Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies

CourtCopyright Office,Library Of Congress
Citation86 FR 59627
Publication Date28 October 2021
Record Number2021-23311
59627
Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations
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).
2
17 U.S.C. 1201(a)(3)(A).
3
17 U.S.C. 1201(a)(3)(B).
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.
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.’’).
in its place the citation ‘‘34 CFR
668.23(b)’’.
b. In the parenthetical OMB control
number at the end of the section,
removing the words ‘‘control number
1840–0688’’ and adding in their place
the words ‘‘control number 1845–0039’’.
c. Removing the parenthetical
authority citation at the end of the
section
PART 691 [Removed and Reserved]
18. Under the authority of 20 U.S.C.
1221e–3, part 691 is removed and
reserved.
[FR Doc. 2021–23423 Filed 10–27–21; 8:45 am]
BILLING CODE 4000–01–P
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.
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 kamer@copyright.gov, or Mark
Gray, Attorney-Advisor, by email at
mgray@copyright.gov. 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
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
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
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
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
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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.
15
17 U.S.C. 1201(a)(1)(B).
16
2006 Recommendation at 19.
17
Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 85 FR 37399 (June
22, 2020).
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).
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.
22
Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 85 FR 65293,
65293 (Oct. 15, 2020).
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-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
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
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.
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.
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
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
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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.
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).
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.
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.
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.
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.
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.
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.
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
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.
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.
a. Audiovisual Works—Criticism and
Comment, Teaching, or Scholarship—
Universities and K–12 Educational
Institutions.
27
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.
b. Audiovisual Works—Criticism and
Comment—Massive Open Online
Courses (‘‘MOOCs’’).
30
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
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
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
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Bobette Buster, Authors All. & Am. Ass’n of
Univ. Professors Nonfiction Multimedia E-Books
Renewal Pet. at 3.
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.
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.
36
OTW Noncommercial Videos Renewal Pet. at 3.
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.
38
BYU Captioning Renewal Pet. at 3.
39
Accessibility Petitioners Captioning Renewal
Pet. at 3.
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.
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.
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.
43
Competitive Carriers Ass’n Unlocking Renewal
Pet.; Inst. of Scrap Recycling Indus., Inc. Unlocking
Renewal Pet.
44
ISRI Unlocking Renewal Pet. at 3.
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.
availability of high-resolution video not
available without circumvention of
TPMs.’’
33
e. Audiovisual Works—Criticism and
Comment—Filmmaking
34
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
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.
2. Audiovisual Works—Accessibility
37
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.
3. Literary Works Distributed
Electronically—Accessibility
40
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
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
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.
6. Computer Programs—Jailbreaking
45
Multiple organizations petitioned to
renew the exemptions for computer
programs that operate smartphones,
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SFC Jailbreaking Renewal Pet. at 3.
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.
48
MEMA Vehicle Repair Renewal Pet. at 3.
49
ACA Vehicle Repair Renewal Pet. at 3.
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.
51
EFF Device Repair Renewal Pet. at 3; EFF,
Repair Ass’n & iFixit Device Repair Renewal Pet. at
3.
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.
53
J. Alex Halderman, CDT & ACM Security
Research Renewal Pet. at 4.
54
MEMA Security Research Renewal Pet. at 3.
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.
56
SPN & LCA Software Preservation Renewal Pet.
at 3.
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.
7. Computer Programs—Repair of
Motorized Land Vehicles
47
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.
8. Computer Programs—Repair of
Smartphones, Home Appliances, and
Home Systems
50
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.
9. Computer Programs—Security
Research
52
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.
10. Computer Programs—Software
Preservation
55
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
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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.
58
SPN & LCA Abandoned Video Game Renewal
Pet. at 3.
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.
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.
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.
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.
11. Computer Programs—Video Game
Preservation
57
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.
12. Computer Programs—3D Printers
59
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
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
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
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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.
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.
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.
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.
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
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.
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
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
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
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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.
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.
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.
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.
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
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 |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
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
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 |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
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
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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.
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.
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
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
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
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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.
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.
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.
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.
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
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
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
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
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
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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.
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.
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
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
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
1. The authority citation for part 201
continues to read as follows:
Authority: 17 U.S.C. 702.
2. Section 201.40 is amended by
revising paragraph (b) to read as follows:
§ 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
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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
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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
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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—
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Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations
1
In the April 24, 2020, SIP revision SC DHEC also
submitted to EPA changes to Regulations 61–62.1,
Continued
(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
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2020–0445; FRL–8779–02–
R4]
Air Plan Approval; SC; Revisions to
Definitions
AGENCY
: Environmental Protection
Agency (EPA).
ACTION
: Final rule.
SUMMARY
: The Environmental Protection
Agency (EPA) is finalizing approval of
a State Implementation Plan (SIP)
revision submitted by the State of South
Carolina, through the South Carolina
Department of Health and
Environmental Control (SC DHEC or
Department), on April 24, 2020. The SIP
revision updates the definition of ‘‘Spec.
Oil (Specification Oil)’’ and makes
minor updates to formatting and
numbering. EPA is finalizing approval
of these changes pursuant to the Clean
Air Act (CAA or Act) and implementing
federal regulations.
DATES
: This rule is effective November
29, 2021.
ADDRESSES
: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2020–0445. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that
if at all possible, you contact the person
listed in the
FOR FURTHER INFORMATION
CONTACT
section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT
:
Andres Febres, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air and
Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303–8960.
The telephone number is (404) 562–
8966. Mr. Febres can also be reached via
electronic mail at febres-
martinez.andres@epa.gov.
SUPPLEMENTARY INFORMATION
:
I. Background
On April 24, 2020, SC DHEC
submitted a SIP revision to EPA for
approval that includes changes to South
Carolina Regulation 61–62.1, Section I—
Definitions.
1
First, SC DHEC’s April 24,
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