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Green v. U.S. Department of Justice

United States District Court, District of Columbia

June 27, 2019

MATTHEW GREEN, et al., Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          EMMET G. SULLIVAN, UNITED STATES DISTRICT JUDGE

         Plaintiffs Matthew Green, Andrew Huang, and Alphamax, LLC seek to engage in certain activities for which they fear they will be prosecuted under the “anti-circumvention” provision and one of the “anti-trafficking” provisions of the Digital Millennium Copyright Act (“DMCA”). Accordingly, they have brought a pre-enforcement challenge to those two provisions alleging that they violate the First Amendment to the United States Constitution facially and as applied to their proposed activities. They additionally claim that the Librarian of Congress's failure to include certain exemptions from the reach of the anti-circumvention provision in a 2015 final rule promulgated under a rulemaking procedure created by the DMCA violated the First Amendment and the Administrative Procedure Act (“APA”). They seek declaratory and injunctive relief.

         Defendants--the United States Department of Justice, Attorney General William Barr, the Library of Congress, Librarian of Congress Carla Hayden, the United States Copyright Office, and Register of Copyrights Karyn Temple Claggett[1]--have moved to dismiss plaintiffs' claims for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) and, alternatively, for failure to state a claim under Federal Rule 12(b)(6). Upon consideration of defendants' motion, the response and reply thereto, the applicable law, and the entire record, defendants' motion to dismiss is GRANTED IN PART and DENIED IN PART.

         I. Background

         A. Statutory Background

         Congress enacted the DMCA, 17 U.S.C. § 1201 et seq., in 1998 to implement the World Intellectual Property Organization Copyright Treaty and the World Intellectual Property Organization Performances and Phonograms Treaty. S. Rep. No. 105-190, at 2 (1998). In implementing those treaties via the DMCA, Congress was primarily responding to “the ease with which digital works can be copied and distributed worldwide virtually instantaneously.” Id. at 8. In short, Congress was concerned with the pirating of copyrighted works in the digital world. Three of the DMCA's central provisions respond directly to that concern.

         The first--section 1201(a)(1)(A)--is an “anti-circumvention” provision. It prohibits a person from “circumvent[ing] a technological measure that effectively controls access to a work protected under [Title 17, governing copyright].” 17 U.S.C. § 1201(a)(1)(A). A “technological measure”--often referred to as a “technological protection measure” (“TPM”), Compl., ECF No. 1 ¶ 18--“effectively controls access to a work” if it, “in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work, ” 17 U.S.C. § 1201(a)(3)(B). To “circumvent a technological measure” means “to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.” Id. § 1201(a)(3)(A). Section 1201(a)(1)(A) thus prohibits persons from bypassing technological barriers put in place to prevent access to copyrighted works.

         The second and third provisions--sections 1201(a)(2) and 1201(b)--are “anti-trafficking provisions.” That is, instead of prohibiting the circumvention of TPMs, they prohibit the dissemination of the technological means that enable such circumvention. The anti-trafficking provision at issue in this case, section 1201(a)(2), prohibits, in relevant part, a person from “manufactur[ing], import[ing], offer[ing] to the public, provid[ing], or otherwise traffic[king] in any technology, product, service, device, component, or part thereof, that is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work.” Id. § 1201(a)(2)(A).[2]

         The DMCA also includes certain fine-grained permanent exemptions, some of which apply to the anti-circumvention provision and to both anti-trafficking provisions, see, e.g., id. § 1201(e) (broadly exempting official law enforcement activity); some of which apply to the anti-circumvention provision and only one of the anti-trafficking provisions, see, e.g., id. § 1201(j) (exempting security testing “solely for the purpose of good faith testing, investigating, or correcting, a security flaw or vulnerability”); and some of which apply only to the anti-circumvention provision see, e.g., id. § 1201(d) (exempting nonprofit libraries, archives, and educational institutions that seek to circumvent TPMs to determine whether to purchase a copyrighted product).

         Additionally, cognizant of its “longstanding commitment to the principle of fair use, ” H.R. Rep. No. 105-551, pt. 2, at 35 (1998) (“Commerce Comm. Rep.”), Congress sought to balance its efforts to curtail digital piracy with users' rights of fair use by putting in place a triennial rulemaking process to exempt certain noninfringing uses of certain classes of copyrighted works from the anti-circumvention provision for three-year periods. See 17 U.S.C. §§ 1201(a)(1)(B)-(E). Accordingly, every three years, the Librarian of Congress, “upon the recommendation of the Register of Copyrights, who shall consult with the Assistant Secretary for Communications and Information of the Department of Commerce and report and comment on his or her views in making such recommendation, shall make the determination in a rulemaking proceeding . . . of whether persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the [anti-circumvention provision] in their ability to make noninfringing uses under [Title 17] of a particular class of copyrighted works.” Id. § 1201(a)(1)(C). To make the relevant determination, the Librarian must consider: “(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.” Id.

         B. Factual Background

         Plaintiff Matthew Green is a computer science professor at Johns Hopkins University. Compl., ECF No. 1 ¶¶ 5, 75. Plaintiff Andrew Huang is a Singapore-based electrical engineer who owns and operates several technology-related business entities, including plaintiff Alphamax, LLC. Id. ¶¶ 6-7, 88. Plaintiffs seek to engage in certain activities that they fear will run afoul of section 1201(a)(1)(A)'s circumvention prohibition and section 1201(a)(2)'s trafficking prohibition, exposing them to potential civil liability under the DMCA's private right of action, 17 U.S.C. § 1203, and potential criminal liability under the DMCA's criminal offense provision, 17 U.S.C. § 1204. Id. ¶¶ 86-87, 109-10.

         Specifically, Dr. Green “investigates the security of electronic systems, ” and “[h]e would like to include detailed information regarding how to circumvent security systems” in a forthcoming book, id. ¶ 75, but he “has declined to investigate certain devices due to the possibility of litigation based on [s]ection 1201, ” id. ¶ 80. Dr. Green requested an exemption to cover his security research as part of the 2015 triennial rulemaking process, but the exemption that the Librarian of Congress finally put in place was not broad enough to cover all of his proposed research. Id. ¶¶ 78-79, 84-85.

         Mr. Huang and Alphamax are the creators of “NeTV, ” a device for editing high-definition digital video. Id. ¶ 89. They seek to create an “improved” NeTV--a “NeTVCR”--that would allow its users “to save content for later viewing, move content to a viewing device of the user's choice, or convert content to a more useful format.” Id. ¶¶ 90-91. To create the NeTVCR, Huang and Alphamax have to circumvent the TPMs--High-Bandwidth Digital Content Protection (“HDCP”)--that restrict the viewing of High-Definition Multimedia Interface (“HDMI”) signals. Id. ¶¶ 92-93. They have been deterred from doing so because of the risk of prosecution under section 1201. Id. ¶¶ 109-10. Although Huang and Alphamax did not apply for any exemptions to the anti-circumvention provision in the 2015 triennial rulemaking, they allege that if the Librarian of Congress had granted “several” exemptions proposed by other parties, they “would be able to circumvent HDCP as necessary to use the NeTVCR, without violating the anti-circumvention provision of [s]ection 1201.” Id. ¶ 108.

         Wanting to engage in activity that would qualify as prohibited circumvention and trafficking but fearing criminal prosecution if they do so, Dr. Green, Mr. Huang, and Alphamax have brought a pre-enforcement challenge to the two relevant provisions of the DMCA on First Amendment grounds. See generally Id. ¶¶ 111-49. Specifically, they claim that both provisions are facially overbroad, id. ¶¶ 111-20; that the anti-circumvention provision amounts to an unconstitutional speech-licensing regime, id. ¶¶ 121-28; and that both provisions are unconstitutional as applied to their proposed activities. Id. ¶¶ 129-49. They also contend that the Librarian of Congress's denial of exemptions that “would have applied to [Dr.] Green's security research, ” id. ¶ 155; and that “would have applied to [Mr.] Huang and Alphamax's creation and use of NeTVCR, ” id. ¶ 162, violated both the First Amendment and the Administrative Procedure Act (“APA”), id. ¶¶ 150-62.[3]

         C. Defendants' Motion to Dismiss

         Defendants have moved to dismiss all of plaintiffs' claims. See generally Defs.' Mot. to Dismiss, ECF No. 15. Defendants argue that plaintiffs' First Amendment challenges to DMCA sections 1201(a)(1)(A) and 1201(a)(2) should be dismissed under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because plaintiffs lack the standing required to bring such challenges. Mem. in Supp. of Defs.' Mot. to Dismiss (“Defs.' Mem. Supp.”), ECF No. 15-1 at 23-30.[4]Alternatively, defendants argue that those First Amendment challenges to the DMCA provisions, along with the First Amendment challenges to the Librarian of Congress's 2015 final rule, should be dismissed under Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Id. at 30-51. Defendants also argue that plaintiffs' APA challenge to the Librarian's 2015 final rule should be dismissed under Federal Rule 12(b)(1) for lack of subject matter jurisdiction because the APA's waiver of sovereign immunity “does not apply to the Librarian's [exemption] determination under the § 1201(a)(1)(C) rulemaking process.” Id. at 51-54.

         The remainder of the Court's Opinion proceeds as follows: In Part II, the Court briefly discusses the relevant Standards of Review. In Part III.A, the Court determines that the plaintiffs have standing to bring their claims. In Part III.B, the Court addresses plaintiffs' first amendment challenges, and finds that plaintiffs' facial claims fail, but that plaintiffs' as-applied claims survive defendants' motion to dismiss. In Part III.C, the Court determines that plaintiffs' APA challenges fail.

         II. Standards of Review

         A. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A motion to dismiss for lack of standing and a motion to dismiss on sovereign immunity grounds are both reviewed under Federal Rule of Civil Procedure 12(b)(1). Coulibaly v. Kerry, No. 14-0189, 2016 WL 5674821, at *15 (D.D.C. Sept. 30, 2016); Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). To survive a Rule 12(b)(1) motion to dismiss, “the plaintiff bears the burden of establishing jurisdiction by a preponderance of the evidence.” Moran v. U.S. Capitol Police Bd., 820 F.Supp.2d 48, 53 (D.D.C. 2011) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Because Rule 12(b)(1) concerns a court's ability to hear a particular claim, the court “must scrutinize the plaintiff's allegations more closely when considering a motion to dismiss pursuant to Rule 12(b)(1) than it would under a motion to dismiss pursuant to Federal Rule 12(b)(6).” Schmidt v. U.S. Capitol Police Bd., 826 F.Supp.2d 59, 65 (D.D.C. 2011). In so doing, the court must accept as true all of the factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff, but the court need not “accept inferences unsupported by the facts or legal conclusions that are cast as factual allegations.” Rann v. Chao, 154 F.Supp.2d 61, 63 (D.D.C. 2001). Finally, in reviewing a motion to dismiss pursuant to Rule 12(b)(1), the court “may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F.Supp.2d 18, 22 (D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir. 2005).

         B. Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quotation marks omitted).

         Despite this liberal pleading standard, to survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). A claim is facially plausible when the facts pled in the complaint allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The standard does not amount to a “probability requirement, ” but it does require more than a “sheer possibility that a defendant has acted unlawfully.” Id.

         The court must give the plaintiff the “benefit of all inferences that can be derived from the facts alleged, ” Kowal v. MCI Commc'ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994), considering “the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice, ” Gustave-Schmidt v. Chao, 226 F.Supp.2d 191, 196 (D.D.C. 2002). The court need not “accept inferences drawn by plaintiffs if such inferences are unsupported by the facts set out in the complaint” or “legal conclusions cast in the form of factual allegations.” Kowal, 16 F.3d at 1276. Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are not sufficient to state a claim. Iqbal, 556 U.S. at 678. Only a complaint that “states a plausible claim for relief survives a motion to dismiss.” Id. at 679.

         III. Analysis

         A. Standing

         “Article III of the Constitution limits the jurisdiction of the federal courts to ‘Cases' and ‘Controversies.'” Susan B. Anthony List v. Driehaus, 134 S.Ct. 2334, 2341 (2014) (quoting U.S. Const., art. III, § 2). “‘One element of the case-or-controversy requirement' is that plaintiffs ‘must establish that they have standing to sue.'” Clapper v. Amnesty Int'l USA, 133 S.Ct. 1138, 1146 (2013) (quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). The standing requirement “serves to prevent the judicial process from being used to usurp the powers of the political branches.” Id. To establish standing, “a plaintiff must show (1) an ‘injury in fact,' (2) a sufficient ‘causal connection between the injury and the conduct complained of,' and (3) a ‘likel[ihood]' that the injury ‘will be redressed by a favorable decision.'” Susan B. Anthony List, 134 S.Ct. at 2341 (quoting Lujan, 504 U.S. at 560-61).

         The injury-in-fact requirement is only satisfied when an injury is “‘concrete and particularized' and ‘actual or imminent, not conjectural or hypothetical.'” Id. (quoting Lujan, 504 U.S. at 560). “An allegation of future injury may suffice if the threatened injury is ‘certainly impending,' or there is a ‘substantial risk that the harm will occur.'” Id. (quoting Clapper, 133 S.Ct. at 1147, 1150 n.5). In the context of a statute that contemplates criminal liability, plaintiffs do not need to expose themselves to actual arrest or prosecution to be subject to “certainly impending” injury. Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298 (1979). Instead, the injury-in-fact requirement is satisfied when plaintiffs allege “‘an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Susan B. Anthony List, 134 S.Ct. at 2342 (quoting id.). “The party invoking federal jurisdiction bears the burden of establishing these elements.” Lujan, 504 U.S. at 561 (citations omitted). “Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Id.

         Here, defendants argue that plaintiffs fail to satisfy the injury-in-fact requirement. They argue that plaintiffs' proposed course of conduct is not proscribed by the DMCA, that plaintiffs are not subject to a credible threat of prosecution, and that plaintiffs' proposed course of conduct is not arguably affected with a constitutional interest. Defs.' Mem. Supp., ECF No. 15-1 at 24-27. None of these arguments is availing.

         1. Proposed Course of Conduct Arguably Proscribed by a Statute

         First, plaintiffs have sufficiently alleged that their proposed course of conduct is arguably proscribed by the DMCA. With regard to section 1201(a)(1)(A)'s circumvention prohibition, Dr. Green has alleged that he plans to circumvent TPMs for purposes of his academic research, Compl., ECF No. 1 ¶¶ 75-77, 80; and Mr. Huang and Alphamax have alleged that they plan to circumvent TPMs to create the NeTVCR, id. ¶¶ 93, 109. With regard to section 1201(a)(2)'s trafficking prohibition, Dr. Green has sufficiently alleged that he plans to include “detailed information regarding how to circumvent security systems” in a book about his research, id. ¶ 75, and he has indicated that the “detailed information” will include computer code. Decl. of Matthew Green in Supp. of Mot. for PI, ECF No. 16-2 ¶ 19 (“I am now writing an academic book . . . . I would like to include examples of code capable of bypassing security measures, for readers to learn from.”).[5] And Mr. Huang and Alphamax have alleged that they intend to disseminate “information about how to build NeTVCR, ” Compl., ECF No. 1 ¶ 110, which permits the reasonable inference that they will disseminate the technological know-how and computer code required to circumvent the TPMs that bar access to HDMI signals, see Rann, 154 F.Supp.2d at 64 (“In reviewing a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1), the court must accept all ...


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