Medical Imaging & Technology Alliance and Advanced Medical Technology Association v. Library of Congress and Carla Hayden, in Her Official Capacity As Librarian of Congress

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2023 Decided June 7, 2024
No. 23-5067
MEDICAL IMAGING & TECHNOLOGY ALLIANCE AND
ADVANCED MEDICAL TECHNOLOGY ASSOCIATION,
APPELLANTS
v.
LIBRARY OF CONGRESS AND CARLA HAYDEN, IN HER OFFICIAL
CAPACITY AS LIBRARIAN OF CONGRESS,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:22-cv-00499)
Michael B. Kimberly argued the cause for appellants. With
him on the briefs were Peter Tolsdorf and Alex C. Boota.
Michael Pepson and Ryan P. Mulvey were on the brief for
amicus curiae Americans for Prosperity Foundation in support
of appellants.
Michael A. Tilghman II, Cory L. Andrews, John M.
Masslon II, David Y. Chung, and Elizabeth B. Dawson were on
the brief for amici curiae the National Association of

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Manufacturers and Washington Legal Foundation in support of
appellants.
Laura E. Myron, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were Brian
M. Boynton, Principal Deputy Assistant Attorney General, and
Daniel Tenny, Attorney.
Before: RAO and CHILDS, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Dissenting opinion filed by Circuit Judge CHILDS.
RAO, Circuit Judge: This case raises the question of
whether copyright rules promulgated under the Digital
Millennium Copyright Act (“DMCA”) are reviewable under
the Administrative Procedure Act (“APA”). The DMCA
prohibits the circumvention of technological barriers that
restrict access to digital copyrighted works. The Librarian of
Congress promulgated an exemption to that anti-circumvention
provision, allowing some access to the software of advanced
medical devices. Trade associations representing medical
device manufacturers sued, claiming the exemption violated
the APA. The district court held the APA claims were barred
by sovereign immunity because the Library of Congress is part
of “the Congress” and therefore not an “agency” within the
meaning of the APA’s judicial review provision.
Irrespective of whether the Library is an “agency,”
however, Congress has specified that copyright regulations
under Title 17 of the U.S. Code are subject to the APA. The
Copyright Act of 1976 provides that “all actions” of the
Register of Copyrights under Title 17—which includes rules

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that must be approved by the Librarian—are governed by the
APA. See 17 U.S.C. §§ 701(e), 702. And the DMCA authorizes
the Register and Librarian to promulgate a new category of
rules under Title 17. Reading the two statutes together, we
conclude that DMCA rules are subject to the APA just like
other copyright rules. The APA therefore provides the
necessary waiver of sovereign immunity for this suit.
This interpretation treats Congress’s scheme of copyright
regulation as a coherent whole and accords with background
principles for judicial review of administrative action.
Accordingly, we reverse and remand for the district court to
assess the APA claims in the first instance.
I.
A.
Although best known as the Nation’s library, the Library
of Congress quietly exercises significant regulatory authority
over copyrights. The Library houses the U.S. Copyright Office,
which is headed by the Register of Copyrights. The Copyright
Act of 1976 conferred broad authority on the Register to make
copyright rules and reorganized Title 17 of the U.S. Code. See
Pub. L. No. 94-553, 90 Stat. 2541 (codified at 17 U.S.C. §§ 101
et seq.). The Act specified that the Register acts under the
direction and supervision of the Librarian, 17 U.S.C. § 701(a),
and that “[a]ll regulations established by the Register under
[Title 17] are subject to the approval of the Librarian of
Congress,” id. § 702. As we have recognized, the Librarian is
a “Head of Department” within the Executive Branch.
Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684
F.3d 1332, 1342 (D.C. Cir. 2012).
At issue in this case is a rule promulgated under the Digital
Millennium Copyright Act. See Pub. L. No. 105-304, 112 Stat.

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2860 (1998) (codified at 17 U.S.C. §§ 1201 et seq.). The
DMCA implemented two international treaties by providing
additional protections for digital copyrighted works. Digital
media had been eligible for copyright protection before the
DMCA, but advances in technology and the rise of the internet
facilitated piracy and unlawful reproduction on an
unprecedented scale. See Green v. U.S. Dep’t of Just., 54 F.4th
738, 741 (D.C. Cir. 2022). Although owners of digital
copyrights could protect their creations through technological
protective measures like passwords or encryption, these
barriers could be circumvented by new technologies and
devices. To address these problems, one of the treaties directed
signatories to “provide adequate legal protection … against the
circumvention of effective technological measures that are
used by authors” to protect their works. World Intellectual
Property Organization Copyright Treaty art. 11, Dec. 20, 1996,
2186 U.N.T.S. 121, 155.
To implement that directive, the DMCA created a private
right of action against anyone who “circumvent[s] a
technological measure that effectively controls access to a
work protected under” federal copyright law. 17 U.S.C.
§§ 1201(a)(1)(A), 1203(a). Congress also authorized criminal
penalties for violations of section 1201 done “willfully and for
purposes of commercial advantage or private financial gain.”
Id. § 1204. In effect, this anti-circumvention provision backed
private technological protective measures with the force of
federal law. Such protective measures, however, can also
frustrate third parties from making “fair use” of copyrighted
material, depriving society of innovations and other beneficial
noninfringing uses. See Green, 54 F.4th at 742. To mitigate the
potential adverse effects of the anti-circumvention provision,
Congress authorized the Librarian to identify “class[es] of
copyrighted works” to which the anti-circumvention provision
“shall not apply.” 17 U.S.C. § 1201(a)(1)(D). The Librarian

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grants these exemptions in a rulemaking proceeding every
three years. Id. § 1201(a)(1)(C).
Triennial DMCA rulemaking proceeds as follows. First,
the Register makes a “recommendation” to the Librarian about
whether the “users of a copyrighted work are, or are likely to
be[,] … adversely affected” by the anti-circumvention
provision “in their ability to make noninfringing uses … of a
particular class of copyrighted works.” Id. The Register must
determine whether certain proposed uses “are or are likely to
be noninfringing” under the Copyright Act and whether “the
prohibition is causing, or … is likely to cause, an adverse
impact on those uses.” See Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access
Control Technologies, 86 Fed. Reg. 59627, 59628 (Oct. 28,
2021). The Register’s adverse impact determination turns on
five factors: the extent to which the copyrighted works are
available for use; the availability of the works for certain
nonprofit purposes; the impact of the anti-circumvention
provision on paradigmatic fair uses; the effect of circumvention
on the market for the copyrighted works; and additional
“appropriate” considerations. See 17 U.S.C.
§ 1201(a)(1)(C)(i)–(v).
After assessing the Register’s recommendation and the
requisite statutory factors, the Librarian determines whether the
anti-circumvention provision should be waived for a specific
class of copyrighted works. Id. § 1201(a)(1)(C). Although the
DMCA entrusts the Librarian with the ultimate decision, as a
practical matter, the Register performs most of the rulemaking
functions.
B.
This suit was brought by two trade associations: the
Medical Imaging & Technology Alliance and the Advanced

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Medical Technology Association. They represent
manufacturers of advanced medical devices such as surgery
assisting robots, CT scanners, and MRI machines. The
manufacturers develop custom software for their devices and
use technological protective measures to shield their
copyrighted computer programs from unwanted access.
When the devices break down, however, the technological
protections may restrict users such as hospitals and health care
providers from employing their own servicemen to
troubleshoot and fix the devices. Instead, users must rely on the
device manufacturers’ technicians for diagnostics, repairs, and
maintenance. Some manufacturers provide limited software
access to independent service operators so they can perform
repairs. But in general, medical device manufacturers have
resisted allowing third-party servicers to access their software.
In 2020, two independent service operators petitioned the
Copyright Office for an exemption from the DMCA’s anti-
circumvention provision. They claimed the manufacturers’
technological protections were blocking access to “error logs,
configuration files, and other unprotected works” in addition to
the copyrighted software. This prevented the independent
service operators from performing diagnosis, maintenance, and
repairs on medical devices, functions that were particularly
critical during the COVID-19 pandemic. The independent
operators also alleged that the device manufacturers were using
their technological protective measures to monopolize the
maintenance services market and force hospitals to pay more
for licensed repairmen. The independent operators insisted
their repair services were “fair use[s]” and that they should be
able to lawfully access the manufacturers’ software and other
data files.

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The Register solicited comments on an exemption that
would allow independent service operators to bypass
technological protective measures on medical devices for the
purpose of diagnosis, modification, or repair. Exemptions to
Permit Circumvention of Access Controls on Copyrighted
Works, 85 Fed. Reg. 65293, 65307 (Oct. 15, 2020). The trade
associations opposed the proposed exemption, arguing the
independent service operators sought access to the device
manufacturers’ software for purely commercial purposes,
which were not fair use. Nevertheless, in a report submitted to
the Librarian, the Register recommended granting the
exemption. She first concluded the independent service
operators’ maintenance and repair services were noninfringing
“fair uses” of the copyrighted software under the relevant
statutory factors. Next, the Register found the exemption was
justified because, under the five DMCA factors in 17 U.S.C.
§ 1201(a)(1)(C), the anti-circumvention provision was causing
or was likely to cause “an adverse impact on the noninfringing
diagnosis, repair, and maintenance of medical devices and
systems.”
In the final triennial rule, the Librarian incorporated the
Register’s recommendation and granted the exemption, which
permits the circumvention of technological protective
measures on “[c]omputer programs that are contained in and
control the functioning of a lawfully acquired medical device
or system, and related data files, when circumvention is a
necessary step to allow the diagnosis, maintenance, or repair of
such a device or system.” 37 C.F.R. § 201.40(b)(15).
C.
The trade associations sued the Library and the Librarian,
seeking declaratory and injunctive relief. They claimed the
Librarian violated the APA by granting the exemption, the

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Librarian acted ultra vires, and the Librarian’s exercise of
rulemaking power was unconstitutional because it was either a
legislative decision rendered without bicameralism and
presentment or an executive rulemaking performed by a
congressional officer.
The district court granted the Library’s motion to dismiss,
rejecting each of the trade associations’ claims. Med. Imaging
& Tech. All. v. Libr. of Cong., No. CV 22-499, 2023 WL
2387760, at *8–9 (D.D.C. Mar. 7, 2023). First, the court held
the APA claims were barred by sovereign immunity. Id. at *9.
The district court concluded that although the APA waives
sovereign immunity for non-monetary claims against federal
agencies, “the Congress” is exempt from the APA’s definition
of “agency,” and “[t]he Library of Congress is indisputably part
of Congress.” Id. (cleaned up). The district court relied in part
on earlier decisions of this court that concluded the Library was
part of “the Congress” and therefore not subject to APA
review. Id. at *10 (citing Clark v. Libr. of Cong., 750 F.2d 89,
102–03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of Cong. v.
Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985); Wash.
Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446, 1449 (D.C.
Cir. 1994)).
Second, the district court rejected the trade associations’
ultra vires claim because the Librarian did not “plainly act[] in
excess of her delegated powers and contrary to a specific
prohibition in the statute that is clear and mandatory.” Id. at
*13 (cleaned up). And finally, the court held the DMCA
rulemaking did not run afoul of the separation of powers. Id. at
*14.
The trade associations abandon their constitutional
arguments on appeal, but they maintain that DMCA rules are
reviewable under the APA because the Library is an “agency”

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insofar as it engages in executive rulemaking functions. In the
alternative, the trade associations contend the Librarian acted
ultra vires. We consider these legal issues and the district
court’s grant of the motion to dismiss de novo. See Kim v.
United States, 632 F.3d 713, 715 (D.C. Cir. 2011).
II.
The threshold question is whether the challenged DMCA
rule is reviewable under the APA. We conclude that it is. The
APA provides that “[a]gency action made reviewable by
statute” is “subject to judicial review.” 5 U.S.C. § 704. In the
Copyright Act of 1976, Congress specified that actions under
Title 17 are governed by the APA. See 17 U.S.C. § 701(e).
DMCA rules are promulgated under Title 17. See id.
§ 1201(a)(1)(C)–(D). It follows that the trade associations may
challenge the triennial rule because the APA provides the cause
of action for this suit and the necessary waiver of sovereign
immunity.
A.
The parties and the district court analyzed the question of
reviewability by focusing on whether the Library was part of
Congress. The APA provides a cause of action and a waiver of
sovereign immunity for non-monetary claims against an
“agency” or “an officer … thereof,” 5 U.S.C. § 702, but the
APA carves out “the Congress” from the definition of
“agency,” id. § 701(b)(1)(A). Because the Library believes it is
a component of “the Congress,” it maintains it is not an
“agency,” and thus the APA’s cause of action and waiver of
sovereign immunity do not apply to this suit.
This framing, however, fails to account for the fact that
Congress can provide for APA review of the DMCA
regulations by statute, regardless of whether the Library is an

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“agency.” The APA provides a general framework for review
of agency action, but Congress may, and often does, apply this
framework to other government actions. For instance, the
Sentencing Reform Act of 1984 explicitly extended provisions
of the APA to the U.S. Sentencing Commission, even though
the Commission was arguably not an APA “agency.”1 See
Wash. Legal Found., 17 F.3d at 1449–50.
In the Copyright Act, Congress provided that copyright
regulations are reviewable under the APA. The Act expanded
the Register’s rulemaking authority and provided that, with one
exception not relevant here, “all actions taken by the Register
of Copyrights under [Title 17] are subject to the provisions of
the Administrative Procedure Act.” 17 U.S.C. § 701(e). We
have previously reviewed actions of the Register based on this
provision. See, e.g., Atari Games Corp. v. Oman, 888 F.2d 878,
879 & n.1 (D.C. Cir. 1989); Universal City Studios LLLP v.
Peters, 402 F.3d 1238, 1242 (D.C. Cir. 2005). Although section
701(e) refers to actions of the Register, the Register is
subordinate to the Librarian and “shall act under the Librarian’s
… direction and supervision.” 17 U.S.C. § 701(a). More
specifically, “[a]ll regulations established by the Register under
[Title 17] are subject to the approval of the Librarian of
Congress.” Id. § 702. In short, Congress provided that the
Register may establish copyright regulations, with the approval
of the Librarian, and that such regulations are subject to the
APA and are judicially reviewable.
1 Similarly, Congress may withdraw agency action from APA review
that would otherwise be subject to it. See, e.g., Fed. Express Corp. v.
U.S. Dep’t of Com., 39 F.4th 756, 763 (D.C. Cir. 2022) (recognizing
Congress had exempted certain functions of the Department of
Commerce from the APA’s judicial review provisions).

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Congress conferred authority for the triennial rules at issue
here in the DMCA, which added the following provision to
Title 17: “[T]he Librarian of Congress, upon the
recommendation of the Register of Copyrights, … shall make
the determination in a rulemaking proceeding” whether to
waive the anti-circumvention provision for certain classes of
copyrighted works. Id. § 1201(a)(1)(C). In other words, the
DMCA authorized a new type of copyright regulation that
would be formulated by the Register and approved by the
Librarian.
Reading the two statutes as a comprehensive statutory
scheme, DMCA rules are also subject to the APA under 17
U.S.C. § 701(e). The Copyright Act plainly applies the APA to
“all actions” of the Register under Title 17, including
rulemaking subject to the approval of the Librarian. See id.
§§ 701(e), 702. DMCA rules are also actions of the Register
under Title 17 that, like the Register’s other regulations, require
the approval of the Librarian.
Because the DMCA and the Copyright Act address the
rulemaking authority of the Register and Librarian, the two
statutes are in pari materia and should be construed “as if they
were one law.” United States v. Freeman, 44 U.S. (3 How.)
556, 564 (1845). “[I]t is … the most rudimentary rule of
statutory construction … that courts do not interpret statutes in
isolation, but in the context of the corpus juris of which they
are a part, including later-enacted statutes.” Branch v. Smith,
538 U.S. 254, 281 (2003) (plurality opinion). The DMCA
establishes new rulemaking authority within Title 17,

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supplementing the regulatory scheme established by the
Copyright Act.2
Although the Copyright Act emphasizes the Register’s
role in rulemaking and the DMCA focuses on the Librarian’s,
the assignment of regulatory authority is identical. The DMCA
gives rulemaking authority to the Librarian, who explicitly acts
upon the recommendation of the Register. 17 U.S.C.
§ 1201(a)(1)(C). This parallels the Copyright Act, which
requires the Librarian to approve all copyright regulations
developed by the Register. See id. § 702. Both statutes require
the Register to initiate or propose copyright rules and the
Librarian to approve them.3 Thus, although the DMCA is silent
with respect to judicial review, the review provision of the
Copyright Act, codified at 17 U.S.C. § 701(e), applies with
equal force to DMCA rules.
Because triennial DMCA rules are subject to the APA,
sovereign immunity poses no barrier to the trade associations’
suit. Waivers of the United States’ sovereign immunity must
be “unequivocally expressed.” United States v. Nordic Vill.
2 The in pari materia canon reflects the basic principle that courts
should read related bodies of law as a consistent and coherent whole.
The canon has been invoked in a variety of contexts, including when
a later statute amends a prior enactment or when different provisions
of a statutory scheme address a similar topic. See, e.g., United States
v. Jenkins, 50 F.4th 1185, 1207 (D.C. Cir. 2022) (explaining that an
act amending a prior statute “should be read in pari materia” with
the section it amended); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556
U.S. 635, 638 (2009) (interpreting two subsections within the same
statutory section in pari materia).
3 As a practical matter, the Library explains the triennial rules are
developed like other copyright regulations with the Register
conducting “most aspects of the rulemaking” and the Librarian
providing the final approval.

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Inc., 503 U.S. 30, 33 (1992) (cleaned up). But there is no
dispute that the APA unambiguously waives sovereign
immunity for non-monetary claims. 5 U.S.C. § 702. It is true
that, by its terms, the APA’s waiver of sovereign immunity
applies to “agenc[ies]” and the “officer[s] … thereof.” Id. But
regardless of whether the Library is an “agency” under the
APA, Congress has plainly applied the APA’s waiver of
sovereign immunity to the actions of the Register and Librarian
at issue here. Sections 701(e) and 702 of Title 17 expressly
bring copyright rules promulgated by the Register and
approved by the Librarian within the ambit of the APA. DMCA
rules are promulgated by the Register and approved by the
Librarian, and thus the APA’s waiver of sovereign immunity
applies to the trade associations’ suit against the Library and
Librarian.
B.
Recognizing that the APA applies to the triennial rules is
the most coherent interpretation of the scheme of copyright
regulation established by Congress in the Copyright Act and
the DMCA. Moreover, this interpretation comports with
longstanding background principles of judicial review.
When Congress authorizes agencies to regulate or to
administer the law subject to specific legal requirements, such
executive action is ordinarily subject to judicial review. See
Abbott Laboratories v. Gardner, 387 U.S. 136, 140 (1967).
“[T]he power of … agencies is circumscribed by the authority
granted,” and courts have the responsibility to determine
whether “individual rights” have been infringed “by the
exertion of unauthorized administrative power.” Stark v.
Wickard, 321 U.S. 288, 309–10 (1944). Agencies must operate
within the legal authority conferred by Congress, and when

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those limits are transgressed, an individual may seek recourse
in the Article III courts.
This tradition of judicial review follows from the
Constitution’s structure of separated powers and long predates
the APA. As Chief Justice Marshall recognized, “[t]he very
essence of civil liberty … consists in the right of every
individual to claim the protection of the laws.” Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163 (1803). He later wrote
that “in a government of laws and of principle,” when an
official takes an action against private rights, the affected
individual should generally have an “appeal to the laws of his
country.” United States v. Nourse, 34 U.S. (9 Pet.) 8, 28–29
(1835). In the words of one leading scholar: “[T]here is in our
society a profound, tradition-taught reliance on the courts as
the ultimate guardian and assurance of the limits set upon
executive power by the constitutions and legislatures.” LOUIS
L. JAFFE, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION 321
(1965). After all, “[a]n agency is not an island entire of itself.
… The very subordination of the agency to judicial jurisdiction
is intended to proclaim the premise that each agency is to be
brought into harmony with the totality of the law.” Id. at 327.
Congress’s “historic practice” of providing for judicial
review of administrative action reflects the importance of an
independent check on the exercise of executive power. Bowen
v. Mich. Acad. of Fam. Physicians, 476 U.S. 667, 670–73
(1986). Of course, Congress may, subject to constitutional
limitations, withhold judicial review. Id. at 672–73; cf. Patchak
v. Zinke, 138 S. Ct. 897, 906 (2018) (recognizing Congress’s
power to “strip[] federal jurisdiction over a class of cases”). But
absent such a legislative decision, courts have the power and
the duty to review agency action for conformity with the law.

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Reading section 701(e) to provide for judicial review of
triennial DMCA rules aligns with fundamental principles
regarding the protection of individual rights against unlawful
government action. To begin with, the Copyright Act and the
DMCA give the Register and Librarian significant authority to
“promulgate copyright regulations” and “apply the statute to
affected parties.” See Intercollegiate Broad., 684 F.3d at 1342.
As we have recognized, and no party disputes, these powers are
“generally associated in modern times with executive
agencies.” Id. When enacting regulations and enforcing the
law, “the Library is undoubtedly a component of the Executive
Branch.” Id. (cleaned up). Moreover, the triennial rules directly
affect valuable property rights, such as a copyright holder’s
ability to limit access to a digital creation and to prevent
intellectual property theft. The triennial rules also provide
exemptions from civil and criminal liability that would
otherwise attach to individuals who circumvent technological
protective measures. 17 U.S.C. §§ 1201(a)(1)(B), 1203–04.
The exemptions are not left solely to the Librarian’s discretion,
but instead must be determined according to specific statutory
criteria. Id. § 1201(a)(1)(C). There is no indication in the
DMCA that Congress, having allocated this substantial
regulatory power to the Librarian and Register and identified
the legal criteria they must apply, would leave such power
unchecked by judicial review.
These background principles about the role of judicial
review accord with our interpretation of the Copyright Act and
the DMCA that the triennial rules, like other copyright
regulations, are subject to the APA and are judicially
reviewable.

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C.
The Library raises a series of arguments for why judicial
review is barred, but none addresses the essential connection
between the Copyright Act and the DMCA. Nor does the
Library seriously grapple with 17 U.S.C. § 701(e), which
subjects all actions of the Register, including rules approved by
the Librarian, to the APA.
First and foremost, the Library insists it is a component of
“the Congress” and therefore not an “agency” for purposes of
the APA’s waiver of sovereign immunity. But the precedents
on which the Library relies considered only whether the APA
was applicable by its own terms. See Clark, 750 F.2d at 102;
Ethnic Emps., 751 F.2d at 1416 n.15; Wash. Legal Found., 17
F.3d at 1449. None of these cases involved an action of the
Register or Librarian under Title 17, and so there was no reason
to consider the application of section 701(e). In Clark, for
instance, a plaintiff brought constitutional and employment
discrimination claims against the Library, alleging that the
Library improperly investigated and refused to hire him
because of his political beliefs and associations. See 750 F.2d
at 92. In that context, we explained the APA’s waiver of
sovereign immunity did not apply to the Library because it was
not an APA “agency.” Id. at 102. In Ethnic Employees, we
similarly found that an employee organization could not assert
an APA claim against the Library because the Library “is not
an agency under the [APA].” 751 F.2d at 1407, 1416 n.15. And
Washington Legal Foundation merely summarizes the holding
of Ethnic Employees in dictum. See 17 F.3d at 1449.
Even if these cases generally classify the Library as a
component of “the Congress” under the APA, Congress may

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still apply the APA to particular actions of the Librarian and
Register by statute.4 It did precisely that in 17 U.S.C. § 701(e).5
Second, the Library relies upon the fact that the Librarian
has been authorized to “make rules and regulations for the
government of the Library” for over a century, yet she has
never followed the APA’s procedures when making such rules.
Act of Feb. 19, 1897, ch. 265, 29 Stat. 538, 544 (now codified
at 2 U.S.C. § 136). The cited rulemaking authority, however,
pertains only to the internal management of the Library, and
such rules are generally exempt from the APA’s procedural
requirements for informal rulemaking. See 5 U.S.C.
§ 553(a)(2). Thus, the Librarian’s alleged disregard of the APA
for such rules tells us nothing about the applicability of the
APA to copyright regulations promulgated under Title 17. In
any event, we conclude only that triennial DMCA rules are
subject to the APA under section 701(e); we have no occasion
to consider whether the APA applies to the Librarian’s other
statutory responsibilities.
Third, the Library raises a series of statutory arguments for
why the APA’s waiver of sovereign immunity does not allow
for a suit challenging the triennial rules. The Library maintains
that applying the APA to the Library and its officers would
4 Furthermore, we have recently recognized the important executive
power exercised by the Library, suggesting that whatever the
Library’s historical association with Congress, it is squarely a
component of the Executive Branch in its role as a copyright
regulator. Intercollegiate Broad., 684 F.3d at 1341–42.
5 Because we understand section 701(e) to provide for judicial review
of DMCA rules, we need not address the trade associations’ novel
theory that the Library is an APA agency and subject to judicial
review when it takes on an “executive ‘rulemaking’ role” but not an
APA agency when it does not.

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render section 701(e) superfluous. There would have been no
need for Congress to authorize judicial review in the Copyright
Act if the APA’s judicial review provisions already applied.
But in light of our caselaw, we need not, and do not, reach the
question of whether the Library is an “agency” within the
meaning of the APA. Instead, we recognize that, regardless of
whether the Library is an APA “agency,” section 701(e) applies
the APA to “all actions” of the Register under Title 17,
including regulations approved by the Librarian.
The Library and the dissent also contend that triennial
rules are actions of the Librarian, not the Register, and so
section 701(e) simply does not apply. Relying on the
presumption against waivers of sovereign immunity, the
dissent suggests that section 701(e) cannot authorize suits
against the Librarian because it mentions only the Register by
name. Dissenting Op. 1–3. But “the sovereign immunity canon
is a tool for interpreting the law and … does not displace the
other traditional tools of statutory construction.” FAA v.
Cooper, 566 U.S. 284, 291 (2012) (cleaned up). Thus, “we …
require … that the scope of Congress’ waiver be clearly
discernable from the statutory text in light of traditional
interpretive tools.” Id. As we have already explained in detail,
the statutory text, context, the in pari materia canon, and
background principles all confirm that—by making copyright
regulations reviewable—Congress applied the APA’s clear
waiver of sovereign immunity to both the Register and
Librarian when they issue such rules.
Relatedly, the Library stresses that the Register’s
participation in triennial rulemaking is not reviewable agency
action because her recommendation is not “final”—it must be
approved by the Librarian. On the Library’s view, section
701(e) applies only to actions of the Register that require no
further approval. But this argument proves too much because

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19
the Register has no final rulemaking authority. 17 U.S.C.
§ 702. Under the Library’s rationale, no copyright regulations
would be judicially reviewable. Such a startling result would
eviscerate Congress’s clear directives, which subject “all
actions” of the Register under Title 17 to the APA and require
the Librarian to approve the Register’s regulations.6
In sum, none of the Library’s counterarguments
undermine our conclusion that the text and structure of the
DMCA and the Copyright Act provide for APA review of
triennial DMCA rules.
* * *
Congress provided that the APA applies to copyright rules
under Title 17, which includes the triennial DMCA rule
challenged here. This conclusion accords with the background
principle favoring judicial review of administrative action and
harmonizes the scheme of copyright regulation and judicial
review established by the Copyright Act and the DMCA. We
interpret the statutes “as a symmetrical and coherent regulatory
scheme,” “reconciling many laws enacted over time, and
getting them to ‘make sense’ in combination.” FDA v. Brown
& Williamson Tobacco Corp., 529 U.S. 120, 133, 143 (2000)
(cleaned up).
6 We similarly reject the Library’s other attempts to fracture the
legislative scheme for copyright regulation. For instance, the Library
maintains the Librarian’s finalization should not be subject to the
APA, but it concedes the APA must apply to those parts of the
triennial rulemaking conducted by the Register. We are not aware of
any regulatory scheme adopting such a piecemeal application of the
APA to the process for promulgating rules of general applicability.

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20
The trade associations may challenge the triennial rule
under the APA.7 We vacate the judgment and remand for the
district court to consider the merits of the APA claims in the
first instance.
So ordered.
7 The district court rejected the trade associations’ ultra vires claim
on the merits. Because we hold that Congress has provided for APA
review of DMCA rules, the ultra vires claim is no longer available,
and we need not address it. See Changji Esquel Textile Co. v.
Raimondo, 40 F.4th 716, 722 (D.C. Cir. 2022) (explaining an ultra
vires claim can proceed only when a statute impliedly precludes
judicial review and “no alternative procedure for review of the
statutory claim” exists) (cleaned up).

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CHILDS, Circuit Judge, dissenting:
The United States is immune from suit absent express
consent to be sued. United States v. Sherwood, 312 U.S. 584,
586 (1941); FAA v. Cooper, 566 U.S. 284, 290 (2012) (“a
waiver of sovereign immunity must be ‘unequivocally
expressed’ in statutory text.”). Any ambiguities must be
“construed in favor of immunity.” FAA, 566 U.S. at 290-91.
While I agree that under 17 U.S.C. § 701(e), the
Copyright Act expressly provides that “all actions” of the
Register of Copyrights under Title 17 are “subject to the
provisions of the [APA],” I disagree with the majority’s
conclusion that such language can be expanded to constitute a
waiver of sovereign immunity for the Library of Congress or
the Librarian. Neither the text of the Administrative
Procedure Act (“APA”), the Copyright Act of 1976, nor the
Digital Millennium Copyright Act (“DMCA”) meet the
requisite threshold showing that Congress provided “clear or
express consent” for either entity to be sued. See Sherwood,
312 U.S. at 586. I would instead affirm the district court’s
holding that the trade associations’ claims are barred by
sovereign immunity and that they failed to plead a proper
ultra vires claim.
One might argue that an express waiver is found in the
APA, which provides for judicial review of final agency
actions, but such an argument is barred by our Circuit’s
precedent holding that the Library of Congress is not an
“agency” under the APA.1 See Clark v. Libr. of Cong., 750
1See 5 U.S.C. § 551 (“For the purpose of this subchapter —
(1) ‘agency’ means each authority of the Government of the United
States, whether or not it is within or subject to review by another
agency but does not include — (A) the Congress.”). The Library of
Congress is part of “the Congress” and therefore is not an agency
within the meaning of the APA.

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2
F.2d 89, 102-03 (D.C. Cir. 1984); Ethnic Emps. of Libr. of
Cong. v. Boorstin, 751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985);
Wash. Legal Found. v. U.S. Sent’g Comm’n, 17 F.3d 1446,
1449 (D.C. Cir. 1994) (noting that Congress clearly subjected
the Sentencing Commission to the APA’s notice and
comment provisions in the Sentencing Reform Act of 1984).
Thus, to exercise judicial review over the Librarian, we must
rely on another express statutory provision subjecting the
Librarian to the APA or otherwise waiving sovereign
immunity over the Librarian’s actions. Congress has at times
subjected non-agencies, such as the Sentencing Commission,
to APA review. See supra note 1. But Congress has not
expressly provided for APA review of the Librarian.
There is no statutory provision expressly waiving
sovereign immunity over the Librarian or subjecting the
Librarian to the APA, and, in my view, the majority’s attempt
to infer such a waiver by analogy to the Copyright Act
violates longstanding principles of statutory interpretation that
a waiver of sovereign immunity “must be construed strictly in
favor of the sovereign” and “not enlarge[d]…beyond what the
language requires.” United States v. Nordic Vill., Inc., 503
U.S. 30, 34 (1992) (internal quotation marks omitted).
Moreover, even without the strong presumption against
implied waivers of sovereign immunity, the majority’s in pari
materia argument is unsupported by “traditional interpretive
tools,” supra note 19, for two reasons.
First, the in pari materia canon applies when the Court is
interpreting ambiguous statutory language—not statutory
silence. Cf. EEOC v. Abercrombie & Fitch Stores, Inc., 575
U.S. 768, 774 (2015) (“The problem with this approach is the

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3
one that inheres in most incorrect interpretations of statutes: It
asks us to add words to the law to produce what is thought to
be a desirable result. That is Congress’s province. We
construe [a statute’s] silence as exactly that: silence.”); United
Shoe Workers of Am., AFL-CIO v. Bedell, 506 F.2d 174, 189
n.96 (D.C. Cir. 1974) (“A statute is not in pari materia if its
scope and aim are distinct or where a legislative design to
depart from the general purpose or policy of previous
enactments may be apparent”) (cleaned up); 73 Am. Jur. 2d
Statutes § 87 (“However, the in pari materia rule of statutory
construction, requiring statutes which relate to the same
subject matter to be read and applied together, applies only
when a statute is ambiguous.”). Congress could have
unequivocally subjected the Librarian to the APA, in the
DMCA, like it did in the Copyright Act of 1976 for the
Register of Copyrights. See 17 U.S.C. § 701. The DMCA
was enacted in 1998, twenty-two years after the Copyright
Act. The DMCA’s silence with respect to judicial review
does not create ambiguity.
Second, even accepting arguendo the majority’s
argument that the Registrar’s recommendations to the
Librarian should be subject to judicial review under the
Copyright Act, that argument still falls short of showing that
the Court can exercise review over the Librarian—the actual
defendant in this lawsuit.
There are good reasons not to treat the Registrar’s
regulations, subject to the Librarian’s approval, identically to
mere recommendations that the Register provides to the
Librarian to assist the Librarian in carrying out its statutory
obligations to the DMCA. See 17 U.S.C. § 1201. Under the
DMCA, decision-making authority is vested in the Librarian
who is directed to consider § 1201’s expressly enumerated
factors but is also given discretion to consider any factor the

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4
Librarian deems appropriate. Id. The fact that there is little
statutory information about what the Register must consider
in its recommendation further supports the position that it is
unlikely that Congress intended for judicial review of the
Librarian’s triennial rulemaking. Under this statutory
scheme, the recommendations are mere suggestions and one
of many factors and considerations that the Librarian can
utilize to make its decision. See § 1201(c). By contrast,
under 17 U.S.C. § 702, “[a]ll regulations established by the
Register under this title are subject to the approval of the
Librarian of Congress.” Id. But the statutory authority to
promulgate those regulations lies with the Registrar.
Moreover, while the Librarian has authority to approve (or
reject) the Registrar’s regulations, the statute is silent as to
whether the Librarian could substantively rewrite the
regulations and promulgate the rewritten versions.
Because the Library of Congress is not an agency within
the meaning of the APA and Congress has not otherwise
expressly waived sovereign immunity over suits challenging
the Librarian’s actions, I would affirm the district court’s
holding that the trade associations’ claims are barred by
sovereign immunity.

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