Back in October, I wrote up the U.S. District Court for the District of Columbia’s decision in Medical Imaging & Technology Alliance v. Library of Congress, which effectively would have excluded important copyright policy matters conducted by the Library of Congress from judicial review. The district court purported to immunize the exemptions promulgated by the Library and the U.S. Copyright Office from the anti-circumvention measures of 17 U.S.C. § 1201 against both Administrative Procedure Act and constitutional separation-of-powers challenges.
On June 7, the DC Circuit Court of Appeals issued a surprising ruling vacating the district court’s decision. Judge Rao and Judge Edwards, over a dissent from Judge Childs, ruled that the triennial review indeed was subject to the APA and remanded to the district court for review of the exemption grant. In this post, I’ll try and tease apart how we got here and where things go from here.
What Is the Library of Congress, Again?
At the district court, the challengers tried to frame the Library’s conduct of the triennial review as either an exercise of rulemaking authority by Congress that violated separation of powers or a violation of the rulemaking provisions of the Administrative Procedure Act. The district court concluded that neither was true, dubiously (IMO) threading the needle of the Library’s constitutional and admin law statuses—here’s my gloss:
The Library of Congress is a chameleon that can escape judicial scrutiny as a non-hybrid legislative thingy that is inseparable from Congress for the purposes of the APA [which does not include “the Congress” in the definition of “agency”] and simultaneously escape separation-of-powers scrutiny by acting as a hybrid legislative-executive thingy for the purposes of the Constitution, and oh yeah, it’s the executive part of the hybrid thingy that’s doing the rulemaking for Constitutional purposes even though it’s the legislative whole of the non-hybrid thingy that’s doing the rulemaking for APA purposes.
🙃
The plaintiffs dropped the separation-of-powers arguments on appeal, nominally focusing the DC Circuit on the question of whether the triennial review was subject to the APA.1 But a brief detour back to the Library’s chameleonic constitutional and APA statuses is in order because it puts the DC Circuit’s holding in important context.
In particular, the government argued in briefing that the Library’s constitutional and APA statuses do not bear on each other. Among other things, the government contended that the APA’s definition of “agency” cannot be read to narrow the scope of entities constitutionally permitted to exercise executive power as agencies.
Of course Congress can’t modify the scope of the Constitution, but the government burns a strawman. The relevant argument is really the reverse: if the Library is acting as part of the executive branch for constitutional purposes by doing rulemaking, it shouldn’t simultaneously be able to claim that it is part of “Congress” for the purpose of the APA.
Now, Congress could have defined “Congress” (🤯) in the APA to have a broader scope than the lawmaking body itself. But it’s not obvious that Congress intended to do so. Indeed, a fairly straightforward reading of the APA’s exclusion of “Congress” is simply reflecting the drafters’ understanding that Congress ordinarily doesn’t do rulemaking (presumably because it would raise separation-of-powers problems). A deep dive on the APA’s legislative history is beyond the scope of this post, but from an early hearing on the bill, here’s Rep. Francis Walter explaining just that:
The definition of agency . . . is perfectly simple . . . . [T]here are excluded legislative, judicial, and territorial authorities. . . . In short, whoever has the authority to act with respect to the [rulemaking and adjudicative] matters later defined is an agency.
Administrative Procedure Act, Legislative History, 79th Cong. 354 (1944-46) (emphasis added)
The implication here is not that the APA’s drafters intended for a future Congress to delegate rulemaking authority to a weird congressional agency like the Library and thereby evade the APA. Rather, it’s that you can’t sue Congress over rulemaking because Congress doesn’t make rules.
The Admin Law of Copyright Law
Back to the DC Circuit: the majority initially sidesteps the Library’s problematic chameleonic status with the help of an unlikely ally—copyright law. The majority reasons that even if Congress didn’t subject the Library to the APA in the APA itself (by way of the “agency” definition), several provisions of copyright law separately subject the Copyright Office’s and the Librarian’s copyright rulemaking to the APA. In particular, the majority focuses on three key provisions of Title 17:
- 17 U.S.C. § 701(e), which subjects most “actions taken by the Register of Copyrights under . . . title [17]” to the APA;
- 17 U.S.C. § 702, which subjects all regulations established by the Register to “the approval of the Librarian of Congress;”
- 17 U.S.C. § 1201(a)(1)(C), which conferred authority for the triennial review to some combination of the Register and the Librarian (more on the combination in a minute)
Reading these provisions in conjunction, the court essentially concludes:
- Reading 1201(a)(1)(C) and 701(e) together means that the Copyright Office’s role in the triennial review must be subject to the APA.
- Because the Copyright Office’s actions are subject to review by the Librarian under 702, the Librarian’s role in the triennial review is likewise subject to the APA.
(In dicta, the court makes fairly clear that this same logic applies to any regulations developed by the Copyright Office under Title 17, all of which are subject to the Librarian’s approval under 702.)
Will the Library Wriggle Free?
The majority’s copyright-exceptionalist approach to judicial review of the Library’s rulemaking sought to sidestep the hard questions about the Library’s chameleonic constitutional and APA statuses. While the majority may have successfully evaded those questions for now, at least two of the counterarguments asserted by the government and the dissent now loom large.
Applying the APA From Outside the APA
First, the government pushes on a short (and IMO, rather cursory) run of DC Circuit precedent excluding the Library from the definition of “agency.” Here, I think the majority whiffed an opportunity to cabin that precedent simply by declaring that the Library really is an “agency” for the purpose of APA when it’s doing agency rulemaking rather than other library stuff. The majority could have squared that conclusion both with the legislative history of the APA and the line of cases that conceptually situates the Library and the Copyright Office in the executive branch for constitutional purposes.2
The majority nearly goes there, distinguishing the Library-is-not-an-“agency” cases because none of them involve Title 17. But the cases, which don’t involve copyright issues, also don’t involve rulemaking (or really any in-depth analysis of the APA’s application to the Library). The argument’s sitting right there! The majority devotes a whole section of analysis to spelling out why judicial review of government action is so important (even citing Marbury v. Madison (!) and long-running Congressional practice). Why rest on copyright exceptionalism?
This isn’t sour grapes that the majority didn’t pick up my pet theory (well, maybe a little); as the dissent points out, this distinction is potentially significant for purposes of the APA. This is because while Section 701(e) might well subject the Copyright Office to the APA, it is the APA itself that waives sovereign immunity for agencies. Of course, the counterargument here is that Section 701(e) incorporates the APA’s waiver by reference, and would be a nullity if you read it not to waive sovereign immunity for the Office (and by way of Section 702,3 the Library). But simply clarifying that the Library is an agency subject to the APA by the APA when it’s engaged in rulemaking would have obviated this issue entirely.
Who Really Conducts the Triennial Review?
The second major argument from the government is that however much Section 701(e) subjects the Copyright Office to the APA, Section 1201(a)(1)(C) formally charges the Librarian with issuing the regulations under the triennial review. The Register is charged under 1201(a)(1)(C) with merely issuing a “recommendation” in consultation with the head of the National Telecommunications and Information Administration. As former Copyright Office GC Sy Damle elaborated on LinkedIn:
[T]he rules are promulgated by the Librarian of Congress; the Register just makes recommendations. That was by design, to give someone other than the Register the authority to adopt exemptions. And having been on the inside the Library most certainly does not see its role as merely approving regulations formulated by the Register, as the majority suggests. Indeed, I think the opinion is unfortunate in how it minimizes the Librarian’s role. . . .
In theory, I think there’s something to this argument, which the dissent makes a big deal about. For one, it’s at least nominally what 1201(a)(1)(C) actually calls for. For another, the majority’s invocation of Section 701(e), which plainly subjects the Copyright Office to the APA, doesn’t give a fully satisfactory explanation for why Congress didn’t include the Library too. And these might well be persuasive arguments if the Library really were running the rulemaking and the Register’s role were simply to issue a modest recommendation.
But even in theory, the contrary result can’t account for what it means for the Register’s actions in the triennial review to be subject to the APA (as 701(e) mandates) even if the Library is not. Moreover, crediting the Library with running the rulemaking while reducing the Register’s role to merely issuing a recommendation is exceptionally hard to square with the reality of the triennial review in practice. While the text of Section 1201 nominally charges the Library with leading the rulemaking (and the Library also may play some important behind-the-scenes role), the public receipts of the triennial reviews show the Register overwhelmingly running the rulemaking and the Library usually doing little more than rubber stamping the Register’s recommendation. For example:4
- The Copyright Office has organized the complex rulemaking on its own website for all nine triennial reviews (2000, 2003, 2006, 2010, 2012, 2015, 2018, 2021, 2024).
- The Federal Register notice kicking off every rulemaking has been issued in the name of the Copyright Office (2000, 2003, 2006, 2010, 2012, 2015, 2018, 2021, 2024).
- The Register of Copyrights and Copyright Office staff variously have conducted the hearings during the rulemaking, seldom (if ever) formally joined by the Librarian or Library staff (e.g., 2000, 2003, 2006, 2009, 2012, 2015, 2018, 2021, 2024).
- In recent years, the Copyright Office exclusively has sent and fielded publicly available correspondence regarding the triennial review to and from other agencies (2015, 2018, 2021, 2024).
- In recent years, the Copyright Office exclusively has conducted publicly logged ex parte meetings with rulemaking participants (2018, 2021).
- Following the 2000 review (in which the Register’s recommendations were consolidated with the Librarian’s final ruling), the Register’s recommendations in the triennial review have been extensive, often swelling into hundreds of pages of analysis (2003—198 pages, 2006—88 pages, 2010—262 pages, 2012—169 pages, 2015—407 pages, 2018—342 pages, 2021—356 pages).
- By contrast, the Librarian’s primary public involvement in the rulemaking typically has been a cursory final rule in the Federal Register adopting the Register’s recommendation and rule language with a single boilerplate paragraph of analysis (2000, 2003, 2006, 2012, 2015, 2018, 2021).
- The lone exception I’m aware of was the final rule in 2010, where Librarian James Billington devoted an additional several paragraphs to override the Register’s recommendation to deny the renewal of an exemption for e-book accessibility, which I discussed in my testimony to the Senate IP Subcommittee (fn. 8).
None of this is to speculate on what role, if any, the Library might play behind the scenes in shaping the Register’s recommendation (or to suggest that the Library couldn’t play a bigger public role, which Section 1201 plainly contemplates). And maybe, to the dissent’s point, we would be in a different place if the Librarian routinely rejected the Register’s recommendations (Freudian slip—the dissent calls them “the Registrar’s [sic] regulations [sic]”) or performed independent analysis. But focusing strictly on the public record, there’s just not much evidence of the Library’s participation, and at least on that basis, arguing that the Librarian runs the triennial review is akin to arguing that a giant ice cream sundae only has ten calories because the thing that really makes it a sundae is the little maraschino cherry on top.
What Now?
As Sy Damle alludes, I think there’s a decent possibility of the government will pursue en banc review by the full DC Circuit. A cert petition to the Supreme Court could also happen. It’s too soon to speculate on where all that might go, though, so for now, it’s worth dwelling on the significance of the holding.
Presuming it stands, I think the practical impact of this holding will be pretty small on the medical-device exception case. Remember that all the DC Circuit’s ruling does is tell the district court to proceed with the challengers’ APA argument. But arbitrary-and-capricious review is a notoriously high bar, Section 1201’s factor-based test gives the Library/Office a lot of discretion, and participants in the triennial review know that the Office’s scrutiny of exemptions is notoriously searching and strict. For obvious reasons, there have been very few of these challenges in the past, so it’s a little hard to predict how things will go. But a quick scan of the plaintiffs’ arguments look like they are more or less just trying to relitigate various arguments from the weeds of the triennial review, which seems like a long shot.
More broadly, I’m not sure that the availability of APA review is likely to give rise to a lot of new challenges to the triennial review, either from proponents or opponents. Litigation is time-consuming and expensive—in terms of resources for proponents (many of whom rely on pro bono support from clinics) and in terms of political capital for opponents (typically rightsholders who need to maintain favorable relations with the Office). If the (relatively low) risk of litigation cuts in both directions for the Office, I’d also be surprised if this holding led the Office to loosen or tighten the screws in its consideration of exemptions.
Nevertheless, it’s hard to defend the government’s stance that agency action shouldn’t be subject to judicial review at all, even though this particular challenge is very weak. Moreover, while the prospect of review might not significantly alter the course of future reviews, I would be far more worried about what might happen if the district court’s opinion were to stand and the Office and Library could conduct the triennial review (or other rulemaking) under an affirmative ruling that they were totally unconstrained by the APA.
While I wish the majority had taken a slightly different and more robust path, I think it reached the right result with a reasonably defensible approach. All in all, I give this holding a sound “concurrence in the judgment.”
- The appellants also pressed the argument that the Library’s grant of the exemption was ultra vires, which the DC Circuit did not address in light of the APA holding . ↩︎
- The government’s brief argues against this, calling it a “chameleon approach to defining an agency.” 😳 Irony alert! The cases the government cites suggesting that this isn’t allowed are all well and good, but I’m not sure that any of them address the exceptional circumstance here, where copyright law has delegated to the Library of Congress a rulemaking function the APA at least arguably contemplated as structurally outside the remit of Congress. Another possibility is that courts could more broadly reconsider the contestable decision to exclude the Library from the definition of “agency” in non-rulemaking contexts, but I digress. ↩︎
- Here, I mean Section 702 of Title 17 (which subjects the Copyright Office’s regs to the Librarian’s approval), not Section 702 of Title 5 (the provision of the APA that waives sovereign immunity). ↩︎
- I did my best to compile these carefully but can’t warranty there aren’t any broken or incorrect links in here—please holler if you find a bug. ↩︎