is exempt from the APA’s definition

of “agency,” and “[t]he Library of Congress is indisputably part

of Congress.” Id. (cleaned up). The district court relied in part

on earlier decisions of this court that concluded the Library was

part of “the Congress” and therefore not subject to APA

review. Id. at *10 (citing Clark v. Libr. of Cong., 750 F.2d 89,

102–03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of Cong. v.

Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985); Wash.

Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1449 (D.C.

Cir. 1994)).

Second, the district court rejected the trade associations’

ultra vires claim because the Librarian did not “plainly act[] in

excess of her delegated powers and contrary to a specific

prohibition in the statute that is clear and mandatory.” Id. at

*13 (cleaned up). And finally, the court held the DMCA

rulemaking did not run afoul of the separation of powers. Id. at

*14.

The trade associations abandon their constitutional

arguments on appeal, but they maintain that DMCA rules are

reviewable under the APA because the Library is an “agency”

9

insofar as it engages in executive rulemaking functions. In the

alternative, the trade associations contend the Librarian acted

ultra vires. We consider these legal issues and the district

court’s grant of the motion to dismiss de novo. See Kim v.

United States, 632 F.3d 713, 715 (D.C. Cir. 2011).

II.

The threshold question is whether the challenged DMCA

rule is reviewable under the APA. We conclude that it is. The

APA provides that “[a]gency action made reviewable by

statute” is “subject to judicial review.” 5 U.S.C. § 704. In the

Copyright Act of 1976, Congress specified that actions under

Title 17 are governed by the APA. See 17 U.S.C. § 701(e).

DMCA rules are promulgated under Title 17. See id.

§ 1201(a)(1)(C)–(D). It follows that the trade associations may

challenge the triennial rule because the APA provides the cause

of action for this suit and the necessary waiver of sovereign

immunity.

A.

The parties and the district court analyzed the question of

reviewability by focusing on whether the Library was part of

Congress. The APA provides a cause of action and a waiver of

sovereign immunity for non-monetary claims against an

“agency” or “an officer … thereof,” 5 U.S.C. § 702, but the

APA carves out “the Congress” from the definition of

“agency,” id. § 701(b)(1)(A). Because the Library believes it is

a component of “the Congress,” it maintains it is not an

“agency,” and thus the APA’s cause of action and waiver of

sovereign immunity do not apply to this suit.

This framing, however, fails to account for the fact that

Congress can provide for APA review of the DMCA

regulations by statute, regardless of whether the Library is an

10

“agency.” The APA provides a general framework for review

of agency action, but Congress may, and often does, apply this

framework to other government actions. For instance, the

Sentencing Reform Act of 1984 explicitly extended provisions

of the APA to the U.S. Sentencing Commission, even though

the Commission was arguably not an APA “agency.”1 See

Wash. Legal Found., 17 F.3d at 1449–50.

In the Copyright Act, Congress provided that copyright

regulations are reviewable under the APA. The Act expanded

the Register’s rulemaking authority and provided that, with one

exception not relevant here, “all actions taken by the Register

of Copyrights under [Title 17] are subject to the provisions of

the Administrative Procedure Act.” 17 U.S.C. § 701(e). We

have previously reviewed actions of the Register based on this

provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878,

879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v.

Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section

701(e) refers to actions of the Register, the Register is

subordinate to the Librarian and “shall act under the Librarian’s

… direction and supervision.” 17 U.S.C. § 701(a). More

specifically, “[a]ll regulations established by the Register under

[Title 17] are subject to the approval of the Librarian of

Congress.” Id. § 702. In short, Congress provided that the

Register may establish copyright regulations, with the approval

of the Librarian, and that such regulations are subject to the

APA and are judicially reviewable.

1

Similarly, Congress may withdraw agency action from APA review

that would otherwise be subject to it. See, e.g., Fed. Express Corp. v.

U.S. Dep’t of Com., 39 F.4th 756, 763 (D.C. Cir. 2022) (recognizing

Congress had exempted certain functions of the Department of

Commerce from the APA’s judicial review provisions).

11

Congress conferred authority for the triennial rules at issue

here in the DMCA, which added the following provision to

Title 17: “[T]he Librarian of Congress, upon the

recommendation of the Register of Copyrights, … shall make

the determination in a rulemaking proceeding” whether to

waive the anti-circumvention provision for certain classes of

copyrighted works. Id. § 1201(a)(1)(C). In other words, the

DMCA authorized a new type of copyright regulation that

would be formulated by the Register and approved by the

Librarian.

Reading the two statutes as a comprehensive statutory

scheme, DMCA rules are also subject to the APA under 17

U.S.C. § 701(e). The Copyright Act plainly applies the APA to

“all actions” of the Register under Title 17, including

rulemaking subject to the approval of the Librarian. See id.

§§ 701(e), 702. DMCA rules are also actions of the Register

under Title 17 that, like the Register’s other regulations, require

the approval of the Librarian.

Because the DMCA and the Copyright Act address the

rulemaking authority of the Register and Librarian, the two

statutes are in pari materia and should be construed “as if they

were one law.” United States v. Freeman, 44 U.S. (3 How.)

556, 564 (1845). “[I]t is … the most rudimentary rule of

statutory construction … that courts do not interpret statutes in

isolation, but in the context of the corpus juris of which they

are a part, including later-enacted statutes.” Branch v. Smith,

538 U.S. 254, 281 (2003) (plurality opinion). The DMCA

establishes new rulemaking authority within Title 17,

12

supplementing the regulatory scheme established by the

Copyright Act.2

Although the Copyright Act emphasizes the Register’s

role in rulemaking and the DMCA focuses on the Librarian’s,

the assignment of regulatory authority is identical. The DMCA

gives rulemaking authority to the Librarian, who explicitly acts

upon the recommendation of the Register. 17 U.S.C.

§ 1201(a)(1)(C). This parallels the Copyright Act, which

requires the Librarian to approve all copyright regulations

developed by the Register. See id. § 702. Both statutes require

the Register to initiate or propose copyright rules and the

Librarian to approve them.3 Thus, although the DMCA is silent

with respect to judicial review, the review provision of the

Copyright Act, codified at 17 U.S.C. § 701(e), applies with

equal force to DMCA rules.

Because triennial DMCA rules are subject to the APA,

sovereign immunity poses no barrier to the trade associations’

suit. Waivers of the United States’ sovereign immunity must

be “unequivocally expressed.” United States v. Nordic Vill.

2

The in pari materia canon reflects the basic principle that courts

should read related bodies of law as a consistent and coherent whole.

The canon has been invoked in a variety of contexts, including when

a later statute amends a prior enactment or when different provisions

of a statutory scheme address a similar topic. See, e.g., United States

v. Jenkins, 50 F.4th 1185, 1207 (D.C. Cir. 2022) (explaining that an

act amending a prior statute “should be read in pari materia” with

the section it amended); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556

U.S. 635, 638 (2009) (interpreting two subsections within the same

statutory section in pari materia).

3

As a practical matter, the Library explains the triennial rules are

developed like other copyright regulations with the Register

conducting “most aspects of the rulemaking” and the Librarian

providing the final approval.

13

Inc., 503 U.S. 30, 33 (1992) (cleaned up). But there is no

dispute that the APA unambiguously waives sovereign

immunity for non-monetary claims. 5 U.S.C. § 702. It is true

that, by its terms, the APA’s waiver of sovereign immunity

applies to “agenc[ies]” and the “officer[s] … thereof.” Id. But

regardless of whether the Library is an “agency” under the

APA, Congress has plainly applied the APA’s waiver of

sovereign immunity to the actions of the Register and Librarian

at issue here. Sections 701(e) and 702 of Title 17 expressly

bring copyright rules promulgated by the Register and

approved by the Librarian within the ambit of the APA. DMCA

rules are promulgated by the Register and approved by the

Librarian, and thus the APA’s waiver of sovereign immunity

applies to the trade associations’ suit against the Library and

Librarian.

B.

Recognizing that the APA applies to the triennial rules is

the most coherent interpretation of the scheme of copyright

regulation established by Congress in the Copyright Act and

the DMCA. Moreover, this interpretation comports with

longstanding background principles of judicial review.

When Congress authorizes agencies to regulate or to

administer the law subject to specific legal requirements, such

executive action is ordinarily subject to judicial review. See

Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).

“[T]he power of … agencies is circumscribed by the authority

granted,” and courts have the responsibility to determine

whether “individual rights” have been infringed “by the

exertion of unauthorized administrative power.” Stark v.

Wickard, 321 U.S. 288, 309–10 (1944). Agencies must operate

within the legal authority conferred by Congress, and when

14

those limits are transgressed, an individual may seek recourse

in the Article III courts.

This tradition of judicial review follows from the

Constitution’s structure of separated powers and long predates

the APA. As Chief Justice Marshall recognized, “[t]he very

essence of civil liberty … consists in the right of every

individual to claim the protection of the laws.” Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 163 (1803). He later wrote

that “in a government of laws and of principle,” when an

official takes an action against private rights, the affected

individual should generally have an “appeal to the laws of his

country.” United States v. Nourse, 34 U.S. (9 Pet.) 8, 28–29

(1835). In the words of one leading scholar: “[T]here is in our

society a profound, tradition-taught reliance on the courts as

the ultimate guardian and assurance of the limits set upon

executive power by the constitutions and legislatures.” LOUIS

L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 321

(1965). After all, “[a]n agency is not an island entire of itself.

… The very subordination of the agency to judicial jurisdiction

is intended to proclaim the premise that each agency is to be

brought into harmony with the totality of the law.” Id. at 327.

Congress’s “historic practice” of providing for judicial

review of administrative action reflects the importance of an

independent check on the exercise of executive power. Bowen

v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670–73

(1986). Of course, Congress may, subject to constitutional

limitations, withhold judicial review. Id. at 672–73; cf. Patchak

v. Zinke, 138 S. Ct. 897, 906 (2018) (recognizing Congress’s

power to “strip[] federal jurisdiction over a class of cases”). But

absent such a legislative decision, courts have the power and

the duty to review agency action for conformity with the law.

15

Reading section 701(e) to provide for judicial review of

triennial DMCA rules aligns with fundamental principles

regarding the protection of individual rights against unlawful

government action. To begin with, the Copyright Act and the

DMCA give the Register and Librarian significant authority to

“promulgate copyright regulations” and “apply the statute to

affected parties.” See Intercollegiate Broad., 684 F.3d at 1342.

As we have recognized, and no party disputes, these powers are

“generally associated in modern times with executive

agencies.” Id. When enacting regulations and enforcing the

law, “the Library is undoubtedly a component of the Executive

Branch.” Id. (cleaned up). Moreover, the triennial rules directly

affect valuable property rights, such as a copyright holder’s

ability to limit access to a digital creation and to prevent

intellectual property theft. The triennial rules also provide

exemptions from civil and criminal liability that would

otherwise attach to individuals who circumvent technological

protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04.

The exemptions are not left solely to the Librarian’s discretion,

but instead must be determined according to specific statutory

criteria. Id. § 1201(a)(1)(C). There is no indication in the

DMCA that Congress, having allocated this substantial

regulatory power to the Librarian and Register and identified

the legal criteria they must apply, would leave such power

unchecked by judicial review.

These background principles about the role of judicial

review accord with our interpretation of the Copyright Act and

the DMCA that the triennial rules, like other copyright

regulations, are subject to the APA and are judicially

reviewable.

16

C.

The Library raises a series of arguments for why judicial

review is barred, but none addresses the essential connection

between the Copyright Act and the DMCA. Nor does the

Library seriously grapple with 17 U.S.C. § 701(e), which

subjects all actions of the Register, including rules approved by

the Librarian, to the APA.

First and foremost, the Library insists it is a component of

“the Congress” and therefore not an “agency” for purposes of

the APA’s waiver of sovereign immunity. But the precedents

on which the Library relies considered only whether the APA

was applicable by its own terms. See Clark, 750 F.2d at 102;

Ethnic Emps., 751 F.2d at 1416 n.15; Wash. Legal Found., 17

F.3d at 1449. None of these cases involved an action of the

Register or Librarian under Title 17, and so there was no reason

to consider the application of section 701(e). In Clark, for

instance, a plaintiff brought constitutional and employment

discrimination claims against the Library, alleging that the

Library improperly investigated and refused to hire him

because of his political beliefs and associations. See 750 F.2d

at 92. In that context, we explained the APA’s waiver of

sovereign immunity did not apply to the Library because it was

not an APA “agency.” Id. at 102. In Ethnic Employees, we

similarly found that an employee organization could not assert

an APA claim against the Library because the Library “is not

an agency under the [APA].” 751 F.2d at 1407, 1416 n.15. And

Washington Legal Foundation merely summarizes the holding

of Ethnic Employees in dictum. See 17 F.3d at 1449.

Even if these cases generally classify the Library as a

component of “the Congress” under the APA, Congress may

17

still apply the APA to particular actions of the Librarian and

Register by statute.4 It did precisely that in 17 U.S.C. § 701(e).5

Second, the Library relies upon the fact that the Librarian

has been authorized to “make rules and regulations for the

government of the Library” for over a century, yet she has

never followed the APA’s procedures when making such rules.

Act of Feb. 19, 1897, ch. 265, 29 Stat. 538, 544 (now codified

at 2 U.S.C. § 136). The cited rulemaking authority, however,

pertains only to the internal management of the Library, and

such rules are generally exempt from the APA’s procedural

requirements for informal rulemaking. See 5 U.S.C.

§ 553(a)(2). Thus, the Librarian’s alleged disregard of the APA

for such rules tells us nothing about the applicability of the

APA to copyright regulations promulgated under Title 17. In

any event, we conclude only that triennial DMCA rules are

subject to the APA under section 701(e); we have no occasion

to consider whether the APA applies to the Librarian’s other

statutory responsibilities.

Third, the Library raises a series of statutory arguments for

why the APA’s waiver of sovereign immunity does not allow

for a suit challenging the triennial rules. The Library maintains

that applying the APA to the Library and its officers would

4

Furthermore, we have recently recognized the important executive

power exercised by the Library, suggesting that whatever the

Library’s historical association with Congress, it is squarely a

component of the Executive Branch in its role as a copyright

regulator. Intercollegiate Broad., 684 F.3d at 1341–42.

5

Because we understand section 701(e) to provide for judicial review

of DMCA rules, we need not address the trade associations’ novel

theory that the Library is an APA agency and subject to judicial

review when it takes on an “executive ‘rulemaking’ role” but not an

APA agency when it does not.

18

render section 701(e) superfluous. There would have been no

need for Congress to authorize judicial review in the Copyright

Act if the APA’s judicial review provisions already applied.

But in light of our caselaw, we need not, and do not, reach the

question of whether the Library is an “agency” within the

meaning of the APA. Instead, we recognize that, regardless of

whether the Library is an APA “agency,” section 701(e) applies

the APA to “all actions” of the Register under Title 17,

including regulations approved by the Librarian.

The Library and the dissent also contend that triennial

rules are actions of the Librarian, not the Register, and so

section 701(e) simply does not apply. Relying on the

presumption against waivers of sovereign immunity, the

dissent suggests that section 701(e) cannot authorize suits

against the Librarian because it mentions only the Register by

name. Dissenting Op. 1–3. But “the sovereign immunity canon

is a tool for interpreting the law and … does not displace the

other traditional tools of statutory construction.” FAA v.

Cooper, 566 U.S. 284, 291 (2012) (cleaned up). Thus, “we …

require … that the scope of Congress’ waiver be clearly

discernable from the statutory text in light of traditional

interpretive tools.” Id. As we have already explained in detail,

the statutory text, context, the in pari materia canon, and

background principles all confirm that—by making copyright

regulations reviewable—Congress applied the APA’s clear

waiver of sovereign immunity to both the Register and

Librarian when they issue such rules.

Relatedly, the Library stresses that the Register’s

participation in triennial rulemaking is not reviewable agency

action because her recommendation is not “final”—it must be

approved by the Librarian. On the Library’s view, section

701(e) applies only to actions of the Register that require no

further approval. But this argument proves too much because

19

the Register has no final rulemaking authority. 17 U.S.C.

§ 702. Under the Library’s rationale, no copyright regulations

would be judicially reviewable. Such a startling result would

eviscerate Congress’s clear directives, which subject “all

actions” of the Register under Title 17 to the APA and require

the Librarian to approve the Register’s regulations.6

In sum, none of the Library’s counterarguments

undermine our conclusion that the text and structure of the

DMCA and the Copyright Act provide for APA review of

triennial DMCA rules.

***

Congress provided that the APA applies to copyright rules

under Title 17, which includes the triennial DMCA rule

challenged here. This conclusion accords with the background

principle favoring judicial review of administrative action and

harmonizes the scheme of copyright regulation and judicial

review established by the Copyright Act and the DMCA. We

interpret the statutes “as a symmetrical and coherent regulatory

scheme,” “reconciling many laws enacted over time, and

getting them to ‘make sense’ in combination.” FDA v. Brown

& Williamson Tobacco Corp., 529 U.S. 120, 133, 143 (2000)

(cleaned up).

6

We similarly reject the Library’s other attempts to fracture the

legislative scheme for copyright regulation. For instance, the Library

maintains the Librarian’s finalization should not be subject to the

APA, but it concedes the APA must apply to those parts of the

triennial rulemaking conducted by the Register. We are not aware of

any regulatory scheme adopting such a piecemeal application of the

APA to the process for promulgating rules of general applicability.

20

The trade associations may challenge the triennial rule

under the APA.7 We vacate the judgment and remand for the

district court to consider the merits of the APA claims in the

first instance.

So ordered.

7

The district court rejected the trade associations’ ultra vires claim

on the merits. Because we hold that Congress has provided for APA

review of DMCA rules, the ultra vires claim is no longer available,

and we need not address it. See Changji Esquel Textile Co. v.

Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022) (explaining an ultra

vires claim can proceed only when a statute impliedly precludes

judicial review and “no alternative procedure for review of the

statutory claim” exists) (cleaned up).

CHILDS, Circuit Judge, dissenting:

The United States is immune from suit absent express

consent to be sued. United States v. Sherwood, 312 U.S. 584,

586 (1941); FAA v. Cooper, 566 U.S. 284, 290 (2012) (“a

waiver of sovereign immunity must be ‘unequivocally

expressed’ in statutory text.”). Any ambiguities must be

“construed in favor of immunity.” FAA, 566 U.S. at 290-91.

While I agree that under 17 U.S.C. § 701(e), the

Copyright Act expressly provides that “all actions” of the

Register of Copyrights under Title 17 are “subject to the

provisions of the [APA],” I disagree with the majority’s

conclusion that such language can be expanded to constitute a

waiver of sovereign immunity for the Library of Congress or

the Librarian. Neither the text of the Administrative

Procedure Act (“APA”), the Copyright Act of 1976, nor the

Digital Millennium Copyright Act (“DMCA”) meet the

requisite threshold showing that Congress provided “clear or

express consent” for either entity to be sued. See Sherwood,

312 U.S. at 586. I would instead affirm the district court’s

holding that the trade associations’ claims are barred by

sovereign immunity and that they failed to plead a proper

ultra vires claim.

One might argue that an express waiver is found in the

APA, which provides for judicial review of final agency

actions, but such an argument is barred by our Circuit’s

precedent holding that the Library of Congress is not an

“agency” under the APA.1 See Clark v. Libr. of Cong., 750

1

See 5 U.S.C. § 551 (“For the purpose of this subchapter —

(1) ‘agency’ means each authority of the Government of the United

States, whether or not it is within or subject to review by another

agency but does not include — (A) the Congress.”). The Library of

Congress is part of “the Congress” and therefore is not an agency

within the meaning of the APA.

2

F.2d 89, 102-03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of

Cong. v. Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985);

Wash. Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446,

1449 (D.C. Cir. 1994) (noting that Congress clearly subjected

the Sentencing Commission to the APA’s notice and

comment provisions in the Sentencing Reform Act of 1984).

Thus, to exercise judicial review over the Librarian, we must

rely on another express statutory provision subjecting the

Librarian to the APA or otherwise waiving sovereign

immunity over the Librarian’s actions. Congress has at times

subjected non-agencies, such as the Sentencing Commission,

to APA review. See supra note 1. But Congress has not

expressly provided for APA review of the Librarian.

There is no statutory provision expressly waiving

sovereign immunity over the Librarian or subjecting the

Librarian to the APA, and, in my view, the majority’s attempt

to infer such a waiver by analogy to the Copyright Act

violates longstanding principles of statutory interpretation that

a waiver of sovereign immunity “must be construed strictly in

favor of the sovereign” and “not enlarge[d]…beyond what the

language requires.” United States v. Nordic Vill., Inc., 503

U.S. 30, 34 (1992) (internal quotation marks omitted).

Moreover, even without the strong presumption against

implied waivers of sovereign immunity, the majority’s in pari

materia argument is unsupported by “traditional interpretive

tools,” supra note 19, for two reasons.

First, the in pari materia canon applies when the Court is

interpreting ambiguous statutory language—not statutory

silence. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575

U.S. 768, 774 (2015) (“The problem with this approach is the

3

one that inheres in most incorrect interpretations of statutes: It

asks us to add words to the law to produce what is thought to

be a desirable result. That is Congress’s province. We

construe [a statute’s] silence as exactly that: silence.”); United

Shoe Workers of Am., AFL-CIO v. Bedell, 506 F.2d 174, 189

n.96 (D.C. Cir. 1974) (“A statute is not in pari materia if its

scope and aim are distinct or where a legislative design to

depart from the general purpose or policy of previous

enactments may be apparent”) (cleaned up); 73 Am. Jur. 2d

Statutes § 87 (“However, the in pari materia rule of statutory

construction, requiring statutes which relate to the same

subject matter to be read and applied together, applies only

when a statute is ambiguous.”). Congress could have

unequivocally subjected the Librarian to the APA, in the

DMCA, like it did in the Copyright Act of 1976 for the

Register of Copyrights. See 17 U.S.C. § 701. The DMCA

was enacted in 1998, twenty-two years after the Copyright

Act. The DMCA’s silence with respect to judicial review

does not create ambiguity.

Second, even accepting arguendo the majority’s

argument that the Registrar’s recommendations to the

Librarian should be subject to judicial review under the

Copyright Act, that argument still falls short of showing that

the Court can exercise review over the Librarian—the actual

defendant in this lawsuit.

There are good reasons not to treat the Registrar’s

regulations, subject to the Librarian’s approval, identically to

mere recommendations that the Register provides to the

Librarian to assist the Librarian in carrying out its statutory

obligations to the DMCA. See 17 U.S.C. § 1201. Under the

DMCA, decision-making authority is vested in the Librarian

who is directed to consider § 1201’s expressly enumerated

factors but is also given discretion to consider any factor the

4

Librarian deems appropriate. Id. The fact that there is little

statutory information about what the Register must consider

in its recommendation further supports the position that it is

unlikely that Congress intended for judicial review of the

Librarian’s triennial rulemaking. Under this statutory

scheme, the recommendations are mere suggestions and one

of many factors and considerations that the Librarian can

utilize to make its decision. See § 1201(c). By contrast,

under 17 U.S.C. § 702, “[a]ll regulations established by the

Register under this title are subject to the approval of the

Librarian of Congress.” Id. But the statutory authority to

promulgate those regulations lies with the Registrar.

Moreover, while the Librarian has authority to approve (or

reject) the Registrar’s regulations, the statute is silent as to

whether the Librarian could substantively rewrite the

regulations and promulgate the rewritten versions.

Because the Library of Congress is not an agency within

the meaning of the APA and Congress has not otherwise

expressly waived sovereign immunity over suits challenging

the Librarian’s actions, I would affirm the district court’s

holding that the trade associations’ claims are barred by

sovereign immunity.