Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
| Published date | 28 October 2021 |
| Citation | 86 FR 59627 |
| Record Number | 2021-23311 |
| Section | Rules and Regulations |
| Court | Copyright Office,Library Of Congress |
Federal Register, Volume 86 Issue 206 (Thursday, October 28, 2021)
[Federal Register Volume 86, Number 206 (Thursday, October 28, 2021)]
[Rules and Regulations]
[Pages 59627-59641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23311]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2020-11]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
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SUMMARY: In this final rule, the Librarian of Congress adopts
exemptions to the provision of the Digital Millennium Copyright Act
(``DMCA'') that prohibits circumvention of technological measures that
control access to copyrighted works. As required under the statute, the
Register of Copyrights, following a public proceeding, submitted a
recommendation concerning proposed exemptions to the Librarian of
Congress (``Register's Recommendation''). After careful consideration,
the Librarian adopts final regulations based upon the Register's
Recommendation.
DATES: Effective October 28, 2021.
FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Acting General Counsel
and Associate Register of Copyrights, by email at [email protected],
or Mark Gray, Attorney-Advisor, by email at [email protected]. Each
can be contacted by telephone by calling (202) 707-8350.
SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to
section 1201(a)(1) of title 17, United States Code, has determined in
this eighth triennial rulemaking proceeding that the prohibition
against circumvention of technological measures that effectively
control access to copyrighted works shall not apply for the next three
years to persons who engage in certain noninfringing uses of certain
classes of such works. This determination is based upon the Register's
Recommendation.
The below discussion summarizes the rulemaking proceeding and the
Register's recommendations, announces the Librarian's determination,
and publishes the regulatory text specifying the exempted classes of
works. A more complete discussion of the rulemaking process, the
evidentiary record, and the Register's analysis with respect to each
proposed exemption can be found in the Register's Recommendation, which
is posted at www.copyright.gov/1201/2021/.
I. Background
A. Statutory Requirements
Congress enacted the DMCA in 1998 to implement certain provisions
of the WIPO Copyright and WIPO Performances and Phonograms Treaties.
Among other things, title I of the DMCA, which added a new chapter 12
to title 17 of the U.S. Code, prohibits circumvention of technological
measures employed by or on behalf of copyright owners to protect access
to their works. In enacting this aspect of the law, Congress observed
that technological protection measures (``TPMs'') can ``support new
ways of disseminating copyrighted materials to users, and . . .
safeguard the availability of legitimate uses of those materials by
individuals.'' \1\
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\1\ Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-
Section Analysis of H.R. 2281 as Passed by the United States House
of Representatives on August 4, 1998, at 6 (Comm. Print 1998).
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Section 1201(a)(1) provides in pertinent part that ``[n]o person
shall circumvent a technological measure that effectively controls
access to a work protected under [title 17].'' Under the statute, 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.'' \2\ A technological measure
that ``effectively controls access to a work'' is one that ``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.'' \3\
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\2\ 17 U.S.C. 1201(a)(3)(A).
\3\ 17 U.S.C. 1201(a)(3)(B).
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Section 1201(a)(1) also includes what Congress characterized as a
``fail-safe'' mechanism,\4\ which requires the Librarian of Congress,
following a rulemaking proceeding, to exempt any class from the
prohibition for a three-year period if she has determined that
noninfringing uses by persons who are users of copyrighted works in
that class are, or are likely to be, adversely affected by the
prohibition against circumvention during that period.\5\ The
Librarian's determination to grant an exemption is based upon the
recommendation of the Register of Copyrights, who conducts the
rulemaking proceeding.\6\ The Register consults with the Assistant
Secretary for Communications and Information of the Department of
Commerce, who oversees the National Telecommunications and Information
Administration (``NTIA''), in the course of formulating her
recommendations.\7\
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\4\ See H.R. Rep. No. 105-551, pt. 2, at 36 (1998).
\5\ See 17 U.S.C. 1201(a)(1).
\6\ 17 U.S.C. 1201(a)(1)(C).
\7\ Id.
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Exemptions adopted by rule under section 1201(a)(1) apply only to
the conduct of circumventing a technological measure that controls
access to a copyrighted work. Other parts of section 1201 address the
manufacture and provision of--or ``trafficking'' in--products and
services designed for purposes of circumvention. Section 1201(a)(2)
bars trafficking in products and services that are used to circumvent
technological measures that control access to copyrighted works (for
example, a password needed to open a media file),\8\ while section
1201(b) bars trafficking in products and services used to circumvent
technological measures that protect the exclusive rights of the
copyright owner (for example, technology that prevents the work from
being reproduced).\9\ The Librarian has no authority to adopt
exemptions for the anti-trafficking prohibitions contained in section
1201(a)(2) or (b).\10\
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\8\ 17 U.S.C. 1201(a)(2).
\9\ 17 U.S.C. 1201(b).
\10\ See 17 U.S.C. 1201(a)(1)(E) (``Neither the exception under
subparagraph (B) from the applicability of the prohibition contained
in subparagraph (A), nor any determination made in a rulemaking
conducted under subparagraph (C), may be used as a defense in any
action to enforce any provision of this title other than this
paragraph.'').
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The statute contains certain permanent exemptions to permit
specified uses. These include section 1201(d), which exempts certain
activities of nonprofit libraries, archives, and educational
institutions; section 1201(e), which exempts ``lawfully authorized
investigative, protective, information security, or intelligence
activity'' of a state or the federal
[[Page 59628]]
government; section 1201(f), which exempts certain ``reverse
engineering'' activities to facilitate interoperability; section
1201(g), which exempts certain types of research into encryption
technologies; section 1201(h), which exempts certain activities to
prevent the ``access of minors to material on the internet''; section
1201(i), which exempts certain activities ``solely for the purpose of
preventing the collection or dissemination of personally identifying
information''; and section 1201(j), which exempts certain acts of
``security testing'' of computers and computer systems.
B. Rulemaking Standards
In adopting the DMCA, Congress imposed legal and evidentiary
requirements for the section 1201 rulemaking proceeding, as discussed
in greater detail in the Register's Recommendation \11\ and the
Copyright Office's 2017 policy study on section 1201.\12\ The Register
will recommend granting an exemption only ``when the preponderance of
the evidence in the record shows that the conditions for granting an
exemption have been met.'' \13\ The evidence must show ``that it is
more likely than not that users of a copyrighted work will, in the
succeeding three[hyphen]year period, be adversely affected by the
prohibition on circumvention in their ability to make noninfringing
uses of a particular class of copyrighted works.'' \14\
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\11\ Register of Copyrights, Section 1201 Rulemaking: Eighth
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights (Oct.
2021), https://cdn.loc.gov/copyright/1201/2021/2021_Section_1201_Registers_Recommendation.pdf (Register's
Recommendation'').
\12\ Register's Recommendation at section II.C; U.S. Copyright
Office, Section 1201 of Title 17 111-12 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf
(``Section 1201 Report'').
\13\ Section 1201 Report at 111-12; accord Register of
Copyrights, Section 1201 Rulemaking: Seventh Triennial Proceeding to
Determine Exemptions to the Prohibition on Circumvention,
Recommendation of the Register of Copyrights 12-13 (Oct. 2018).
References to the Register's recommendations in prior rulemakings
are cited by the year of publication followed by ``Recommendation''
(e.g., ``2018 Recommendation''). Prior Recommendations are available
on the Copyright Office website at https://www.copyright.gov/1201/.
\14\ Section 1201 Report at 112.
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The Librarian must 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). 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.
To establish the need for an exemption, proponents must show, at a
minimum, (1) that uses affected by the prohibition on circumvention are
or are likely to be noninfringing; and (2) that as a result of a
technological measure controlling access to a copyrighted work, the
prohibition is causing, or in the next three years is likely to cause,
an adverse impact on those uses. In addition, the Librarian must
examine the statutory factors listed in section 1201(a)(1): (1) The
availability for use of copyrighted works; (2) the availability for use
of works for nonprofit archival, preservation, and educational
purposes; (3) 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; (4) the
effect of circumvention of technological measures on the market for or
value of copyrighted works; and (5) such other factors as the Librarian
considers appropriate.
Finally, section 1201(a)(1) specifies that any exemption adopted as
part of this rulemaking must be defined based on ``a particular class
of works.'' \15\ Among other things, the determination of the
appropriate scope of a ``class of works'' recommended for exemption may
take into account the adverse effects an exemption may have on the
market for or value of copyrighted works. Accordingly, ``it can be
appropriate to refine a class by reference to the use or user in order
to remedy the adverse effect of the prohibition and to limit the
adverse consequences of an exemption.'' \16\
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\15\ 17 U.S.C. 1201(a)(1)(B).
\16\ 2006 Recommendation at 19.
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II. History of the Eighth Triennial Proceeding
The Office initiated the eighth triennial rulemaking proceeding
through a Notice of Inquiry (``NOI'') on June 22, 2020.\17\ The NOI
requested petitions for renewal of exemptions adopted in the 2018
rulemaking, petitions in opposition to renewal, and any petitions for
new exemptions, including proposals to expand a current exemption. The
Office received twenty-six petitions for new exemptions, including
thirteen comments seeking to expand certain current exemptions.
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\17\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 37399 (June 22, 2020).
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As in the prior rulemaking, the Office employed a streamlined
process for renewing existing exemptions in this proceeding, detailing
the renewal process in its public notices.\18\ Streamlined renewal is
based upon a determination that, due to a lack of legal, marketplace,
or technological changes, the factors that led the Register to
recommend adoption of the exemption in the prior rulemaking are
expected to continue into the forthcoming triennial period.\19\ That
is, the same material facts and circumstances underlying the
previously-adopted regulatory exemption may be relied on to renew the
exemption. Because the statute requires that exemptions be adopted upon
a new determination concerning the next three-year period, the fact
that the Librarian previously adopted an exemption creates no
presumption that readoption is appropriate.
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\18\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 37399, 37400-02 (June 22, 2020); Exemptions
to Permit Circumvention of Access Controls on Copyrighted Works, 85
FR 65293, 65294-95 (Oct. 15, 2020).
\19\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 37399, 37401-02 (June 22, 2020); Exemptions
to Permit Circumvention of Access Controls on Copyrighted Works, 85
FR 65293, 65295 (Oct. 15, 2020).
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The Register's Recommendation provides a detailed description of
the process the Office used to create a record for each renewal
petition.\20\ In brief, the Office first solicited renewal petitions as
well as comments from participants opposing the readoption of the
exemption. The Office received thirty-two renewal petitions and fifteen
comments in response to those petitions. Seven comments supported
renewal of a current exemption, and eight comments raised discrete
concerns with specific petitions, but did not oppose readoption of the
relevant exemption.\21\
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\20\ Register's Recommendation at III.D & IV.
\21\ The submissions received in response to the NOI are
available at https://www.copyright.gov/1201/2021/. References to
these submissions are by party and class name (abbreviated where
appropriate) followed by ``Renewal Pet.,'' ``Renewal Comment,'' or
party name and class number followed by ``Pet.,'' ``Initial,''
``Opp'n,'' or ``Reply'' for comments submitted in the first, second,
or third round, as applicable.
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On October 15, 2020, the Office issued its notice of proposed
rulemaking (``NPRM'') identifying the existing exemptions for which the
Register intended to recommend renewal, and outlined the proposed
classes for new exemptions, for which three rounds of public comments
were initiated.\22\ Those proposals were organized into seventeen
classes of works. Six of the seventeen proposed exemptions sought
[[Page 59629]]
expansions of existing exemptions, seven proposed entirely new
exemptions, and four contained a combination of both expansions and new
exemptions. The Office then held seven days of public hearings in which
it heard testimony from numerous participants. After the hearings, the
Office issued written questions to hearing participants regarding
certain proposed classes.\23\ Finally, the Office held several ex parte
meetings with participants concerning ten proposed classes.\24\
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\22\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 65293, 65293 (Oct. 15, 2020).
\23\ Participants' post-hearing letter responses are available
at https://www.copyright.gov/1201/2021/post-hearing/.
\24\ All ex parte letters in the eighth triennial rulemaking can
be found at https://www.copyright.gov/1201/2021/ex-parte-communications.html.
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As required by section 1201(a)(1), the Register consulted with NTIA
during this rulemaking. NTIA provided input at various stages and
participated in the virtual public hearings. NTIA formally communicated
its views on each of the proposed exemptions to the Register on October
1, 2021. The Office addresses NTIA's substantive views on the proposed
classes below. NTIA's recommendations can be viewed at https://cdn.loc.gov/copyright/1201/2021/2021_NTIA_DMCA_Letter.pdf.
III. Summary of Register's Recommendation
A. Renewal Recommendations
As set forth in the NPRM, the Register received petitions to renew
each of the exemptions adopted pursuant to the seventh triennial
rulemaking. Eight comments in response to renewal petitions raised
discrete concerns with specific petitions, but none opposed the
verbatim readoption of an existing regulatory exemption or disputed the
reliability of the previously analyzed administrative record.\25\ The
Register recommends renewal of these exemptions based on the
information provided in the renewal petitions and the lack of
meaningful opposition, finding that the conditions that led to adoption
of the exemptions are likely to continue during the next triennial
period. The existing exemptions, and the bases for the recommendation
to readopt each exemption in accordance with the streamlined renewal
process, are discussed in detail in the Recommendation and summarized
briefly below. Where noted, these exemptions serve as a baseline in
considering requests for expansion.
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\25\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020); see also
Exemptions to Permit Circumvention of Access Controls on Copyrighted
Works, 85 FR 37399, 37402 (June 22, 2020) (describing ``meaningful
opposition'' standard).
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1. Audiovisual Works--Educational and Derivative Uses
Multiple individuals and organizations petitioned to renew the
exemption covering the use of short portions of motion pictures for
various educational and derivative uses.\26\ The Office did not receive
meaningful opposition to readoption of these exemptions. Petitions to
renew the various subparts of the exemption are discussed below. The
existing exemption and its various subparts collectively serve as the
baseline in assessing whether to recommend any expansions in Class 1.
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\26\ See 37 CFR 201.40(b)(1). In the 2018 rulemaking, this
recommended regulatory language was the result of consideration of
one proposed class of works that grouped together five petitions.
See 2018 Recommendation at 31-34.
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a. Audiovisual Works--Criticism and Comment, Teaching, or Scholarship--
Universities and K-12 Educational Institutions.\27\
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\27\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.1.
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Multiple individuals and organizations petitioned to renew the
exemption for motion pictures for educational purposes by college and
university or K-12 faculty and students. The Office did not receive
substantive opposition to readoption of this exemption. The petitions
demonstrated that educators and students continue to rely on excerpts
from digital media for class presentations and coursework. For example,
a collective of individuals and organizations provided several examples
of professors using DVD clips in the classroom. A group of individual
educators and educational organizations \28\ broadly suggested that the
``entire field'' of video essays or multimedia criticism ``could not
have existed in the United States without fair use and the 1201
educational exemption.'' \29\ Petitioners demonstrated personal
knowledge and experience with regard to this exemption based on their
representation of thousands of digital and literacy educators and/or
members supporting educators and students, combined with past
participation in the section 1201 triennial rulemaking. The Register
finds that petitioners demonstrated a continuing need and justification
for the exemption.
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\28\ The individuals and organizations include Peter Decherney,
Katherine Sender, John L. Jackson, Int'l Commc'n Ass'n, Soc'y for
Cinema and Media Studies, Console-ing Passions, Library Copyright
All., and Am. Ass'n of Univ. Professors.
\29\ Joint Educators AV Educ. Renewal Pet. at 3.
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b. Audiovisual Works--Criticism and Comment--Massive Open Online
Courses (``MOOCs'').\30\
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\30\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.2.
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A collective of individuals and organizations and Brigham Young
University (``BYU'') petitioned to renew the exemption for educational
uses of motion pictures in MOOCs. The Office did not receive meaningful
opposition to readoption of this exemption. The petitions demonstrated
the continuing need and justification for the exemption, stating that
instructors continue to rely on the exemption to develop, provide, and
improve MOOCs, as well as to increase the number of (and therefore
access to) MOOCs in the field of film and media studies.
c. Audiovisual Works--Criticism and Comment--Digital and Media Literacy
Programs \31\
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\31\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.3.
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Library Copyright Alliance (``LCA'') and Renee Hobbs petitioned to
renew the exemption for motion pictures for educational uses in
nonprofit digital and media literacy programs offered by libraries,
museums, and other organizations. No oppositions were filed against
readoption of this exemption. The petition stated that librarians
across the country have relied on the current exemption and will
continue to do so for their digital and media literacy programs,
thereby demonstrating the continuing need and justification for the
exemption.
d. Audiovisual Works--Criticism and Comment--Multimedia E-books \32\
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\32\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.4.
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Multiple petitioners jointly sought to renew the exemption for the
use of motion picture excerpts in nonfiction multimedia e-books. The
Office did not receive meaningful opposition to readoption of this
exemption. The petition demonstrated the continuing need and
justification for the exemption. In addition, the petitioners
demonstrated personal knowledge through Bobette Buster's continued work
on an e-book series based on her lecture series, ``Deconstructing
Master Filmmakers: The Uses of Cinematic Enchantment,'' which ``relies
on the
[[Page 59630]]
availability of high-resolution video not available without
circumvention of TPMs.'' \33\
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\33\ Bobette Buster, Authors All. & Am. Ass'n of Univ.
Professors Nonfiction Multimedia E-Books Renewal Pet. at 3.
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e. Audiovisual Works--Criticism and Comment--Filmmaking \34\
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\34\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.5.
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Multiple organizations petitioned to renew the exemption for motion
pictures for uses in documentary films or other films where the use is
a parody or based on the work's biographical or historically
significant nature. The Office did not receive meaningful opposition to
readoption of this exemption. Petitioners stated that they personally
know many filmmakers who have found it necessary to rely on this
exemption and will continue to do so. The petitions summarized the
continuing need and justification for the exemption.
f. Audiovisual Works--Criticism and Comment--Noncommercial Videos \35\
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\35\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.6.
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Two organizations petitioned to renew the exemption for motion
pictures for uses in noncommercial videos. The Office did not receive
meaningful opposition to readoption of this exemption. Petitioners
stated that they had personal knowledge that video creators have relied
on this exemption and anticipate needing to continue to use the
exemption in the future. The Organization for Transformative Works
(``OTW'') included an account from an academic who stated that footage
ripped from DVDs and Blu-ray is preferred for ``vidders''
(noncommercial remix artists) because ``it is high quality enough to
bear up under the transformations that vidders make to it.'' \36\ The
petitions therefore demonstrated the continuing need and justification
for the exemption.
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\36\ OTW Noncommercial Videos Renewal Pet. at 3.
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2. Audiovisual Works--Accessibility \37\
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\37\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.B.
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Multiple organizations petitioned to renew the exemption for motion
pictures for the provision of captioning and/or audio description by
disability services offices or similar units at educational
institutions for students with disabilities. No oppositions were filed
in connection with readoption of this exemption. The petitions
demonstrated the continuing need and justification for the exemption,
and the petitioners demonstrated personal knowledge and experience as
to the exemption. For example, BYU asserted that its disability
services offices ``sometimes need to create accessible versions of
motion pictures'' to accommodate its students with disabilities.\38\
The petitions stated that there is a need for the exemption going
forward; indeed, one group of petitioners stated that ``the need is
likely to increase significantly in light of the ongoing COVID-19
pandemic as many educational institutions shift to online learning and
the use of digital multimedia by faculty increases.'' \39\ This
existing exemption serves as the baseline in assessing whether to
recommend any expansions in Class 3.
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\38\ BYU Captioning Renewal Pet. at 3.
\39\ Accessibility Petitioners Captioning Renewal Pet. at 3.
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3. Literary Works Distributed Electronically--Accessibility \40\
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\40\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.C.
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Multiple organizations petitioned to renew the exemption for
literary works distributed electronically (i.e., e-books), for use with
assistive technologies for persons who are blind, visually impaired, or
have print disabilities. No oppositions were filed against readoption
of this exemption. The petitions demonstrated the continuing need and
justification for the exemption, stating that individuals who are
blind, visually impaired, or print disabled have difficulty obtaining
accessible e-book content because TPMs interfere with the use of
assistive technologies. Petitioners noted that their members frequently
cite accessibility of e-books as a top priority. Finally, petitioners
demonstrated personal knowledge and experience with regard to the
assistive technology exemption because they are all organizations that
advocate for the blind, visually impaired, and print disabled. This
existing exemption serves as the baseline in assessing whether to
recommend any expansions in Class 8.
4. Literary Works--Medical Device Data \41\
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\41\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.D.
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Hugo Campos petitioned to renew the exemption covering access to
patient data on networked medical devices. No oppositions were filed
against readoption of this exemption, and Consumer Reports submitted a
comment in support of the renewal petition. Mr. Campos's petition
demonstrated the continuing need and justification for the exemption,
stating that patients continue to need access to data output from their
medical devices to manage their health. Mr. Campos demonstrated
personal knowledge and experience with regard to this exemption, as he
is a patient needing access to the data output from his medical device
and a member of a coalition whose members research the effectiveness of
networked medical devices. This existing exemption serves as the
baseline in assessing whether to recommend any expansions in Class 9.
5. Computer Programs--Unlocking \42\
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\42\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.E.
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Multiple organizations petitioned to renew the exemption for
computer programs that operate cellphones, tablets, mobile hotspots, or
wearable devices (e.g., smartwatches) to allow connection of a new or
used device to an alternative wireless network (``unlocking'').\43\ No
oppositions were filed against readoption of this exemption, and
Consumer Reports submitted a comment in support of the renewal
petition. The petitions demonstrated the continuing need and
justification for the exemption, stating that consumers of the
enumerated products continue to need to be able to unlock the devices
so they can switch network providers. For example, the Institute of
Scrap Recycling Industries, Inc. (``ISRI'') stated that its members
continue to purchase or acquire donated cell phones, tablets, and other
wireless devices and try to reuse them, but that wireless carriers lock
devices to prevent them from being used on other carriers.\44\ In
addition, petitioners demonstrated personal knowledge and experience
with regard to this exemption. This existing exemption serves as the
baseline in assessing whether to recommend any expansions in Class 10.
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\43\ Competitive Carriers Ass'n Unlocking Renewal Pet.; Inst. of
Scrap Recycling Indus., Inc. Unlocking Renewal Pet.
\44\ ISRI Unlocking Renewal Pet. at 3.
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6. Computer Programs--Jailbreaking \45\
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\45\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.F.
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Multiple organizations petitioned to renew the exemptions for
computer programs that operate smartphones,
[[Page 59631]]
tablets and other portable all-purpose mobile computing devices, smart
TVs, or voice assistant devices to allow the device to interoperate
with or to remove software applications (``jailbreaking''). No
oppositions were filed against readoption of this exemption, and
Consumer Reports submitted a comment in support of the renewal
petition. The petitions demonstrated the continuing need and
justification for the exemption, and that petitioners have personal
knowledge and experience with regard to this exemption. For example,
regarding smart TVs specifically, the Software Freedom Conservancy
(``SFC'') asserted that it has ``reviewed the policies and product
offerings of major Smart TV manufacturers (Sony, LG, Samsung, etc.) and
they are substantially the same as those examined during the earlier
rulemaking process.'' \46\ The petitions stated that, absent an
exemption, TPMs applied to the enumerated products would have an
adverse effect on noninfringing uses, such as being able to install
third-party applications on a smartphone or download third-party
software on a smart TV to enable interoperability. This existing
exemption serves as the baseline in assessing whether to recommend any
expansions in Class 11.
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\46\ SFC Jailbreaking Renewal Pet. at 3.
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7. Computer Programs--Repair of Motorized Land Vehicles \47\
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\47\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.G.
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Multiple organizations petitioned to renew the exemption for
computer programs that control motorized land vehicles, including farm
equipment, for purposes of diagnosis, repair, or modification of a
vehicle function. The Office did not receive meaningful opposition to
readoption of this exemption, and Consumer Reports submitted a comment
in support of the renewal petition. The petitions demonstrated the
continuing need and justification for the exemption. For example, the
Motor & Equipment Manufacturers Association (``MEMA'') stated that over
the past three years, its membership ``has seen firsthand that the
exemption is helping protect consumer choice and a competitive market,
while mitigating risks to intellectual property and vehicle safety.''
\48\ Similarly, the Auto Care Association (``ACA'') stated that
``[u]nless this exemption is renewed, the software measures
manufacturers deploy for the purpose of controlling access to vehicle
software will prevent Auto Care members from lawfully assisting
consumers in the maintenance, repair, and upgrade of their vehicles.''
\49\ The petitioners demonstrated personal knowledge and experience
with regard to this exemption; each either represents or gathered
information from individuals or businesses that perform vehicle service
and repair. This existing exemption, as well as the existing exemption
pertaining to repair of smartphones, home appliances, and home systems,
serve as the baseline in assessing whether to recommend any expansions
in Class 12.
---------------------------------------------------------------------------
\48\ MEMA Vehicle Repair Renewal Pet. at 3.
\49\ ACA Vehicle Repair Renewal Pet. at 3.
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8. Computer Programs--Repair of Smartphones, Home Appliances, and Home
Systems \50\
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\50\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.H.
---------------------------------------------------------------------------
Multiple organizations petitioned to renew the exemption for
computer programs that control smartphones, home appliances, or home
systems, for diagnosis, maintenance, or repair of the device or system.
The Office did not receive meaningful opposition to readoption of this
exemption, and Consumer Reports submitted a comment in support of the
renewal petition. The petitions demonstrated the continuing need and
justification for the exemption. For example, the Electronic Frontier
Foundation (``EFF''), the Repair Association, and iFixit asserted that
``[m]anufacturers of these devices continue to implement [TPMs] that
inhibit lawful repairs, maintenance, and diagnostics, and they show no
sign of changing course.'' \51\ This existing exemption, as well as the
existing exemption pertaining to repair of motorized land vehicles,
serve as the baseline in assessing whether to recommend any expansions
in Class 12.
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\51\ EFF Device Repair Renewal Pet. at 3; EFF, Repair Ass'n &
iFixit Device Repair Renewal Pet. at 3.
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9. Computer Programs--Security Research \52\
---------------------------------------------------------------------------
\52\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.I.
---------------------------------------------------------------------------
Multiple organizations and security researchers petitioned to renew
the exemption permitting circumvention for purposes of good-faith
security research. No oppositions were filed against readoption of this
exemption, and Consumer Reports submitted a comment in support of the
renewal petition. The petitioners demonstrated the continuing need and
justification for the exemption, as well as personal knowledge and
experience with regard to this exemption. For example, J. Alex
Halderman, the Center for Democracy and Technology (``CDT''), and the
U.S. Technology Policy Committee of the Association for Computing
Machinery (``ACM'') highlighted the need to find and detect
vulnerabilities in voting machines and other election systems in
response to increasing aggressiveness on the part of threat actors,
including other nation states.\53\ MEMA stated that its membership
``experienced firsthand that the exemption is helping encourage
innovation in the automotive industry while mitigating risks to
intellectual property and vehicle safety,'' and opined that the current
exemption strikes an ``appropriate balance.'' \54\ This existing
exemption serves as the baseline in assessing whether to recommend any
expansions in Class 13.
---------------------------------------------------------------------------
\53\ J. Alex Halderman, CDT & ACM Security Research Renewal Pet.
at 4.
\54\ MEMA Security Research Renewal Pet. at 3.
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10. Computer Programs--Software Preservation \55\
---------------------------------------------------------------------------
\55\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.J.
---------------------------------------------------------------------------
The Software Preservation Network (``SPN'') and LCA petitioned to
renew the exemption for computer programs, other than video games, for
the preservation of computer programs and computer program-dependent
materials by libraries, archives, and museums. No oppositions were
filed against readoption of this exemption. The petition stated that
libraries, archives, and museums continue to need the exemption to
preserve and curate software and materials dependent on software. For
example, the petition explained that researchers at the University of
Virginia designed a project in order to access a collection of drawings
and plans from a local Charlottesville architecture firm, and that
without the exemption, the outdated Computer Aided Design software used
to create many of the designs ``may have remained inaccessible to
researchers, rendering the designs themselves inaccessible, too.'' \56\
In addition, petitioners demonstrated personal knowledge and experience
with regard to this exemption through past participation in the section
1201 triennial rulemaking relating to access controls on software, and/
or representing major library associations with members who have relied
on this exemption. This existing
[[Page 59632]]
exemption, as well as the exemption pertaining to video game
preservation, serve as the baseline in assessing whether to recommend
any expansions in Class 14.
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\56\ SPN & LCA Software Preservation Renewal Pet. at 3.
---------------------------------------------------------------------------
11. Computer Programs--Video Game Preservation \57\
---------------------------------------------------------------------------
\57\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.K.
---------------------------------------------------------------------------
SPN and LCA petitioned to renew the exemption for preservation of
video games for which outside server support has been discontinued. No
oppositions were filed against readoption of this exemption, and
Consumer Reports submitted a comment in support of the renewal
petition. The petition stated that libraries, archives, and museums
continue to need the exemption to preserve and curate video games in
playable form. For example, the petition highlighted Georgia Tech
University Library's Computing Lab, retroTECH, which has made a
significant collection of recovered video game consoles accessible for
research and teaching uses pursuant to the exemption.\58\ Petitioners
demonstrated personal knowledge and experience with regard to this
exemption through past participation in the section 1201 triennial
rulemaking, and/or through their representation of members who have
relied on this exemption. This existing exemption, as well as the above
exemption pertaining to software preservation, serve as the baseline in
assessing whether to recommend any expansions in Class 14.
---------------------------------------------------------------------------
\58\ SPN & LCA Abandoned Video Game Renewal Pet. at 3.
---------------------------------------------------------------------------
12. Computer Programs--3D Printers \59\
---------------------------------------------------------------------------
\59\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.L.
---------------------------------------------------------------------------
Michael Weinberg petitioned to renew the exemption for computer
programs that operate 3D printers to allow use of alternative
feedstock. No oppositions were filed against readoption of this
exemption. The petition demonstrated the continuing need and
justification for the exemption, and petitioner demonstrated personal
knowledge and experience regarding the exemption. Specifically, Mr.
Weinberg declared that he is a member of the 3D printing community and
previously participated in the section 1201 triennial rulemaking. In
addition, the petition stated that manufacturers of 3D printers
continue to limit the types of materials that may be used with the
devices. This existing exemption serves as the baseline in assessing
whether to recommend any expansions in Class 15.
B. New or Expanded Designations of Classes
Based upon the record in this proceeding regarding proposed
expansions to existing exemptions or newly proposed exemptions, the
Register recommends that the Librarian determine that the following
classes of works be exempt from the prohibition against circumvention
of technological measures set forth in section 1201(a)(1):
1. Proposed Class 1: Audiovisual Works--Criticism and Comment \60\
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\60\ The Register's analysis and conclusions for these classes,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.A.
---------------------------------------------------------------------------
Proposed Class 1 sought to expand the existing exemption that
permits circumvention of access controls protecting excerpts of motion
pictures on DVDs, Blu-ray discs, and digitally transmitted video for
the purposes of criticism and comment, including for educational
purposes by certain users. Three different petitions were filed in this
class. OTW's proposed exemption sought to eliminate multiple
limitations, including the requirement that a user consider whether
screen capture technology is a viable alternative before circumvention.
BYU's proposed exemption would permit circumvention by college or
university employees or students or by K-12 educators or students
acting under the direct supervision of an educator, and would
significantly alter the language of the current exemption regarding the
purpose of the circumvention. A group of individual educators and
educational organizations (``Joint Educators'') proposed an exemption
that would permit circumvention by ``educators and preparers of online
learning materials'' to be used on online learning platforms. All three
proposals sought to remove the reference to screen capture from the
existing exemption. OTW and Joint Educators' proposals sought to use
short portions of motion pictures; the BYU proposal sought use of full-
length works. The proposals addressed several uses of motion pictures
that proponents contended are noninfringing and that they argued are
adversely affected by TPMs. NTIA supported the proposed exemption, but
proposed some amendments to the text.
Opponents argued that the proposed changes were unwarranted or
unnecessary. The Motion Picture Association, the Alliance for Recorded
Music, and the Entertainment Software Association (collectively,
``Joint Creators'') and the DVD Copy Control Association (``DVD CCA'')
and the Advanced Access Content System Licensing Administrator, LLC
(``AACS LA'') argued that screen capture technology has improved and
remains an adequate alternative in some circumstances. Joint Creators
also argued that the Joint Educators' proposal to expand the exemption
to ``educators and preparers of online learning materials'' could
permit circumvention by businesses and threaten the market for licensed
clips. DVD CCA and AACS LA contended that expanding the exemption to
cover employees of a qualifying MOOC was unnecessary for online
educators to prepare materials.
For the reasons detailed in the Register's Recommendation, the
Register recommended expanding the exemption to permit employees of
colleges and universities to circumvent at the direction of a faculty
member for the purpose of teaching a course, and also to cover similar
uses by both faculty and employees acting at the direction of faculty
members of accredited nonprofit educational institutions for the
purposes of offering MOOCs. The Register further recommended retaining
the screen capture provision in the exemption to anticipate the
possibility that screen capture technology could be found to involve
circumvention. The Register concluded that the exemption should not be
expanded or amended to cover copying for the purpose of performing
full-length motion pictures for educational purposes; to replace the
phrase ``short portions'' with ``reasonable and limited portions''; to
enable circumvention by for-profit and/or unaccredited educational
companies and organizations; or to cover the broadly defined
``educators and preparers of online learning materials'' of ``online
learning platforms.''
2. Proposed Class 3: Audiovisual Works--Accessibility \61\
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\61\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.C.
---------------------------------------------------------------------------
Class 3 proponents sought to expand several provisions of the
current exemption for adding captions or audio description to motion
pictures for the benefit of students with disabilities. Proponents
requested expanding the exemption to include faculty and staff with
disabilities at educational institutions as beneficiaries, explicitly
permitting reuse of previously remediated materials, allowing for
proactive remediation in advance of a
[[Page 59633]]
specific request for accessible material, and clarifying the market-
check requirement to encompass only works on the market that are of
``sufficient quality.'' Joint Creators and DVD CCA & AACS LA filed
oppositions. NTIA supported the proposed exemption.
For the reasons discussed in the Register's Recommendation, the
Register concluded that expanding the exemption to faculty and staff
with disabilities, allowing reuse of previously remediated material,
and permitting proactive remediation are likely fair uses because they
are directed towards adding captions or audio descriptions in
compliance with disability law, the same purpose found fair in the
Register's 2018 Recommendation. Additionally, the Register concluded
that proponents had provided sufficient evidence that they would be
adversely affected if the exemption were not expanded.
3. Proposed Class 5: Audiovisual Works--Preservation and Replacement
\62\
---------------------------------------------------------------------------
\62\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.E.
---------------------------------------------------------------------------
Class 5 proponents sought to permit circumvention of TPMs on motion
pictures (including television shows and videos) stored on DVDs or Blu-
ray discs that are no longer reasonably available in the marketplace to
enable libraries, archives, and museums to make preservation and
replacement copies of those works. The proposed exemption would permit
qualifying institutions to make copies of discs that are damaged or
deteriorating, as well as discs that have not yet begun to deteriorate;
to make physical or digital copies of the motion pictures; and to make
any digital copies available outside the premises of the institution.
NTIA supported the proposed exemption.
Joint Creators and DVD CCA and AACS LA opposed the exemption,
arguing that it would enable institutions to space-shift \63\ their
film collections and launch online streaming services. Opponents
contended that, should an exemption be granted, it should apply only to
damaged or deteriorating discs; it should prohibit off-premises access
to the copied works; and the market check should include a requirement
that institutions determine if the motion picture is available for
streaming through a licensed source.
---------------------------------------------------------------------------
\63\ Space-shifting occurs when a work is transferred from one
storage medium to another, such as from a DVD to a computer hard
drive. See 2015 Recommendation at 107.
---------------------------------------------------------------------------
For the reasons detailed in the Register's Recommendation, the
Register concluded that it was likely to be a fair use for qualifying
institutions to copy motion pictures from discs that are damaged or
deteriorating if the motion pictures on those discs are not reasonably
available in the marketplace for purchase or streaming. The Register
concluded that proponents had not demonstrated that providing off-
premises access to the replacement copies of motion pictures is likely
to be noninfringing. The Register concluded that proponents had
provided substantial evidence that granting the exemption would benefit
preservation, education, and scholarship by making available motion
pictures that might otherwise be lost to history and that the exemption
is unlikely to adversely affect the market for or value of the motion
pictures.
4. Proposed Classes 7(a): Motion Pictures and 7(b): Literary Works--
Text and Data Mining \64\
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\64\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.G.
---------------------------------------------------------------------------
Authors Alliance, the American Association of University
Professors, and LCA jointly filed a petition proposing Classes 7(a) and
7(b), seeking to permit circumvention of TPMs on motion pictures and
literary works stored on DVDs or Blu-ray discs or made available for
digital download to enable researchers to perform text and data mining
(``TDM'') techniques for the purpose of scholarly research and
teaching. Proponents argued that copying literary works and motion
pictures to create large collections on which to perform TDM research
is a fair use, and that requirements to use security measures to
protect the corpora from public access or further distribution should
afford qualifying institutions flexibility to tailor the measures to
the size and content of the corpus. NTIA supported the proposed
exemptions.
Joint Creators and DVD CCA and AACS LA opposed the proposed
exemption for class 7(a), and the American Association for Publishers
(``AAP'') and the Software and Information Industry Association opposed
the proposed exemption for class 7(b). They argued that TDM research
would interfere with the licensing market for collections of literary
works and motion pictures and that researchers' ability to view the
entirety of the works in a corpus would create a risk of substitutional
use. They also argued that any exemption must require specific, robust
security measures.
As discussed in greater detail in the Register's Recommendation,
the Register found that the prohibition on circumvention adversely
affects researchers' ability to conduct TDM research projects, which
are likely to be noninfringing with the addition of several
limitations. Most importantly, the Register recommended requiring the
institution of higher education storing or hosting a corpus of
copyrighted works to implement either security measures that have been
agreed upon by copyright owners and institutions of higher education,
or, in the absence of such measures, those measures that the
institution uses to keep its own highly confidential information
secure. The Register also recommended adding a limitation that the
person undertaking the circumvention view or listen to the contents of
the copyrighted works in the corpus solely for the purpose of
verification of the research findings, not for the works' expressive
purposes. The Register concluded that existing alternatives to
circumvention do not meet researchers' needs.
5. Proposed Class 8: Literary Works--Accessibility \65\
---------------------------------------------------------------------------
\65\ The Register's analysis and conclusions for these classes,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.H.
---------------------------------------------------------------------------
Class 8 proponents sought to modify the current exemption for e-
book accessibility to align with recent changes to the Copyright Act as
a result of the Marrakesh Treaty Implementation Act. Proponents
requested expanding the class of beneficiaries to ``eligible persons''
as defined in section 121 of the Copyright Act, expanding the exemption
to cover previously published musical works, and replacing references
to a ``mainstream copy'' in the remuneration requirement with the term
``inaccessible copy.'' Proponents also sought guidance on whether
import and export activity under section 121A was implicated by the
prohibition on circumvention. Joint Creators stated that they did not
oppose the exemption to the extent it is consistent with sections 121
and 121A. AAP filed a reply comment in support of this class, and NTIA
supported the proposed exemption.
For the reasons discussed in the Register's Recommendation, the
Register concluded that without the proposed modifications, print-
disabled
[[Page 59634]]
individuals would be adversely affected in their ability to engage in
the proposed noninfringing uses. The Register also determined that
replacement of the reference to a ``mainstream copy'' with an
``inaccessible copy'' is a non-substantive change. Finally, the
Register declined to recommend language regarding import and export of
accessible works because the record did not indicate that such activity
implicates the prohibition on circumvention. Proponents and Joint
Creators filed a joint post-hearing submission proposing regulatory
language that excludes sound recordings of performances of musical
works from the exemption, which the Register recommended including.
6. Proposed Class 9: Literary Works--Medical Device Data \66\
---------------------------------------------------------------------------
\66\ The Register's analysis and conclusions for these classes,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.I.
---------------------------------------------------------------------------
Class 9 proponents sought to expand several provisions of the
current exemption that permits the circumvention of TPMs on medical
devices to access their data outputs. Proponents filed a petition
seeking to eliminate the current limitation of the exemption to
``wholly or partially implanted'' devices; permit authorized third
parties to perform the circumvention on behalf of a patient; extend the
exemption to non-passive monitoring; and remove the condition that
circumvention not violate other applicable laws. ACT [verbar] The App
Association opposed the proposed exemption. NTIA supported adopting the
proposed exemption, with some modification.
For the reasons detailed in the Register's Recommendation, the
Register concluded that accessing medical data outputs likely qualifies
as a fair use and that expanding the exemption to include non-implanted
medical devices and non-passive monitoring would not alter the fair use
analysis. Additionally, the Register concluded that proponents set
forth sufficient evidence that the ``wholly or partially implanted''
language and the passive monitoring limitation are causing, or are
likely to cause, adverse effects on these noninfringing uses. The
Register also recommended expanding the exemption to permit
circumvention ``by or on behalf of a patient.'' After consultation with
the U.S. Food and Drug Administration, the Register recommended
removing the language requiring compliance with other laws, and
replacing it with a statement that eligibility for the exemption does
not preclude liability from other applicable laws.
7. Proposed Class 10: Computer Programs--Unlocking \67\
---------------------------------------------------------------------------
\67\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.J.
---------------------------------------------------------------------------
ISRI petitioned to expand the existing exemption for unlocking to
either (1) add a new device category for laptop computers or (2) remove
enumerated device categories from the current exemption and permit
unlocking of all wireless devices. It argued that the proposed uses are
noninfringing based on the Register's previous findings that unlocking
of certain types of devices is a fair use, contending that the legal
analysis does not differ depending on the type of device that is
unlocked. The only opposition comment was filed by MEMA, which opposed
expanding the exemption to permit unlocking cellular-enabled vehicles.
NTIA supported expanding the exemption to permit unlocking all
lawfully-acquired devices.
For the reasons discussed in the Register's Recommendation, the
Register concluded that proponents established that unlocking is likely
to be a fair use regardless of the type of device involved. Proponents
offered unrebutted evidence that many different types of wireless
devices share the same wireless modem. Because the Register concluded
that unlocking those modems is likely a fair use, she determined that
users of these devices experience the same adverse effects from the
prohibition on circumvention.
8. Proposed Class 11: Computer Programs--Jailbreaking \68\
---------------------------------------------------------------------------
\68\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.K.
---------------------------------------------------------------------------
Two petitions were filed for new or expanded exemptions relating to
the circumvention of computer programs for jailbreaking purposes. EFF
filed a petition seeking to clarify and expand the current exemption
pertaining to jailbreaking smart TVs to include video streaming
devices. SFC filed a petition for a new exemption to allow jailbreaking
of routers and other networking devices to enable the installation of
alternative firmware. ACT [verbar] The App Association, DVD CCA and
AACS LA, and Joint Creators opposed this proposed class. NTIA supported
adopting both proposed exemptions.
In supporting comments, EFF clarified that its proposed exemption
would cover devices whose primary purpose is to run applications that
stream video from the internet for display on a screen, and would not
extend to DVD or Blu-ray players or video game consoles. The Register
concluded that jailbreaking video streaming devices likely constitutes
a fair use. Additionally, the Register concluded that the prohibition
on circumvention is likely to adversely affect proponents' ability to
engage in such activities. She recommended that the regulatory language
contain certain limitations to address opponents' concerns over
potential market harm.
With respect to SFC's petition, the Register concluded that
jailbreaking routers and other networking devices is likely to qualify
as a fair use. Additionally, the Register concluded that the
prohibition on circumvention is likely to prevent users from installing
free and open source software (``FOSS'') on routers and other
networking devices and that there are no viable alternatives to
circumvention to accomplish that purpose.
9. Proposed Class 12: Computer Programs--Repair \69\
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\69\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.L.
---------------------------------------------------------------------------
Several organizations submitted petitions for new or expanded
exemptions relating to the diagnosis, maintenance, repair, and
modification of software-enabled devices. EFF and, jointly, iFixit and
the Repair Association filed petitions seeking to merge and expand the
two existing exemptions to cover all devices and vehicles and permit
``modification'' of all devices. Opponents objected that the proposed
expansion to cover all devices was overbroad and that proponents failed
to develop a record demonstrating sufficient commonalities among the
various types of software-enabled devices. In addition, they argued
that specific types of devices for which circumvention of TPMs raises
piracy and safety concerns should be excluded from the proposed class.
Opponents also contended that the term ``modification'' is so broad
that it could implicate infringing activities, including violating
copyright owners' exclusive right to prepare derivative works.
Separately, Public Knowledge and iFixit jointly petitioned for an
exemption to repair optical drives in video game consoles and to
replace damaged hardware in such devices. They asserted that authorized
repair services are inadequate, particularly for
[[Page 59635]]
certain legacy consoles that manufacturers no longer support. Opponents
argued that the proposed exemption would create a risk of market harm
for these devices and that adequate alternatives to circumvention
exist.
NTIA recommended expanding the current exemptions by merging them
into a single exemption that would permit circumvention for the
diagnosis, maintenance, and repair of all software-enabled devices,
machines, and systems. In addition, NTIA recommended allowing ``lawful
modification that is necessary for a repair or maintenance'' and
software modifications relating to device functionality.
For the reasons discussed in the Register's Recommendation, the
Register recommended expanding the existing exemption for diagnosis,
maintenance, and repair of certain categories of devices to cover any
software-enabled device that is primarily designed for use by
consumers. For video game consoles, the Register concluded that an
exemption is warranted solely for the repair of optical drives.
The proposals to merge the two existing repair exemptions would
also effectively broaden the existing vehicle exemption by: (1) No
longer limiting the class to ``motorized land vehicles''; and (2)
removing other limitations in the exemption, including that users
comply with other laws. Opponents did not object to including marine
vessels in the vehicle exemption, but opposed removing language
requiring compliance with other laws. For the reasons discussed in the
Register's Recommendation, the Register recommended that the exemption
for land vehicles be expanded to cover marine vessels and to remove the
condition requiring compliance with other laws.
Finally, Summit Imaging, Inc. and Transtate Equipment Co., Inc.
petitioned to exempt circumvention of TPMs on software-enabled medical
devices and systems for purposes of diagnosis, maintenance, and repair.
Petitioners also sought access to related data files stored on medical
devices and systems, including manuals and servicing materials.
Opponents argued that this exemption is unnecessary because adequate
authorized repair services are available. They also contended that the
proposed uses are commercial in nature, would harm the market for
medical devices and systems, may undermine patient safety and create
cybersecurity risks, and would interfere with manufacturers' regulatory
compliance obligations. For the reasons discussed in the Register's
Recommendation, the Register recommended a new exemption allowing
circumvention of TPMs restricting access to firmware and related data
files on medical devices and systems for the purposes of diagnosis,
maintenance, and repair.
10. Proposed Class 13: Computer Programs--Security Research \70\
---------------------------------------------------------------------------
\70\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.M.
---------------------------------------------------------------------------
Two petitions sought to expand the current exemption that permits
circumvention of TPMs on computer programs for good-faith security
research. Together, the petitions sought to eliminate several
limitations within the exemption and to explicitly extend the exemption
to privacy research. Proponents generally argued that the limitations
have chilled valuable security research, primarily by creating
uncertainty about whether conducting or reporting security research
could result in liability under section 1201. Six parties opposed class
13 at least in part; they argued that the existing exemption has
sufficiently enabled good-faith security research and that the record
did not justify removing the limitations. NTIA supported the
elimination of several limitations, but did not recommend modifying the
existing exemption to address privacy-related research activities
explicitly.
For the reasons discussed in the Register's Recommendation, the
Register concluded that because the exemption is broadly defined and is
not limited to specific issues or subjects relating to security flaws
or vulnerabilities, expanding it to expressly cover privacy research is
unnecessary. Regarding the specific limitations, the Register
recommended removing the condition that circumvention not violate
``other laws'' and instead clarifying that the exemption does not
provide a safe harbor from liability under other laws. The Department
of Justice submitted comments supporting this change. The Register
declined to recommend removal of limitations pertaining to access to
and use of computer programs, finding a lack of specific evidence
establishing adverse effects resulting from those provisions. The
Register also did not recommend removal of the requirement that devices
be lawfully acquired.
11. Proposed Class 14(a): Computer Programs and 14(b) Video Games--
Preservation \71\
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\71\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.N.
---------------------------------------------------------------------------
Proposed Classes 14(a) and 14(b) seek to amend the existing
exemptions permitting libraries, archives, and museums to circumvent
TPMs on computer programs and video games, respectively, for the
purpose of preservation activities. Specifically, proponents seek to
remove the requirement that the preserved computer program or video
game must not be distributed or made available outside of the physical
premises of the institution. Proposed Class 14(b) would also
incorporate the current eligibility requirements for the software
preservation exemption into the video game preservation exemption.
Proponents argued that enabling remote access to the works is
likely to be a fair use, based in part on a general federal policy
favoring remote access to preservation materials, as reflected in
various provisions of the Copyright Act. They also argued that the
proposed uses would not affect the potential market for or value of the
copyrighted works because only works that are no longer reasonably
available in the commercial marketplace would be subject to the
exemption. NTIA supported the removal of the premises limitation in
both exemptions.
Joint Creators and the Entertainment Software Association opposed
removing the premises limitation, with most arguments directed to the
video game class. They expressed concern that, because the proposed
exemption did not limit beneficiaries of the exemption to authenticated
educators or researchers, if preserved video games were made available
outside the premises of an institution, they would become accessible to
the general public, thereby adversely affecting the existing market for
older video games.
For the reasons discussed in the Register's Recommendation, the
Register concluded that off-premises access to software as described in
the proposal is likely to be noninfringing, with the limitation that
the work be accessible to only one user at a time and for a limited
time. With respect to video games, the Register concluded that
proponents failed to carry their burden to show that the uses are
likely noninfringing, and noted the greater risk of market harm in this
context given the market for legacy video games. The Register therefore
recommends that the Librarian amend
[[Page 59636]]
the exemption for Class 14(a) to address the eligibility requirements
for libraries, archives, and museums, but not to remove the premises
limitation. The Register recommends removing the premises limitation in
the exemption for Class 14(a).
12. Proposed Class 15: Computer Programs--3D Printing \72\
---------------------------------------------------------------------------
\72\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.O.
---------------------------------------------------------------------------
Class 15 seeks to expand two provisions of the current exemption
that permits the circumvention of access controls on computer programs
in 3D printers to enable the use of non-manufacturer approved
feedstock. Michael Weinberg filed a petition to replace the term
``feedstock'' with the term ``material,'' stating that the latter is
more commonly used within the industry and that the two terms are
interchangeable. Additionally, Mr. Weinberg sought to eliminate the
phrase ``microchip-reliant'' from the exemption, arguing that 3D
printers may use technology other than microchips to verify 3D printing
materials. Mr. Weinberg provided evidence that manufacturers are
increasingly moving beyond microchip-based verification techniques,
such as using optical scanners. No parties opposed proposed class 15.
NTIA supported the proposed exemption.
For the reasons discussed in greater detail in the Register's
Recommendation, the Register concluded that changing the word
``feedstock'' to ``material'' is not a substantive change, and found
that the removal of the term ``microchip-reliant'' does not alter the
fair use analysis because the expansion is directed at the same uses
the Office previously concluded were fair.
13. Proposed Class 16: Computer Programs--Copyright License
Investigation \73\
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\73\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.P.
---------------------------------------------------------------------------
SFC petitioned for a new exemption that would permit investigating
whether a particular computer program includes FOSS, and if so, whether
the use of the program complies with applicable license terms. SFC,
supported by the Free Software Foundation, subsequently agreed to add
limitations to require that the circumvention be undertaken on a
lawfully acquired device or machine; that it be solely for the purpose
of investigating potential copyright infringement; that it be performed
by, or at the direction of, a party that has standing to bring a breach
of license claim; and that it otherwise comply with applicable law.
NTIA supported the proposed exemption as modified.
Opponents--DVD CCA and AACS LA; the Equipment Dealers Association,
and its regional affiliates, and Associated Equipment Distributors;
Joint Creators; and Marcia Wilbur--argued that FOSS licensors could
obtain the information they seek by other means. They objected to
application of the proposed exemption to a broad category of devices,
and requested exclusion of DVD and Blu-ray players, video game
consoles, set-top boxes, and vehicles. They argued that any exemption
should be limited to investigating potential violations of FOSS
licenses, rather than infringement of any proprietary software, and
that the investigation must be based on a good-faith, reasonable belief
that the device may violate FOSS license terms. Finally, opponents
expressed concerns about devices being left exposed to piracy or
unauthorized access after circumvention.
For the reasons discussed in the Register's Recommendation, the
Register recommended adopting an exemption with several limitations.
First, the purpose of the investigation must be limited to
investigating whether a computer program potentially infringes FOSS,
and the user must have a good-faith, reasonable belief in the need for
the investigation. Second, circumvention must be undertaken by, or at
the direction of, a party that would have standing to bring either a
breach of license claim or a copyright infringement claim. Third, the
copy of a computer program made pursuant to the exemption, or the
device or machine on which it operates, cannot be used in a manner that
facilitates copyright infringement. Finally, video game consoles should
be excluded from the types of devices on which TPMs may be
circumvented.
14. Proposed Class 17: All Works--Accessibility Uses \74\
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\74\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.Q.
---------------------------------------------------------------------------
Petitioners, a coalition of accessibility groups, requested a new
exemption to create accessible versions of any copyrighted works that
are inaccessible to individuals with disabilities. They argued that the
Librarian has the authority to define a class of works that share the
attribute of being inaccessible to individuals with disabilities and
that creating accessible versions of inaccessible works is
unquestionably a fair use. Proponents argued that a broad exemption is
warranted to prevent individuals with disabilities from being forced to
make piecemeal requests every three years when new accessibility issues
arise. NTIA supported the proposed exemption.
Joint Creators, DVD CCA and AACS LA, and AAP filed comments
opposing the proposed exemption, focusing primarily on the ground that
the statute does not give the Librarian the authority to adopt a class
consisting of ``all works'' sharing a particular attribute. Joint
Creators also raised concerns about the lack of limitations on the use
of copies, such as prohibiting further distribution to individuals
without disabilities.
As discussed in greater detail in the Register's Recommendation,
although the Register supports the policy goals that underpin the
proposed exemption, the statute requires proponents to provide evidence
of actual or likely adverse effects resulting from the prohibition on
circumvention with respect to ``particular class[es]'' of works. Here,
the Register determined that proponents submitted insufficient evidence
of such adverse effects as to most types of works. Proponents did,
however, provide evidence to support an exemption to enable individuals
with disabilities to use alternate input devices to play video games.
C. Classes Considered but Not Recommended
Based upon the record in this proceeding, the Register recommended
that the Librarian determine that the following classes of works shall
not be exempt during the next three-year period from the prohibition
against circumvention of technological measures set forth in section
1201(a)(1):
1. Proposed Class 2: Audiovisual Works--Texting \75\
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\75\ The Register's analysis and conclusions for these classes,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.B.
---------------------------------------------------------------------------
Proposed Class 2 would allow circumvention of technological
measures protecting motion pictures and other audiovisual works to
create short audiovisual clips for expressive purposes in text
messages. Petitioner did not provide legal arguments or evidence in
support of its petition and did not participate in the public hearings.
Petitioner failed to explain how the proposed uses were noninfringing
and why an exemption is
[[Page 59637]]
necessary. NTIA recommended denying the proposed exemption. As
discussed more fully in the Register's Recommendation, due to the de
minimis showing provided by proponents, the Register does not recommend
the adoption of an exemption for proposed Class 2.
2. Proposed Class 4: Audiovisual Works--Livestream Recording \76\
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\76\ The Register's analysis and conclusions for these classes,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.D.
---------------------------------------------------------------------------
Proposed Class 4 would allow circumvention of HTTP Live Streaming
technology for the purpose of recording audiovisual works originating
as livestreams. Petitioner did not provide legal arguments or evidence
to support its petition and did not participate in the public hearings.
Petitioner first described the exemption as encompassing sports and
other competitive events, but elsewhere stated that the class includes
``any and all works'' where audiovisual recordings may be made,
including individual school performances. NTIA recommended denying the
proposed exemption. As discussed more fully in the Register's
Recommendation, the Register does not recommend the adoption of an
exemption for proposed Class 4.
3. Proposed Class 6: Audiovisual Works--Space-Shifting \77\
---------------------------------------------------------------------------
\77\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.F.
---------------------------------------------------------------------------
Proposed Class 6 would allow circumvention of TPMs protecting
motion pictures and other audiovisual works to engage in space-
shifting. Petitioner failed to provide legal arguments or evidence to
demonstrate that space-shifting is a noninfringing use. Additionally,
petitioner did not participate in the public hearings to support its
petition or clarify whether the proposed exemption would extend to
commercial services. Opponents argued that petitioner did not provide
the evidence necessary to support an exemption, citing several
substantive and procedural deficiencies. NTIA recommended denying the
proposed exemption. As discussed more fully in the Register's
Recommendation, the Register does not recommend the adoption of an
exemption for proposed Class 6.
D. Conclusion
Having considered the evidence in the record, the contentions of
the commenting parties, and the statutory objectives, the Register of
Copyrights has recommended that the Librarian of Congress publish
certain classes of works, as designated above, so that the prohibition
against circumvention of technological measures that effectively
control access to copyrighted works shall not apply for the next three
years to persons who engage in noninfringing uses of those particular
classes of works.
Dated: October 20, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
Determination of the Librarian of Congress
Having duly considered and accepted the recommendation of the
Register of Copyrights, the Librarian of Congress, pursuant to 17
U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the
classes of copyrighted works that shall for a three-year period be
subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A).
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
Final Regulations
For the reasons set forth in the preamble, 37 CFR part 201 is
amended as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Section 201.40 is amended by revising paragraph (b) to read as
follows:
Sec. 201.40 Exemption to prohibition against circumvention.
* * * * *
(b) Classes of copyrighted works. Pursuant to the authority set
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation
of the Register of Copyrights, the Librarian has determined that the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A) shall not apply to persons who engage in noninfringing
uses of the following classes of copyrighted works:
(1) Motion pictures (including television shows and videos), as
defined in 17 U.S.C. 101, where the motion picture is lawfully made and
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Content System, or via a
digital transmission protected by a technological measure, and the
person engaging in circumvention under paragraphs (b)(1)(i) and
(b)(1)(ii)(A) and (B) of this section reasonably believes that non-
circumventing alternatives are unable to produce the required level of
high-quality content, or the circumvention is undertaken using screen-
capture technology that appears to be offered to the public as enabling
the reproduction of motion pictures after content has been lawfully
acquired and decrypted, where circumvention is undertaken solely in
order to make use of short portions of the motion pictures in the
following instances:
(i) For the purpose of criticism or comment:
(A) For use in documentary filmmaking, or other films where the
motion picture clip is used in parody or for its biographical or
historically significant nature;
(B) For use in noncommercial videos (including videos produced for
a paid commission if the commissioning entity's use is noncommercial);
or
(C) For use in nonfiction multimedia e-books.
(ii) For educational purposes:
(A) By college and university faculty and students or kindergarten
through twelfth-grade (K-12) educators and students (where the K-12
student is circumventing under the direct supervision of an educator),
or employees acting at the direction of faculty of such educational
institutions for the purpose of teaching a course, including of
accredited general educational development (GED) programs, for the
purpose of criticism, comment, teaching, or scholarship;
(B) By faculty of accredited nonprofit educational institutions and
employees acting at the direction of faculty members of those
institutions, for purposes of offering massive open online courses
(MOOCs) to officially enrolled students through online platforms (which
platforms themselves may be operated for profit), in film studies or
other courses requiring close analysis of film and media excerpts, for
the purpose of criticism or comment, where the MOOC provider through
the online platform limits transmissions to the extent technologically
feasible to such officially enrolled students, institutes copyright
policies and provides copyright informational materials to faculty,
students, and relevant staff members, and applies technological
measures that reasonably
[[Page 59638]]
prevent unauthorized further dissemination of a work in accessible form
to others or retention of the work for longer than the course session
by recipients of a transmission through the platform, as contemplated
by 17 U.S.C. 110(2); or
(C) By educators and participants in nonprofit digital and media
literacy programs offered by libraries, museums, and other nonprofit
entities with an educational mission, in the course of face-to-face
instructional activities, for the purpose of criticism or comment,
except that such users may only circumvent using screen-capture
technology that appears to be offered to the public as enabling the
reproduction of motion pictures after content has been lawfully
acquired and decrypted.
(2)(i) Motion pictures (including television shows and videos), as
defined in 17 U.S.C. 101, where the motion picture is lawfully acquired
on a DVD protected by the Content Scramble System, on a Blu-ray disc
protected by the Advanced Access Content System, or via a digital
transmission protected by a technological measure, where:
(A) Circumvention is undertaken by a disability services office or
other unit of a kindergarten through twelfth-grade educational
institution, college, or university engaged in and/or responsible for
the provision of accessibility services for the purpose of adding
captions and/or audio description to a motion picture to create an
accessible version for students, faculty, or staff with disabilities;
(B) The educational institution unit in paragraph (b)(2)(i)(A) of
this section has a reasonable belief that the motion picture will be
used for a specific future activity of the institution and, after a
reasonable effort, has determined that an accessible version of
sufficient quality cannot be obtained at a fair market price or in a
timely manner, including where a copyright holder has not provided an
accessible version of a motion picture that was included with a
textbook; and
(C) The accessible versions are provided to students or educators
and stored by the educational institution in a manner intended to
reasonably prevent unauthorized further dissemination of a work.
(ii) For purposes of paragraph (b)(2) of this section,
(A) ``Audio description'' means an oral narration that provides an
accurate rendering of the motion picture;
(B) ``Accessible version of sufficient quality'' means a version
that in the reasonable judgment of the educational institution unit has
captions and/or audio description that are sufficient to meet the
accessibility needs of students, faculty, or staff with disabilities
and are substantially free of errors that would materially interfere
with those needs; and
(C) Accessible materials created pursuant to this exemption and
stored pursuant to paragraph (b)(2)(i)(C) of this section may be reused
by the educational institution unit to meet the accessibility needs of
students, faculty, or staff with disabilities pursuant to paragraphs
(b)(2)(i)(A) and (B) of this section.
(3)(i) Motion pictures (including television shows and videos), as
defined in 17 U.S.C. 101, where the motion picture is lawfully acquired
on a DVD protected by the Content Scramble System, or on a Blu-ray disc
protected by the Advanced Access Content System, solely for the purpose
of lawful preservation or the creation of a replacement copy of the
motion picture, by an eligible library, archives, or museum, where:
(A) Such activity is carried out without any purpose of direct or
indirect commercial advantage;
(B) The DVD or Blu-ray disc is damaged or deteriorating;
(C) The eligible institution, after a reasonable effort, has
determined that an unused and undamaged replacement copy cannot be
obtained at a fair price and that no streaming service, download
service, or on-demand cable and satellite service makes the motion
picture available to libraries, archives, and museums at a fair price;
and
(D) The preservation or replacement copies are not distributed or
made available outside of the physical premises of the eligible
library, archives, or museum.
(ii) For purposes of paragraph (b)(3)(i) of this section, a
library, archives, or museum is considered ``eligible'' if--
(A) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(B) The library, archives, or museum has a public service mission;
(C) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(D) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(E) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by
paragraph (b)(3)(i) of this section.
(4)(i) Motion pictures, as defined in 17 U.S.C. 101, where the
motion picture is on a DVD protected by the Content Scramble System, on
a Blu-ray disc protected by the Advanced Access Content System, or made
available for digital download where:
(A) The circumvention is undertaken by a researcher affiliated with
a nonprofit institution of higher education, or by a student or
information technology staff member of the institution at the direction
of such researcher, solely to deploy text and data mining techniques on
a corpus of motion pictures for the purpose of scholarly research and
teaching;
(B) The copy of each motion picture is lawfully acquired and owned
by the institution, or licensed to the institution without a time
limitation on access;
(C) The person undertaking the circumvention views or listens to
the contents of the motion pictures in the corpus solely for the
purpose of verification of the research findings; and
(D) The institution uses effective security measures to prevent
further dissemination or downloading of motion pictures in the corpus,
and to limit access to only the persons identified in paragraph
(b)(4)(i)(A) of this section or to researchers affiliated with other
institutions of higher education solely for purposes of collaboration
or replication of the research.
(ii) For purposes of paragraph (b)(4)(i) of this section:
(A) An institution of higher education is defined as one that:
(1) Admits regular students who have a certificate of graduation
from a secondary school or the equivalent of such a certificate;
(2) Is legally authorized to provide a postsecondary education
program;
(3) Awards a bachelor's degree or provides not less than a two-year
program acceptable towards such a degree;
(4) Is a public or other nonprofit institution; and
(5) Is accredited by a nationally recognized accrediting agency or
association.
(B) The term ``effective security measures'' means security
measures that have been agreed to by interested copyright owners of
motion pictures and institutions of higher education; or, in the
absence of such measures, those measures that the institution uses to
keep its own highly confidential information secure. If the institution
uses the security measures it uses to protect its own highly
confidential
[[Page 59639]]
information, it must, upon a reasonable request from a copyright owner
whose work is contained in the corpus, provide information to that
copyright owner regarding the nature of such measures.
(5)(i) Literary works, excluding computer programs and compilations
that were compiled specifically for text and data mining purposes,
distributed electronically where:
(A) The circumvention is undertaken by a researcher affiliated with
a nonprofit institution of higher education, or by a student or
information technology staff member of the institution at the direction
of such researcher, solely to deploy text and data mining techniques on
a corpus of literary works for the purpose of scholarly research and
teaching;
(B) The copy of each literary work is lawfully acquired and owned
by the institution, or licensed to the institution without a time
limitation on access;
(C) The person undertaking the circumvention views the contents of
the literary works in the corpus solely for the purpose of verification
of the research findings; and
(D) The institution uses effective security measures to prevent
further dissemination or downloading of literary works in the corpus,
and to limit access to only the persons identified in paragraph
(b)(5)(i)(A) of this section or to researchers or to researchers
affiliated with other institutions of higher education solely for
purposes of collaboration or replication of the research.
(ii) For purposes of paragraph (b)(5)(i) of this section:
(A) An institution of higher education is defined as one that:
(1) Admits regular students who have a certificate of graduation
from a secondary school or the equivalent of such a certificate;
(2) Is legally authorized to provide a postsecondary education
program;
(3) Awards a bachelor's degree or provides not less than a two-year
program acceptable towards such a degree;
(4) Is a public or other nonprofit institution; and
(5) Is accredited by a nationally recognized accrediting agency or
association.
(B) The term ``effective security measures'' means security
measures that have been agreed to by interested copyright owners of
literary works and institutions of higher education; or, in the absence
of such measures, those measures that the institution uses to keep its
own highly confidential information secure. If the institution uses the
security measures it uses to protect its own highly confidential
information, it must, upon a reasonable request from a copyright owner
whose work is contained in the corpus, provide information to that
copyright owner regarding the nature of such measures.
(6)(i) Literary works or previously published musical works that
have been fixed in the form of text or notation, distributed
electronically, that are protected by technological measures that
either prevent the enabling of read-aloud functionality or interfere
with screen readers or other applications or assistive technologies:
(A) When a copy or phonorecord of such a work is lawfully obtained
by an eligible person, as such a person is defined in 17 U.S.C. 121;
provided, however, that the rights owner is remunerated, as
appropriate, for the market price of an inaccessible copy of the work
as made available to the general public through customary channels; or
(B) When such a work is lawfully obtained and used by an authorized
entity pursuant to 17 U.S.C. 121.
(ii) For the purposes of paragraph (b)(6)(i) of this section, a
``phonorecord of such a work'' does not include a sound recording of a
performance of a musical work unless and only to the extent the
recording is included as part of an audiobook or e-book.
(7) Literary works consisting of compilations of data generated by
medical devices or by their personal corresponding monitoring systems,
where such circumvention is undertaken by or on behalf of a patient for
the sole purpose of lawfully accessing data generated by a patient's
own medical device or monitoring system. Eligibility for this exemption
is not a safe harbor from, or defense to, liability under other
applicable laws, including without limitation the Health Insurance
Portability and Accountability Act of 1996, the Computer Fraud and
Abuse Act of 1986, or regulations of the Food and Drug Administration.
(8) Computer programs that enable wireless devices to connect to a
wireless telecommunications network, when circumvention is undertaken
solely in order to connect to a wireless telecommunications network and
such connection is authorized by the operator of such network.
(9) Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained software
applications, where circumvention is accomplished for the sole purpose
of enabling interoperability of such applications with computer
programs on the smartphone or device, or to permit removal of software
from the smartphone or device. For purposes of this paragraph (b)(9), a
``portable all-purpose mobile computing device'' is a device that is
primarily designed to run a wide variety of programs rather than for
consumption of a particular type of media content, is equipped with an
operating system primarily designed for mobile use, and is intended to
be carried or worn by an individual.
(10) Computer programs that enable smart televisions to execute
lawfully obtained software applications, where circumvention is
accomplished for the sole purpose of enabling interoperability of such
applications with computer programs on the smart television, and is not
accomplished for the purpose of gaining unauthorized access to other
copyrighted works. For purposes of this paragraph (b)(10), ``smart
televisions'' includes both internet-enabled televisions, as well as
devices that are physically separate from a television and whose
primary purpose is to run software applications that stream authorized
video from the internet for display on a screen.
(11) Computer programs that enable voice assistant devices to
execute lawfully obtained software applications, where circumvention is
accomplished for the sole purpose of enabling interoperability of such
applications with computer programs on the device, or to permit removal
of software from the device, and is not accomplished for the purpose of
gaining unauthorized access to other copyrighted works. For purposes of
this paragraph (b)(11), a ``voice assistant device'' is a device that
is primarily designed to run a wide variety of programs rather than for
consumption of a particular type of media content, is designed to take
user input primarily by voice, and is designed to be installed in a
home or office.
(12) Computer programs that enable routers and dedicated network
devices to execute lawfully obtained software applications, where
circumvention is accomplished for the sole purpose of enabling
interoperability of such applications with computer programs on the
router or dedicated network device, and is not accomplished for the
purpose of gaining unauthorized access to other copyrighted works. For
the purposes of this paragraph (b)(12), ``dedicated network device''
includes switches, hubs, bridges, gateways, modems, repeaters, and
access points, and excludes devices that are not lawfully owned.
(13) Computer programs that are contained in and control the
functioning
[[Page 59640]]
of a lawfully acquired motorized land vehicle or marine vessel such as
a personal automobile or boat, commercial vehicle or vessel, or
mechanized agricultural vehicle or vessel, except for programs accessed
through a separate subscription service, when circumvention is a
necessary step to allow the diagnosis, repair, or lawful modification
of a vehicle or vessel function, where such circumvention is not
accomplished for the purpose of gaining unauthorized access to other
copyrighted works. Eligibility for this exemption is not a safe harbor
from, or defense to, liability under other applicable laws, including
without limitation regulations promulgated by the Department of
Transportation or the Environmental Protection Agency.
(14) Computer programs that are contained in and control the
functioning of a lawfully acquired device that is primarily designed
for use by consumers, when circumvention is a necessary step to allow
the diagnosis, maintenance, or repair of such a device, and is not
accomplished for the purpose of gaining access to other copyrighted
works. For purposes of this paragraph (b)(14):
(i) The ``maintenance'' of a device is the servicing of the device
in order to make it work in accordance with its original specifications
and any changes to those specifications authorized for that device; and
(ii) The ``repair'' of a device is the restoring of the device to
the state of working in accordance with its original specifications and
any changes to those specifications authorized for that device. For
video game consoles, ``repair'' is limited to repair or replacement of
a console's optical drive and requires restoring any technological
protection measures that were circumvented or disabled.
(15) Computer 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. For
purposes of this paragraph (b)(15):
(i) The ``maintenance'' of a device or system is the servicing of
the device or system in order to make it work in accordance with its
original specifications and any changes to those specifications
authorized for that device or system; and
(ii) The ``repair'' of a device or system is the restoring of the
device or system to the state of working in accordance with its
original specifications and any changes to those specifications
authorized for that device or system.
(16)(i) Computer programs, where the circumvention is undertaken on
a lawfully acquired device or machine on which the computer program
operates, or is undertaken on a computer, computer system, or computer
network on which the computer program operates with the authorization
of the owner or operator of such computer, computer system, or computer
network, solely for the purpose of good-faith security research.
(ii) For purposes of paragraph (b)(16)(i) of this section, ``good-
faith security research'' means accessing a computer program solely for
purposes of good-faith testing, investigation, and/or correction of a
security flaw or vulnerability, where such activity is carried out in
an environment designed to avoid any harm to individuals or the public,
and where the information derived from the activity is used primarily
to promote the security or safety of the class of devices or machines
on which the computer program operates, or those who use such devices
or machines, and is not used or maintained in a manner that facilitates
copyright infringement.
(iii) Good-faith security research that qualifies for the exemption
under paragraph (b)(16)(i) of this section may nevertheless incur
liability under other applicable laws, including without limitation the
Computer Fraud and Abuse Act of 1986, as amended and codified in title
18, United States Code, and eligibility for that exemption is not a
safe harbor from, or defense to, liability under other applicable laws.
(17)(i) Video games in the form of computer programs embodied in
physical or downloaded formats that have been lawfully acquired as
complete games, when the copyright owner or its authorized
representative has ceased to provide access to an external computer
server necessary to facilitate an authentication process to enable
gameplay, solely for the purpose of:
(A) Permitting access to the video game to allow copying and
modification of the computer program to restore access to the game for
personal, local gameplay on a personal computer or video game console;
or
(B) Permitting access to the video game to allow copying and
modification of the computer program to restore access to the game on a
personal computer or video game console when necessary to allow
preservation of the game in a playable form by an eligible library,
archives, or museum, where such activities are carried out without any
purpose of direct or indirect commercial advantage and the video game
is not distributed or made available outside of the physical premises
of the eligible library, archives, or museum.
(ii) Video games in the form of computer programs embodied in
physical or downloaded formats that have been lawfully acquired as
complete games, that do not require access to an external computer
server for gameplay, and that are no longer reasonably available in the
commercial marketplace, solely for the purpose of preservation of the
game in a playable form by an eligible library, archives, or museum,
where such activities are carried out without any purpose of direct or
indirect commercial advantage and the video game is not distributed or
made available outside of the physical premises of the eligible
library, archives, or museum.
(iii) Computer programs used to operate video game consoles solely
to the extent necessary for an eligible library, archives, or museum to
engage in the preservation activities described in paragraph
(b)(17)(i)(B) or (b)(17)(ii) of this section.
(iv) For purposes of this paragraph (b)(17), the following
definitions shall apply:
(A) For purposes of paragraphs (b)(17)(i)(A) and (b)(17)(ii) of
this section, ``complete games'' means video games that can be played
by users without accessing or reproducing copyrightable content stored
or previously stored on an external computer server.
(B) For purposes of paragraph (b)(17)(i)(B) of this section,
``complete games'' means video games that meet the definition in
paragraph (b)(17)(iv)(A) of this section, or that consist of both a
copy of a game intended for a personal computer or video game console
and a copy of the game's code that was stored or previously stored on
an external computer server.
(C) ``Ceased to provide access'' means that the copyright owner or
its authorized representative has either issued an affirmative
statement indicating that external server support for the video game
has ended and such support is in fact no longer available or,
alternatively, server support has been discontinued for a period of at
least six months; provided, however, that server support has not since
been restored.
(D) ``Local gameplay'' means gameplay conducted on a personal
computer or video game console, or locally connected personal computers
or consoles, and not through an online service or facility.
(E) A library, archives, or museum is considered ``eligible'' if--
[[Page 59641]]
(1) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(2) The library, archives, or museum has a public service mission;
(3) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(4) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(5) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by this
paragraph (b)(17).
(18)(i) Computer programs, except video games, that have been
lawfully acquired and that are no longer reasonably available in the
commercial marketplace, solely for the purpose of lawful preservation
of a computer program, or of digital materials dependent upon a
computer program as a condition of access, by an eligible library,
archives, or museum, where such activities are carried out without any
purpose of direct or indirect commercial advantage. Any electronic
distribution, display, or performance made outside of the physical
premises of an eligible library, archives, or museum of works preserved
under this paragraph may be made to only one user at a time, for a
limited time, and only where the library, archives, or museum has no
notice that the copy would be used for any purpose other than private
study, scholarship, or research.
(ii) For purposes of the exemption in paragraph (b)(18)(i) of this
section, a library, archives, or museum is considered ``eligible'' if--
(A) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(B) The library, archives, or museum has a public service mission;
(C) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(D) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(E) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by this
paragraph (b)(18).
(19) Computer programs that operate 3D printers that employ
technological measures to limit the use of material, when circumvention
is accomplished solely for the purpose of using alternative material
and not for the purpose of accessing design software, design files, or
proprietary data.
(20) Computer programs, solely for the purpose of investigating a
potential infringement of free and open source computer programs where:
(i) The circumvention is undertaken on a lawfully acquired device
or machine other than a video game console, on which the computer
program operates;
(ii) The circumvention is performed by, or at the direction of, a
party that has a good-faith, reasonable belief in the need for the
investigation and has standing to bring a breach of license or
copyright infringement claim;
(iii) Such circumvention does not constitute a violation of
applicable law; and
(iv) The copy of the computer program, or the device or machine on
which it operates, is not used or maintained in a manner that
facilitates copyright infringement.
(21) Video games in the form of computer programs, embodied in
lawfully acquired physical or downloaded formats, and operated on a
general-purpose computer, where circumvention is undertaken solely for
the purpose of allowing an individual with a physical disability to use
software or hardware input methods other than a standard keyboard or
mouse.
* * * * *
Dated: October 21, 2021.
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2021-23311 Filed 10-27-21; 8:45 am]
BILLING CODE 1410-30-P
