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 ...