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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MATTHEW GREEN ET AL.,
Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE ET AL.,
Defendants.

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Civil Action No. 1:16-cv-1492

MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................ iv
INTRODUCTION ......................................................................................................................... 1
STATUTORY BACKGROUND ................................................................................................... 4
1. Digital Millennium Copyright Act (“DMCA”) ................................................................. 4
2. DMCA’s Triennial Rulemaking Requirement ................................................................... 7
PROCEDURAL HISTORY.......................................................................................................... 11
STANDARD OF REVIEW ......................................................................................................... 13
ARGUMENT ............................................................................................................................... 15
I.

II.

PLAINTIFFS LACK STANDING TO CHALLENGE § 1201(a)(1) AND
1201(a)(2) UNDER THE FIRST AMENDMENT .............................................. 15
A.

Plaintiffs Fail To Assert a Credible Threat of Prosecution ...................... 16

B.

Plaintiffs Fail to Identify an Intent to Engage in ConstitutionallyProtected Conduct that Would Violate § 1201(a)(1)(A) or § 1201(a)(2) 18

PLAINTIFFS’ FIRST AMENDMENT OVERBREADTH CLAIM SHOULD
BE DISMISSED (COUNT I)................................................................................ 21
A.

Section 1201(a) Is Not Subject to the First Amendment’s Overbreadth
Doctrine Because the Provision on Its Face Does Not Regulate Speech 21

B.

Plaintiffs’ Overbreadth Claim Is Also Inappropriate Because It
Primarily Seeks to Assert Plaintiffs’ Own First Amendment Rights
Rather Than the Rights of Third Parties Not Before the Court ............... 24

C.

Plaintiffs Cannot Establish Substantial Overbreadth in Light of the
Many Obvious Constitutional Applications of the Statute ...................... 25

III.

PLAINTIFFS’ CLAIM THAT THE DMCA’S TRIENNIAL RULEMAKING
IS AN UNCONSTITUTIONAL PRIOR RESTRAINT SHOULD BE
DISMISSED (COUNT II) .................................................................................... 30

IV.

PLAINTIFFS’ AS-APPLIED FIRST AMENDMENT CHALLENGES TO
THE DMCA SHOULD BE DISMISSED (COUNTS III, IV, AND V) ............... 36

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V.

A.

Section 1201(a)(1)(A) Does Not Violate the First Amendment As
Applied to Plaintiffs ................................................................................. 37

B.

Section 1201(a)(2) Does Not Violate the First Amendment as Applied
to Plaintiffs ............................................................................................... 38

PLAINTIFFS’ CHALLENGES TO THE 2015 FINAL RULE SHOULD BE
DISMISSED (COUNTS VI AND VII) ................................................................ 42

CONCLUSION ............................................................................................................................ 45

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TABLE OF AUTHORITIES
Cases
*321 Studios v. Metro Goldwyn Mayer Studios, Inc.,
307 F. Supp. 2d 1085 (N.D. Cal. 2004) ............................................. 20, 26, 29, 39, 40, 41
Am. Library Ass’n v. Barr, 956 F.2d 1178 (D.C. Cir. 1992) ................................................. 16, 18
A.N.S.W.E.R. v. Dist. of Columbia, 589 F.3d 433 (D.C. Cir. 2009) ....................................... 16, 18
Arpaio v. Obama, 797 F.3d 11 (D.C. Cir. 2015) .......................................................................... 13
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................... 13, 14, 17, 25
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979) ...................................... 15, 18
Balogh v. Lombardi, 816 F.3d 536 (8th Cir. 2016) ..................................................................... 17
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................. 13, 14
Bennett v. Spear, 520 U.S. 154 (1997) ........................................................................................ 44
Blum v. Holder, 744 F.3d 790 (1st Cir.), cert. denied, 135 S. Ct. 477 (2014) .............................. 15
Boardley v. U.S. Dep't of Interior, 615 F.3d 508 (D.C. Cir. 2010) .................................. 31, 34-35
Broadrick v. Oklahoma, 413 U.S. 601 (1973) ....................................................................... 21, 24
Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) ............................................................. 24
Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002) ................................................................... 14
Campbell v. Acuff-Rose Music, Inc., 510 US 569 (1994) ............................................................ 26
Chicago Bd. of Educ. v. Substance, Inc., 354 F.3d 624 (7th Cir. 2003) ...................................... 27
City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 760 (1988) ...................................... 22
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .......................................................... 14, 15
Clark v. Library of Cong., 750 F.2d 89 (D.C. Cir. 1984) ............................................................ 43
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ........................................................... 13, 14
Dalton v. Specter, 511 U.S. 462 (1994) ....................................................................................... 44
iv

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Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1 (D.C. Cir. 2015),
as amended (July 21, 2015) ......................................................................................... 14-15
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621 (D.C. Cir. 1997) ............................... 14
*Eldred v. Ashcroft, 537 U.S. 186 (2003) .................................................................. 27, 28, 29, 32
Ethnic Employees v. Boorstin, 751 F.2d 1405 (D.C. Cir. 1985) .................................................. 43
FDIC v. Meyer, 510 U.S. 471, 475 (1994) .................................................................................. 42
Forsyth Cty., Ga. v. Nat’list Movement, 505 U.S. 123 (1992) ..................................................... 35
Freedman v. Maryland, 380 U.S. 51 (1965) ................................................................................ 31
Golan v. Holder, 132 S. Ct. 873 (2012) ........................................................................... 27, 28, 29
Green Valley Investments v. Winnebago Cty., 794 F.3d 864 (7th Cir. 2015) .............................. 31
Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539 (1985) .............................. 23, 27
Hastings v. Judicial Conf., 829 F.2d 91 (D.C. Cir. 1987) ............................................................ 22
H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609 (6th Cir. 2009) .................................. 31
Houchins v. KQED, Inc., 438 U.S. 1 (1978) .......................................................................... 20, 23
Hubbard v. Adm’r, EPA, 982 F.2d 531 (D.C. Cir. 1992). ............................................................ 42
Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728 (D.C. Cir. 2007) ...................................... 13
Johnson v. District of Columbia., 71 F. Supp. 3d 155 (D.D.C. 2014) .......................................... 16
Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10 (D.D.C. 2015) ................................. 42
Kemp v. Eiland, 139 F. Supp. 3d 329 (D.D.C. 2015) .............................................................. 13-14
Kissinger v. Reporters Comm. for the Freedom of the Press, 445 U.S. 136 (1979) ............. 42, 43
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994) .......................................................... 13
L.A. Police Dep’t v. United Reporting Pub. Corp., 528 U.S. 32 (1999) ................................ 21-22
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 14

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Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74 (D.D.C. 2009),
aff'd sub nom. Mahoney v. Doe, 642 F.3d 1112 (D.C. Cir. 2011) ............................. 22, 24
*Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) .......................... 24, 25
Nat’l Ass’n of Broadcasters v. Librarian of Congress, 146 F.3d 907 (D.C. Cir. 1998) .............. 44
Ord v. District of Columbia, 587 F.3d 1136 (D.C. Cir. 2009) ..................................................... 16
Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895 (9th Cir. 2007) ............................ 31
Parker v. District of Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007) .................................... 16, 17
Roulette v. City of Seattle, 97 F.3d 300 (9th Cir. 1996),
as amended on denial of reh’g and reh’g en banc (Sept. 17, 1996) ................................ 22
Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005) ....................................................... 16
State of W. Virginia v. U.S. Dep’t of Health & Human Servs.,
145 F. Supp. 3d 94 (D.D.C. 2015) .................................................................................... 13
Stone v. Holder, 859 F. Supp. 2d 48 (D.D.C. 2012) .............................................................. 13, 42
*Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ................................................. 15, 18
Temple v. Abercrombie, 903 F. Supp. 2d 1024 (D. Haw. 2012) .................................................. 17
Terveer v. Billington, 34 F. Supp. 3d 100 (D.D.C. 2014) ............................................................ 43
Texas v. Johnson, 491 U.S. 397 (1989) ....................................................................................... 37
*Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) ................................................................ 31
United States v. Caputo, No. 1:15-CR-00175, 2016 WL 4435176 (D.D.C. Aug. 19, 2016) . 40-41
*United States v. Elcom Ltd.,
203 F. Supp. 2d 1111 (N.D. Cal. 2002) .................................... 4, 22, 23, 26, 28, 39, 40, 41
United States v. O’Brien, 391 U.S. 367 (1968) ........................................................................... 40
*Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001).............. 5, 26, 28, 39, 40, 41
Universal City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294 (S.D.N.Y. 2000) ...................... 23
Urban Health Care Coal. v. Sebelius, 853 F. Supp. 2d 101 (D.D.C. 2012) ................................ 16

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Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc.,
454 U.S. 464 (1982) .......................................................................................................... 14
*Virginia v. Hicks, 539 U.S. 113 (2003)....................................................................................... 21
Whitaker v. Thompson, 353 F.3d 947 (D.C. Cir. 2004) ............................................................... 20
Wright v. City of St. Petersburg, No. 15-10315, 2016 WL 4269796 (11th Cir. Aug. 15, 2016) . 34
*Zemel v. Rusk, 381 U.S. 1 (1965) ............................................................................. 19-20, 23, 33

Statutes
Pub. L. No. 94-553, § 701(d), 90 Stat. 2541, 2591 (1976)
(codified as amended at 17 U.S.C. § 701(e)) ................................................................... 43
Digital Millennium Copyright Act (“DMCA”), Pub. L. No. 105-304, 112 Stat. 2860 (1998) ...... 1
5 U.S.C. § 551 .............................................................................................................................. 43
5 U.S.C. § 552 .............................................................................................................................. 43
Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 .................................................. 3-4
5 U.S.C. § 701 ............................................................................................................................... 43
5 U.S.C. § 702 .............................................................................................................................. 43
5 U.S.C. § 704 .............................................................................................................................. 44
5 U.S.C. § 706 .............................................................................................................................. 43
17 U.S.C. § 102 ............................................................................................................................ 27
17 U.S.C. § 106 .................................................................................................................. 6, 26, 27
17 U.S.C. § 106A ................................................................................................................... 26, 27
17 U.S.C. § 107 ..................................................................................................................... 5-6, 26
17 U.S.C. § 501 .............................................................................................................................. 5
17 U.S.C. § 701 ...................................................................................................................... 43, 44
17 U.S.C. § 802 ............................................................................................................................ 44
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17 U.S.C. § 1201 ................................................................................................................... passim
17 U.S.C. § 1203 ...................................................................................................................... 7, 17
17 U.S.C. § 1204 .......................................................................................................... 7, 15, 17, 18

Legislative Materials
144 Cong. Rec. S12985-01 (daily ed. Nov. 12, 1998) (Resolution of Ratification of Treaties),
1998 WL 785674 (Cong. Rec.) .......................................................................................... 4
H.R. Rep. No. 94-1733 (1976) ..................................................................................................... 43
H.R. Rep. No. 105-551(I) (1998) ....................................................................................... 6, 23, 36
H.R. Rep. No. 105-551(II) (1998) ............................................................................... 7, 30, 35, 36
H.R. Rep. No. 105-796 (1998) ....................................................................................................... 9
S. Rep. No. 105-190 (1998) ....................................................................................... 4, 5, 6, 25, 35
Section-by-Section Analysis of H.R. 2281 as Passed by the U.S. House of Representatives on
Aug. 4, 1998 (“House Mgr. Rpt.”) (1998), available at
http://congressional.proquest.com ............................................................................... 8, 35
WIPO Copyright Treaty, Apr. 12, 1997, S. Treaty Doc. No. 105-17, Art. 11 (1997),
1997 WL 447232 ............................................................................................................... 4
Chapter 12 of Title 17, Hearing Before the Subcomm. on Courts, Intellectual Property and the
Internet of the H. Comm. on the Judiciary (“Chapter 12 Hearing”), 113th Cong., 2d Sess.
(Sept. 17, 2014), available at https://judiciary.house.gov/hearing/hearing-chapter-12-oftitle-17/ ............................................................................................................................... 5

Administrative Materials
37 C.F.R. § 201.40 ......................................................................................................................... 9
65 Fed. Reg. 64556-01 (2000 Final Rule) ..................................................................................... 9
68 Fed. Reg. 62011-01 (2003 Final Rule) ..................................................................................... 9
71 Fed. Reg. 68472-01 (2006 Final Rule) ..................................................................................... 9

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75 Fed. Reg. 43825-01 (2010 Final Rule) ..................................................................................... 9
77 Fed. Reg. 65260-01 (2012 Final Rule) ..................................................................................... 9
80 Fed. Reg. 65944 (2015 Final Rule) ..................................................................... 8, 9, 10, 32, 35

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INTRODUCTION
Plaintiffs in this case bring a preenforcement challenge to provisions of the Digital
Millennium Copyright Act (“DMCA”), Pub. L. No. 105-304, 112 Stat. 2860 (1998), that prohibit
circumvention of technological measures that control access to copyrighted works, sometimes
referred to as “access controls” (such as passwords or other authentication tools, payment
screens, or encryption), as well as trafficking in devices that enable such circumvention.
Plaintiffs claim that these prohibitions violate the First Amendment on their face and as applied,
and they also challenge a 2015 Final Rule issued by the Librarian of Congress pursuant to the
DMCA’s triennial rulemaking process—a process for identifying temporary exemptions from the
anti-circumvention provision.
Plaintiffs’ claims should be dismissed in their entirety. As an initial matter, Plaintiffs lack
standing to raise their First Amendment claims on a preenforcement basis because the assertions
in their Complaint fail to establish a credible threat of prosecution, under the DMCA’s criminal
enforcement provision, for engaging in constitutionally-protected activity. None of the Plaintiffs
claims to have been threatened with criminal prosecution. Plaintiffs’ conclusory assertion that
others have been prosecuted under the DMCA in the past, for unidentified reasons, is insufficient
to establish that Plaintiffs face a credible threat, as is their assertion that third parties might bring
suit against them under a separate civil private right of action. Moreover, Plaintiffs fail plausibly
to assert that the acts of circumvention and trafficking that they wish to undertake qualify as
speech or expressive conduct that is entitled to First Amendment protection but prohibited by the
DMCA.
If the Court does proceed to consider the merits of Plaintiffs’ claims, these claims should
be dismissed for failure to state a claim upon which relief can be granted. The provisions of the

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DMCA that Plaintiffs challenge have previously been upheld by all courts to have addressed
them. For the same reasons that those courts have explained, Plaintiffs’ First Amendment claims
fail. First, the First Amendment’s overbreadth doctrine provides no basis to strike down the
DMCA’s anti-circumvention and anti-trafficking provisions. For one thing, the provisions on
their face do not regulate speech or expressive conduct; they merely prohibit the circumvention
of access controls and the trafficking in anti-circumvention devices. Indeed, laws barring
unauthorized circumvention of access controls do not regulate speech any more than laws
barring unauthorized access to museums or libraries. As a matter of law, such provisions cannot
be deemed facially overbroad regulations of speech. In addition, the First Amendment’s
overbreadth doctrine is essentially a third-party standing doctrine that allows someone to
challenge a law based on its potential chilling effect on others’ speech. Here, because Plaintiffs
rely almost exclusively on their own asserted First Amendment rights, an overbreadth claim is
inappropriate.
These DMCA provisions are also unquestionably constitutional in the vast majority of
applications, and indeed Plaintiffs have identified no instance where the provisions would violate
the First Amendment. Plaintiffs’ reliance on the “fair use doctrine” cannot establish that the
DMCA is unconstitutionally overbroad under the First Amendment. The Copyright Act contains
a statutory provision limiting the exclusive rights of copyright owners so that users may make
“fair use” of copyrighted materials, but that provision affords no First Amendment right to gain
access to such materials in the first place. Indeed, nothing in the fair use doctrine requires that
copyright owners or the Government allow the unauthorized circumvention of access controls,
nor the trafficking in devices that allow circumvention. Plaintiffs thus raise no plausible
allegation that the provisions are substantially overbroad relative to their plainly legitimate
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sweep.
Second, the DMCA does not place an unconstitutional prior restraint on speech. In
raising this claim, Plaintiffs point specifically to the triennial rulemaking process that Congress
included in the statute as a means of identifying exemptions to the anti-circumvention provision.
However, the triennial rulemaking process is in no way equivalent to laws, such as those that
require licenses or permits before conducting demonstrations or distributing leaflets, that are
traditionally subject to scrutiny under the prior restraint doctrine. The rulemaking identifies
exemptions based on classes of copyrighted works, such as “motion pictures,” for categories of
uses. This process does not delegate unbridled discretion to a decisionmaker to make
individualized assessments and thus poses no risk of government censorship based on the content
of speech. Indeed, the rulemaking does not prohibit users’ speech. Rather, it provides a process
whereby otherwise unlawful access to others’ copyrighted works is allowed.
Third, Plaintiffs’ as-applied First Amendment claims also fail. For the same reasons that
the anti-circumvention provision cannot be deemed a regulation of speech, the First Amendment
is simply not implicated by Green’s desire to circumvent access controls without permission, in
order to conduct security research on industrial security systems, nor by Huang’s and
Alphamax’s desire to use a third party’s “master key” to create a device that enables
circumvention of the access controls on HDMI digital content. Moreover, while such assertions
are absent from the Complaint, even assuming that Plaintiffs seek to distribute their own speech
in the form of computer code that allows circumvention, the DMCA’s anti-trafficking provisions
survive the intermediate scrutiny applicable to that kind of content-neutral, “functional” speech.
Finally, Plaintiffs challenge the 2015 Final Rule, issued by the Librarian of Congress
after the most recent triennial rulemaking process, under the Administrative Procedure Act
3

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(“APA”), 5 U.S.C. §§ 701-706. This claim should be dismissed because federal courts, including
this Circuit, have uniformly held that the Librarian of Congress is not subject to the APA.
Although Congress has extended the APA to the Register of Copyrights, the recommendation
that the Register provides in the course of the triennial rulemaking process does not qualify as a
final agency action subject to APA review. For all these reasons, Plaintiffs’ claims should be
dismissed in their entirety.
STATUTORY BACKGROUND
1.

Digital Millennium Copyright Act (“DMCA”)
Congress enacted the DMCA in 1998 in order to facilitate electronic commerce,

communications, research, development, and education while addressing new challenges
stemming from the rise of digital technology. S. Rep. No. 105-190 (1998), at 1-2; see United
States v. Elcom Ltd., 203 F. Supp. 2d 1111, 1138 (N.D. Cal. 2002) (recognizing that Congress
enacted the DMCA pursuant to its Commerce Power). While technology allows artists and
authors to make their work available online, it also makes possible digital piracy, through
unauthorized access to and distribution of copyrighted works.
Amidst growing concerns by the late 1990s regarding such piracy and its effect on
domestic and international markets, the United States joined other nations in entering into an
international treaty, the World Intellectual Property Organization (“WIPO”) Copyright Treaty. S.
Rep. No. 105-190, at 2. 1 The WIPO treaty requires contracting states to “provide adequate legal
protection and effective legal remedies against the circumvention of effective technological
measures that are used by authors” to protect their rights. See WIPO Copyright Treaty, Apr. 12,
1997, S. Treaty Doc. No. 105-17, Art. 11 (1997), 1997 WL 447232, at *13. The DMCA among
1

The United States signed the WIPO Copyright Treaty on April 2, 1997, and the Senate ratified it
on October 21, 1998. 144 Cong. Rec. S12985-01 (daily ed. Nov. 12, 1998) (Resolution of
Ratification of Treaties), 1998 WL 785674 (Cong. Rec.).
4

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other things implements the WIPO treaty. See Universal City Studios, Inc. v. Corley, 273 F.3d
429, 440 (2d Cir. 2001) (discussing DMCA’s background); Elcom Ltd., 203 F. Supp. 2d at 1119
(same). In enacting the DMCA, Congress understood that “the law must adapt to make digital
networks safe places to disseminate and exploit copyrighted materials” and 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 2, 8. Thus,
Congress intended the DMCA to provide this protection and thereby to “create[] the legal
platform for launching the global digital on-line marketplace for copyrighted works.” Id. at 2. 2
The DMCA sets forth three prohibitions, codified at 17 U.S.C. § 1201, that address the
concern with digital piracy. Only the first two prohibitions, both in § 1201(a), are at issue here.
First, the DMCA prohibits “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). Second, the
DMCA prohibits the manufacture of or trafficking in products or technology designed to
circumvent such access controls. See id. § 1201(a)(2). Third, in a separate provision that
Plaintiffs do not challenge in this case, the DMCA prohibits the manufacture of or trafficking in
products or technology designed to circumvent measures that protect a copyright owner’s rights
under the Copyright Act, sometimes referred to as copy controls. See id. § 1201(b). Notably,
§ 1201 does not forbid the act of circumventing copy controls. If such circumvention occurred,
any subsequent copying activity would be assessed as a potential copyright infringement, see id.
§ 501, and the traditional defenses to infringement liability, including the fair use defense, see id.
2

See also Chapter 12 of Title 17, Hearing Before the Subcomm. on Courts, Intellectual Property
and the Internet of the H. Comm. on the Judiciary (“Chapter 12 Hearing”), 113th Cong., 2d Sess.,
at 2 (Sept. 17, 2014) (opening remarks of Mr. Goodlatte) (“When the DMCA was enacted, there
was significant concern that the digitization of our economy would result in mass piracy becoming
an unfortunate reality for many copyright owners. TPMs were intended to enable copyright
owners to engage in self-help to protect their works from theft.”), available at
https://judiciary.house.gov/hearing/hearing-chapter-12-of-title-17/.
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§ 107, would be available if they applied. 3
Thus, the prohibitions at issue here, in § 1201(a), address circumvention of technology
that blocks access to a copyrighted work—such as technology that prevents people from viewing
an article on an Internet website unless they have a password or pay a fee. See id.
§ 1201(a)(3)(A) (explaining that 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”).
The prohibitions in § 1201(b), on the other hand (which as noted are not at issue here), address
circumvention of technology that protects the exclusive rights afforded to a copyright owner of
the work—such as technology on the same website that prevents someone from copying the
article once it is accessed. 4 See S. Rep. No. 105-190, at 11-12.
The DMCA sets forth several permanent exemptions to the § 1201 prohibitions. The
statute permits circumvention of an access control on a copyrighted work, or in certain limited
circumstances, the sharing of circumvention technology, 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
3

S. Rep. No. 105-190, at 12 (explaining that “there is no prohibition on conduct in 1201(b) akin to
the prohibition on circumvention conduct in 1201(a)(1)” because “[t]he copyright law has long
forbidden copyright infringements, so no new prohibition was necessary”); H.R. Rep. No.
105-551(I), at 18 (1998) (“Paragraph (a)(1) does not apply to the subsequent actions of a person
once he or she has obtained authorized access to a copy of a work protected under Title 17, even if
such actions involve circumvention of additional forms of technological protection measures. . . .
In a fact situation where the access is authorized, the traditional defenses to copyright
infringement, including fair use, would be fully applicable.”)
4
In addition to the right of reproduction, the exclusive bundle of rights provided by copyright
includes the rights of distribution, display, public performance, and preparation of derivative
works. 17 U.S.C. § 106.
6

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in security testing of a computer, computer system, or computer network. See 17 U.S.C.
§ 1201(d)-(j).
The Government may bring criminal charges against those who violate the DMCA’s
anti-circumvention and anti-trafficking provisions pursuant to 17 U.S.C. § 1204. Persons injured
by violations of these provisions may also seek civil remedies pursuant to 17 U.S.C. § 1203.
2.

DMCA’s Triennial Rulemaking Requirement
The DMCA also directs the Librarian of Congress to make a determination every three

years, through a rulemaking proceeding, regarding categories of copyrighted materials that
should be exempted for the next three-year period from the anti-circumvention prohibition in
§ 1201(a)(1)(A). See id. § 1201(a)(1)(C). This triennial rulemaking is intended to serve as a
“‘fail-safe’ mechanism” to account for possible changes in the online marketplace after the
DMCA’s enactment. See H.R. Rep. No. 105-551(II), at 35-37 (1998).
Such a mechanism was originally proposed by the House Commerce Committee when
considering an earlier version of the bill that became the DMCA. The Committee raised a
concern that “marketplace realities” might evolve in a manner that would unjustifiably diminish
access for lawful purposes to copyrighted materials. See id. at 36. The Committee thus proposed
a “‘fail-safe’ mechanism” to “monitor developments in the marketplace for copyrighted
materials,” and to allow the prohibition on circumvention of access controls in § 1201(a)(1)(A)
“to be selectively waived, for limited time periods, if necessary to prevent a diminution in the
availability to individual users of a particular category of copyrighted materials.” Id. at 35.
As enacted, this “fail-safe mechanism” directs the Librarian of Congress to determine,
through the triennial rulemaking, whether users of certain categories of copyrighted works
should be exempted from the access control anti-circumvention prohibition set forth in
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§ 1201(a)(1)(A) because the restriction adversely affects their ability to make noninfringing use
of copyrighted material. 17 U.S.C. § 1201(a)(1)(C). The Librarian’s determination is made
“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.” Id.
In conducting the rulemaking, the statute directs the Librarian to examine “(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. § 1201(a)(1)(C). In order to grant an exemption through this process, the Librarian must
conclude “(1) that uses affected by the prohibition on circumvention are or are likely to be
noninfringing; and (2) that as a result of [an access control], the prohibition is causing, or in the
next three years is likely to cause, an adverse impact on those uses.” 80 Fed. Reg. 65945. A
proponent of an exemption must establish these requirements “by a preponderance of the
evidence.” Id.
The Manager’s Report issued by the House Judiciary Committee, containing an analysis
of the final bill, noted that the Librarian need not identify any exemptions in a given triennial
rulemaking if it is determined “that the conditions for the exemption do not exist.” Section-bySection Analysis of H.R. 2281 as Passed by the U.S. House of Representatives on Aug. 4, 1998
(“House Mgr. Rpt.”), at 8 (1998). 5 “Such an outcome would reflect that the digital information
marketplace is developing in the manner which is most likely to occur, with the availability of
5

The Report is available at http://congressional.proquest.com/ (using search term
“Section-by-Section Analysis of H.R. 2281”).
8

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copyrighted materials for lawful uses being enhanced, not diminished, by the implementation of
technological measures and the establishment of carefully targeted legal prohibitions against acts
of circumvention.” Id.
The final conference report before the DMCA’s enactment describes the intended
procedure for the rulemaking described in § 1201(a)(1)(C). The report states that, “in recognition
of the expertise of the Copyright Office, the Register of Copyrights will conduct the rulemaking,
including providing notice of the rulemaking, 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 (1998). The
Register will then “recommend[] final regulations in the report to the Librarian.” Id.
After the Register issues recommendations, the Librarian then determines whether to
accept or reject the Register’s recommendations and issues a Final Rule setting forth this
determination and promulgating the temporary exemptions for the next three-year period at 37
C.F.R. § 201.40. E.g., 65 Fed. Reg. 64574. Thus far, the Librarian has issued six Final Rules
pursuant to this procedure. See 65 Fed. Reg. 64556-01 (2000 Final Rule); 68 Fed. Reg. 62011-01
(2003 Final Rule); 71 Fed. Reg. 68472-01 (2006 Final Rule); 75 Fed. Reg. 43825-01 (2010 Final
Rule); 77 Fed. Reg. 65260-01 (2012 Final Rule); 80 Fed. Reg. 65944-01 (2015 Final Rule). 6
During the first three-year period beginning October 28, 2000, the Librarian adopted two
exemptions for classes of copyrighted works. See 65 Fed. Reg. 64574. Most recently, the
Librarian adopted twenty-two exemptions for classes of copyrighted works during the three year
period beginning October 28, 2015. See 80 Fed. Reg. 65961-659663. Examples of classes of
6

Materials relevant to the rulemaking process, including the Register’s recommendations as well
as all exemption proposals and comments submitted during the rulemaking process, are available
on the Copyright Office website at http://www.copyright.gov/1201/ .
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copyrighted works that have been granted exemptions through this process include literary works
distributed in electronic form (such as e-books) that are protected by access controls that prevent
read-aloud or other assistive technologies used by visually impaired persons, 80 Fed. Reg.
65950; motion pictures, where circumvention is undertaken “solely in order to make use of short
portions of the motion pictures for the purpose of criticism or comment” in specified
circumstances, id. at 65948; and computer programs that control access to devices or machines
“primarily designed for use by individual consumers,” such as motorized land vehicles and
medical devices designed for implantation, where the circumvention is undertaken “solely for the
purpose of good-faith security research,” id. at 65956.
PROCEDURAL HISTORY
Plaintiffs filed their Complaint on July 21, 2016, asserting challenges to the DMCA’s
“anti-circumvention” and “anti-trafficking” provisions relating to circumvention of access
controls, 17 U.S.C. § 1201(a). Compl. ¶ 1. Notably Plaintiffs do not claim that these provisions
have ever been enforced against them; however, they assert that the threat of enforcement
“chills” their “protected and noninfringing speech that relies on copyrighted works, including
independent technical research into computer security systems and the discussion of that
research, and accessing copyrighted works in order to shift the content to a different format,
space, or time.” Id.
Specifically, Plaintiff Green asserts that he is professionally engaged in investigating the
security of electronic systems and that he notifies manufacturers “of vulnerabilities in the interest
of having them fixed.” Id. ¶ 75. He also publishes academic work regarding this research and is
currently writing a book in which he would like to include “detailed information regarding how
to circumvent security systems.” Id. According to Green, he wishes to conduct investigations that
10

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involve the circumvention of technical restrictions on “non-consumer-oriented devices” and
“non-implanted medical devices.” Id. ¶ 85. Green acknowledges that the DMCA contains a
permanent exemption for security research in § 1201(j) but asserts that that exemption is too
narrow for his purposes. Id. ¶ 79. Green also acknowledges that the Librarian granted a further
exemption for certain security research in the 2015 Final Rule, relating to access controls on
devices or machines primarily designed for consumer use, on motorized land vehicles, and on
medical devices designed for implantation, but he again asserts that that exemption is insufficient
for his intended research. 7 Id. ¶¶ 84-85. Green further asserts that the risk of civil liability and/or
criminal prosecution for violation of § 1201(a) prevents him from engaging in research and from
“selling a book that might garner significant commercial sales discussing how to circumvent
access controls.” Id. ¶¶ 86-87.
Plaintiffs Huang and Alphamax, a company owned by Huang, assert that they would like
to create and commercially distribute a device called NeTVCR, which would allow people to
save high-definition digital video content transmitted from devices like computers, DVD players,
and video game consoles to televisions and computer monitors, move the content to other
devices, and convert the content to other formats. Compl. ¶¶ 90-91, 101. Huang and Alphamax
further assert that, in order to create this device, they would have to circumvent existing
technology developed by Intel Corporation, called High-bandwidth Digital Content Protection
(“HDCP”), that restricts access to High-Definition Multimedia Interface (“HDMI”) video
7

During the 2015 rulemaking process, the Register of Copyrights noted the statutory obligation
to craft an exemption based on the evidentiary showing of adverse effects. When considering an
exemption for security research, which Green, among others, had proposed, the Register
observed that the record was limited to consumer-oriented software and products, and no
showing was made to explain how an exemption would work in relation to other types of
software, “including highly sensitive systems such as nuclear power plants and air traffic control
systems,” and the Register limited her recommendation accordingly. Register’s
Recommendation at 317, available at http://www.copyright.gov/1201/.
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signals. Id. ¶¶ 92-93. According to the Complaint, Huang and Alphamax wish to engage in such
circumvention by using a “master” cryptographic key that an anonymous third party uploaded to
the Internet in 2010, which makes it possible to bypass Intel’s HDCP restrictions by avoiding the
need to obtain a “secret” key from Intel. Id. ¶¶ 93, 95. After creating the NeTVCR device, Huang
and Alphamax assert that they wish to “use and enable others to use” the device for various
alleged purposes, including “use of excerpts of motion pictures for commentary, educational
uses, creation of narrative fair use film, and space- and format-shifting.” Id. ¶ 107. Huang and
Alphamax assert that their fear of prosecution under § 1201(a) deters them from “engaging in the
circumvention of HDCP,” and from “commercially distributing the NeTVCR device, software
that would upgrade [a previous device, the NeTV] into a NeTVCR, or information about how to
build NeTVCR.” Id. ¶¶ 109-110.
Plaintiffs seek declaratory and injunctive relief through seven separate claims: Count I
challenges 17 U.S.C. § 1201(a) as facially unconstitutional under the First Amendment’s
overbreadth doctrine; Count II alleges that the triennial rulemaking process set forth in
§ 1201(a)(1) establishes a prior restraint on speech in violation of the First Amendment; Count
III alleges that § 1201(a) violates the First Amendment as applied to Plaintiff Green; Counts IV
and V allege that § 1201(a) violates the First Amendment as applied to Plaintiffs Huang and
Alphamax; and Counts VI and VII allege that the 2015 Final Rule violates the First Amendment
and the APA insofar as the Librarian denied exemptions that would have applied to Green’s
security research and to Huang and Alphamax’s creation and use of NeTVCR. See Compl.
¶¶ 111-162. As set forth below, all seven claims are subject to dismissal under Rule 12(b)(1) for
lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim upon which relief
can be granted.
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STANDARD OF REVIEW
Defendants move to dismiss under Rule 12(b)(1) for lack of standing (Counts I-V) and
because sovereign immunity has not been waived (Counts VI, VII). In reviewing a 12(b)(1)
motion, a court is guided by the principle that “[f]ederal courts are courts of limited jurisdiction.”
Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). Thus, “a federal court must
presume that it ‘lack[s] jurisdiction unless the contrary appears affirmatively from the record.’”
State of W. Virginia v. U.S. Dep’t of Health & Human Servs., 145 F. Supp. 3d 94, 97 (D.D.C.
2015) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 n. 3 (2006)). “The burden of
demonstrating the contrary, including establishing the elements of standing, ‘rests upon the party
asserting jurisdiction.’” Id. (quoting Kokkonen, 511 U.S. at 377); see also Stone v. Holder, 859 F.
Supp. 2d 48, 51 (D.D.C. 2012) (“the plaintiff bears the burden of establishing that sovereign
immunity has been abrogated”).
When considering jurisdiction based on the face of a plaintiff’s complaint, a court must
accept “well-pleaded factual allegations as true and draw all reasonable inferences from those
allegations in the plaintiff’s favor.” Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015).
However, the court need not “assume the truth of legal conclusions,” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009), nor “accept inferences that are unsupported by the facts set out in the
complaint,’” Islamic Am. Relief Agency v. Gonzales, 477 F.3d 728, 732 (D.C. Cir. 2007). Rather,
in order to avoid dismissal, a complaint must “contain sufficient factual matter ‘to state a claim
[of standing or waiver of sovereign immunity] that is plausible on its face.’” Id. (quoting Iqbal,
556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Defendants also move in the alternative for dismissal under Rule 12(b)(6). A Rule
12(b)(6) challenge “tests the legal sufficiency of a complaint.” Kemp v. Eiland, 139 F. Supp. 3d
13

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329, 335 (D.D.C. 2015) (citing Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)). Thus,
the plausibility requirement of Iqbal and Twombly applies to the merits of a plaintiff’s claims.
See id. To survive a 12(b)(6) motion to dismiss, “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The
court may “consider only the facts alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [the court] may take judicial notice.” EEOC
v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
ARGUMENT
I.

PLAINTIFFS LACK STANDING TO CHALLENGE § 1201(a)(1) AND 1201(a)(2)
UNDER THE FIRST AMENDMENT
Plaintiffs lack standing to assert First Amendment challenges to the DMCA’s

anti-circumvention and anti-trafficking provisions, 17 U.S.C. § 1201(a)(1) and (a)(2), and Counts
I-V of their Complaint should accordingly be dismissed for lack of subject matter jurisdiction.
“The judicial power of the United States” is limited by Article III of the Constitution “to the
resolution of ‘cases’ and ‘controversies,’” Valley Forge Christian Coll. v. Americans United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982), and the demonstration of a
plaintiff’s standing to sue “is an essential and unchanging part of the case-or-controversy
requirement,” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). The standing inquiry must
be “especially rigorous” when reaching the merits of a claim would force a court to decide the
constitutionality of actions taken by a coordinate Branch of the Federal Government. Clapper v.
Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013). A plaintiff “‘must demonstrate standing for each
claim he seeks to press.’” Del. Dep’t of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 10 (D.C.
Cir. 2015), as amended (July 21, 2015) (quoting DaimlerChrysler Corp., 547 U.S. at 352). Thus,
to establish standing for their claims here, for which Plaintiffs seek only injunctive and declaratory
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relief, Plaintiffs must identify for each an injury in fact, fairly traceable to the statutory language at
issue in the specific claim, and redressable by a favorable ruling, that is “concrete, particularized,
and actual or imminent.” See id.
Courts apply a specific formulation of the standing requirements where a plaintiff’s
asserted injury rests on the prospect of Government enforcement. Here, Plaintiffs seek to bring
preenforcement challenges to the DMCA’s anti-circumvention provision, 17 U.S.C. § 1201(a)(1),
and its anti-trafficking provision, 17 U.S.C. § 1201(a)(2). Violations of these provisions are
subject to criminal prosecution pursuant to 17 U.S.C. § 1204. In this context, in order to establish
that threatened enforcement is “sufficiently imminent,” a plaintiff must “allege[] an intention to
engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a
statute, and there [must] exist[] a credible threat of prosecution thereunder.” Susan B. Anthony List
v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (quoting Babbitt v. United Farm Workers Nat’l Union,
442 U.S. 289, 298 (1979)); see also Clapper, 133 S. Ct. at 1147 (the threatened injury cited by the
preenforcement plaintiff must be “certainly impending”); Blum v. Holder, 744 F.3d 790, 798 (1st
Cir.), cert. denied, 135 S. Ct. 477 (2014) (applying Clapper to a preenforcement First Amendment
challenge). As discussed below, Plaintiffs fail to satisfy these requirements with respect to their
preenforcement challenges to § 1201(a)(1) and § 1201(a)(2).
A.

Plaintiffs Fail To Assert a Credible Threat of Prosecution

For one thing, Plaintiffs fail to allege a credible threat of prosecution under 17 U.S.C.
§ 1204 for violation of either § 1201(a)(1) or § 1201(a)(2). In addition to the elements set forth in
those provisions, such a prosecution would also require the Government to prove that the
violation was committed both willfully and “for purposes of commercial advantage or private
financial gain.” 17 U.S.C. § 1204(a).
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Where, as here, a plaintiff in the preenforcement context alleges an infringement of the
freedom of speech, “‘[s]ubjective “chill” alone will not suffice to confer standing.’” Johnson v.
Dist. of Columbia, 71 F. Supp. 3d 155, 159 (D.D.C. 2014) (quoting A.N.S.W.E.R. v. Dist. of
Columbia, 589 F.3d 433, 435 (D.C. Cir. 2009)). Rather, Plaintiffs’ ability to establish a credible
threat of prosecution “depends on how likely it is that the government will attempt to use [the
challenged] provisions against them[,] . . . not on how much the prospect of enforcement worries
them.” Am. Library Ass’n v. Barr, 956 F.2d 1178, 1193 (D.C. Cir. 1992). In assessing the
likelihood of enforcement, a court may consider factors such as “the history of enforcement of
the challenged statute to like facts” and “any threats of enforcement.” Johnson, 71 F. Supp. 3d at
160.
“[C]ourts often find the absence of a specific threat [of enforcement] fatal” to
preenforcement standing. Id. (citing Seegars v. Gonzales, 396 F.3d 1248, 1252 (D.C. Cir. 2005)).
Indeed, in the D.C. Circuit, in order to establish a credible threat of prosecution, a preenforcement
plaintiff must “prove not only that the threat is credible, but also that it is imminent.” Urban Health
Care Coal. v. Sebelius, 853 F. Supp. 2d 101, 113 n.11 (D.D.C. 2012). In other words, the plaintiff
must show “that the potential prosecution ‘results from a special law enforcement priority,’” id.
(quoting Ord v. District of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009)), “or that the plaintiff
has been ‘singled out or uniquely targeted’ for prosecution,” id. (quoting Parker v. District of
Columbia, 478 F.3d 370, 375 (D.C. Cir. 2007)).
Plaintiffs here make no allegation that they have received any threat of enforcement, nor
do they allege facts that plausibly suggest that the Government considers it a special priority to
prevent them, in particular, from violating the DMCA’s anti-circumvention or anti-trafficking
provisions in § 1201(a), “or a particular interest in punishing them for having done so.” See
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Parker, 478 F.3d at 375. Nor do Plaintiffs cite any specific instance of criminal prosecution in
similar circumstances. Rather, Plaintiffs simply allege that “[f]ederal prosecutors have
prosecuted alleged violations of Section 1201 on multiple occasions.” Compl. ¶ 28. Such a
conclusory assertion fails to support standing at the pleading stage. See Iqbal, 556 U.S. at 678.
Indeed, Plaintiffs place greater emphasis on their fear that third parties will bring suit against
them under the DMCA’s private right of action provision, set forth in 17 U.S.C. § 1203, than
they do on the possibility of criminal prosecution pursuant to § 1204. See, e.g., Compl. ¶¶ 81-83,
86 (asserting a need to assess “the litigiousness of manufacturers” before engaging in security
research, and alleging numerous instances where manufacturers have threatened legal action in
regard to security research); id. ¶ 97 (asserting that Intel has threatened to sue anyone who used a
publicly available “master key” to circumvent its access controls on HDMI digital content). But
courts have recognized that the threat of private lawsuits has no bearing on a plaintiff’s standing
to bring a preenforcement challenge against the Government. See, e.g., Balogh v. Lombardi, 816
F.3d 536, 543 (8th Cir. 2016) (holding in a preenforcement challenge that the causation prong of
standing was not satisfied by plaintiffs’ allegation that third parties might invoke a private cause of
action against them); Temple v. Abercrombie, 903 F. Supp. 2d 1024, 1034–35 (D. Haw. 2012)
(plaintiff nonprofit religious organizations lacked standing to sue state officials in order to
challenge state’s Civil Unions Law based on assertions that plaintiffs’ employees might bring suit
against them under the law’s private right of action).
Because Plaintiffs fail to allege any facts suggesting it is likely, much less imminent, that
the Government will attempt to enforce the challenged DMCA provisions against them, their
purported fears of potential enforcement amount to no more than a subjective chill, which is
insufficient to confer preenforcement standing to assert a First Amendment challenge to a federal
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statute. See Am. Library Ass’n, 956 F.2d at 1193; A.N.S.W.E.R., 589 F.3d at 435. Accordingly, the
challenges that Plaintiffs assert in Counts I-V of their Complaint should be dismissed for lack of
subject matter jurisdiction.
B.

Plaintiffs Fail to Identify an Intent to Engage in Constitutionally-Protected
Conduct that Would Violate § 1201(a)(1)(A) or § 1201(a)(2)

Apart from the fact that Plaintiffs fail to identify a credible threat of enforcement under
17 U.S.C. § 1204 based on a violation of either of the DMCA provisions that they challenge,
Plaintiffs’ allegations also fail to establish that their intended violations of those two provisions,
§ 1201(a)(1)(A) and § 1201(a)(2), implicate any constitutionally-protected interest. They
therefore fail adequately to allege “an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute,” Susan B. Anthony List, 134 S. Ct. at
2342, and lack standing to assert their First Amendment challenges to those provisions for this
additional reason.
Applying this requirement in Susan B. Anthony, the Supreme Court held that the plaintiffs
had standing to challenge an Ohio statute that prohibited dissemination of false statements about
candidates, knowing that, or with reckless disregard of whether, the statements were false. Id. at
2338, 2343. The Court reasoned that the plaintiffs had sufficiently alleged an intent to engage in a
course of conduct arguably affected with a constitutional interest because they had “pleaded
specific statements they intend to make in future election cycles.” Id. at 2343. These statements
qualified as “political speech” and thus were “certainly ‘affected with a constitutional interest.’”
Id. at 2344 (quoting Babbitt, 442 U.S. at 298). The Court also concluded that these statements were
“arguably . . . proscribed by” the Ohio law. Id.
This case presents quite a different situation. First, none of the Plaintiffs alleges an intent to
engage in First Amendment-protected speech or expressive conduct that is proscribed by the
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DMCA’s anti-circumvention provision, § 1201(a)(1)(A). Rather, Green alleges a desire to
circumvent access controls protecting access to various electronic devices or systems, such as
medical devices, medical record systems, and toll collection systems. See Compl. ¶¶ 75, 77. Huang
and Alphamax allege a desire to circumvent access controls that protect HDMI digital content. Id.
¶¶ 90, 93. Plaintiffs do not allege that such acts of circumvention—which are what
§ 1201(a)(1)(A) prohibits—qualify as speech or expressive conduct protected by the First
Amendment. Rather, Plaintiffs appear to rely on activities that would take place after they violate
§ 1201(a)(1)(A). Green alleges that, if he were able to engage in his desired acts of circumvention,
he would then be able to inform manufacturers of vulnerabilities in their devices or systems, and
he would also be able to publish “detailed information regarding how to circumvent security
systems” in a book. Id. ¶ 75. Huang and Alphamax allege that their acts of circumvention would
enable them subsequently to create and market a device that would allow purchasers to copy and
alter copyrighted material in HDMI format. Id. ¶¶ 100-102.
Such assertions clearly fail to satisfy the requirements for preenforcement standing
articulated in Susan B. Anthony. Indeed, the Supreme Court previously has made clear that the
subsequent use an individual intends to make of certain information does not confer any First
Amendment right to acquire that information in the first place. See Zemel v. Rusk, 381 U.S. 1,
16-17 (1965). In Zemel, the plaintiff argued that the Secretary of State’s decision to refuse to
validate his passport for travel to Cuba impaired his ability to investigate and subsequently report
to others the effects of the federal government’s Cuban policies. Id. at 3, 16. The Court confirmed
that “[t]he right to speak and publish does not carry with it the unrestrained right to gather
information.” Id. at 17. Thus, for example, even though “the prohibition of unauthorized entry into
the White House diminishes the citizen’s opportunities to gather information he might find
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relevant to his opinion of the way the country is being run,” “entry into the White House” is not “a
First Amendment right.” Id.; see also Houchins v. KQED, Inc., 438 U.S. 1, 10-11 (1978) (finding
no constitutional violation in the denial of access to a jail for the purpose of investigating jail
conditions). Accordingly, Plaintiffs fail plausibly to allege an intention to engage in conduct
protected by the First Amendment but prohibited by § 1201(a)(1)(A).
The same is true in regard to § 1201(a)(2). Indeed, Green does not identify a “technology,
product, service, device, component, or part thereof” that he wishes to disseminate in violation of
that provision, nor does he allege that any such item would qualify as speech. It is unclear, based
solely on the allegations in the Complaint, whether the “detailed information regarding how to
circumvent security systems” that Green wishes to publish, Compl. ¶ 75, would violate the
anti-trafficking provision in § 1201(a)(2). Similarly, while Huang and Alphamax assert an
intention to commercially distribute the NeTVCR device, after it is developed, they fail to identify
any element of speech at issue in such distribution. See Compl. ¶¶ 90, 102. 8 Again, it is unclear
from the allegations in the Complaint whether the NeTVCR device will contain the “master
[cryptographic] key” that they describe, nor do Plaintiffs allege any facts establishing how this key
qualifies as speech. See id. ¶¶ 93-95. Rather, Huang and Alphamax appear to rely on the
convoluted notion that those who purchase the NeTVCR might use it to gain unauthorized access
to copyrighted material and might then make noninfringing uses of that material. See id.
¶¶ 106-107. (Of course, it seems likely that a device that allows users to gain unauthorized access
to copyrighted material could also allow subsequent uses that do infringe the rights of copyright
8

Notably, the act of selling or offering for sale the NeTVCR device is not entitled to First
Amendment protection as commercial speech because such an offer would relate to illegal
activity. See Whitaker v. Thompson, 353 F.3d 947, 952 (D.C. Cir. 2004) (“[C]ommercial speech
enjoys First Amendment protection only if it concerns a lawful activity and is not misleading.”);
see also 321 Studios v. Metro Goldwyn Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1098-99 (N.D.
Cal. 2004) (holding that the commercial marketing of DVD copying software in violation of the
DMCA’s anti-trafficking provisions was not protected by the First Amendment).
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holders.) However, even assuming that such subsequent uses implicate the First Amendment, such
a prospect cannot transform the initial commercial distribution of such a device into First
Amendment-protected activity. Plaintiffs’ challenges to § 1201(a)(1)(A) and § 1201(a)(2) in
Counts I-V of their Complaint should therefore also be dismissed because Plaintiffs fail to allege
an intention to engage in conduct that is protected by the First Amendment but proscribed by those
provisions.
II.

PLAINTIFFS’ FIRST AMENDMENT OVERBREADTH CLAIM SHOULD BE
DISMISSED (COUNT I)
A.

Section 1201(a) Is Not Subject to the First Amendment’s Overbreadth
Doctrine Because the Provision on Its Face Does Not Regulate Speech

Even if Plaintiffs’ First Amendment claims are not dismissed for lack of standing, they
are subject to dismissal for failure to state a claim upon which relief can be granted. In Count I of
their Complaint, Plaintiffs claim that § 1201(a) 9 is facially invalid under the First Amendment’s
overbreadth doctrine. This claim necessarily fails—first and foremost because § 1201(a) on its
face does not regulate speech. The overbreadth doctrine provides a narrow exception to
“traditional rules of standing” by allowing a plaintiff to bring a facial First Amendment challenge
to a regulation of “spoken words” or patently “expressive or communicative conduct” based on
its chilling effect on others. Broadrick v. Oklahoma, 413 U.S. 601, 612-13 (1973). When the
doctrine applies, a law may be held facially invalid only if it “punishes a ‘substantial’ amount of
protected free speech, ‘judged in relation to the statute’s plainly legitimate sweep.’” Virginia v.
Hicks, 539 U.S. 113, 118-19 (2003) (quoting Broadrick, 413 U.S. at 615). However, the Supreme
Court has emphasized that “the overbreadth doctrine is ‘strong medicine’ [that should be]
employed . . . with hesitation, and then ‘only as a last resort.’” L.A. Police Dep’t v. United
9

Although the enumerated Counts of the Complaint do not specify which provision of § 1201 they
purport to challenge, the Complaint elsewhere makes clear that Plaintiffs’ challenge is limited to
§ 1201(a). See, e.g., Compl. ¶ 1.
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Reporting Pub. Corp., 528 U.S. 32, 39 (1999) (citations omitted). Moreover, an overbreadth
challenge is not appropriate “against a law or regulation that is not specifically addressed to
speech or to conduct necessarily associated with speech (such as picketing or demonstrating).”
Hicks, 539 U.S. at 124 (recognizing such a challenge could succeed “[r]arely, if ever”); accord
Mahoney v. Dist. of Columbia, 662 F. Supp. 2d 74, 86 n.5 (D.D.C. 2009), aff'd sub nom. Mahoney
v. Doe, 642 F.3d 1112 (D.C. Cir. 2011).
In Hicks, the Court accordingly held that a city housing authority’s trespass policy could
not be deemed unconstitutionally overbroad because, on its face, the policy was not directed at
First Amendment-protected activity; rather, the same rules applied regardless of whether a person
sought to enter the property for speech-related (leafletting) or non-speech-related (loitering)
purposes. Hicks, 539 U.S.; see also Hastings v. Judicial Conf., 829 F.2d 91, 106–07 (D.C. Cir.
1987) (rejecting overbreadth challenge to judicial misconduct statute because statute was “directed
against serious judicial transgressions, not against protected speech”); Roulette v. City of Seattle,
97 F.3d 300, 305 (9th Cir. 1996), as amended on denial of reh’g and reh’g en banc (Sept. 17,
1996) (overbreadth doctrine did not apply to a city ordinance prohibiting sitting or lying on the
sidewalk because it was not “directed narrowly and specifically at expression or conduct
commonly associated with expression” (quoting City of Lakewood v. Plain Dealer Pub. Co., 486
U.S. 750, 760 (1988)).
Plaintiffs’ overbreadth challenge here fails for just this reason. As at least one court has
recognized, § 1201(a) “[b]y its terms” is “not directed narrowly and specifically at expression or
conduct commonly associated with expression.” Elcom Ltd., 203 F. Supp. 2d at 1133 (internal
quotation omitted). Rather, § 1201(a)(1) prohibits circumvention of access controls on
copyrighted works, and § 1201(a)(2) prohibits trafficking in any anti-circumvention technology,
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product, service, device, or component. Access controls—for example, a webpage that requires a
password or payment of a fee, CSS encryption techniques applied on DVDs, or firmware controls
preventing the modification or removal of software—are types of “digital locks” that can be
analogized to a physical lock on the door of a room containing a book. H.R. Rep. 105-551(I), at 17
(“The act of circumventing a technological protection measure put in place by a copyright owner
to control access to a copyrighted work is the electronic equivalent of breaking into a locked room
in order to obtain a copy of a book.”). Such controls, which regulate access to copyrighted material
rather than the use of copyrighted material after it has been lawfully obtained, do not implicate the
First Amendment. Cf. Zemel, 381 U.S. at 16-17; Houchins, 438 U.S. at 10-11. After all, the First
Amendment does not require a museum to admit patrons who refuse to pay the price of admission,
or an author to provide his or her book for readers to peruse for free. Cf. Harper & Row Publishers,
Inc. v. Nation Enters., 471 U.S. 539, 552–53 (1985) (recognizing that copyright necessarily
includes the right not to publish). Instead, it is accepted that the museum or author may limit access
to the copyrighted works to those willing to pay a fair price. 10 The prohibition in § 1201(a)(2) on
trafficking in anti-circumvention technologies, products, services, devices, or components on its
face similarly does not regulate pure speech or expressive conduct. Elcom Ltd., 203 F. Supp. 2d at
1133. Thus, as Elcom concluded, because § 1201(a) on its face does not implicate the First
Amendment, “an overbreadth facial challenge is not available.” Id. at 1133; see also Universal
City Studios, Inc. v. Reimerdes, 111 F. Supp. 2d 294, 337-38 (S.D.N.Y. 2000) (dismissing
overbreadth challenge to 1201(a)(2) and noting “the issue concerns dissemination of technology
that is principally functional in nature” rather than “pure speech”).
10

As indicated above, § 107 of the Copyright Act ensures that users who have already lawfully
accessed the copyrighted works may make fair use of the works. Thus, § 1201 does not bar
circumvention of technological protection measures that prevent copying of works once access has
been authorized; such controls may thus be circumvented for purposes of making fair and other
noninfringing uses of those works.
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B.

Plaintiffs’ Overbreadth Claim Is Also Inappropriate Because It Primarily
Seeks to Assert Plaintiffs’ Own First Amendment Rights Rather Than the
Rights of Third Parties Not Before the Court

Even if § 1201(a) were deemed to implicate the First Amendment, the Court should
dismiss Plaintiffs’ overbreadth claim because, instead of focusing on third parties not before the
Court, Plaintiffs seek only to assert their own First Amendment rights. As indicated above, the
overbreadth doctrine is essentially a third-party standing doctrine. See Broadrick, 413 U.S. at 612.
Courts therefore have rejected overbreadth challenges when “the parties challenging the statute are
those who desire to engage in protected speech that the [supposedly] overbroad statute purports to
punish.’” See Mahoney, 662 F. Supp. 2d at 85–86 (quoting Brockett v. Spokane Arcades, Inc., 472
U.S. 491, 504 (1985)). In such instances, claimants need not rely on an asserted chill on the speech
of third parties to make their desired First Amendment argument; rather, they may—as Plaintiffs
have indeed done here—simply raise as-applied First Amendment claims on their own behalf. See
id. Thus, in Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984), the Supreme
Court held that it would be “inappropriate . . . to entertain an overbreadth challenge” to an
ordinance that prohibited posting signs on city-owned property because the plaintiff in that case
had “failed to identify any significant difference” between its overbreadth claim and its as-applied
claim. Id. at 802 (noting that if the ordinance could be validly applied to the plaintiff, it could be
validly applied “to most if not all of the signs of parties not before the Court”). The Court thus
concluded there was no “realistic danger” that restricting its consideration to an as-applied analysis
would “significantly compromise First Amendment protections of individuals not before the
Court.” Id.
Here, Plaintiffs’ overbreadth claim focuses almost exclusively on Plaintiffs’ own alleged
injuries. See Compl. ¶¶ 111-20. Indeed, the Complaint’s allegation that “many others,” in addition
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to Plaintiffs, are allegedly “chilled” by § 1201(a) from exercising their First Amendment rights,
Compl. ¶¶ 113-14, is vague and conclusory, and is thus insufficient to state a plausible claim. See
Iqbal, 556 U.S. at 678. Moreover, Plaintiffs appear to assert identical First Amendment arguments
on their own behalf and on behalf of the unidentified “many others,” essentially relying on the
notion that the First Amendment protects the “fair use” of copyrighted material, and the assertion
that § 1201(a) chills Plaintiffs and others from engaging in such fair use. See Compl. ¶¶ 113-14;
see also ¶¶ 129-35 (Green’s as-applied claim), 136-49 (Huang’s and Alphamax’s as-applied
claims). As in Taxpayers for Vincent, because Plaintiffs have not identified any significant
difference between their overbreadth and as-applied claims, it would be inappropriate for this
Court to consider Plaintiffs’ overbreadth challenge, and the claim should be dismissed on that
basis alone.
C.

.

Plaintiffs Cannot Establish Substantial Overbreadth in Light of the Many
Obvious Constitutional Applications of the Statute

Even if the Court does not dismiss Plaintiffs’ overbreadth claim for either of the threshold

reasons identified above, the claim would necessarily fail because Plaintiffs cannot identify “real”
and “substantial” overbreadth, “judged in relation to the statute’s plainly legitimate sweep.”
Taxpayers for Vincent, 466 U.S. at 800. The DMCA’s anti-circumvention and anti-trafficking
provisions are plainly legitimate in the vast majority of applications. As described above, at the
time of the DMCA’s enactment, digital piracy was recognized internationally as a global problem,
resulting in the WIPO treaty that the DMCA implemented, and § 1201 was enacted “to make
digital networks safe places to disseminate and exploit copyrighted materials.” S. Rep. No.
105-190, at 2, 8. Section 1201’s anti-circumvention and anti-trafficking provisions are
overwhelmingly aimed at discouraging digital piracy while fostering the widespread
dissemination of creative works by establishing legal protections for those who seek to protect
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copyrighted content through technological means.
On the other side of the balance, Plaintiffs appear to rest their First Amendment
overbreadth challenge on the “fair use doctrine.” See Compl. ¶¶ 23, 113. The fair use provision of
the Copyright Act, § 107, provides that “the fair use of a copyrighted work . . . for purposes such as
criticism, comment, news reporting, teaching, . . . scholarship, or research is not an infringement of
copyright.” 17 U.S.C. § 107. The Supreme Court has recognized that this provision codifies an
“affirmative defense” to a claim of copyright infringement under 17 U.S.C. §§ 106 or 106A.
Campbell v. Acuff-Rose Music, Inc., 510 US 569, 576, 590 (1994). However, there is no fair use
defense to alleged violations of § 1201(a)(1)(A) or § 1201(a)(2), which, as discussed above,
prohibit circumvention of access controls and trafficking in devices that allow such
circumvention—not the use of copyrighted works after circumvention has occurred. When
Congress enacted the DMCA, it did not amend § 107 to make it applicable to § 1201, nor did it
codify elsewhere a fair use defense to alleged violations of § 1201.
To the extent Plaintiffs seek to contend that Congress’s omission of a fair use defense to
§ 1201(a) renders that provision unconstitutionally overbroad, their claim must fail. Courts have
never recognized “fair use” as a First Amendment right independent of § 107. E.g., Corley, 273
F.3d at 459 (recognizing that there was “no authority for the proposition that fair use, as protected
by [§ 107 of] the Copyright Act, much less the Constitution, guarantees copying by the optimum
method or in the identical format of the original,” such that the fair use doctrine could be asserted
in a DMCA prosecution as providing a “guarantee of access to copyrighted material”); 321
Studios, 307 F. Supp. 2d at 1101–02 (rejecting notion that there is “absolute First Amendment
protection for fair use of copyrighted works”); Elcom Ltd., 203 F. Supp. 2d at 1134 n.4 (“There is
no direct authority for the proposition that the doctrine of fair use is coextensive with the First
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Amendment, such that ‘fair use’ is a First Amendment right.”); see also Chicago Bd. of Educ. v.
Substance, Inc., 354 F.3d 624, 631 (7th Cir. 2003) (“The First Amendment adds nothing to the fair
use defense.”).
While the Supreme Court in Eldred v. Ashcroft, 537 U.S. 186 (2003), recognized the fair
use defense in § 107, along with the ideas/expression distinction set forth in 17 U.S.C. § 102(b) 11,
as “built-in First Amendment accommodations” within the Copyright Act, it did so in the course of
analyzing a statute that changed the duration of certain copyright terms, and that thus implicated
copyright holders’ exclusive rights under §§ 106 and 106A of the Act. See Eldred, 537 U.S. at 195,
219. The Court rejected the applicability of “uncommonly strict scrutiny” to the plaintiffs’ First
Amendment challenge because, it reasoned, “[t]he Copyright Clause and First Amendment were
adopted close in time,” indicating that, “in the Framers’ view, copyright’s limited monopolies are
compatible with free speech principles.” Id. at 219. The Court further observed that copyright law,
which “protects authors’ original expression” from “exploitation” by others, did not implicate “the
heart of the First Amendment”; to the contrary, “[t]he First Amendment . . . bears less heavily
when speakers assert the right to make other people’s speeches.” Id. at 220-21. While the Court
declined to rule that First Amendment challenges to copyright laws were precluded altogether, it
deferred to Congress’s judgment where the challenged law did not “alter[] the traditional contours
of copyright protection.” Id. at 221.
The Court reached the same conclusion in Golan v. Holder, 132 S. Ct. 873 (2012),
regarding a law that extended copyright protections to foreign works. Id. at 890. In both cases, the
Court recognized that copyright itself served “as an ‘engine of free expression’” because it
11

The idea/expression dichotomy “distinguishes between ideas and expression and makes only
the latter eligible for copyright protection,” allowing for the “free communication of facts while
still protecting an author’s expression.” Eldred, 537 U.S. at 788-89 (internal quotation marks
omitted) (quoting Harper & Row, 476 U.S. at 556).
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“‘supplie[d] the economic incentive to create and disseminate ideas.’” Id. (quoting Eldred, 537
U.S. at 219). At the same time, the Court also recognized that “some restriction on expression is
the inherent and intended effect of every grant of copyright.” Golan, 132 S. Ct. at 889. Ultimately,
the Court in both cases deferred to the balance Congress had struck in the fair use provision, § 107.
Here, as in Eldred and Golan, the law at issue has no bearing on the “traditional contours of
copyright protection.” Indeed, Congress enacted the DMCA pursuant to its commerce power, not
under the Copyright Clause. Elcom Ltd., 203 F. Supp. 2d at 1138. Nevertheless, the DMCA’s
purpose to encourage digital dissemination of copyrighted works by protecting those works from
digital piracy is consistent with the goals of copyright, and the DMCA expressly states it does not
“affect rights, remedies, limitations, or defenses to copyright infringement, including fair use,” or
“enlarge or diminish any rights of free speech or the press for activities using consumer
electronics, telecommunications, or computing products.” 17 U.S.C. § 1201(c)(1), (4); see Elcom,
Ltd., 203 F. Supp. 2d at 1141. Courts have repeatedly recognized that “the DMCA does not
eliminate fair use or substantially impair the fair use rights of anyone.” Id. at 1134; accord Corley,
273 F.3d at 459.
The court in Elcom thus rejected the defendant’s argument that the DMCA was
unconstitutionally overbroad because it interfered with fair use. See Elcom, Ltd., 203 F. Supp. 2d at
1135. Similarly in Corley, a case that concerned the CSS encryption applied to DVDs, the court
rejected the defendants’ assertion that a fair use defense to the DMCA’s anti-trafficking provision
was constitutionally required because the defendants’ DMCA violation—“trafficking in a
decryption code that enables unauthorized access to copyrighted materials”—did not implicate fair
use. See Corley, 273 F.3d at 459 (further noting that “[f]air use has never been held to be a
guarantee of access to copyrighted material in order to copy it by the fair user’s preferred
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technique or in the format of the original”). Likewise, the court in 321 Studios held that “[i]t is the
technology itself at issue [in § 1201(b)(1)], not the uses to which the copyrighted material may be
put,” and that “legal downstream use of the copyrighted material by customers is not a defense to
[a] software manufacturer’s violation of . . . § 1201(b)(1).” 321 Studios, 307 F. Supp. 2d at
1097-98.
This Court should similarly reject the notion that the fair use doctrine has any bearing on
the constitutionality under the First Amendment of the DMCA provisions at issue. As discussed
above, these DMCA provisions prohibit circumvention of access controls and trafficking in
circumvention devices; they do not prohibit fair use of works after someone has gained lawful
access to them, and § 107 continues to provide a defense to a claim of copyright infringement
based on such fair use. The fair use doctrine therefore provides no basis for holding the DMCA
provisions unconstitutionally overbroad.
However, even if the Court were to credit the notion that the DMCA requires its own “First
Amendment accommodations” similar to the fair use provision in § 107, it should defer, as the
Supreme Court did in Eldred and Golan, to Congress’s judgment and conclude that the
accommodations that Congress provided in the DMCA are adequate. In fact, while Congress
declined to provide a broadly-applicable fair use defense to the anti-circumvention and
anti-trafficking provisions in § 1201(a), it did accommodate protections for users and other speech
concerns in at least three ways. First, as described above, § 1201(c) ensures that § 1201(a) cannot
be interpreted to affect copyright infringement defenses, “including fair use,” or to alter free
speech rights “for activities using consumer electronics, telecommunications, or computer
products.” 17 U.S.C. § 1201(c). Second, as noted above, Congress established seven permanent
exemptions to the prohibition on circumvention and, in certain cases, the sharing of circumvention
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technology—including one for security research. See id. § 1201(d)-(j). Third, and of particular
note, Congress established the triennial rulemaking process as a mechanism to address fair use
considerations, thereby ensuring that “the right against anti-circumvention would be qualified to
maintain balance between the interests of content creators and information users.” H.R. Rep. No.
105-551(II), at 26, 35-37. In doing so, Congress emphasized the importance of “ensur[ing] that the
concept of fair use remains firmly established in the law,” but it also recognized that “fair use
principles certainly should not be extended beyond their current formulation.” Id. at 26. This Court
should defer to Congress’s assessments in this area and hold that Plaintiffs’ assertions regarding
fair use cannot sustain an overbreadth challenge to § 1201(a).
Aside from their assertions regarding fair use, which the Court should reject for the reasons
explained above, Plaintiffs fail to identify a single circumstance where the First Amendment
would require an exception to the anti-circumvention or anti-trafficking prohibitions of § 1201(a).
They therefore fail to set forth a plausible allegation that the overbreadth they seek to assert is
“substantial” in relation to the statute’s plainly legitimate sweep. Count I of Plaintiffs’ Complaint
should therefore be dismissed.
III.

PLAINTIFFS’ CLAIM THAT THE DMCA’S TRIENNIAL RULEMAKING IS
AN UNCONSTITUTIONAL PRIOR RESTRAINT SHOULD BE DISMISSED
(COUNT II)
In Count II of their Complaint, Plaintiffs allege that the triennial rulemaking process

required under 17 U.S.C. § 1201(a)(1)(C) serves as a prior restraint on speech in violation of the
First Amendment. However, the prior restraint doctrine is wholly inapplicable to a process that
does not restrain speech but instead is directed at exempting certain classes of copyrighted material
from the anti-circumvention restriction in § 1201(a)(1)(A). This claim should thus be dismissed.
The prior restraint doctrine addresses laws that impose licensing or permit prerequisites on
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private speech in such a way that the government is able to censor the speech of specific applicants
based on its content. See Thomas v. Chicago Park Dist., 534 U.S. 316, 320 (2002) (explaining the
doctrine arose as a reaction to an English licensing system requiring books and pamphlets to be
submitted to the government for advance approval before publication); see also Freedman v.
Maryland, 380 U.S. 51, 57 (1965) (holding a state law requiring films to be submitted to a state
board of censors before it was shown in movie theaters within the state was an invalid prior
restraint). Regulations subjected to review under this doctrine include, for example, permit
requirements for demonstrations or leafletting on public land, see, e.g., Boardley v. U.S. Dep't of
Interior, 615 F.3d 508, 512 (D.C. Cir. 2010) (addressing regulation requiring permits in order to
conduct demonstrations, parades, or distribution of printed matter in national parks), or zoning
requirements for adult-oriented businesses or signs, see, e.g., Green Valley Investments v.
Winnebago Cty., 794 F.3d 864, 866, 868–69 (7th Cir. 2015) (addressing conditional use permit
requirement for “adult entertainment” establishments); H.D.V.-Greektown, LLC v. City of Detroit,
568 F.3d 609, 620–21 (6th Cir. 2009) (addressing scheme requiring business owners to “apply for
special zoning approval as a condition of operating”, as well as permit requirements for
sign-posting); Outdoor Media Grp., Inc. v. City of Beaumont, 506 F.3d 895, 904–05 (9th Cir.
2007) (addressing city’s conditional use permit requirement for signs). The concern underlying
application of the doctrine in this context is that, “[w]here the licensing official enjoys unduly
broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor
or disfavor speech based on its content.” Thomas, 534 U.S. at 323.
Here, the triennial rulemaking provided by § 1201(a)(1)(C) simply does not qualify as a
prior restraint on speech, for three reasons. First, as opposed to regulations requiring each
individual person or group to obtain a permit or license before engaging in their own speech (for
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example, by demonstrating, leafletting, or posting a sign), the triennial rulemaking described in
§ 1201(a)(1)(C) does not create exemptions to the prohibition on circumvention in § 1201(a)(1) on
an individual, case-by-case basis. Rather, through the triennial rulemaking, the Librarian of
Congress makes a determination regarding whether, as a general matter, those who wish to gain
access to a general class of copyrighted works of others are “adversely affected . . . in their ability
to make noninfringing use” of those works. 17 U.S.C. § 1201(a)(1)(C). The Final Rule identifies
exemptions according to the content-neutral class of copyrighted material, with possible reference
to intended categories of noninfringing uses of such material. See 17 U.S.C. § 1201(a)(1)(C); see,
e.g., 2015 Final Rule, 80 Fed. Reg. 65961-64. 12 The risk of censorship based on content, which
arises when a law delegates overly broad licensing discretion to a government official making
decisions on a case-by-case basis, is wholly absent because there is no individualized
determination involved.
Second, as discussed above, the DMCA’s prohibition on circumventing access controls
does not impose direct limitations on an individual’s own speech; rather, the access controls
restrict access to someone else’s copyrighted material. The Supreme Court has made clear that
“[t]he First Amendment bears less heavily when speakers assert the right to make other people’s
speeches,” Eldred, 537 U.S. at 219, and any speech interest is significantly more attenuated when
the issue concerns the right to access, without authorization, other people’s copyrighted speech to
which they have applied technological protection measures. Although Plaintiff Green appears to
claim that he cannot write his desired book on security research, and Plaintiffs Huang and
12

The 2015 Final Rule identified classes of copyrighted material such as “motion pictures,”
“literary works,” or “computer programs that enable smart televisions to execute lawfully obtained
software applications.” See id. In connection with certain classes, the 2015 Final Rule identified
specific noninfringing uses such as “in noncommercial videos,” “for educational purposes,” or
“for the sole purpose of enabling interoperability of [lawfully obtained software] applications with
computer programs on the smart television.” See id.
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Alphamax appear to claim that they cannot create, distribute, and use a device that allows for
manipulation of certain digital media content, unless they access material copyrighted by others,
they cannot suggest that their inability to do so is due to a direct government prohibition on those
activities, such that § 1201(a)(1)(C) constitutes a prior restraint on speech. Indeed, if such an
attenuated connection between a law and the claimant’s speech were sufficient, any law could be
subject to review under the prior restraint doctrine. Pilot or medical licensing requirements could
be challenged as prior restraints by someone who wants to write a book about his experience flying
an airplane or performing open heart surgery. Restrictions on access to government facilities, such
as prisons, nuclear reactors, or records storage facilities, could be challenged as prior restraints by
someone who wants to make a film or conduct research for a book inside those facilities. As
indicated above, the Supreme Court has rejected the notion of a First Amendment “right to gather
information” that would be threatened by such laws, which simply impose general access
restrictions unrelated to speech. See Zemel, 381 U.S. at 17. Again, such access restrictions do not
implicate the government censorship concerns that the prior restraint doctrine is meant to address.
The DMCA’s triennial rulemaking process similarly raises no such concerns.
The third distinction between § 1201(a)(1)(C) and laws properly subject to consideration
under the prior restraint doctrine is that the triennial rulemaking process required under
§ 1201(a)(1)(C) is a mechanism for identifying exceptions to an already-existing prohibition, in
§ 1201(a)(1), on circumventing access controls protecting copyrighted works. As explained above,
§ 1201(a) on its face does not violate the First Amendment. The triennial rulemaking process
cannot properly be subject to independent First Amendment scrutiny, whether under the prior
restraint doctrine or otherwise, separate from the anti-circumvention provision for which it
provides exemptions.
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In a similar situation, the Eleventh Circuit recently held that the prior restraint doctrine was
inapplicable to a city ordinance that allowed those who had previously been banned from access to
a public park, due to trespass violations, to seek suspension of the prohibition for the purpose of
engaging in expressive activity, such as joining a demonstration taking place in the park. Wright v.
City of St. Petersburg, No. 15-10315, 2016 WL 4269796, at *5–6 (11th Cir. Aug. 15, 2016). As the
court noted, the provision allowing for consideration of such a suspension request “offered a way
in which [the plaintiff] could engage in speech or other First Amendment activities in one place
where he would otherwise not be permitted to be present.” Id. at *6. The provision therefore was
“the opposite of a censorial prior restraint because it allow[ed] more speech, not less.” Id.
Similarly here, the triennial rulemaking allows for exceptions to the already-existing
prohibition in § 1201(a)(1) on circumventing access controls. Indeed, like the general trespass
statute at issue in Wright, the anti-circumvention prohibition in § 1201(a)(1) does not regulate
speech on its face and for that reason, as explained above, is not subject to facial First Amendment
scrutiny. See id. at *4. Thus, as in Wright, the process of creating exceptions to that prohibition for
the purpose of allowing noninfringing uses to occur is the opposite of a prior restraint. 13 The prior
restraint doctrine is therefore inapplicable to § 1201(a)(1)(C).
Even if the Court were to analyze § 1201(a)(1)(C) under the framework applicable to prior
restraints, Plaintiffs’ claim would necessarily fail. If § 1201(a)(1)(C) is deemed to implicate the
First Amendment at all, it clearly does so in a content neutral manner. The provision does not
identify any speech or expressive activity by reference to its content. See Boardley, 615 F.3d at
13

This is so even assuming that the noninfringing uses permitted through the triennial rulemaking
process would implicate the First Amendment. In Wright, the city ordinance at issue expressly
allowed for exceptions to a trespass ban in order to engage in First Amendment-protected
activities. Id. at *5. Here, in contrast, the triennial rulemaking process creates exemptions that
ultimately allow noninfringing uses to occur, but as explained above, noninfringing uses,
including fair use, do not themselves necessarily implicate the First Amendment in the first place.
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516 (recognizing National Park Service regulation was “indisputably content-neutral on its face”
and was not motivated “by its agreement with or hostility toward any particular message or
speaker”). As such, § 1201(a)(1)(C) would be analyzed under an intermediate scrutiny framework
and should be upheld if it does not “delegate overly broad licensing discretion to a government
official,” is “narrowly tailored to serve a significant governmental interest,” and “leave[s] open
ample alternatives for communication.” Id.
Applying that framework here, the triennial rulemaking provision should be upheld. It does
not delegate overly broad licensing discretion to a government official. Rather, it requires the
Librarian to undertake a rulemaking process, solicit public comments, consider recommendations
from the Register of Copyrights as well as a Department of Commerce Assistant Secretary, and
assess specified factors to determine if an exemption would be appropriate, and ultimately to set
forth the reasoning behind these determinations in a final rule. See 17 U.S.C. § 1201(a)(1)(C); see,
e.g., 2015 Final Rule, 80 Fed. Reg. 65944. This process is far removed from those that have been
held to delegate overly broad discretion. Cf. Forsyth Cty., Ga. v. Nat’list Movement, 505 U.S. 123,
132–33 (1992) (invalidating permitting process that identified no “objective factors,” did not
require “any explanation for [a permitting] decision,” and allowed the decisionmaker to assess
widely differing fees based solely on his own judgment of what was appropriate in a specific case).
The process is also narrowly tailored to serve a significant governmental interest. The
DMCA was enacted to further a significant government interest in fostering the growth and
development of a thriving and flexible digital marketplace by ensuring adequate legal protections
for copyrighted content. See, e.g., House Mgr. Rpt. at 2, 6 (noting “the law must adapt in order to
make digital networks safe places to disseminate and exploit material in which American citizens
have rights in an unregulated and beneficial environment”); S. Rep. No. 105-190, at 1-2, 8 (same);
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H.R. Rep. No. 105-551(II), at 21, 23 (noting “mutually supportive goals” of “promoting the
continued growth and development of electronic commerce and protecting intellectual property
rights”); H.R. Rep. No. 105-551(I), at 10 (“When copyrighted material is adequately protected in
the digital environment, a plethora of works will be distributed and performed over the Internet.”).
The triennial rulemaking process ensures that the DMCA is narrowly tailored to serve these
important interests by providing a “fail-safe” mechanism that would “monitor developments in the
marketplace for copyrighted materials, and allow the enforceability of [§ 1201(a)(1)(A)] to be
selectively waived, for limited time periods,” in order to maintain an appropriate balance in the
digital environment, “for the benefit of both copyright owners and users.” H.R. Rep. 105-551(II),
at 26, 35-37.
Finally, the process leaves open ample alternatives for communication. Indeed, neither
§ 1201(a)(1)(A) nor the triennial rulemaking process prohibits or regulates any form of
communication; rather, they simply prohibit circumvention of access controls used to protect
copyrighted works and provide a process for establishing exemptions to that prohibition.
Individuals, including Plaintiffs, remain able to use copyrighted works in any way that is otherwise
permitted so long as such works are accessed in a way that does not circumvent access controls
without authorization. Count II of Plaintiffs’ Complaint should therefore be dismissed.
IV.

PLAINTIFFS’ AS-APPLIED FIRST AMENDMENT CHALLENGES TO THE
DMCA SHOULD BE DISMISSED (COUNTS III, IV, AND V)
The three Plaintiffs set forth three separate Counts asserting that § 1201(a) violates the

First Amendment as applied to each of them. None of these claims is cognizable. Plaintiff Green
asserts that he has a First Amendment right to “circumvent access controls applied to
copyrighted works, in the course of security research,” even though his intended circumvention
would violate § 1201(a)(1)(A). Compl. ¶¶ 130, 133. He also asserts a right to publish information
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“related to security research,” which includes “detailed information regarding how to circumvent
security systems,” allegedly in violation of § 1201(a)(2). Compl. ¶¶ 75, 87, 131.
Plaintiffs Huang and Alphamax assert that they have a First Amendment right to
circumvent “HDCP technology applied to copyrighted works” in order to build and use the
NeTVCR device that they wish to develop, even though such circumvention would violate
§ 1201(a)(1)(A). Compl. ¶¶ 137, 141, 144, 148. They also assert a First Amendment right to
“traffic in NeTVCR devices and information” although such trafficking would violate
§ 1201(a)(2). Compl. ¶¶ 138, 145. As discussed below, Plaintiffs’ as-applied challenges to both
§ 1201(a)(1)(A) and § 1201(a)(2) should be dismissed.
A.

Section 1201(a)(1)(A) Does Not Violate the First Amendment As Applied to
Plaintiffs

In regard to § 1201(a)(1)(A), Plaintiffs’ as-applied claims fail because, as explained
above, the anti-circumvention prohibition in § 1201(a)(1) does not implicate the First
Amendment. The provision on its face does not regulate speech or expressive conduct, and
Plaintiffs do not assert that they regard the acts of circumvention that they wish to undertake to
be expressive. This case is unlike Texas v. Johnson, 491 U.S. 397 (1989), where Johnson
intended the act prohibited by law—burning a flag—to convey a message of protest. See id. at 406
(recognizing that the “expressive, overtly political nature of [Johnson’s] conduct was both
intentional and overwhelmingly apparent”). Here, Plaintiffs’ proposed acts of circumvention are
merely a means to an end. Green, for example, wishes to circumvent access controls as a means of
assessing weaknesses in those controls so that he can then inform vendors of those weaknesses,
and he also wishes to use the information gleaned through this circumvention in his published
work. Compl. ¶¶ 75-76, 82, 131-33. A parallel situation in Johnson would have existed if Johnson
had burned a flag in order to assess the fire-retardant properties of the flag’s material, with the
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ultimate goals of reporting any flaws to the flag’s manufacturer and publishing an article
discussing the information learned through the flag-burning process. Conduct undertaken for such
a purpose is merely functional rather than expressive. As for Huang and Alphamax, they wish to
circumvent HDCP access controls as a means of developing a device for commercial distribution
that would allow others to circumvent HDCP access controls. Compl. ¶¶ 90-102. Again, such
conduct in furtherance of commercial goals is not itself intended to convey a message and cannot
be deemed expressive within the meaning of Johnson.
Green appears to assert that his ultimate use of information gleaned through circumvention
would qualify as a “fair use” of the access control software. Compl. ¶ 133. Huang and Alphamax
also assert that their proposed development and commercial distribution of a NeTVCR device
would facilitate a “vast amount of valuable new expression” by enabling third party
circumventions. Compl. ¶¶ 140-47. However, these claims are irrelevant to the analysis because,
as explained above, even assuming there is a First Amendment “right” to engage in fair use, a
desire to make “fair use” of copyrighted material does not afford someone a First Amendment
right to access that material in the first place. Plaintiffs’ as-applied challenges to § 1201(a)(1)(A)
should therefore be dismissed.
B.

Section 1201(a)(2) Does Not Violate the First Amendment as Applied to
Plaintiffs

Plaintiffs’ as-applied challenges to § 1201(a)(2) likewise fail. By its terms, this provision
does not prevent Green from publishing books discussing his security research. Rather, the
provision is only implicated to the extent Green seeks to publish or disseminate any
anti-circumvention “technology, product, service, device, component, or part thereof.” See 17
U.S.C. § 1201(a)(2). While examples of computer code that Green ultimately concludes can be
used to circumvent the access controls that he wishes to research might fall into this category, the
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Complaint contains no specific allegation that Green intends to publish such code. As for Huang
and Alphamax, § 1201(a)(2) appears to apply to them to the extent the NeTVCR device that they
wish to commercially distribute contains the “master [cryptographic] key” that allows users to
circumvent HDCP access controls on HDMI digital content. See Compl. ¶¶ 93-99. However, the
Complaint nowhere alleges that this master key is a form of speech. 14 As explained above, in
light of these pleading deficiencies, Plaintiffs lack standing to challenge § 1201(a)(2) on First
Amendment grounds. However, even assuming that Plaintiffs have plausibly asserted an
intention to violate § 1201(a)(2) in a manner that implicates the First Amendment, their
as-applied claims should be dismissed.
At least three other courts have upheld the DMCA’s anti-trafficking prohibitions in
§ 1201(a)(2) or (b)(1) against as-applied First Amendment challenges where the challenger
sought to disseminate computer code for circumvention purposes. See Corley, 273 F.3d at 454,
458 (upholding both § 1201(a)(2) and (b)(1) against as-applied First Amendment challenge by
civil defendants seeking to overturn an injunction on posting and linking to DeCSS, computer code
that allows circumvention of access controls on DVDs); 321 Studios, 307 F. Supp. 2d at 1101
(upholding both § 1201(a)(2) and (b)(1) against as-applied First Amendment challenge by
plaintiff seeking authority to market and sell software and instructions for copying DVDs);
Elcom Ltd., 203 F. Supp. 2d at 1132 (upholding § 1201(b)(1) against as-applied First
Amendment challenge by criminal defendant charged with illegally selling a product containing
software that would convert ebooks to different formats). While the courts in these cases held
that computer code or software does qualify as speech entitled to First Amendment protection,
14

It is unclear from the Complaint whether this “master key” is a form of computer code. In
addition, it appears that the master key originates from a source other than Huang or Alphamax.
See Compl. ¶ 95 (asserting that the master key was “anonymously uploaded to the Internet” in
2010). Thus, to the extent the master key qualifies as speech, Huang and Alphamax seek to use a
third party’s speech to develop a device that they hope to commercially distribute.
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all three courts also concluded that the application of the DMCA’s anti-trafficking provisions to
computer code resulted in a content neutral regulation of speech subject to intermediate scrutiny
under United States v. O’Brien, 391 U.S. 367 (1968). Corley, 273 F.3d at 453; 321 Studios, 307
F. Supp. 2d at 1101; Elcom Ltd., 203 F. Supp. 2d at 1129.
Applying intermediate scrutiny, the courts held that the DMCA’s anti-trafficking
provisions “further important and substantial interests unrelated to the suppression of free
expression, and that the incidental restrictions on First Amendment freedoms are no greater than
essential to the furtherance of those interests.” 321 Studios, 307 F. Supp. 2d at 1101; see also
Corley, 273 F.3d at 454 (“The Government’s interest in preventing unauthorized access to
encrypted copyrighted material is unquestionably substantial, and the regulation of DeCSS by
the posting prohibition plainly serves that interest.”); Elcom Ltd., 203 F. Supp. 2d at 1130
(“Without the ban on trafficking in circumvention tools, the government’s interest in promoting
electronic commerce, preserving the rights of copyright holders, and preventing piracy would be
undermined.”).
As in Corley, 321 Studios, and Elcom, the application of § 1201(a)(2) to decryption code
or to a master cryptographic key is content neutral. The provision’s application does not depend
on the content of any computer code that might be involved; rather, the provision “target[s] only
the nonspeech component” of the code—its functional capacity to circumvent access controls on
copyrighted works. See Corley., 273 F.3d at 454 (“The DMCA . . . applie[s] to DeCSS solely
because of its capacity to instruct a computer to decrypt CSS. That functional capability is not
speech within the meaning of the First Amendment.”). As a content neutral regulation of
Plaintiffs’ speech, § 1201(a)(2) withstands First Amendment scrutiny under the four-prong test
of O’Brien, 391 U.S. at 377. See United States v. Caputo, No. 1:15-CR-00175, 2016 WL
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4435176, at *4 (D.D.C. Aug. 19, 2016). Under that test, (1) “the challenged regulation must be
‘within the constitutional power of government,” (2) it must “further[] an important or substantial
government interest,” (3) that interest must be “unrelated to the suppression of free expression,”
and (4) the “incidental restriction on First Amendment freedoms must be no greater than is
essential to the furtherance of that interest.” Id. (internal quotation omitted).
This test is satisfied here for the same reasons explained by the courts in Corley, 321
Studios, and Elcom. Section 1201(a)(2) indisputably falls within Congress’s power to regulate
online commerce, and it indisputably furthers the important government interest in preventing
trafficking in devices and technologies that would undermine the access controls that protect
copyrighted works, as explained in detail above. This interest is not related to the suppression of
speech. The fourth prong is also satisfied because the anti-trafficking restriction in § 1201(a)(2)
would be less effective if individuals and companies such as Plaintiffs were allowed to
disseminate decryption technologies, even if they intended the dissemination to serve a limited
purpose. After all, if Green were able to publish decryption code as part of a publication
discussing his security research, there would be no guarantee that the recipients of the code
would similarly restrict their use of the code to security research or other likely noninfringing
uses. Similarly, even if Huang and Alphamax intend that the NeTVCR device they wish to
commercially distribute would be used by others for noninfringing purposes, once the device was
available, there would be a far higher risk that others might use the device in ways that would
facilitate copyright infringement, including piracy. Such results would undermine the
effectiveness of access controls, thus interfering with the online market for copyrighted works by
deterring copyright owners from making works available online at all. Section 1201(a)(2) is
therefore valid under the First Amendment as applied to Plaintiffs, and the Court should thus
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dismiss Counts III, IV, and V.
V.

PLAINTIFFS’ CHALLENGES TO THE 2015 FINAL RULE SHOULD BE
DISMISSED (COUNTS VI AND VII)
In Counts VI and VII of their Complaint, Plaintiffs challenge the 2015 Final Rule issued

by the Librarian of Congress pursuant to § 1201(a)(1)(C) insofar as the Rule failed to grant
exemptions that would have covered Plaintiffs’ desired circumvention activities. See Compl.
¶¶ 150-162. Plaintiffs raise these challenges under the First Amendment and the APA. These
claims also necessarily fail. As an initial matter, to the extent Plaintiffs seek to raise independent
challenges to the Final Rule under the First Amendment, those challenges require no separate
analysis because they essentially duplicate Plaintiffs’ as-applied First Amendment claims,
addressed above. The Final Rule sets forth the Librarian’s determination regarding exemptions to
the anti-circumvention prohibition in § 1201(a)(1). However, as explained above, the
anti-circumvention prohibition is valid under the First Amendment as applied to Plaintiffs. The
denial of an exemption that would have allowed Plaintiffs to engage in circumvention must
therefore also be valid under the First Amendment because it simply leaves the anticircumvention prohibition, which is constitutional, in place.
Plaintiffs’ APA claims should also be dismissed because the APA, including the APA’s
waiver of sovereign immunity in 5 U.S.C. § 702, does not apply to the Librarian’s determination
under the § 1201(a)(1)(C) rulemaking process. 15 Courts “may not find a waiver [of sovereign
immunity] unless Congress’ intent is ‘unequivocally expressed’ in the relevant statute.” Stone, 859
F. Supp. 2d at 51 (quoting Hubbard v. Adm’r, EPA, 982 F.2d 531, 532 (D.C. Cir. 1992)).
The Supreme Court recognized in Kissinger v. Reporters Comm. for the Freedom of the
15

Cf. Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10, 14 (D.D.C. 2015) (“If sovereign
immunity has not been waived, a claim is subject to dismissal under Rule 12(b)(1) for lack of
subject matter jurisdiction.” (citing FDIC v. Meyer, 510 U.S. 471, 475 (1994))).
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Press, 445 U.S. 136 (1979), that the Library of Congress “is not an ‘agency’” within the meaning
of the term used in the Freedom of Information Act (“FOIA”), id. at 145, which is the same
definition that applies to the APA, see 5 U.S.C. § 552(e) (incorporating APA definition of
agency in 5 U.S.C. § 551(1)). Indeed, the Court granted certiorari in that case to determine
whether a FOIA requester could obtain Kissinger’s notes through a FOIA request to the State
Department, even though the notes were then “wrongfully in the possession of a party not an
‘agency’”—namely, the Library of Congress. See id. at 139. Following Kissinger, courts
including the D.C. Circuit have repeatedly held that the APA’s waiver of sovereign immunity in
5 U.S.C. § 702 does not apply to claims against the Library of Congress, nor can the APA’s right
of action in 5 U.S.C. § 706 be invoked against the Library of Congress. See, e.g., Ethnic
Employees v. Boorstin, 751 F.2d 1405, 1416 n. 15 (D.C. Cir. 1985) (“the Library [of Congress] is
not an agency under the A[PA]”); Clark v. Library of Cong., 750 F.2d 89, 102 (D.C. Cir. 1984)
(plaintiff “may not take advantage of th[e] broad waiver of sovereign immunity” in § 702 “since
the Library of Congress is not an ‘agency’ as defined under the A[PA]”); Terveer v. Billington, 34
F. Supp. 3d 100, 123 n.10 (D.D.C. 2014) (“[T]he actions of the Library of Congress are not
reviewable under the A[PA] because the judicial review provisions of the APA only permit review
of actions taken by an ‘agency’ and the Library of Congress is not an agency as defined in APA
§§ 551(1) and 701(b).”).
The Supreme Court’s position is also consistent with the position taken by Congress,
which in 1976 amended the Copyright Act to bring actions of the Register of Copyrights—an
officer within the Library of Congress—within the scope of the APA. See Pub. L. No. 94-553,
§ 701(d), 90 Stat. 2541, 2591 (1976) (codified as amended at 17 U.S.C. § 701(e)); H.R. Rep.
No. 94-1733, at 81 (1976) (explaining that the amendment “made the A[PA] applicable to the
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Copyright Office”). Such an amendment would have been unnecessary if the Library of
Congress in its entirety, including the Librarian, was already within the scope of the APA.
The statute subjecting the Register of Copyrights to the APA, 17 U.S.C. § 701(e), does
not make the APA applicable in this case because review under the APA is limited to “final
agency action.” 5 U.S.C. § 704. It is the Librarian’s final decision, not the Register’s
recommendation, that “mark[s] the ‘consummation’” of the rulemaking process and actually
establishes an exemption from which “legal consequences will flow.” Bennett v. Spear, 520 U.S.
154, 177–78 (1997) (explaining “final agency action” for purposes of the APA); see also 17
U.S.C. § 1201(a)(1)(D) (providing that an exemption takes effect upon the Librarian’s
publication of the exemption). As the Supreme Court made clear in Dalton v. Specter, 511 U.S.
462 (1994), interim recommendations, even if they play a vital role in the regulatory process, are
not “final agency action” subject to review under the APA. See id. at 468–71.
In Nat’l Ass’n of Broadcasters v. Librarian of Congress, 146 F.3d 907 (D.C. Cir. 1998),
the D.C. Circuit held the APA did not apply when examining a similar regulatory structure in
which Congress directed the Librarian of Congress to take administrative action based on a
recommendation provided by the Register of Copyrights. See id. at 913 (quoting 17 U.S.C.
§ 802(f) (1994) (amended 2004)). Before Congress established this scheme, the administrative
decisions at issue had been made by a tribunal whose decisions were subject to APA review. Id.
The petitioners argued that the APA’s “arbitrary and capricious” standard of review should still
apply to the Librarian’s actions under the new scheme, but the court rejected that argument. Id. at
919 (“In light of the Congress’s decision to remove from the judicial review provision of the
1993 Act any reference to the APA, we . . . conclude that [the petitioners] err in suggesting that
the arbitrary and capricious standard continues to control our subsection 802(g) review.”). In
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light of this precedent, the APA claims that Plaintiffs assert in Counts VI and VII should be
dismissed.
CONCLUSION
For the foregoing reasons, the Court should dismiss this action with prejudice.
September 29, 2016

Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
CHANNING D. PHILLIPS
United States Attorney
ERIC R. WOMACK
Assistant Director, Federal Programs Branch
/s/ Kathryn L. Wyer
KATHRYN L. WYER
U.S. Department of Justice, Civil Division
20 Massachusetts Avenue, N.W.
Washington, DC 20530
Tel. (202) 616-8475 / Fax (202) 616-8470
kathryn.wyer@usdoj.gov
Attorneys for Defendants

45