Exemptions To Permit Circumvention of Access Controls on Copyrighted Works

As Enacted ( Federal Register)

Cited authorities 14

Cited in

Published date	15 October 2020
Citation	85 FR 65293
Record Number	2020-22893
Section	Proposed rules
Court	Library Of Congress,U.s. Copyright Office

65293

Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules

85 FR 37399 (June 22, 2020).

The comments received in response to the

notification of inquiry are available at https://

www.regulations.gov/docketBrowser?rpp=25&so=

DESC&sb=comment

DueDate&po=0&dct=PS&D=COLC-2020-0010 and

on the Copyright Office website. Renewal petitions

are available at https://www.copyright.gov/1201/

2021/petitions/renewal/, and petitions for new

exemptions are available at https://

www.copyright.gov/1201/2021/petitions/proposed/.

References to renewal petitions and comments are

by party name (abbreviated where appropriate) and

a brief identification of the previously granted

exemption, followed by either ‘‘Renewal Pet.,’’

‘‘Supp.’’ (for comments supporting an exemption),

or ‘‘Opp.’’ (for comments opposing an exemption).

References to petitions for new exemptions are by

party name (abbreviated where appropriate), the

Office’s proposed class number, and ‘‘Pet.’’

17 U.S.C. 1201(a)(1)(C).

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Dated: September 4, 2020.

Kenneth White,

Senior Policy Analyst, Under Secretary for

Economic Affairs.

[FR Doc. 2020–20035 Filed 10–14–20; 8:45 am]

BILLING CODE 3510–20–P

LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2020–11]

Exemptions To Permit Circumvention

of Access Controls on Copyrighted

Works

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of proposed rulemaking.

SUMMARY

: The United States Copyright

Office is conducting the eighth triennial

rulemaking proceeding under the Digital

Millennium Copyright Act (‘‘DMCA’’),

concerning possible temporary

exemptions to the DMCA’s prohibition

against circumvention of technological

measures that control access to

copyrighted works. In this proceeding,

the Copyright Office is considering

petitions for the renewal of exemptions

that were granted during the seventh

triennial rulemaking along with

petitions for new exemptions to engage

in activities not currently permitted by

existing exemptions. On June 22, 2020,

the Office published a notification of

inquiry requesting petitions to renew

existing exemptions and comments in

response to those petitions, as well as

petitions for new exemptions. Having

carefully considered the comments

received in response to that notification,

in this notice of proposed rulemaking

(‘‘NPRM’’), the Office announces its

intention to recommend each of the

existing exemptions for readoption. This

NPRM also initiates three rounds of

public comment on the newly-proposed

exemptions. Interested parties are

invited to make full legal and

evidentiary submissions in support of or

in opposition to the proposed

exemptions, in accordance with the

requirements set forth below.

DATES

: Initial written comments

(including documentary evidence) and

multimedia evidence from proponents

and other members of the public who

support the adoption of a proposed

exemption, as well as parties that

neither support nor oppose an

exemption but seek to share pertinent

information about a proposal, are due

December 14, 2020. Written response

comments (including documentary

evidence) and multimedia evidence

from those who oppose the adoption of

a proposed exemption are due February

9, 2021. Written reply comments from

supporters of particular proposals and

parties that neither support nor oppose

a proposal are due March 10, 2021.

Commenting parties should be aware

that rather than reserving time for

potential extensions of time to file

comments, the Office has already

established what it believes to be the

most generous possible deadlines

consistent with the goal of concluding

the triennial proceeding in a timely

fashion.

ADDRESSES

: The Copyright Office is

using the regulations.gov system for the

submission and posting of comments in

this proceeding. All comments are

therefore to be submitted electronically

through regulations.gov. The Office is

accepting two types of comments. First,

commenters who wish briefly to express

general support for or opposition to a

proposed exemption may submit such

comments electronically by typing into

the comment field on regulations.gov.

Second, commenters who wish to

provide a fuller legal and evidentiary

basis for their position may upload a

Word or PDF document, but such longer

submissions must be completed using

the long-comment form provided on the

Office’s website at https://

www.copyright.gov/1201/2021. Specific

instructions for submitting comments,

including multimedia evidence that

cannot be uploaded through

regulations.gov, are also available on

that web page. If a commenter cannot

meet a particular submission

requirement, please contact the Office

using the contact information below for

special instructions.

FOR FURTHER INFORMATION CONTACT

Regan A. Smith, General Counsel and

Associate Register of Copyrights, by

email at regans@copyright.gov, Kevin R.

Amer, Deputy General Counsel, by

email at kamer@copyright.gov, or Terry

Hart, Assistant General Counsel, by

email at tehart@copyright.gov. Each can

be contacted by telephone by calling

(202) 707–8350.

SUPPLEMENTARY INFORMATION

: On June

22, 2020, the Office published a

notification of inquiry requesting

petitions to renew current exemptions,

oppositions to the renewal petitions,

and petitions for newly proposed

exemptions in connection with the

eighth triennial section 1201

rulemaking.

In response, the Office

received thirty-two renewal petitions,

eight comments in opposition to

renewal of a current exemption, and

seven comments supporting renewal of

a current exemption.

These comments

are discussed further below. In addition,

the Office received twenty-six petitions

for new exemptions or expansion of

previously granted exemptions.

With this NPRM, the Office sets forth

the exemptions that it intends to

recommend for readoption without the

need for further development of the

administrative record, and outlines the

proposed classes for new exemptions for

which the Office initiates three rounds

of public comment.

I. Standard for Evaluating Proposed

Exemptions

As the notification of inquiry

explained, for a temporary exemption

from the prohibition on circumvention

to be granted through the triennial

rulemaking, it must be established that

‘‘persons who are users of a copyrighted

work are, or are likely to be in the

succeeding 3-year period, adversely

affected by the prohibition . . . in their

ability to make noninfringing uses

under [title 17] of a particular class of

copyrighted works.’’

To define an

appropriate class of copyrighted works,

the Office begins with the broad

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See H.R. Rep. No. 105–551, pt. 2, at 38 (1998)

(‘‘Commerce Comm. Report’’); U.S. Copyright

Office, Section 1201 Rulemaking: Seventh Triennial

Proceeding to Determine Exemptions to the

Prohibition on Circumvention, Recommendation of

the Acting Register of Copyrights 13–14 (2018)

(‘‘2018 Recommendation’’); U.S. Copyright Office,

Section 1201 of Title 17, at 26, 108–10 (2017),

https://www.copyright.gov/policy/1201/section-

1201-full-report.pdf (‘‘Section 1201 Study’’); see

also 82 FR 49550, 49551 (Oct. 26, 2017) (same).

17 U.S.C. 1201(a)(1)(C).

Section 1201 Study at 114.

Id. at 115; see also id. at 115–27.

Id. at 115–17. While controlling precedent

directly on point is not required to justify an

exemption, there is no ‘‘rule of doubt’’ favoring an

exemption when it is unclear that a particular use

is fair or otherwise noninfringing. See U.S.

Triennial Proceeding to Determine Exemptions to

the Prohibition on Circumvention,

Recommendation of the Register of Copyrights 15

(2015) (‘‘2015 Recommendation’’).

Commerce Comm. Report at 37; see also 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

4th, 1998, at 6 (Comm. Print 1998) (using the

equivalent phrase ‘‘substantial adverse impact’’)

(‘‘House Manager’s Report’’); see also, e.g., Section

1201 Study at 119–21 (discussing same and citing

application of this standard in five prior

rulemakings).

See 17 U.S.C. 1201(a)(1)(C) (asking whether

users ‘‘are, or are likely to be in the succeeding 3-

year period, adversely affected by the prohibition

[on circumvention] in their ability to make

noninfringing uses’’) (emphasis added); Section

1201 Study at 111–12; see also Sea Island Broad.

Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980)

(noting that ‘‘[t]he use of the ‘preponderance of

evidence’ standard is the traditional standard in

civil and administrative proceedings’’); 70 FR

57526, 57528 (Oct. 3, 2005); 2018 Recommendation

at 18; 2015 Recommendation at 13–14; U.S.

Triennial Proceeding to Determine Exemptions to

the Prohibition on Circumvention,

Recommendation of the Register of Copyrights 6

(2012) (‘‘2012 Recommendation’’); U.S. Copyright

Office, Section 1201 Rulemaking: Second Triennial

Proceeding to Determine Exemptions to the

Prohibition on Circumvention, Recommendation of

the Register of Copyrights 19–20 (2003).

Section 1201 Study at 142, 145.

Id. at 143.

2018 Recommendation at 17.

Id. at 22.

Id. at 19.

See, e.g., id. at 19 n.80 (collecting transcript

testimony from 2018 rulemaking).

Section 1201 Study at 143–44.

categories of works identified in 17

U.S.C. 102 and then refines them by

other criteria, such as the technological

protection measures (‘‘TPMs’’) used,

distribution platforms, and/or types of

uses or users.

In evaluating the evidence, the

statutory factors listed in section

1201(a)(1)(C) are weighed: (i) The

availability for use of copyrighted

works; (ii) the availability for use of

works for nonprofit archival,

preservation, and educational purposes;

(iii) the impact that the prohibition on

the circumvention of technological

measures applied to copyrighted works

has on criticism, comment, news

reporting, teaching, scholarship, or

research; (iv) the effect of circumvention

of technological measures on the market

for or value of copyrighted works; and

(v) such other factors as the Librarian

considers appropriate.

After

developing a comprehensive

administrative record, the Register

makes a recommendation to the

Librarian of Congress concerning

whether exemptions are warranted

based on that record.

The Office has previously articulated

the substantive legal and evidentiary

standard for the granting of an

exemption under section 1201(a)(1)

multiple times, including in video and

PowerPoint tutorials, its 2017 policy

study for Congress on section 1201, and

in prior recommendations of the

exemptions, each of which is accessible

from the Office’s section 1201

rulemaking web page at https://

www.copyright.gov/1201/. In

considering whether to recommend an

exemption, the Office must inquire:

‘‘Are users of a copyrighted work

adversely affected by the prohibition on

circumvention in their ability to make

noninfringing uses of a class of

copyrighted works, or are users likely to

be so adversely affected in the next

three years?’’

This inquiry breaks

down into the following elements:

•The proposed class includes at least

some works protected by copyright.

•The uses at issue are noninfringing

under title 17.

•Users are adversely affected in their

ability to make such noninfringing uses

or, alternatively, users are likely to be

adversely affected in their ability to

make such noninfringing uses during

the next three years. This element is

analyzed in reference to section

1201(a)(1)(C)’s five statutory factors.

•The statutory prohibition on

circumventing access controls is the

cause of the adverse effects.

The Register will consider the Copyright

Act and relevant judicial precedents

when analyzing whether a proposed use

is likely to be noninfringing.

When

considering whether such uses are being

adversely impacted by the prohibition

on circumvention, the rulemaking

focuses on ‘‘distinct, verifiable, and

measurable impacts’’ compared to ‘‘de

minimis impacts.’’

Taking the

administrative record as a whole, the

Office will consider whether the

preponderance of the evidence shows

that the conditions for granting an

exemption have been met.

II. Review of Petitions To Renew

Existing Exemptions

As with the previous rulemaking

proceeding, the Office is using a

streamlined process for recommending

readoption of previously-adopted

exemptions to the Librarian. As the

Office explained in its 2017 policy

study, the ‘‘Register must apply the

same evidentiary standards in

recommending the renewal of

exemptions as for first-time exemption

requests,’’ and the statute requires that

‘‘a determination must be made

specifically for each triennial period.’’

The Office further determined that ‘‘the

statutory language appears to be broad

enough to permit determinations to be

based upon evidence drawn from prior

proceedings, but only upon a

conclusion that this evidence remains

reliable to support granting an

exemption in the current

proceeding.’’

The Office first

instituted this streamlined renewal

process in the seventh triennial

rulemaking, which concluded in 2018.

The process elicited requests to renew

each of the exemptions that had been

previously exempted, none of which

were meaningfully contested.

As a

result, the Office was able to

recommend renewal of all previously

granted exemptions.

The streamlined

renewal process was praised by

participants during the ensuing

rulemaking phases.

Following the same procedure that

was successfully implemented in the

last cycle, for this rulemaking, the Office

solicited petitions for the renewal of

exemptions as they are currently

formulated, without modification. As

noted, streamlined renewal is based

upon a determination that, due to a lack

of legal, marketplace, or technological

changes, the factors that led the Office

to recommend adoption of the

exemption in the prior rulemaking will

continue into the forthcoming triennial

period.

That is, the same facts and

circumstances underlying the

previously-adopted regulatory

exemption may be relied on to renew

the exemption. Accordingly, to the

extent that any renewal petition

proposed uses beyond the current

exemption, the Office disregarded those

portions of the petition for purposes of

considering the renewal of the

exemption, and instead focused on

whether it provided sufficient

information to warrant readoption of the

exemption in its current form.

The Office received thirty-two

petitions to renew existing exemptions,

including at least one petition to renew

each currently-adopted exemption. Each

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See, e.g., DVD Copy Control Ass’n (‘‘DVD

CCA’’) & Advanced Access Content Sys. Licensing

Adm’r (‘‘AACS LA’’) AV Educ. Opp’n at 4 (‘‘the

failure of any proponent to provide any example of

use by K–12 students should result in the Copyright

Office finding in this streamlined renewal process

that the exemption may not be renewed as to such

uses’’); DVD CCA & AACS LA Nonfiction

Multimedia Ebooks Opp’n at 2 (‘‘To the extent the

proponents are requesting renewal of the full

exemption, the failure to provide any example of

use of this expansion to all nonfiction works

beyond film analysis should render the exemption’s

expanded nonfiction uses ineligible for the

streamlined renewal process’’); ESA, MPA & RIAA

Noncom. Video Opp’n at 1 (‘‘the Register should

. . . carefully scrutinize OTW’s petition, and all of

the streamlined renewal petitions, to consider

whether the examples of alleged exemption use

provided in the petitions fall within the parameters

of the existing exemptions’’).

See 85 FR at 37401 (‘‘The petitioner must

provide a brief explanation summarizing the basis

for claiming a continuing need and justification for

the exemption. The required showing is meant to

be minimal.’’); Section 1201 Study at 144 (‘‘The

Office believes that the evidentiary showing

required in a declaration can be minimal, as the aim

is only to show that the harm that existed when the

exemption was first granted continues to occur or

would return but for the exemption, thus providing

a sufficient justification for the Office to rely upon

the prior rulemaking record in making a new

recommendation supporting renewal of the

exemption. Moreover, this approach appears

consistent with relevant case law upholding

determinations based upon a single sworn

affidavit.’’).

Section 1201 Study at 144 (also noting that

‘‘some stakeholders expressed wariness that, in

practice, a short-form filing might recreate the

requirements of the current rulemaking’’).

See id. at 143 (Office will request ‘‘parties

seeking renewal of an exemption to submit a short

declaration outlining the continuing need for an

exemption’’); see also id. at 144 (referring to ‘‘a

short-form filing’’).

Id. at 144.

2018 Recommendation at 18.

85 FR at 37401.

Id.

Id. at 37402; see also 2018 Recommendation at

18.

Unless otherwise noted, all references to

motion pictures as a category include television

programs and videos.

Joint Educators I AV Educ. Renewal Pet.;

Brigham Young Univ. & Brigham Young Univ.—

Idaho (collectively, ‘‘BYU’’) AV Educ. Renewal Pet.

petition to renew an existing exemption

included an explanation summarizing

the basis for claiming a continuing need

and justification for the exemption. In

each case, petitioners also signed a

declaration stating that, to the best of

their personal knowledge, there has not

been any material change in the facts,

law, or other circumstances set forth in

the prior rulemaking record such that

renewal of the exemption would not be

justified.

The Office received fifteen comments

in response to the renewal petitions;

seven of these supported renewal of a

specific exemption. Eight raised discrete

concerns with specific petitions, but

none opposed the verbatim readoption

of an existing regulatory exemption.

Rather, many of these comments

address whether the petitions received

were sufficient for the Office to consider

renewal of the full scope of an

exemption, rather than themselves

disputing the reliability of the

previously-analyzed administrative

record.

These comments are

specifically addressed in the context of

the relevant exemption below.

The Office has generally not required

petitions to speak to each and every

type of use, but rather generally aver

that the overall conditions persist.

Requiring a fulsome showing would

undermine the goal of the streamlined

process. The impetus for instituting the

streamlined process was to create a

more efficient process for unopposed

exemptions, and the Office was mindful

in shaping the streamlined renewal

process to avoid recreating the

requirements of the full rulemaking

process.

In outlining potential

mechanics in its Section 1201 Study,

the Office envisioned brief filings,

with a ‘‘minimal’’ evidentiary showing

required.

The Office has previously

advised that it is sufficient for

petitioners to declare that ‘‘there had

not been any material change in the

facts, law, or other circumstances set

forth in the prior rulemaking record

such that renewal of the exemption

would not be justified.’’

In the current

proceeding, the Office explained that it

expects petitioners would need only ‘‘a

paragraph or two’’ to explain the need

for renewal and that documentary

evidence at this stage of the process is

accepted but not necessary.

Petitioners must also ‘‘sign a declaration

attesting to the continued need for the

exemption and the truth of the

explanation provided in support’’ and

attest that ‘‘there has not been any

material change in the facts, law, or

other circumstances set forth in the

prior rulemaking record . . . that

originally demonstrated the need for the

selected exemption, such that renewal

of the exemption would not be

justified.’’

That attestation also serves

as a basis for the Office to evaluate

whether the entirety of the prior

administrative record supporting a

given exemption continues to obtain.

The Office thus concludes that the

petitions received are formally and

substantively sufficient for the Office to

consider in evaluating whether renewal

of the existing exemptions is

appropriate.

To the extent a commenter questions

whether there is a continued need for a

specific exempted use or otherwise

believes that the scope of an exemption

should be narrowed, that commenter

should come forward and oppose the

exemption. As explained in the

notification of inquiry, opposition to a

renewal request asks opponents to

provide evidence that would make it

‘‘reasonable for the Office to conclude

that the prior rulemaking record and

any further information provided in the

renewal petition are insufficient to

support recommending renewal of an

exemption.’’

The Office will then

consider such statements and, as

appropriate, will notice the issue for

subsequent comment phases to ensure

the administrative record remains

reliable in light of current

developments. But in this rulemaking,

the Office has not received comments

actually disputing whether there is a

continued basis for any exemptions.

In the next rulemaking, the Office

may consider whether to include a

mechanism for petitioners to disclaim

types of uses or other aspects of an

exemption if they believe only partial

renewal is appropriate. As detailed

below, after reviewing the petitions for

renewal and comments in response, the

Office concludes that it has received a

sufficient petition to renew each

existing exemption, and it does not find

any meaningful opposition to such

renewal. Accordingly, the Office intends

to recommend readoption of all existing

exemptions in their current form.

A. Audiovisual Works—Criticism and

Comment—Universities and K–12

Educational Institutions

Multiple organizations petitioned to

renew the exemption for motion

pictures

for educational purposes by

college and university or K–12 faculty

and students (codified at 37 CFR

201.40(b)(1)(ii)(A)).

The petitions

demonstrated the continuing need and

justification for the exemption, stating

that educators and students continue to

rely on excerpts from digital media for

class presentations and coursework.

Peter Decherney, Katherine Sender,

John Jackson, Console-ing Passions, the

American Association of University

Professors (‘‘AAUP’’), International

Communication Association (‘‘ICA’’),

Library Copyright Alliance (‘‘LCA’’),

and Society for Cinema and Media

Studies (‘‘SCMS’’) (collectively ‘‘Joint

Educators I’’) provide several examples

of professors using DVD clips in the

classroom; for example, ‘‘Cornell

University Communication professor

Lee Humphreys samples short segments

of movies and television shows for her

lectures in her ‘Media Communication’

class’’ and has ‘‘shifted from using clips

from YouTube because she wants to

show higher quality clips and to avoid

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Joint Educators I AV Educ. Renewal Pet. at 3.

Id.

DVD CCA & AACS LA AV Educ. Opp’n.

Id. at 4.

To the extent the eighth rulemaking has

received information relating to whether the

exemption remains necessary for K–12 educational

activities, Joint Educator’s petition for expansion of

this exemption also suggests it continues to be

necessary, especially in light of the ongoing

pandemic. See Decherney, Sender, Jackson, Stein,

Gaglani, Wisbauer, Berg, Siddiqui, Robertson,

Console-ing Passions, AAUP, ICA, LCA & SCMS

(collectively ‘‘Joint Educators III) Class 1 Pet. at 2.

DVD CCA & AACS LA AV Educ. Opp’n at 7.

37 CFR 201.40(b)(1).

DVD CCA & AACS LA AV Educ. Opp’n at 6–

Id. at 6.

Joint Educators I AV Educ. Renewal Pet. at 3.

See also, e.g., 2015 Recommendation at 92

(citing examples where high-definition quality is

necessary, including close analysis of ‘‘The Wizard

of Oz (to highlight prop wires and other ‘stage-like’

elements), Citizen Kane (to appreciate depth of

field, chiaroscuro effects, and subtle narrative

elements), Jacques Tati’s Playtime (to better

approximate the intended 70mm viewing

experience and appreciate the film’s very detailed

and complex composition), and Saving Private

Ryan (to experience the enhanced color and

contrast effect of bleach bypass film processing,

hyper-realism, and complex soundscapes)’’).

BYU AV Educ. MOOCS Renewal Pet.; Joint

Educators AV Educ. MOOCs Renewal Pet.

Joint Educators II AV Educ. MOOCs Renewal

Pet. at 3.

DVD CCA & AACS LA AV Educ. MOOCs Opp’n

at 1.

Id. at 2 n.3.

showing the attached advertisements to

her students.’’

In addition, co-

petitioner Peter Decherney declares that

he ‘‘continues to teach a course on

Multimedia Criticism’’ where his

students ‘‘produce short videos

analyzing media.’’

Indeed, Joint

Educators I broadly suggest 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.’’

Through these

submissions, 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.

DVD CCA and AACS LA filed

comments that do not object to the

renewal of this exemption but ask the

Office to address several purported

deficiencies in the renewal petitions.

Because DVD CCA and AACS LA

expressly disclaim opposition to

streamlined renewal of this exemption,

the Office does not treat the concerns

raised as meaningful opposition. It does,

however, provide brief additional

comment on the points raised by DVD

CCA and AACS LA regarding the

sufficiency of the petition. Regarding

the lack of evidence of use of the

exemption by K–12 educators or

students, DVD CCA and AACS LA argue

that ‘‘the failure of any proponent to

provide any example of use by K–12

students should result in the Copyright

Office finding in this streamlined

renewal process that the exemption may

not be renewed as to such uses.’’

explained above, petitioners need not

address every possible use covered by

an exemption when seeking to renew an

exemption, and the Office has

concluded that the petition was

submitted in a sufficient manner.

A similar conclusion applies to DVD

CCA and AACS LA’s complaint that

‘‘the users ignore the threshold

requirement to consider alternatives to

circumvention.’’

DVD CCA and AACS

LA are correct in noting that, although

the 2018 rulemaking eliminated prior

language limiting the exemption to

circumstances where ‘‘close analysis’’ of

video is required, it retained the

requirement that the user ‘‘reasonably

believe[ ] that non-circumventing

alternatives are unable to produce the

required level of high-quality

content.’’

From their comment, it

appears that DVD CCA and AACS LA

believe that the ‘‘close analysis’’

requirement should be reinstated, but

wish to reiterate a ‘‘lack of opposition’’

to the exemption in light of recognition

that schools are currently ‘‘wrestling

with implementing distance

learning.’’

The Office has examined the record

and finds the petitions sufficient. As

explained above, it does not follow that

petitioners seeking renewal must

provide an ‘‘explanation why screen

capture technology could not suffice to

capture and show’’ for each and every

one of the film clips they seek to use.

Petitioners made that showing in the

prior rulemaking, and their renewal

petition attests that there has been no

material change in the facts. Indeed,

Joint Educators I reference the need of

a communication professor to embed

clips in PowerPoint rather than played

from YouTube ‘‘because she wants to

show higher quality clips and to avoid

showing the attached advertisements to

her students.’’

The same petition also

provides multiple examples asserting a

continued need to make use of the

exemption for purposes of engaging in

film analysis, precisely the kind of

pedagogy that has been discussed in

connection with the prior ‘‘close

analysis’’ limitation.

This is sufficient.

It then becomes opponents’ burden to

establish a basis for concluding that the

prior findings no longer obtain. DVD

CCA and AACS LA AV have provided

no such evidence here.

Based on the information provided in

the renewal petitions and the lack of

meaningful opposition, the Office

believes that the conditions that led to

adoption of this exemption are likely to

continue during the next triennial

period. Accordingly, the Office intends

to recommend renewal of this

exemption.

B. Audiovisual Works—Criticism and

Comment—Massively Open Online

Courses (‘‘MOOCs’’)

Brigham Young University and Peter

Decherney, Katherine Sender, John

Jackson, Console-ing Passions, ICA,

LCA, and SCMS (collectively ‘‘Joint

Educators II’’) petitioned to renew the

exemption for motion pictures for

educational uses in MOOCs (codified at

37 CFR 201.40(b)(1)(ii)(B)).

oppositions were filed against

readoption of this exemption. The

petition 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 increase the number of (and

therefore access to) MOOCs in the field

of film and media studies—with Joint

Educators II noting that the ‘‘exemption

has never been so relevant as it is now

during the COVID–19 pandemic and the

universal shift of our education systems

to online learning.’’

In response to the renewal petition,

DVD CCA and AACS LA filed a

comment noting that they did not

oppose renewal of the exemption but

asking the Office to address what they

described as the ‘‘apparent failure of the

proponents’’ to employ technological

measures preventing retention and

redistribution of MOOC content.

The

comment suggests that this does not

reflect any changed circumstances, and

notes that the Office suggested in the

seventh rulemaking that the proper

method to air DVD CCA and AACS LA’s

concerns would be to oppose the

renewal.

Again, they have not done

so. The Office declines to address

whether any user’s activities may or

may not be consistent with the

exemption. The relevant exemption

language is not in dispute, and

interpreting compliance with or

eligibility for the exemption is outside

the scope of this proceeding. If DVD

CCA and AACS LA believe that the

exemption should be adjusted or

eliminated in light of abuse or difficulty

in complying with the condition that

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LCA & Hobbs AV Educ. Nonprofits Renewal

Pet.

Id.

Buster, Authors Alliance & AAUP Nonfiction

Multimedia E-Books Renewal Pet.

Id. at 3.

DVD CCA & AACS LA Nonfiction Multimedia

E-Books Opposition Pet.

Id. at 2.

2018 Recommendation at 18.

Id.

Id. at 64.

Joint Filmmakers Documentary Films Renewal

Pet.; New Media Rights (‘‘NMR’’) Documentary

Films Renewal Pet.

Joint Filmmakers Documentary Films Renewal

Pet. at 3.

Id.; NMR Documentary Films Renewal Pet. at

DVD CCA & AACS LA Documentary

Filmmaking Opp’n.

Id. at 2.

exemption beneficiaries reasonable

technological measures, the proper

response would be to submit an

opposition to this exemption so the

Office can determine whether fuller

airing through notice and comment to

evaluate this issue is appropriate.

Based on the information provided in

the renewal petition and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

C. Audiovisual Works—Criticism and

Comment—Digital and Media Literacy

Programs

LCA and Professor 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 nonprofits (codified at 37 CFR

201.40(b)(1)(ii)(C)).

No oppositions

were filed against readoption of this

exemption. The petition demonstrated

the continuing need and justification for

the exemption, and petitioners

demonstrated personal knowledge and

experience with regard to this

exemption. For example, 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.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

D. Audiovisual Works—Criticism and

Comment—Multimedia E-Books

Multiple petitioners jointly sought to

renew the exemption for the use of

motion picture excerpts in nonfiction

multimedia e-books (codified at 37 CFR

201.40(b)(1)(i)(C)).

The petition

demonstrated the continuing need and

justification for the exemption. In

addition, the petitioners demonstrated

personal knowledge through Professor

Buster’s continued work on an e-book

series based on her lecture series,

‘‘Deconstructing Master Filmmakers:

The Uses of Cinematic Enchantment,’’

which, they said, ‘‘relies on the

availability of high-resolution video not

available without circumvention of

technological protection measures.’’

In response, DVD CCA and AACS LA

filed a comment that did not object to

renewal of an exemption limited to ‘‘e-

books offering filming analysis,’’ but did

object to renewing the existing

exemption as it is currently

formulated.

DVD CCA and AACS LA

asserted that the renewal petition failed

to ‘‘provide any example of use of this

expansion to all nonfiction works

beyond film analysis.’’

As a result,

they argue that the evidence is only

sufficient to support an exemption for

use in e-books offering film analysis.

As noted above, however, in making

a petition to renew an exemption, it is

sufficient for petitioners to declare that

to their knowledge, ‘‘there had not been

any material change in the facts, law, or

other circumstances set forth in the

prior rulemaking record such that

renewal of the exemption would not be

justified.’’

Petitioners are not required

to provide examples that pertain to

every type of use covered by the

exemption. To the extent an opponent

of renewal seeks to narrow an

exemption, it should ‘‘provide evidence

that would allow the Acting Register to

reasonably conclude that the prior

rulemaking record and any further

information provided in the petitions

are insufficient for her to recommend

renewal without the benefit of a further

developed record.’’

In this case, the Office determined in

the 2018 proceeding that the record was

sufficient to justify recommending an

exemption that includes nonfiction uses

beyond film analysis.

The Office

concludes that the renewal petition,

which seeks renewal of the exemption

as previously adopted, is sufficient to

support renewal. Although DVD CCA

and AACS LA note that the statements

in the renewal petition are limited to

examples related to e-books offering

film analysis, this opposition does not

amount to evidence in the form of legal,

marketplace, or technological changes

that render the prior rulemaking record

insufficient to support recommending

renewal.

Based on the information provided in

the renewal petition and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

E. Audiovisual Works—Criticism and

Comment—Filmmaking

Multiple organizations petitioned to

renew the exemption for motion

pictures for uses in documentary films

or other films where use is in parody or

for a biographical or historically

significant nature (codified at 37 CFR

201.40(b)(1)(i)(A)).

The petitions

summarized the continuing need and

justification for the exemption, and the

petitioners demonstrated personal

knowledge and experience with regard

to this exemption. For example, the

International Documentary Association,

Film Independent, and Kartemquin

Educational Films (collectively ‘‘Joint

Filmmakers’’)—which represent

thousands of independent filmmakers

across the nation—stated that TPMs

such as encryption continue to prevent

filmmakers from accessing needed

material, and that this is ‘‘especially

true for the kind of high fidelity motion

picture material filmmakers need to

satisfy both distributors and viewers.’’

Petitioners state that they personally

know many filmmakers who have found

it necessary to rely on this exemption

and will continue to do so.

DVD CCA and AACS LA filed

comments that did not oppose renewal

of the exemption but did object to the

characterization of the exemption filed

by the filmmaking proponents.

Specifically, DVD CCA and AACS LA

noted that the exemption is limited to

criticism or comment, documentary

filmmaking, or any filmmaking that

would make use of a clip in a parody

or for its biographical or historical

nature; in their view, petitioners suggest

the exemption covers all fair use or

noninfringing uses.

The Office does

not find it necessary to opine on the

characterization of the petitions by DVD

CCA and AACS LA and believes that

petitioners’ declarations have met the

minimal showing sufficient to support

renewal of the exemption without

modification.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

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NMR Noncom. Videos Renewal Pet.; OTW

Noncom. Videos Renewal Pet.

OTW Noncom. Videos Renewal Pet. at 3.

Id.

NMR Noncom. Videos Renewal Pet. at 3.

OTW Noncom. Videos Renewal Pet. at 4.

Id.

DVD CCA & AACS LA Noncom. Videos Opp’n;

ESA, MPA & RIAA Noncom. Videos Opp’n.

The Office notes that much of the language that

has been added to the exemption since 2008 was

sought by proponents of the exemption, e.g., the

addition of a reference to the statutory definition of

motion pictures was sought by EFF. See 2012

Recommendation at 105. In some cases, the

addition of such language was supported by OTW

itself. See, e.g., id. at 110 (adding clarification that

commissioned videos are included within

exemption if ultimate use is noncommercial, a

proposal that was supported by OTW).

Ass’n of Transcribers and Speech-to-Text

Providers (‘‘ATSP’’), Ass’n on Higher Educ. and

Disability (‘‘AHEAD’’) & LCA Captioning Renewal

Pet.; BYU Captioning Renewal Pet.

BYU Captioning Renewal Pet. at 3.

ATSP, AHEAD & LCA Captioning Renewal Pet.

at 3.

Am. Council for the Blind (‘‘ACB’’), Am. Fed’n

for the Blind (‘‘AFB’’), Nat’l Fed’n of the Blind

(‘‘NFB’’), LCA, American Association of Law

Libraries (‘‘AALL’’), Benetech/Bookshare, and

HathiTrust Assistive Technologies Renewal Pet.

Id. at 3.

Id. at 3–4.

Id. at 4.

Campos Medical Devices Renewal Pet.

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

F. Audiovisual Works—Criticism and

Comment—Noncommercial Videos

Two organizations petitioned to

renew the exemption for motion

pictures for uses in noncommercial

videos (codified at 37 CFR

201.40(b)(1)(i)(B)).

The petitions

demonstrated the continuing need and

justification for the exemption, and the

petitioners demonstrated personal

knowledge and experience with regard

to this exemption. For example, one of

the petitioners, the Organization for

Transformative Works (‘‘OTW’’), has

advocated for the noncommercial video

exemption in past triennial

rulemakings, and has heard from ‘‘a

number of noncommercial remix

artists’’ who have used the exemption

and anticipate needing to use it in the

future.

OTW included an account

from an academic stating that footage

ripped from DVDs and Blu-ray was

preferred for ‘‘vidders’’ (noncommercial

remix artists) because ‘‘it is high quality

enough to bear up under the

transformations that vidders make to

it.’’

Similarly, NMR stated that its staff

personally knows ‘‘many video creators

that have found it necessary to rely on

this exemption during the current

triennial period’’ and who intend to

make these types of uses in the next

triennial period.

OTW contends that ‘‘the exemption

should be renewed using the relatively

simple language defining the exempted

class from the 2008 rulemaking,

covering both DVDs and Blu-Ray (and

streaming where necessary) ‘when

circumvention is accomplished solely in

order to accomplish the incorporation of

short portions of motion pictures into

new works for the purpose of criticism

or comment, and where the person

engaging in circumvention believes and

has reasonable grounds for believing

that circumvention is necessary to fulfill

the purpose of the use.’ ’’

OTW asserts

that this change would not constitute

‘‘an expansion of the existing

exemption, but a more understandable

restatement.’’

Two comments, one

from DVD CCA and AACS LA and the

other from the Entertainment Software

Association (‘‘ESA’’), Motion Picture

Association (‘‘MPA’’), and Recording

Industry Association of America

(‘‘RIAA’’) did not object to the renewal

of the exemption for noncommercial

videos but did object to the proposed

change in the language sought by OTW,

arguing that it involves a modification

of the current exemption.

The Office

agrees that OTW’s proposed

modifications are appropriately

addressed as part of the full rulemaking

proceeding, and therefore the Office has

included this request with the proposed

classes discussed below.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

G. Audiovisual Works—Accessibility

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 (codified at 37 CFR

201.40(b)(2)(i)(A)).

No oppositions

were filed against readoption of this

exemption.

The petition demonstrated the

continuing need and justification for the

exemption, and the petitioners

demonstrated personal knowledge and

experience. For example, Brigham

Young University asserts that its

disability services offices ‘‘sometimes

need to create accessible versions of

motion pictures’’ to accommodate its

students with disabilities.

Both

petitions stated that there is a need for

the exemption going forward; indeed,

one group of petitioners states 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.’’

Based on the information provided in

the renewal petition and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

H. Literary Works—Accessibility

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

(codified at 37 CFR 201.40(b)(3)).

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 are significantly disadvantaged

with respect to obtaining accessible e-

book content because TPMs interfere

with the use of assistive technologies.

Petitioners noted that the record

underpinning this exemption ‘‘has stood

and been re-established in the past six

triennial reviews, dating back to 2003,’’

and that the ‘‘accessibility of ebooks is

frequently cited as a top priority’’ by its

members.

In addition, petitioners

noted the unique challenges COVID–19

poses to the blind, visually impaired,

and print disabled due to limited

physical access to libraries and the shift

to virtual learning.

Finally, the

petitioners demonstrated personal

knowledge and experience with regard

to the assistive technology exemption;

they are all organizations that advocate

for the blind, visually impaired, and

print disabled.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

I. Literary Works—Medical Device Data

Hugo Campos petitioned to renew the

exemption covering access to patient

data on networked medical devices

(codified at 37 CFR 201.40(b)(4)).

oppositions were filed, and Consumer

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Consumer Reports Medical Devices Supp.

Campos Medical Devices Renewal Pet. at 3.

Competitive Carriers Ass’n (‘‘CCA’’) Unlocking

Renewal Pet.; Inst. of Scrap Recycling Industries

(‘‘ISRI’’) Unlocking Renewal Pet.

Consumer Reports Unlocking Supp.

ISRI Unlocking Renewal Pet. at 3.

EFF Jailbreaking Renewal Pet.; NMR

Jailbreaking Renewal Pet.; SFC Jailbreaking

Renewal Pet.

SFC Jailbreaking Renewal Pet. at 3.

EFF Jailbreaking Renewal Pet. at 3; NMR

Jailbreaking Renewal Pet. at 3; SFC Jailbreaking

Renewal Pet. at 3.

EFF Jailbreaking Renewal Pet. at 3–4.

Consumer Reports Jailbreaking Supp.

ACA Vehicle Repair Renewal Pet.; Am. Farm

Bureau Fed’n Vehicle Repair Renewal Pet.;

Consumer Tech. Ass’n Vehicle Repair Renewal Pet.;

MEMA Vehicle Repair Renewal Pet.; Specialty

Equip. Mkt. Ass’n (‘‘SEMA’’) Vehicle Repair

Renewal Pet.

MEMA Vehicle Repair Renewal Pet. at 3.

ACA Vehicle Repair Renewal Pet. at 3.

SEMA Vehicle Repair Renewal Pet. at 3.

Consumer Reports Vehicle Repair Supp.

AAI Vehicle Repair Opp’n.

Id. at 1.

Id. at 2.

Reports submitted a comment in

support.

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 is a member of a

coalition whose members research,

comment on, and examine the

effectiveness of networked medical

devices.

Based on the information provided in

the renewal petition and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

J. Computer Programs—Unlocking

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’’) (codified at 37 CFR

201.40(b)(5)).

No oppositions were

filed against the petitions seeking to

renew this exemption; Consumer

Reports filed in support of renewal.

The petitions demonstrate 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, 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 still lock devices to

prevent them from being used on other

carriers.

In addition, the petitioners

demonstrated personal knowledge and

experience with regard to this

exemption. CCA and ISRI represent

companies that rely on the ability to

unlock cellphones. Both petitioners also

participated in past 1201 triennial

rulemakings relating to unlocking

lawfully-acquired wireless devices.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

K. Computer Programs—Jailbreaking

Multiple organizations petitioned to

renew the exemptions for computer

programs that operate smartphones,

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’’)

(codified at 37 CFR 201.40(b)(6)–(8)).

The petitions demonstrate the

continuing need and justification for the

exemption, and that petitioners had

personal knowledge and experience

with regard to this exemption. For

example, regarding smart TVs

specifically, the Software Freedom

Conservancy (‘‘SFC’’) asserts 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.’’

The petitions

state 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.

For example, EFF’s

petition outlined its declarant’s

experience with instances where it was

necessary to replace the software on a

smartphone, smart TV, and tablet.

Consumer Reports filed a comment in

support of the exemption,

and no one

opposed renewal.

Based on the information provided in

the renewal petitions and the lack of

meaningful opposition, the Office

believes that the conditions that led to

adoption of this exemption are likely to

continue during the next triennial

period. Accordingly, the Office intends

to recommend renewal of this

exemption.

L. Computer Programs—Repair of

Motorized Land Vehicles

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

(codified at 37 CFR 201.40(b)(9)).

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.’’

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.’’

SEMA

stated that it ‘‘is unaware of any factor,

incident or reason to change the

exemption and the need for the

exemption remains valid and

imperative.’’

The petitioners

demonstrated personal knowledge and

experience with regard to this

exemption; each either represents or

gathered information from individuals

conducting repairs or businesses that

manufacture, distribute, and sell motor

vehicle parts, and perform vehicle

service and repair. Consumer Reports

filed in support of the petition.

Although not opposing readoption of

this exemption, the Alliance for

Automotive Innovation (‘‘AAI’’)

submitted comments raising concerns

with the ACA and MEMA petitions.

Specifically, the AAI argued that the

two petitions ‘‘mischaracterize the

scope of the existing exemption and

appear to argue for an expanded

exemption, rather than for renewal of

the existing exemption as it is ‘currently

formulated, without modification.’ ’’

states that both ACA and MEMA suggest

‘‘that the existing exemption permits

third party repair shops to circumvent

access controls on vehicle software in

order to provide commercial repair

services.’’

AAI asserts that

‘‘[p]roviding a commercial service that

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Id.

2018 Recommendation at 223–25.

Id. at 225.

Id.

EFF Device Repair Renewal Pet.; EFF, Repair

Ass’n & iFixit Device Repair Renewal Pet.

EFF Device Repair Renewal Pet. at 3; EFF,

Repair Ass’n & iFixit Device Repair Renewal Pet. at

Consumer Reports Device Repair Supp.

100

DVD CCA & AACS LA Device Repair Opp’n

at 1.

101

Id. at 3.

102

DVD CCA & AACS LA Device Repair Opp’n

at 4.

103

See, e.g., EFF Device Repair Renewal Pet. at

3 (‘‘Manufacturers of these devices continue to

implement technological protection measures that

inhibit lawful repairs, maintenance, and

diagnostics, and they show no sign of changing

course.’’).

104

Blaze & Bellovin Security Research Renewal

Pet.; Halderman, CDT & ACM Security Research

Renewal Pet.; MEMA Security Research Renewal

Pet.

105

Halderman, CDT & ACM Security Research

Renewal Pet. at 4.

106

Blaze & Bellovin Security Research Renewal

Pet. at 3.

107

MEMA Security Research Renewal Pet. at 3.

108

Consumer Reports Security Research Supp.

109

Campos Medical Device Renewal Pet. at 4.

requires circumventing access controls

or copy controls (e.g., using or providing

certain engine tuning software) is

indisputably trafficking in an unlawful

service under Sections 1201(a)(2) and

(b) and, therefore, is clearly outside the

scope of the existing exemption.’’

The Office addressed the relationship

of this exemption to the anti-trafficking

provisions in some detail in the 2018

Recommendation. In response to

petitioners’ requests, the Office

recommended removal of the language

in the prior repair exemption requiring

that circumvention be ‘‘undertaken by

the authorized owner.’’

That change,

the Office explained, was intended to

‘‘account[] for the possibility that

certain third parties may qualify as

‘user[s]’ eligible for an exemption from

liability under section 1201(a)(1).’’

making this recommendation, which the

Librarian accepted, the Office declined

to express any ‘‘view as to whether

particular examples of assistance do or

do not constitute unlawful

circumvention services’’—specifically,

‘‘whether vehicle or other repair

services may run afoul of the anti-

trafficking provisions when engaging in

circumvention on behalf of

customers.’’

The Office adheres to this

position and accordingly expresses no

view as to the activities described by

ACA and MEMA.

Based on the information provided in

the renewal petitions and the lack of

opposition to the specific exemption,

the Office believes that the conditions

that led to adoption of this exemption

are likely to continue during the next

triennial period. Accordingly, the Office

intends to recommend renewal of this

exemption.

M. Computer Programs—Repair of

Smartphones, Home Appliances, and

Home Systems

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 (codified at 37 CFR

201.40(b)(10)).

The petitions

demonstrated the continuing need and

justification for the exemption. For

example, EFF, the Repair Association,

and iFixit asserted that ‘‘[m]anufacturers

of these devices continue to implement

technological protection measures that

inhibit lawful repairs, maintenance, and

diagnostics, and they show no sign of

changing course.

Consumer Reports

filed in support of the petition.

In comments filed in response to the

petitions, DVD CCA and AACS LA did

not object to renewal of the exemption,

but did request that the Office

‘‘expressly . . . reject the implied

assertion that some of the activity used

as examples in the renewal petition . . .

is permitted under the current

exemption.’’

100

Specifically, they

pointed to an example in which

petitioners stated a purported need to

‘‘repair any disrupted functionality’’ in

Sonos smart speakers for which the

manufacturer had ceased to provide

software updates.

101

DVD CCA and

AACS LA contend that such activity

does not constitute ‘‘repair’’ under the

exemption because, under relevant

licensing schemes, a manufacturer ‘‘may

outright deactivate one or more

functions due to the product’s TPM

being compromised. These results are

not the consequences of the product

falling out of repair or breaking.’’

102

DVD CCA and AACS LA do not

appear to be arguing that the use of this

example renders the renewal petitions

insufficient with respect to home

systems. The Office agrees that the

sufficiency of the petitions do not

depend on whether this specific

example qualifies under the current

exemption. Even if this example were

excluded, the petitions attest to a

continuing need for the exemption and

the continued validity of the prior

record.

103

To the extent DVD CCA and

AACS LA are asking the Office to opine

on examples of particular uses, such a

request is beyond the scope of the

renewal phase, though they are free to

raise such concerns in the comment

phase to the extent they relate to

proposed expansions of the current rule.

Based on the information provided in

the renewal petitions and the lack of

opposition to renewal, the Office

believes that the conditions that led to

adoption of this exemption are likely to

continue during the next triennial

period. Accordingly, the Office intends

to recommend renewal of this

exemption.

N. Computer Programs—Security

Research

Multiple organizations and security

researchers petitioned to renew the

exemption permitting circumvention for

purposes of good-faith security research

(codified at 37 CFR 201.40(b)(11)).

104

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, the

petition from Professor 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 a number of

concerns justifying the continuing need

for the exemption, including the need to

find and detect vulnerabilities in voting

machines and other election systems,

the increased proliferation of consumer

Internet of Things devices, and the

increasing reliance on digital systems

combined with greater aggressiveness

on the part of threat actors, including

other nation states.

105

The petition from

Professors Matt Blaze and Steven

Bellovin asserted that in the past three

years ‘‘one of us has received threats of

litigation from copyright holders in

connection with his security research on

software in voting systems.’’

106

Finally,

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.’’

107

No oppositions were filed against

readoption of this exemption, while

Consumer Reports filed in support of

renewal.

108

A petition seeking renewal

of a separate exemption submitted by

Hugo Campos, a member of a coalition

of medical device patients and

researchers, also noted support for this

exemption.

109

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

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SPN & LCA Software Preservation Renewal

Pet.

111

Id. at 3.

112

SPN & LCA Abandoned Video Game Renewal

Pet.

113

Consumer Reports Abandoned Video Game

Supp.

114

SPN & LCA Abandoned Video Game Renewal

Pet. at 3.

115

Id.

116

Weinberg 3D Printers Renewal Pet.

117

Id. at 3.

118

Id.

119

In addition, as noted, OTW’s renewal petition

seeks to amend the current regulatory language. The

Office is treating that request as a petition for

expansion.

the Office intends to recommend

renewal of this exemption.

O. Computer Programs—Software

Preservation

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

(codified at 37 CFR 201.40(b)(13)).

110

The petitions state that libraries,

archives, and museums continue to

need the exemption to preserve and

curate software and materials dependent

on software. For example, the petition

asserts that ‘‘researchers at UVA

designed a project in order to access the

‘Peter Sheeran papers’—a collection of

drawings and plans from a local

Charlottesville architecture firm,’’ and

that without the exemption, ‘‘the

outdated Computer Aided Design

(‘‘CAD’’) software used to create many

of the designs in the Sheeran papers

may have remained inaccessible to

researchers, rendering the designs

themselves inaccessible, too.’’

111

addition, the 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 that have relied on this

exemption. Readoption of this

exemption was unopposed.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

P. Computer Programs—Video Game

Preservation

SPN and LCA petitioned to renew the

exemption for preservation of video

games for which outside server support

has been discontinued (codified at 37

CFR 201.40(b)(12)).

112

Consumer

Reports supported the petition.

113

The

petitions state that libraries, archives,

and museums continue to need the

exemption to preserve and curate video

games in playable form. For example,

the petition highlights the Georgia Tech

University Library’s Computing Lab,

retroTECH, which has a significant

collection of recovered video game

consoles, made accessible for research

and teaching uses pursuant to the

exemption.

114

In addition, the Museum

of Digital Arts and Entertainment in

Oakland, California, relied on the

exemption to restore a recent PC game,

in collaboration with Microsoft and the

original developers, despite potential

DRM issues.

115

The petitioners

demonstrated personal knowledge and

experience with regard to this

exemption through past participation in

the section1201 triennial rulemaking,

and/or through their representation of

members that have relied on this

exemption. Readoption of this

exemption was unopposed.

Based on the information provided in

the renewal petitions and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

Q. Computer Programs—3D Printing

Michael Weinberg petitioned to renew

the exemption for computer programs

that operate 3D printers to allow use of

alternative feedstock (codified at 37 CFR

201.40(b)(14)).

116

No oppositions were

filed against readoption of this

exemption. The petition demonstrated

the continuing need and justification for

the exemption, and the petitioner

demonstrated personal knowledge and

experience. Specifically, Mr. Weinberg

declared he is a member of the 3D

printing community and has been

involved with this exemption request

during each cycle it has been considered

by the Office.

117

In addition, the

petition states that 3D printers continue

to limit the types of materials used, and

new companies and printers may

consider implementing similar

restrictions in the future, thereby

requiring renewal of the exemption.

118

Based on the information provided in

the renewal petition and the lack of

opposition, the Office believes that the

conditions that led to adoption of this

exemption are likely to continue during

the next triennial period. Accordingly,

the Office intends to recommend

renewal of this exemption.

III. Analysis and Classification of

Proposed New or Expanded Exemptions

Having addressed the petitions to

renew existing exemptions, the Office

now turns to the petitions for new or

expanded exemptions. The Office

received twenty-six petitions,

119

which

it has organized into seventeen

proposed classes, as described below.

Before discussing those classes, the

Office first explains the process and

standards for submission of written

comments.

A. Submission of Written Comments

Persons wishing to address proposed

exemptions in written comments should

familiarize themselves with the

substantive legal and evidentiary

standards for the granting of an

exemption under section 1201(a)(1),

which are also described in more detail

on the Office’s form for submissions of

longer comments, available on its

website. In addressing factual matters,

commenters should be aware that the

Office favors specific, ‘‘real-world’’

examples supported by evidence over

speculative, hypothetical observations.

In cases where the technology at issue

is not apparent from the requested

exemption, it can be helpful for

commenters to describe the TPM(s) that

control access to the work and method

of circumvention.

Commenters’ legal analysis should

explain why the proposal meets or fails

to meet the criteria for an exemption

under section 1201(a)(1), including,

without limitation, why the uses sought

are or are not noninfringing as a matter

of law. The legal analysis should also

discuss statutory or other legal

provisions that could impact the

necessity for or scope of the proposed

exemption. Legal assertions should be

supported by statutory citations,

relevant case law, and other pertinent

authority. In cases where a class

proposes to expand an existing

exemption, participants should focus

their comments on the legal and

evidentiary bases for modifying the

exemption, rather than the underlying

exemption; as discussed above, the

Office intends to recommend each

current temporary exemption for

renewal.

To ensure a clear and definite record

for each of the proposals, commenters

are required to provide a separate

submission for each proposed class

during each stage of the public comment

period. Although a single comment may

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17 U.S.C. 1201(a)(1)(B).

121

Commerce Comm. Report at 38; see also

Section 1201 Study at 109–10 (noting that while ‘‘in

some cases, [the Office] can make a greater effort to

group similar classes together, and will do so going

forward,’’ ‘‘in other cases, the Office’s ability to

narrowly define the class is what enabled it to

recommend the exemption at all, and so the Office

will continue to refine classes when merited by the

record’’).

122

85 FR at 37403.

123

Section 1201 Study at 147; see also 79 FR

55687, 55690 (Sept. 17, 2014).

124

OTW Noncomm. Videos Renewal Pet. at 3.

OTW’s petition refers to that proceeding as the

‘‘2008 rulemaking,’’ but the Office generally

identifies each proceeding by its year of

completion.

125

75 FR 43825, 43827 (2010).

126

OTW Noncomm. Videos Renewal Pet. at 3.

127

Id.

128

37 CFR 201.40(b)(1). See 2015

Recommendation at 103–06 (expanding exemption

to include Blu-ray and digital transmission).

129

Joint Educators III Class 1 Pet. at 2.

not address more than one proposed

class, the same party may submit

multiple written comments on different

proposals. The Office acknowledges that

the requirement of separate submissions

may require commenters to repeat

certain information across multiple

submissions, but the Office believes that

the administrative benefits of creating a

self-contained, separate record for each

proposal will be worth the modest

amount of added effort.

The first round of public comment is

limited to submissions from proponents

(i.e., those parties who proposed new

exemptions during the petition phase)

and other members of the public who

support the adoption of a proposed

exemption, as well as any members of

the public who neither support nor

oppose an exemption but seek only to

share pertinent information about a

specific proposal.

Proponents of exemptions should

present their complete affirmative case

for an exemption during the initial

round of public comment, including all

legal and evidentiary support for the

proposal. Members of the public who

oppose an exemption should present the

full legal and evidentiary basis for their

opposition in the second round of

public comment. The third round of

public comment will be limited to

supporters of particular proposals and

those who neither support nor oppose a

proposal, who, in either case, seek to

reply to points made in the earlier

rounds of comments. Reply comments

should not raise new issues, but should

instead be limited to addressing

arguments and evidence presented by

others.

B. The Proposed Classes

As noted above, the Office has

reviewed and classified the proposed

exemptions set forth in the twenty-

seven petitions received in response to

its notification of inquiry. Any

exemptions adopted must be based on

‘‘a particular class of works,’’

120

and

each class is intended to ‘‘be a narrow

and focused subset of the broad

categories of works . . . identified in

Section 102 of the Copyright Act.’’

121

As explained in the Notice of Inquiry,

the Office consolidates or groups related

and/or overlapping proposed

exemptions where possible to simplify

the rulemaking process and encourage

joint participation among parties with

common interests (though collaboration

is not required). Accordingly, the Office

has categorized the petitions into

seventeen proposed classes of works.

Each proposed class is briefly

described below; additional information

can be found in the underlying petitions

posted on the Office website. As

explained in the notification of inquiry,

the proposed classes ‘‘represent only a

starting point for further consideration

in the rulemaking proceeding, and will

be subject to further refinement based

on the record.’’

122

The Office further

notes that it has not put forward precise

regulatory language for the proposed

classes, because any specific language

for exemptions that the Register

ultimately recommends to the Librarian

will depend on the full record

developed during this rulemaking.

Indeed, in the case of proposed

modifications to existing exemptions, as

stated above, the Register may propose

altering current regulatory language to

expand the scope of an exemption,

where the record suggests such a change

is appropriate.

After examining the petitions, the

Office has preliminarily identified some

initial legal and factual areas of interest

with respect to certain proposed classes.

The Office stresses, however, that these

areas are not exhaustive, and

commenters should consider and offer

all legal argument and evidence they

believe necessary to create a complete

record. These early observations are

offered without prejudice to the Office’s

ability to raise other questions or

concerns at later stages of the

proceeding. Finally, ‘‘where an

exemption request resurrects legal or

factual arguments that have been

previously rejected, the Office will

continue to rely on past reasoning to

dismiss such arguments in the absence

of new information.’’

123

Proposed Class 1: Audiovisual Works—

Criticism and Comment

Three petitions seek to expand the

existing exemptions for circumvention

of access controls protecting motion

pictures on DVDs, Blu-ray discs, and

digitally transmitted video for purposes

of criticism and comment, including for

educational purposes by certain users.

Because these petitions raise some

shared concerns, the Office has grouped

them into one class, as it did during the

seventh triennial proceeding. This

grouping is without prejudice to

possible further refinement of this class,

including dividing it into subclasses

based on specific uses.

First, as noted, OTW filed a renewal

petition requesting that the exemption

regarding the creation of noncommercial

videos be amended to incorporate the

language of the exemption for such uses

adopted in the 2010 rulemaking.

124

That

exemption permitted circumvention

undertaken ‘‘solely in order to

accomplish the incorporation of short

portions of motion pictures into new

works for the purpose of criticism or

comment, and where the person

engaging in circumvention believes and

has reasonable grounds for believing

that circumvention is necessary to fulfill

the purpose of the use.’’

125

Noting that

the current exemption is longer than

this formulation, OTW contends that

‘‘the complexity of [the current]

provisions substantially increases the

difficulty of communicating and

implementing the exemptions in

practice.’’

126

In OTW’s view, reverting

to the 2010 language would not expand

the scope of the existing rule but merely

would help ‘‘clarify the exemption for

ordinary users.’’

127

The exemption,

however, has been expanded since

2010, including by encompassing works

on a Blu-ray disc or received via a

digital transmission, and by including

language clarifying that the exemption

includes ‘‘videos produced for a paid

commission if the commissioning

entity’s use is noncommercial.’’

128

The

Office seeks comment on whether, or to

what extent, commenters believe the

suggested language would alter the

substance of the current provision. As

part of that analysis, commenters should

discuss the extent to which the evidence

submitted in the prior rulemaking may

be relied upon to support the proposed

change.

Second, Joint Educators III seek to

expand the current exemption for

educational uses to allow a greater

number of users to engage in ‘‘online

instructional learning.’’

129

They

acknowledge that the existing

exemption already covers the use of

short clips in distance learning by

certain users—college and university

faculty and students, K–12 educators

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Id. at 2–3.

131

2018 Recommendation at 86.

132

Joint Educators III Class 1 Pet. at 2.

133

Id.

134

BYU Class 1 Pet. at 2.

135

Id.

136

Id.

137

2018 Recommendation at 53–55; 2015

Recommendation at 102.

138

See 2015 Recommendation at 100 (citing

Recommendation of the Register of Copyrights in

RM 2005–11, Rulemaking on Exemptions from

Prohibition on Circumvention of Copyright

Protection Systems for Access Control Technologies

at 17–19 (Nov. 17, 2006) (‘‘2006

Recommendation’’)).

139

2018 Recommendation at 32, 52–53.

140

SolaByte Class 2 Pet. at 2.

141

Id.

142

Id.

143

37 CFR 201.40(b)(2)(i).

144

ATSP, AHEAD & LCA Class 3 Pet. at 2.

145

Id.

146

Id. at 3.

and students, and faculty of accredited

massive open online courses

(MOOCs).

130

Indeed, the 2018

Recommendation specifically described

the exemption language pertaining to

college and university and K–12 users

as ‘‘broad enough to encompass

exempted uses under sections 110(1)

and 110(2) (i.e., face-to-face and

distance teaching).’’

131

Joint Educators

III, however, seek to expand the

exemption to other online learning

platforms that offer ‘‘supplemental

education, upskilling, retraining,

recharging, and lifelong learning,’’ such

as Khan Academy, LinkedIn Learning,

Osmosis.org and Code.org.

132

To enable

these providers to exercise the

exemption, they propose an expansion

allowing ‘‘educators and preparers of

online learning materials to use short

portions of motion pictures (including

television shows and videos), as defined

in 17 U.S.C. 101, for the purpose of

criticism, comment, illustration and

explanation in offerings for registered

learners on online learning platforms

when use of the film and media excerpts

will contribute significantly to

learning.’’

133

Third, BYU requests to expand the

class of eligible users to include

‘‘college and university employees,’’

instead of ‘‘college and university

faculty.’’

134

In addition, it seeks to

broaden the permitted uses from

‘‘criticism, comment, teaching, or

scholarship’’ to ‘‘a noninfringing use

under 17 U.S.C. 107, 110(1), 110(2), or

112(f).’’

135

BYU’s proposal also would

remove the current reference to screen-

capture technology and the requirement

that the exempted use be limited to

‘‘short portions’’ of motion pictures.

136

With respect to both BYU’s and Joint

Educators III’s petitions, the Office notes

that certain proposals to remove the

limitations on eligible users of this

exemption were considered during the

2015 and 2018 rulemakings, and invites

comment on any changed legal or

factual circumstances with respect to

these provisions.

137

In particular, the

Office seeks specific examples where

the presence of TPMs is resulting in an

adverse effect on users who are not

already included in the existing

regulatory language. Further, with

respect to BYU’s request to expand the

types of permitted uses, the Office notes

that it has previously rejected similar

proposed classes as overbroad.

138

And

in the previous rulemaking, the Office

declined a proposed exemption by BYU

that would permit circumvention for

nonprofit educational purposes in

accordance with sections 110(1) and

110(2) and eliminate the ‘‘criticism and

comment’’ limitation and references to

screen-capture technology.

139

The

Office invites comment on whether any

changed circumstances warrant altering

that determination.

Proposed Class 2: Audiovisual Works—

Texting

SolaByte Corp. petitions for a new

exemption to access ‘‘licensed audio/

video works stored on optical disc

media for the purpose of creating short

(10 seconds or less) A/V clips that

enhance communication effectiveness

and understanding when using TEXTing

messages.’’

140

The proposed class

‘‘[i]ncludes movies, TV shows, music

video, other copyrighted works’’ that are

stored on ‘‘[p]ackaged and replicated

DVD or Blu-ray discs playable on

computer or CE player hardware.’’

141

Eligible users would include persons

‘‘who want to create expressive clips

that convey their thoughts when

texting.’’

142

Because these proposed activities do

not appear to be limited to criticism and

comment or educational uses, the Office

has classified this proposal as a separate

proposed class. The Office seeks

additional detail about the scope of the

proposed exemption from SolaByte or

others, such as whether the exemption

would be available for commercial

services. Commenters should describe

with specificity the relevant TPMs and

whether their presence is adversely

affecting noninfringing uses, including

identifying whether eligible users may

access expressive clips through alternate

channels that do not require

circumvention and the legal basis for

concluding that the proposed uses are

likely to be noninfringing. Similarly,

commenters should address any

anticipated effect that circumvention of

TPMs would have on the market for or

value of the relevant copyrighted works,

which appears to extend to the same

broad swatch of motion pictures as

Class 1.

Proposed Class 3: Audiovisual Works—

Accessibility

ATSP, AHEAD, and LCA petition to

expand the existing exemption relating

to the creation of accessible versions of

motion pictures for students with

disabilities. They propose several

changes to the existing exemption

language, which includes the following

requirements:

•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 to students, for the

purpose of adding captions and/or

audio description to a motion picture to

create an accessible version as a

necessary accommodation for a student

or students with disabilities under an

applicable disability law, such as the

Americans With Disabilities Act, the

Individuals with Disabilities Education

Act, or Section 504 of the Rehabilitation

Act;

•The educational institution unit

has, after a reasonable effort, determined

that an accessible version cannot be

obtained at a fair price or in a timely

manner; and

•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.

143

First, petitioners seek to expand the

exemption ‘‘to allow for the remediation

of video for faculty and staff, as well as

students.’’

144

They recommend that the

current language be revised to read: ‘‘to

create an accessible version as a

necessary accommodation for students,

faculty, and staff with disabilities.’’

145

Second, to clarify that a covered

educational institution unit (‘‘EIU’’) may

create accessible versions ‘‘proactively,’’

petitioners suggest removing the phrase

‘‘as a necessary accommodation’’ and

requiring only that the creation of an

accessible version be ‘‘consistent with’’

an applicable disability law.

146

Third,

petitioners ask the Office to clarify that

the ‘‘reasonable effort’’ requirement

applies ‘‘only where an ‘accessible

version’ is available that contains

captions and descriptions of sufficient

quality to satisfy applicable disability

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Id.

148

2018 Recommendation at 109–10.

149

Id. The petition refers to a purchased textbook,

but the Office queries if that was petitioner’s intent,

since the exemption concerns access to audiovisual

works.

150

Id.

151

FloSports Class 4 Pet. at 2.

152

Id.

153

Id.

154

Id.

155

Id.

156

Id.

157

Id. at 3.

158

17 U.S.C. 1201(a)(1)(C) (emphasis added); see

supra Section I.

159

FloSports Class 4 Pet. at 2.

160

Id.

161

Id.

162

See Section 1201 Study at 115 (‘‘The statutory

prohibition on circumventing access controls [must

be] the cause of the adverse effects.’’).

163

See Flosports, https://www.flosports.tv/join-

now/ (advertising ‘‘plans starting from $12.49/mo’’)

(last visited Oct. 8, 2020).

164

FloSports Class 4 Pet. at 3.

165

See Harper & Row Publrs., Inc. v. Nation

Enters., 471 U.S. 539, 564–65 (1985).

166

See 2015 Recommendation at 100 (citing 2006

Recommendation at 17–19).

167

Cf. 79 FR 73856, 73859 (Dec. 12, 2014)

(declining to put forward exemption proposals that

could not be granted as a matter of law).

law.’’

147

The Office notes that in

recommending the existing regulatory

language, it stated that an EIU may

proceed after reaching a conclusion

‘‘that it must create an accessible

version as a necessary accommodation

for a student with disabilities.’’

148

Fourth, petitioners recommend

qualifying the ‘‘reasonable effort’’

requirement in circumstances where

‘‘no accessible version of a video

included with a textbook exists, but a

publisher might be willing to generate

an accessible version of the video at

extra cost,’’ by eliminating this

requirement when a publisher does not

include an accessible version of

materials with purchased materials.

149

The Office would welcome comment

upon whether petitioners believe that

the extra costs should be of an

unreasonable amount, or whether they

contend that every offer carrying

additional cost should be dismissed,

along with any thoughts from copyright

owners or licensors on this issue.

Finally, petitioners recommend

‘‘altering the current exemption

language to make clear that an EIU can

reuse stored accessible versions instead

of re-circumventing and re-remediating

inaccessible media when complying

with an accommodation request.’’

150

The Office seeks comment on whether

this exemption, including petitioners’

suggested regulatory language, should

be adopted.

Proposed Class 4: Audiovisual Works—

Livestream Recording

FloSports, Inc. petitions for an

exemption ‘‘for circumvention of

technology used in the digital storage of

audiovisual works originating as a

livestream of sports and other

competitive events.’’

151

The exemption

‘‘would enable a livestreaming service

to provide individual viewers, via a

virtual digital video recorder (‘vDVR’),

with access to a recording on a server

for fair use purposes.’’

152

The petition indicates that

circumvention is necessary to alter the

functioning of HTTP Live Streaming

(‘‘HLS’’), ‘‘a live-video streaming

technique that enables high quality

streaming of media content over the

internet from web servers.’’

153

According to FloSports, the use of HLS

to stream content ‘‘results in only an

ephemeral copy in addition to the live

broadcast.’’

154

FloSports seeks to enable

‘‘copies of the audio and video data files

[to] be stored on a longer-term basis and

synchronized for later replay by the

viewer.’’

155

It states that ‘‘[t]he cost and

practical difficulty of obtaining

synchronization licenses, combined

with the cost and technical challenges

of creating individualized audio and

visual stored files for each viewer

seeking to access the stored files,

effectively control viewers access to the

material for fair use purposes.’’

156

FloSports contends that the recording

of such material constitutes fair use on

the following basis:

Individual recordings of audiovisual

performances, historically, had been used by

directors of the groups in such recordings to

instruct, teach, and otherwise educated [sic]

the participants in the recordings on what

went right, what went wrong, and how each

could improve. Generally, the individual

performances in the audiovisual streams this

petition considers are a very small percentage

of the entire copyrighted work (e.g., all

individual performances combined for an

entire copyrighted broadcast). Further, there

is no current market for educational

recordings at the moment. Granting this

exemption, or the performance of such a

recording, would not adversely affect the

market for the copyrighted recordings.

157

The Office invites comment on this

proposal but notes at the outset that the

description of the proposed class in the

petition is insufficiently clear to meet

the statutory requirement to identify ‘‘a

particular class of copyrighted

works.’’

158

While the petition generally

describes the class as covering

livestreams of ‘‘sports and other

competitive events,’’ elsewhere it states

that the relevant works are ‘‘audiovisual

recordings of musical performances as

identified in 17 U.S.C. 102(a)(6) and 17

U.S.C. 106(a)(5).’’

159

It then states that

the proposed class ‘‘incorporates any

and all works for which audiovisual

recordings may be made and used as fair

use. This includes individual school

performances.’’

160

Given this

inconsistent information, the Office is

unable to determine whether, for

example, the petition is intended to

cover the use of copyrighted broadcasts

owned by another party or simply

musical or other works that may be

captured in broadcasts owned by

FloSports. Without further clarification,

the petition does not seem to relate to

a particular class of works.

Nor is it apparent to what extent the

asserted adverse effects are attributable

to ‘‘[t]he cost and practical difficulty of

obtaining synchronization licenses,’’

161

as opposed to TPMs. As noted, the

Office will only recommend an

exemption where causation has been

established; that is, where the Office can

conclude that the statutory prohibition

on circumventing access controls is the

cause of the adverse effects.

162

Finally, the Office seeks additional

information regarding the intended

noninfringing uses, including whether it

would be appropriate to clarify that the

petition is directed at facilitating

educational, noncommercial uses.

Petitioner appears to operate a

commercial livestreaming service,

163

and it is unclear whether this exemption

is intended to facilitate growth in that

market. In addition to factual

development regarding the intended

uses, the Office welcomes information

on the legal basis for finding that such

uses would be fair. For example, in

connection with petitioner’s statement

that ‘‘the individual performances in the

audiovisual streams this petition

considers are a very small percentage of

the entire copyrighted work,’’

164

commenters should address the well-

established principle that copying even

a quantitatively ‘‘insubstantial portion’’

of a work may weigh against fair use

where the material is qualitatively

significant to that work.

165

These factual

and legal issues should be described

with sufficient particularity to enable

the Office to determine whether the

specific uses are likely to be fair. As it

has done in the past, the Office is

inclined to reject overbroad proposed

classes such as ‘‘fair use works’’ or

‘‘educational fair use works.’’

166

Absent

such clarification, the Office will

decline further consideration of the

petition.

167

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LCA Class 5 Pet. at 2.

169

SolaByte Class 6 Pet. at 2.

170

Id.

171

Id.

172

See 83 FR 54010, 54026–27 (Oct. 26, 2018); 80

FR 65944, 65960 (Oct. 28, 2015); 77 FR 65260,

65276–77 (Oct. 26, 2012); 71 FR 68472, 68478 (Nov.

27, 2006).

173

Authors Alliance, AAUP & LCA Class 6 Pet.

at 2.

174

Id.

175

Id. at 3.

176

Id.

177

17 U.S.C. 1201(a)(1)(C) (emphasis added); see

supra Section I.

178

Commerce Comm. Report at 38 (emphasis

added).

179

37 CFR 201.40(b)(3).

180

Marrakesh Treaty, art. 7, June 27, 2013, 52

I.L.M. 1312.

Proposed Class 5: Audiovisual Works—

Preservation

LCA proposes a new exemption to

facilitate preservation of audiovisual

works stored on DVDs or Blu-ray discs.

a class that would include ‘‘[m]otion

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, and is no longer

reasonably available in the commercial

marketplace, for the purpose of lawful

preservation of the motion picture, by a

library, archives, or museum.’’

168

The

petition is quite terse, consisting of a

single sentence, and so the Office

encourages proponents to develop the

legal and factual administrative record

in their initial submissions.

The Office seeks comment on whether

this proposed exemption should be

adopted, including any proposed

regulatory language.

Proposed Class 6: Audiovisual Works—

Space-Shifting

Somewhat related to LCA’s petition,

but not cabined to preservation

activities conducted by libraries,

archives, or museums, SolaByte

proposes a broader exemption that

would be available to ‘‘[t]he legitimate

owner of the DVD or blu-ray disc and

licensee of the content’’ for the purpose

of ‘‘making a usable personal back up

copy.’’

169

The exemption ‘‘would apply

to any title of audio/visual works 5

years after its public release date.’’

170

SolaByte notes that ‘‘[i]ncomplete

licensing of titles by internet media

service providers requires the owner of

the disc to subscribe to multiple service

providers at high personal cost to cover

a fraction of their library titles.’’

171

The Office seeks comment on whether

this proposed exemption should be

adopted, including any proposed

regulatory language. The Office notes

that in the 2006, 2012, 2015, and 2018

rulemakings, the Librarian rejected

proposed exemptions for space-shifting

or format-shifting, finding that the

proponents had failed to establish under

applicable law that space-shifting is a

noninfringing use.

172

The Office invites

comment on whether, in the past three

years, there has been any change in the

legal or factual circumstances bearing

upon that issue.

Proposed Classes 7(a): Motion Pictures

and 7(b): Literary Works—Text and Data

Mining

Authors Alliance, AAUP, and LCA

petition for an exemption ‘‘for

researchers to circumvent technological

protection measures on lawfully

accessed literary works distributed

electronically as well as on lawfully

accessed motion pictures, in order to

deploy text and data mining

techniques.’’

173

Petitioners believe that

these two categories of works ‘‘should

be grouped together in a single

exemption because they involve the

same petitioners, the same proposed

use, and implicate the same arguments

for an exemption.’’

174

The proposed

class includes both works embodied in

physical discs and those transmitted

digitally.

175

The users seeking access

include ‘‘researchers engaged in text

and data mining in the humanities,

social sciences, and sciences.’’

176

For reasons of administrative

efficiency, the Office has grouped these

proposals into one category that

encompasses two proposed classes

pertaining to motion pictures and

literary works, respectively (i.e., Classes

7(a) and 7(b)). Commenters therefore

may submit a single comment

addressing one or both aspects of the

petition. It is important to emphasize,

however, that proponents are required

to make the statutorily required showing

with respect to each category of works.

As discussed above, the statute requires

that exemptions describe ‘‘a particular

class of copyrighted works.’’

177

Congress made clear that such a class

may not encompass more than one of

the categories of works set out in section

102; to the contrary, the ‘‘particular

class’’ language refers to ‘‘a narrow and

focused subset’’ of the section 102

categories.

178

This means that for each

type of work for which an exemption is

sought, petitioners must demonstrate an

actual or likely adverse impact on a

noninfringing use as a result of the

statutory prohibition on circumvention.

In the case of this proposal, to the extent

proponents believe the relevant factual

and legal issues are similar as to the two

classes of works, the supporting

comments should describe those matters

in detail. For example, commenters may

wish to address the extent to which

there is overlap with respect to the types

of TPMs applied to these works, the

nature of the proposed research

activities, the relevant markets for the

works, and the availability of potential

alternatives to circumvention.

Proposed Class 8: Literary Works—

Accessibility

ACB, AFB, NFB, LCA, AALL,

Benetech/Bookshare, and HathiTrust

petition to expand the current

exemption for the use of assistive

technologies by visually impaired

persons in connection with

electronically distributed literary works.

The current regulatory language applies

to literary works, 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:

•When a copy of such a work is

lawfully obtained by a blind or other

person with a disability, as such a

person is defined in 17 U.S.C. 121;

provided, however, that the rights

owner is remunerated, as appropriate,

for the price of the mainstream copy of

the work as made available to the

general public through customary

channels; or

•When such work is a nondramatic

literary work, lawfully obtained and

used by an authorized entity pursuant to

17 U.S.C. 121.

179

The proposed exemption would

amend this language to reflect recent

changes to U.S. law to implement the

Marrakesh Treaty to Facilitate Access to

Published Works for Persons Who Are

Blind, Visually Impaired, or Otherwise

Print Disabled (‘‘Marrakesh Treaty’’).

180

These include updates to the Chaffee

Amendment, codified at section 121 of

title 17, and the newly adopted section

121A, which pertains to the import and

export of works in accessible formats.

Petitioners propose the following

changes:

•Updating the description of eligible

users from ‘‘blind or other person with

a disability’’ to ‘‘eligible person, as such

a person is defined in 17 U.S.C. 121’’;

•Updating the description of eligible

works to ‘‘literary works and previously

published musical works that have been

fixed in the form of text or notation’’;

and

•Adding the phrase ‘‘or 121A’’ to the

end of 37 CFR 201.40(b)(3)(ii). As an

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ACB, AFB, NFB, LCA, AALL, Benetech/

Bookshare & HathiTrust Class 8 Pet. at 4.

182

Id.

183

Campos Class 9 Pet. at 2 (citing 37 CFR

201.40(b)(4)).

184

Id. at 2.

185

Id.

186

Id.

187

Id.

188

2018 Recommendation at 229.

189

Id. at 225.

190

37 CFR 201.40(b)(5).

191

ISRI Class 10 Pet. #1 at 2.

192

ISRI Class 10 Pet. #2 at 2.

193

2018 Recommendation at 162.

194

37 CFR 201.40(b)(6)–(8).

195

SFC Class 11 Pet. at 2.

196

EFF Class 11 Pet. at 2.

197

Id.

alternative, petitioners request

clarification that exercising the rights

described in section 121A does not

implicate section 1201.

181

In addition, petitioners request that

the Office ‘‘eliminate the reference to

the price of ‘mainstream’ copies of

works . . . and replace this term with

a more inclusive phrase such as ‘market

price of an inaccessible copy.’ ’’

182

The Office seeks comment on whether

this proposed exemption, including

petitioners’ suggested regulatory

language, should be adopted.

Proposed Class 9: Literary Works—

Medical Device Data

Hugo Campos, a member of a

coalition of medical device patients and

researchers, requests two modifications

to the current exemption permitting

circumvention to access compilations of

data generated by medical devices or

corresponding personal monitoring

systems. First, he seeks removal of the

language limiting the exemption to

devices ‘‘that are wholly or partially

implanted in the body.’’

183

He notes

that ‘‘[m]any current and upcoming

devices obtain medical data about a

patient without the need to be fully or

partially implanted in the body,’’

including smart watches, personal EKG

monitors, and non-implanted glucose

meters.

184

And he argues that ‘‘there is

no relevant difference between

implanted and non-implanted devices

with respect to copyright.’’

185

Second, Mr. Campos requests that the

exemption ‘‘permit third parties to

perform the circumvention, with

permission, on behalf of the patient.’’

186

He notes that the Office and the Library

‘‘have structured other exemptions so

that the identity of the person doing the

circumvention does not matter.’’

187

The Office seeks comment on whether

this proposed exemption should be

adopted, including any proposed

regulatory language. With respect to the

request to permit third-party assistance,

the Office notes that it has addressed

this issue on several occasions, most

recently in the 2018 Recommendation’s

discussion of the current exemptions for

repair of software-enabled motor

vehicles and devices. There, the Office

recommended removal of the prior

requirement that circumvention be

‘‘undertaken by the authorized owner’’

of the vehicle or device, noting

participants’ concern that such language

‘‘improperly excludes other users with a

legitimate interest in engaging in

noninfringing diagnosis, repair, or

modification activities.’’

188

But the

Office emphasized the limited nature of

the change:

To be clear, removal of the ‘‘authorized

owner’’ language should in no way be

understood to suggest that the exemption

extends to conduct prohibited by the anti-

trafficking provisions; such an exemption is

beyond the Librarian’s authority to

adopt.... The recommended revision

simply accounts for the possibility that

certain third parties may qualify as ‘‘user[s]’’

eligible for an exemption from liability under

section 1201(a)(1). Such parties still will be

required to consider whether their activities

could separately give rise to liability under

section 1201(a)(2) or (b). Given the legal

uncertainty in this area, services electing to

proceed with circumvention activity

pursuant to the exemption do so at their

peril.

189

The Office invites comment on the

extent to which this analysis may be

relevant to the current proposal.

Proposed Class 10: Computer

Programs—Unlocking

ISRI submitted two separate petitions

to expand the current exemption for

‘‘unlocking’’—i.e., connecting a wireless

device to an alternative wireless

network. The current exemption permits

circumvention of the following lawfully

acquired devices for unlocking

purposes:

•Wireless telephone handsets (i.e.,

cellphones);

•All-purpose tablet computers;

•Portable mobile connectivity

devices, such as mobile hotspots,

removable wireless broadband modems,

and similar devices; and

•Wearable wireless devices designed

to be worn on the body, such as

smartwatches or fitness devices.

190

In its first petition, ISRI seeks to add

‘‘laptop computers (including

chromebooks) with 4G LTE or 5G or

other cellular connection capabilities’’

to the list of covered devices.

191

In its

second petition, ISRI seeks to remove

the enumeration of devices altogether

and extend the exemption to ‘‘any other

devices with 4G LTE or 5G or other

cellular connection capabilities,’’

including, but not limited to, ‘‘Smart

TVs, Internet of Things (IoT) devices,

immersive extended reality (XR)

headsets, desktop computers, and

drones.’’

192

The Office seeks comment on whether

this proposed exemption should be

adopted, including any proposed

regulatory language. The Office notes

that in the seventh triennial rulemaking

it considered a similar petition to

remove the list of enumerated device

categories, but concluded that the

proponents had failed to carry their

burden of demonstrating adverse effects

on noninfringing uses with respect to all

types of wireless devices with cellular

connection capability.

193

Comments

responding to this petition should

address the extent to which factual and

legal issues pertaining to certain

categories of devices may be relevant to

wireless devices more generally.

Proposed Class 11: Computer

Programs—Jailbreaking

Two petitions seek to expand or

clarify the categories of devices covered

by the exemptions for jailbreaking,

which currently include smartphones

and portable all-purpose mobile

computing devices, smart televisions,

and voice assistant devices.

194

SFC

petitions for a new exemption to enable

the installation of alternative firmware

in ‘‘routers and other networking

devices.’’

195

EFF proposes a

clarification of the current exemption

regarding smart televisions. In EFF’s

view, it is ‘‘unclear whether that

exemption includes hardware devices

that enable the viewing of video

streams, along with other software

applications, when such devices are not

physically integrated into a

television.’’

196

The petition refers to

such hardware as ‘‘streaming devices’’

and cites ‘‘the Roku line of products, the

Amazon Fire TV Stick, and the Apple

TV’’ as examples.

197

The Office seeks comment on whether

these proposed exemptions should be

adopted, including any proposed

regulatory language to define the types

of devices that would be covered.

Proposed Class 12: Computer

Programs—Repair

Multiple organizations petition for

new or expanded exemptions relating to

diagnosis, repair, and modification of

software-enabled devices. As noted, the

current regulations include two repair-

related exemptions, covering (1)

computer programs that are contained

in and control the functioning of a

lawfully acquired motorized land

vehicle, when circumvention is a

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37 CFR 201.40(b)(9)–(10).

199

Summit Imaging, Inc. Class 12 Pet. at 2;

Transtate Equip. Co. Class 12 Pet. at 2.

200

iFixit & Public Knowledge Class 12 Pet. at 2.

201

See 2018 Recommendation at 206, 219–20;

2015 Recommendation at 199–201; 2012

Recommendation at 44, 47.

202

EFF Class 12 Pet. at 2–3; iFixit & Repair Ass’n

Class 12 Pet. at 2–3.

203

iFixit & Repair.org Class 12 Pet. at 3.

204

See 2018 Recommendation at 189–94, 206–09,

310–11.

205

Summit Imaging, Inc. Class 12 Pet. at 3;

Transtate Equip. Co. Class 12 Pet. at 2; iFixit &

Public Knowledge Class 12 Pet. at 2; EFF Class 12

Pet. at 2–3; iFixit & Repair Ass’n Class 12 Pet. at

206

See 2018 Recommendation at 225.

207

Halderman, CDT & ACM Class 13 Pet. at 3.

208

See 2018 Recommendation at 283–314.

209

Halderman, CDT & ACM Class 13 Pet. at 3.

210

SFC Class 13 Pet. at 2.

211

Id.

212

37 CFR 201.40(b)(12), (13).

213

Id. at §201.40(b)(12)(ii), (b)(13)(i).

214

SPN & LCA Class 14(a) Pet. at 2; SPN & LCA

Class 14(b) Pet. at 2.

215

U.S. Copyright Office, Revising Section 108:

24–34 (addressing preservation uses), 35–41

(addressing user copies) (2017), https://

www.copyright.gov/policy/section108/discussion-

document.pdf.

necessary step to allow the diagnosis,

repair, or lawful modification of a

vehicle function; and (2) computer

programs that are contained in and

control the functioning of a lawfully

acquired smartphone or home appliance

or home system, when circumvention is

a necessary step to allow the diagnosis,

maintenance, or repair of such a device

or system.

198

Three petitions seek to expand the

current exemptions to include

additional types of devices. Summit

Imaging, Inc. and Transtate Equipment

Co., Inc. separately petition for an

exemption allowing circumvention of

TPMs for purposes of diagnosis,

modification, and repair of medical

devices.

199

iFixit and Public Knowledge

jointly petition for an exemption

permitting circumvention ‘‘to repair

video game consoles and replace

damaged hardware.’’

200

With respect to

the latter petition, the Office notes that

in prior rulemakings it has declined to

recommend exemptions for jailbreaking

and repair of video game consoles in

light of evidence that circumvention of

TPMs in such devices may adversely

affect the value of the affected software,

as well as a lack of evidence of adverse

effects on noninfringing uses.

201

The

Office invites comment on whether, in

the past three years, there has been any

change in the legal or factual

circumstances bearing upon these

issues.

Two additional petitions request

removal of the limitation to specific

categories of devices, along with further

changes to the current regulatory text.

202

EFF seeks to expand the exemption to

permit circumvention for purposes of

modification of a device, in addition to

repair-related activities. iFixit and the

Repair Association propose to remove

the current requirement that

circumvention of TPMs protecting

software in motor vehicles not

constitute a violation of applicable

law.

203

The Office notes that it

considered similar requests regarding

these issues in the 2018 rulemaking.

204

Therefore, as with the above petitions,

comments addressing these proposals

should include discussion of any

relevant changed circumstances.

Finally, the Office notes that all of the

petitions in this class appear to request

that the users eligible to exercise these

exemptions include third-party service

providers.

205

As above, the Office

invites comment on the extent to which

its prior analysis of that issue may be

applicable here.

206

Proposed Class 13: Computer

Programs—Security Research

Two petitions seek to expand the

current exemption permitting

circumvention for purposes of good-

faith security research. Professor J. Alex

Halderman, CDT, and ACM propose

removal of several limitations in the

current regulation: (1) The requirement

that circumvention be undertaken on a

‘‘lawfully acquired device or machine

on which the computer program

operates’’ and ‘‘not violate any

applicable law’’; (2) both instances of

the term ‘‘solely’’ (i.e., ‘‘solely for the

purpose of good-faith security research’’

and ‘‘solely for purposes of good-faith

testing, investigation, and/or correction

of a security flaw or vulnerability’’); and

(3) the requirement that the information

derived from the activity be 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.’’

207

As petitioners note, the Office

considered these proposed changes in

the 2018 rulemaking and provided

interpretive guidance as to the

regulatory language’s intended scope.

208

Petitioners state, however, that they

‘‘intend to further develop the record in

favor of these changes in the current

rulemaking period.’’

209

SFC petitions for an expansion to

‘‘clarify that the definition of ‘good faith

security research’ . . . includes good-

faith testing, investigation, and/or

correction of privacy issues (including

flaws or functionality that may expose

personal information) and permits the

owner of the device to remove software

or disable functionality that may expose

personal information.’’

210

Eligible users

under this proposal would include

‘‘privacy and security researchers who

investigate and publish information

about privacy flaws in computing

devices; and individual consumers and

hobbyists who wish to prevent their

private data from being disclosed by the

devices they own.’’

211

The Office seeks comment on whether

these proposed changes should be

adopted. With respect to SFC’s petition,

comments should include discussion of

the extent to which the proposed

activities may or may not be addressed

by permanent statutory exemptions or

current regulatory exemptions.

Proposed Classes 14(a): Computer

Programs and 14(b): Video Games—

Preservation

SPN and LCA filed two petitions to

expand the current exemptions for

preservation of software and video

games by eligible libraries, archives, and

museums.

212

Both of these exemptions

currently require that the covered works

not be ‘‘distributed or made available

outside of the physical premises of the

eligible library, archives, or

museum.’’

213

The proposed exemptions

would remove those requirements.

214

The Office welcomes further elaboration

on how proponents of the exemptions

would envision these works to be

distributed or made available in a

manner likely to be noninfringing,

respectively. For example, the current

exemptions are focused on

circumvention to enable preservation

uses, in contrast to enabling provision of

lending copies for users, a preliminary

distinction that the Office has found

critical in the past when analyzing

potential legislative reforms to the

section 108 exception for libraries and

archives.

215

Would the proposed

modification maintain this distinction,

and if so, how? Would there be

conditions on access restrictions to

registered users of an eligible library,

archives, or museum or would material

be made available more generally to

members of the public? The Office notes

that in the 2018 rulemaking, it declined

to recommend a proposal to expand the

video game preservation exemption to

allow circumvention by affiliate

archivists outside the premises of a

covered institution, concluding that the

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2018 Recommendation at 271–75.

217

U.S. Copyright Office, Compendium of U.S.

2017) (‘‘Generally, a videogame contains two major

components: the audiovisual material and the

computer program that runs the game.’’).

218

See 17 U.S.C. 107; 1201(a)(1)(C)(iv).

219

37 CFR 201.40(b)(14).

220

Weinberg Class 15 Pet. at 2.

221

Id.

222

2015 Recommendation at 376.

223

See Lexmark Int’l Inc. v. Static Control

Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004)

(‘‘Because the statute refers to ‘control[ling] access

to a work protected under this title,’ it does not

naturally apply when the ‘work protected under

this title’ is otherwise accessible.’’).

224

SFC Class 16 Pet. at 2.

225

Id.

226

Commerce Committee Report at 37; see also

Section 1201 Study at 119–21.

227

Section 1201 Study at 120.

228

2015 Recommendation at 100 (citing 2006

Recommendation at 17–19).

229

ACB, AFB, Ass’n of Late-Deafened Adults,

ATSP, AHEAD, Benetech/Bookshare, Gallaudet U.,

HathiTrust, Hearing Loss Ass’n of Am., LCA, Nat’l

Ass’n of the Deaf, Nat’l Fed’n of the Blind,

Telecomm. for the Deaf and Hard of Hearing, Inc.

(collectively ‘‘Accessibility Petitioners’’) Class 17

Pet. at 4.

proponents had failed to establish that

such activity was likely

noninfringing.

216

Commenters

responding to these petitions should

address the extent to which the legal

and factual issues relevant to this class

may differ from those considered

previously.

Although these proposed classes both

involve computer programs (which

constitute literary works under the

video games involves an additional

category of works insofar as video games

also constitute audiovisual works.

217

Therefore, the Office is following the

same procedure discussed above in

relation to the proposed TDM

exemption: the Office has grouped these

petitions into a single category

encompassing two proposed classes.

Commenters addressing these proposals

may submit a single comment

addressing both computer programs and

video games, but the supporting

evidence must be sufficient to establish

an adverse effect on noninfringing uses

with respect to each category of works.

In particular, the Office is interested in

the extent to which licensing markets

for video games may be similar or

different from those for software more

generally, and whether any such

differences may be relevant under the

fair use analysis or the expected effect

of circumvention of technological

measures on the market for or value of

copyrighted works.

218

The Office seeks

comment on these and other relevant

issues, including any proposed

regulatory language.

Proposed Class 15: Computer

Programs—3D Printing

Michael Weinberg petitions to amend

the current exemption permitting

circumvention to enable the use of

alternative feedstock in 3D printers. The

current exemption allows access to

‘‘[c]omputer programs that operate 3D

printers that employ microchip-reliant

technological measures to limit the use

of feedstock, when circumvention is

accomplished solely for the purpose of

using alternative feedstock and not for

the purpose of accessing design

software, design files, or proprietary

data.’’

219

Mr. Weinberg seeks two

changes to this language. First, he

proposes to ‘‘replace the term

‘feedstock’ . . . with the term

‘material,’ ’’ stating that the latter ‘‘is

more commonly used to describe the

substances used by 3D printers within

the 3D printing community and

industry.’’

220

Second, he proposes to

remove the term ‘‘microchip-reliant.’’ In

his view, there is no ‘‘justification to

narrow the scope of the exemption to a

specific subset of technological

measures tied to microchip-based

verifications,’’ and ‘‘the inclusion of the

limiting language creates unnecessary

ambiguity.’’

221

As noted, to recommend

an exemption, the Office requires a

showing that the statutory prohibition

on circumventing access controls is

yielding adverse effects on non-

infringing uses. The current reference to

‘‘microchip-reliant’’ was based on the

record of relevant TPMs submitted in

connection with the exemption

request.

222

In particular, the Office now

solicits descriptions and examples of

the prevalence of TPMs that are not

microchip-based verifications, and

descriptions of adverse effects stemming

from such TPMs.

223

In general, the Office seeks comment

on whether these proposed changes

should be adopted.

Proposed Class 16: Computer

Programs—Copyright License

Investigation

SFC petitions for a new exemption to

permit circumvention of TPMs

protecting computer programs for

purposes of ‘‘(a) investigating potential

programs; and (b) making lawful use of

computer programs (e.g., copying,

modifying, redistributing, and updating

free and open source software

(FOSS)).’’

224

The proposed exemption

does not appear to be limited to

particular users or types of devices. SFC

states that the users seeking access

include:

software authors and publishers, including

the authors of FOSS computer programs

(which are frequently incorporated in

embedded computing devices in an

infringing manner); and individual

consumers who are lawful owners of

embedded computing devices and licensees

of the computer programs embedded therein,

and who wish to make lawful use of

computer programs protected by

technological protection measures (e.g. the

right granted by certain FOSS licenses to

install modified versions of the FOSS

computer programs).

225

It is somewhat unclear whether the

requested exemption for ‘‘lawful use of

computer programs’’ would apply to

any lawful use or seeks merely to allow

licensed uses of FOSS software. To the

extent the former is intended, the

proposed exemption appears beyond the

Librarian’s authority to grant. As the

Office has consistently noted, the

rulemaking requires a showing of

‘‘distinct, verifiable and measurable’’

adverse impacts on noninfringing

uses.

226

Such evidence ‘‘cannot be

hypothetical, theoretical, or speculative,

but must be real, tangible, and

concrete.’’

227

In light of that

requirement, ‘‘the Register has

previously rejected broad proposed

categories such as ‘fair use works’ or

‘educational fair use works’ as

inappropriate.’’

228

SFC and any other

proponents of this request therefore

must narrow or clarify the specific uses

of computer programs that the proposed

exemption seeks to permit, so that

participants and the Office may fairly

assess whether they are likely to be

noninfringing and adversely affected by

the prohibition on circumvention. The

Office also welcomes additional detail

regarding the first subpart of SFC’s

intended uses ‘‘investigating potential

programs, including the statement

‘‘FOSS computer programs ([ ] are

frequently incorporated in embedded

computing devices in an infringing

manner).’’

Proposed Class 17: All Works—

Accessibility Uses

Multiple organizations representing

persons with disabilities (‘‘Accessibility

Petitioners’’) jointly filed a petition

proposing ‘‘a more comprehensive

exemption to resolve the shortcomings

of the current, piecemeal approach to

Section 1201 exemptions for

accessibility.’’

229

The proposed

exemption would permit circumvention

to access ‘‘all cognizable classes of

works under Section 102 (a) of the

for persons with disabilities.

Accessibility Petitioners state that this

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230

Id. at 5.

231

Id.

232

17 U.S.C. 1201(a)(1)(C) (emphasis added).

233

Commerce Committee Report at 38 (emphasis

added).

234

See supra Section I.

235

House Manager’s Report at 7.

236

Id. As noted, the Office has repeatedly

declined to recommend proposed exemptions that

have failed to define the class of works to be

covered with sufficient particularity. See, e.g., 2018

Recommendation at 131–32; 79 FR at 73859; 2006

Recommendation at 17–19.

237

Commerce Committee Report at 37.

238

17 U.S.C. 1201(a)(1)(C); see also Section 1201

Study at 115, 117.

239

See, e.g., 2018 Recommendation at 110

(including market check requirement in exemption

for accessibility uses of audiovisual works ‘‘to

prevent copies being made of works already

available in accessible formats, while supporting

the motion picture industry’s effort to further

expand the availability of accessible versions in the

marketplace’’).

240

79 FR at 73859 (declining to notice three

proposals for public comment).

241

See supra Section I (outlining four elements to

the evidentiary standard applied by the Office in

evaluating requests).

242

See Section 1201 Study at 84–88.

exemption would allow such users, as

well as ‘‘advocates[ ] and organizations

that produce accessible versions of

copyrighted works protected by

technological protection measures[,] to

press ahead on accessibility without the

burden of engaging in a complex,

situation-specific analysis.’’

230

They

state that the relevant barriers to access

include ‘‘(1) the access controls that

inhibit accessibility and (2) failures of

producers, publishers, and other

rightsholders to authorize access for

accessibility purposes or to produce

accessible versions of their works.’’

231

As presently suggested, this proposed

exemption is beyond the Librarian’s

authority to adopt because it does not

meet the statutory requirement to

describe ‘‘a particular class of

copyrighted works.’’

232

As discussed

above, the legislative history confirms

that this language is intended to refer to

‘‘a narrow and focused subset of the

broad categories of works . . . identified

in section 102 of the Copyright Act.’’

233

Therefore, the Office uses the section

102 categories as a starting point and

refines the proposed classes by other

criteria, such as the types of TPMs used

or the types of uses.

234

For example,

while the category of ‘‘literary works’’

under section 102(a)(1) ‘‘embraces both

prose creations such as journals,

periodicals or books, and computer

programs of all kinds,’’ Congress

explained that ‘‘[i]t is exceedingly

unlikely that the impact of the

prohibition on circumvention of access

control technologies will be the same for

scientific journals as it is for computer

operating systems.’’

235

Thus, ‘‘these two

categories of works, while both ‘literary

works,’ do not constitute a single

‘particular class’ for purposes of’’

section 1201(a)(1).

236

Further, petitioners are required to

establish ‘‘distinct, verifiable and

measurable impacts’’ on noninfringing

uses,

237

and those impacts must be

caused by the statutory prohibition on

circumvention.

238

While TPMs

undoubtedly have such impacts with

respect to many accessibility uses (as

reflected by the exemptions adopted for

such uses in prior rulemakings), it is not

clear to what extent various TPMs are

effectively applied to every category of

work in section 102, some of which may

not readily lend themselves to such

measures (e.g., sculptural works). In

addition, the availability of accessible-

format versions of works in the

marketplace is a relevant consideration

in determining adverse effects,

239

and it

is not clear that that factor applies

equally to all categories of works.

The Office notes its continuing

discretion to decline to put forward

proposals for public comment that are

unlikely to yield consideration of

exemptions consistent with the

standards of section 1201(a)(1).

240

light of the important public policy

considerations raised by this request

and past exemptions adopted with

respect to facilitating accessibility uses,

however, the Office is noticing this

category for public comment while

flagging the need to further develop and

refine petitioners’ request into separate

proposed classes. Accordingly,

Accessibility Petitioners and any other

proponents in this category must

provide evidence and legal analysis

sufficient to enable the Office to make

a particularized assessment as to each

class of works for which an exemption

is sought. Based on prior exemptions

adopted, the Office anticipates

Accessibility Petitioners to be seeking

exemptions related to TPMs protecting

literary works as well as motion pictures

distributed electronically, and

proponents should provide evidence

and proposed regulatory language with

respect to these and any other relevant

classes, and clearly identify and propose

contours for each such class. For

example, the Office is not inclined to

recommend an exemption for printed

copies of literary works, for which no

TPMs are employed. Nor is the Office

empowered to recommend regulatory

language that extends to sound

recordings, musical works, architectural

works, etc. without development of an

adequate administrative record

demonstrating that an exemption is

appropriate for each of these classes.

241

Accessibility Petitioners should also

include, with respect to each class,

evidence of an actual or likely adverse

effect on accessibility uses resulting

from TPMs applied to that type of work.

While the Office recognizes the vital

importance of ensuring accessibility for

persons with disabilities, and indeed

has recommended legislation to make

permanent the current exemption

regarding assistive technologies for

electronically-distributed literary

works,

242

its authority in this

proceeding is bound by the provisions

of the statute. Subject to these

requirements, the Office invites

comment on this proposed class(es).

IV. Future Phases of the Eighth

Triennial Rulemaking

As in prior rulemakings, after receipt

of written comments, the Office will

continue to solicit public engagement to

create a comprehensive record.

Described below are the future phases of

the administrative process that will be

employed for this rulemaking, so that

parties may use this information in their

planning.

A. Public Hearings

The Copyright Office intends to hold

public hearings in spring 2021 following

the last round of written comments. The

hearings will allow for participation by

videoconference and will be streamed

online. In addition, the Office will

determine at a later date, based on

applicable public health guidelines,

whether in-person participation will be

possible. A separate notice providing

details about the hearings and how to

participate will be published in the

Federal Register at a later date. The

Office will identify specific items of

inquiry to be addressed during the

hearings.

B. Post-Hearing Questions

As with previous rulemakings,

following the hearings, the Copyright

Office may request additional

information with respect to particular

classes from rulemaking participants.

The Office may rely on this process in

cases where it would be useful for

participants to supply missing

information for the record or otherwise

resolve issues that the Office believes

are material to particular exemptions.

Such requests for information will take

the form of a letter from the Copyright

Office and will be addressed to

individual parties involved in the

proposal as to which more information

is sought. While responding to such a

request will be voluntary, any response

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Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules

will need to be supplied by a specified

deadline. After the receipt of all

responses, the Office will post the

questions and responses on the Office’s

website as part of the public record.

C. Ex Parte Communication

In the seventh triennial rulemaking,

in response to stakeholder requests, the

Office issued written guidelines under

which interested non-governmental

participants could request informal

communications with the Office during

the post-hearing phase of the

proceeding. The Office expects to follow

substantially the same process in this

proceeding. To ensure transparency,

participating parties will be required to

submit a list of attendees and a written

summary of any oral communications,

which will be posted on the Office’s

website. Specific guidelines for this

proceeding will be made available

following the public hearings. No ex

parte communications with the Office

regarding this proceeding will be

permitted prior to the post-hearing

phase.

Dated: October 9, 2020.

Regan A. Smith,

General Counsel and Associate Register of

Copyrights.

[FR Doc. 2020–22893 Filed 10–14–20; 8:45 am]

BILLING CODE 1410–30–P

POSTAL SERVICE

39 CFR Part 20

International Mailing Services:

Proposed Product and Price

Changes—CPI

AGENCY

: Postal Service

ACTION

: Proposed rule; request for

comments.

SUMMARY

: The Postal Service proposes

to revise Mailing Standards of the

United States Postal Service,

International Mail Manual (IMM

), to

reflect changes coincident with the

recently announced mailing services

price adjustments.

DATES

: We must receive your comments

on or before November 16, 2020.

ADDRESSES

: Mail or deliver comments to

the manager, Product Classification,

U.S. Postal Service

, 475 L’Enfant Plaza

SW, RM 4446, Washington, DC 20260–

5015. You may inspect and photocopy

all written comments at USPS

Headquarters Library, 475 L’Enfant

Plaza SW, 11th Floor N, Washington DC

by appointment only between the hours

of 9 a.m. and 4 p.m., Monday through

Friday by calling 1–202–268–2906 in

advance. Email comments, containing

the name and address of the commenter,

to: PCFederalRegister@usps.gov, with a

subject line of ‘‘January 2021

International Mailing Services Price

Change—CPI.’’ Faxed comments are not

accepted.

FOR FURTHER INFORMATION CONTACT

Kathy Frigo at 202–268–4178.

SUPPLEMENTARY INFORMATION

International Price and Service

Adjustments

On October 9, 2020, the Postal Service

filed a notice of mailing services price

adjustments with the Postal Regulatory

Commission (PRC), effective on January

24, 2021. The Postal Service proposes to

revise Notice 123, Price List, available

on Postal Explorer

at https://

pe.usps.com, to reflect these new price

changes. The new prices are or will be

available under Docket Number R2021–

1 on the Postal Regulatory

Commission’s website at www.prc.gov.

This proposed rule describes the price

changes for the following market

dominant international services:

•International extra services and

fees.

International Extra Services and Fees

The Postal Service plans to increase

prices for certain market dominant

international extra services including:

•Certificate of Mailing

•Registered Mail

•Return Receipt

•Customs Clearance and Delivery Fee

•International Business Reply

Mail

Service

ERTIFICATE OF

AILING

Fee

Individual pieces

Individual article (PS Form 3817) ........................................................................................................................................................ $1.55

Duplicate copy of PS Form 3817 or PS Form 3665 (per page) ......................................................................................................... 1.55

Firm mailing sheet (PS Form 3665), per piece (minimum 3), First-Class Mail International only ..................................................... 0.44

Bulk quantities

For first 1,000 pieces (or fraction thereof) ........................................................................................................................................... $8.80

Each additional 1,000 pieces (or fraction thereof) .............................................................................................................................. 1.10

Duplicate copy of PS Form 3606 ........................................................................................................................................................ 1.55

Registered Mail

Fee: $16.30.

Return Receipt

Fee: $4.25.

Customs Clearance and Delivery

Fee: per piece $6.65.

International Business Reply Service

Fee: Cards $1.55; Envelopes up to 2

ounces $2.05

Following the completion of Docket

No. R2021–1, the Postal Service will

adjust the prices for products and

services covered by the International

Mail Manual. These prices will be on

Postal Explorer at pe.usps.com.

Accordingly, although exempt from

the notice and comment requirements of

the Administrative Procedure Act (5

U.S.C. 553(b), (c)) regarding proposed

rulemaking by 39 U.S.C. 410(a), the

Postal Service invites public comment

on the following proposed changes to

Mailing Standards of the United States

Postal Service, International Mail

Manual (IMM

), which is incorporated

by reference in the Code of Federal

Regulations in accordance with 39 CFR

20.1, and to associated changes to

Notice 123, Price List.

List of Subjects in 39 CFR Part 20

Foreign relations, International postal

services.

Accordingly, 39 CFR part 20 is

proposed to be amended as follows:

PART 20—[AMENDED]

■1. The authority citation for 39 CFR

part 20 continues to read as follows:

Authority: 5 U.S.C. 552(a); 13 U.S.C. 301–

307; 18 U.S.C. 1692–1737; 39 U.S.C. 101,

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Exemptions To Permit Circumvention of Access Controls on Copyrighted Works

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