Med. Imaging & Tech. All. v. Library of Cong.
| Decision Date | 07 March 2023 |
| Docket Number | Civil Action 22-499 (BAH) |
| Parties | MEDICAL IMAGING & TECHNOLOGY ALLIANCE, et al., Plaintiffs, v. LIBRARY OF CONGRESS, et al. Defendants. |
| Court | U.S. District Court — District of Columbia |
Nearly twenty-five years ago, Congress passed the Digital Millennium Copyright Act of 1998 (“DMCA”), 17 U.S.C. § 1201 et seq., to address the risks that the internet and new digital technology posed to copyrighted works. At the same time, Congress also recognized that changing marketplace realities and ever-evolving digital technologies might make some of the DMCA's tools to combat digital piracy harmful to innovation and non-infringing uses of copyrighted materials. To provide flexibility in accommodating those varied policy interests, Congress authorized the Librarian of Congress (“Librarian”) to promulgate exceptions every three years to certain statutory proscriptions including the DMCA's prohibition on circumvention of technological protection measures used by copyright owners to prevent access to their copyrighted works (“TPMs”). This authority is at issue in this case.
On October 28, 2021, pursuant to her triennial rulemaking authority under the DMCA, the Librarian adopted a final rule effective the same date, that exempts parties accessing copyrighted software for the purpose of diagnosis maintenance, and repair of medical devices from the statute's proscription barring the circumvention of TPMs. Final Rule, Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 86 Fed.Reg. 59,627, 59,628 (Oct. 28, 2021) (“Exemption”), codified at 37 C.F.R. § 201.40. Four months after the Final Rule went into effect, plaintiffs-the Medical Imaging & Technology Alliance and the Advanced Medical technology Association, which are membership-based trade associations for manufacturers of medical imaging equipment manufacturers, see Compl. ¶¶ 16-17, ECF No. 1- initiated this lawsuit against defendants, the Library of Congress (“Library”) and the Librarian to challenge the Exemption. Specifically, plaintiffs seek to have the Exemption for repair of medical devices set aside and declared to be unlawful and void, and any enforcement by defendants enjoined, pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., the Declaratory Judgment Act, 28 U.S.C. § 2201, and this Court's inherent equitable powers. Id. ¶ 24, Prayer for Relief.[1]
Now pending are the parties cross-motions for summary judgment. See Pls.' Mot. Summ. J. ( ), ECF No. 10; Defs.' Cross-Mot. Dismiss, ECF No. 16; Defs.' Mem. Supp. Cross-Mot. Dismiss ( ), ECF No. 16-1. For the reasons explained below, defendants' motion to dismiss is granted, and plaintiffs' motion for summary judgment is denied.
The relevant statutory and regulatory scheme is described below, followed by a summary of the factual and procedural background to this case.
The Copyright Act of 1976, 17 U.S.C. § 101 et seq., proscribes the unauthorized reproduction of “original works of authorship fixed in any tangible medium of expression.” Id. § 102(a). “Works of authorship” covered by the Copyright Act include “literary work[s],” which themselves include “computer program[s].” Id. §§ 101, 102(a)(1), 109(b)(1)(A). While the purpose of the Copyright Act is “to encourage the production of works” that, without copyright protection, could be “reproduce[d] more cheaply” by others, this protection is intended to encourage the production of new creative works, not “stand in the way of others exercising their own creative powers.” Google LLC v. Oracle America, 141 S.Ct. 1183, 1195 (2021). To this end, the Copyright Act codifies the fair use doctrine, which limits copyright protections as necessary to encourage “criticism, comment, news reporting, teaching . . . scholarship, [and] research.” 17 U.S.C. § 107.
Anticipating the changing digital landscape, Congress passed the DMCA in 1998 to facilitate electronic commerce, communications, development, and education while simultaneously addressing the threats that the internet and new digital technology posed to copyrighted works. S. Rep. No. 105-190, at 1-2 (1998); see also Egilman v. Keller & Heckman, LLP, 401 F.Supp.2d 105, 112 (D.D.C. 2005) (quoting Universal City Studios, Inc. v. Corley, 273 F.3d 429, 435 (2d Cir. 2001)) (“Congress enacted the DMCA in 1998 ‘to strengthen copyright protection in the digital age.'”). Observing 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 8, the Senate Committee Report on the DMCA explained that “the law must adapt in order to make digital networks safe places to disseminate and exploit copyrighted materials.” Id. at 2. The DMCA accordingly “create[d] the legal platform for launching the global digital on-line marketplace for copyrighted works.” Id. at 8.
To combat digital privacy, the DMCA prohibits, inter alia, “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) (“the anti-circumvention provision”). As defined in the anti-circumvention provision, 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). Exceptions to the anti-circumvention provision are provided to allow circumvention of a TPM (or another form of access control to a copyrighted work) 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 in security testing of a computer, computer system, or computer network. See 17 U.S.C. § 1201(d)-(j).
In addition to these statutory exceptions, the DMCA directs the Librarian to determine, through triennial rulemaking proceedings, any categories of copyrighted materials that should be exempted from the anti-circumvention provision for the next three-year period because the restriction adversely prevents users of copyrighted works from making noninfringing use of copyrighted material. See id. § 1201(a)(1)(C). As explained in the House Committee Report on the DMCA, Congress was concerned that evolving “marketplace realities” might make access to copyrighted materials unjustifiably difficult, so the triennial rulemaking requirement created a “‘fail-safe' mechanism” that allowed the Library to “monitor developments in the marketplace for copyrighted materials,” and “selectively waive[]” the anti-circumvention provision for a particular category of materials for “limited time periods, [as] necessary to prevent a diminution in the availability to individual users of [that] particular category of copyrighted materials.” H.R. Rep. No. 105-551(II), at 36 (1998).
When engaging in the statutorily authorized triennial rulemaking authority, the Librarian must comply with several requirements. First, the DMCA obligates the Librarian to make her rulemaking determinations “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.” 17 U.S.C. § 1201(a)(1)(C). Second, the DMCA provides that exemptions to the anticircumvention rule are authorized only if users are “adversely affected by” the rule “in their ability to make noninfringing uses.” Id. In making this assessment during rulemaking, the Librarian must examine the following enumerated factors: “(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. The Librarian must also “assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1).” Exemption, 86 Fed.Reg. 59,627, 59,628.
The Librarian is the final decisionmaker, but the Register is tasked with conducting the rulemaking process and making recommendations on exemptions to the Librarian. The House Committee Report explains 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. “To aid in this process, the Register develops a comprehensive administrative record using information submitted by interested members of the public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record.” 86 Fed.Reg. at 59,628. Proponents seeking an exception must demonstrate “(1) that uses affected by the prohibition on...
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