Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 57526-57531 [05-19721]

Download as PDF 57526 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a ‘‘significant energy action’’ under that order because it is not a ‘‘significant regulatory action’’ under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211. Technical Standards The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards. Environment We have analyzed this proposed rule under Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321–4370f), and have concluded that there are no factors in this case that would limit the use of a categorical exclusion under section 2.B.2 of the Instruction. Therefore, this proposed rule is categorically excluded, under figure 2–1, paragraph (32)(e) of the Instruction, from further environmental documentation because it has been determined that the promulgation of operating regulations for drawbridges are categorically excluded. List of Subjects in 33 CFR Part 117 Bridges. PART 117 DRAWBRIDGE OPERATION REGULATIONS Authority: 33 U.S.C. 499; Department of Homeland Security Delegation No. 0170.1; 33 CFR 1.05–1(g); section 117.255 also issued under the authority of Pub. L. 102–587, 106 Stat. 5039. 2. Section 117.821 is amended by revising paragraph (a)(5) to read as follows: § 117.821 Atlantic Intracoastal Waterway, Albermarle Sound to Sunset Beach. (a) * * * (5) S.R. 74 Bridge, mile 283.1, at Wrightsville Beach, NC, between 7 a.m. and 7 p.m., the draw need only open on the hour; except that from 7 a.m. to 11 a.m. on the third and fourth Saturday in September of every year, the draw need not open for vessels due to the Triathlon run. * * * * * § 117.823 [Redesignated] 3. Redesignate § 117.823 as § 117.824. 4. Add new § 117.823 to read as follows: § 117.823 Cape Fear River. The draw or the Cape Fear Memorial Bridge, mile 26.8, at Wilmington need not open for the passage of vessel from 8 a.m. to 10 a.m. on the second Saturday of July of every year, and from 7 a.m. to 11 a.m. on the second Sunday of November of every year. 5. Section 117.829 is amended by adding a new paragraph (a)(4) to read as follows: § 117.829 Northeast Cape Fear River (a) * * * (4) From 8 a.m. to 10 a.m. on the second Saturday of July of every year, and from 7 a.m. to 11 a.m. on the second Sunday of November of every year, the draw need not open for vessels. * * * * * Dated: September 20, 2005. S.H. Ratti, Captain, U. S. Coast Guard, Acting Commander, Fifth Coast Guard District. [FR Doc. 05–19664 Filed 9–30–05; 8:45 am] BILLING CODE 4910–15–P For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 117 as follows: 15:16 Sep 30, 2005 Jkt 208001 Copyright Office 1. The authority citation for part 117 continues to read as follows: Regulations VerDate Aug<31>2005 LIBRARY OF CONGRESS PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 37 CFR Part 201 [Docket No. RM 2005–11] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies Copyright Office, Library of Congress. ACTION: Notice of inquiry. AGENCY: SUMMARY: The Copyright Office of the Library of Congress is preparing to conduct proceedings in accordance with section 1201(a)(1) of the Copyright Act, which was added by the Digital Millennium Copyright Act and which provides that the Librarian of Congress may exempt certain classes of works from the prohibition against circumvention of technological measures that control access to copyrighted works. The purpose of this rulemaking proceeding is to determine whether there are particular classes of works as to which users are, or are likely to be, adversely affected in their ability to make noninfringing uses due to the prohibition on circumvention. This notice requests written comments from all interested parties, including representatives of copyright owners, educational institutions, libraries and archives, scholars, researchers and members of the public, in order to elicit evidence on whether noninfringing uses of certain classes of works are, or are likely to be, adversely affected by this prohibition on the circumvention of measures that control access to copyrighted works. DATES: Written comments are due by December 1, 2005. Reply comments are due by February 2, 2006. ADDRESSES: Electronic submissions must be made through the Copyright Office website: http:// www.copyright.gov/1201/ commentlforms; see section 3 of the SUPPLEMENTARY INFORMATION section for file formats and other information about electronic and non– electronic filing requirements. Addresses for nonelectronic submissions are as follows: If hand delivered by a private party, deliver to Room LM–401 of the James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the envelope should be addressed as follows: Office of the General Counsel, U.S. Copyright Office, James Madison Memorial Building, Room LM–401, 101 Independence E:\FR\FM\03OCP1.SGM 03OCP1 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules Avenue, SE., Washington, DC 20559– 6000. If hand delivered by a commercial courier, any comment must be delivered to the Congressional Courier Acceptance Site located at Second and D Streets, NE., Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be addressed as follows: Copyright Office General Counsel, Room LM–403, James Madison Memorial Building, 101 Independence Avenue, SE., Washington DC. If delivered by means of the United States Postal Service (see section 3 of the SUPPLEMENTARY INFORMATION about mail screening and possible delays), address to David O. Carson, General Counsel, Copyright GC/I&R, PO Box 70400, Washington, DC 20024– 0400. See SUPPLEMENTARY INFORMATION section for information about requirements and formats of submissions. Comments may not be delivered by means of overnight delivery services such as Federal Express, United Parcel Service, etc., due to delays in processing receipt of such deliveries. FOR FURTHER INFORMATION CONTACT: Rob Kasunic, Principal Legal Advisor, Office of the General Counsel, Copyright GC/ I&R, PO Box 70400, Washington, DC 20024–0400. Telephone (202) 707–8380; telefax (202) 707–8366. SUPPLEMENTARY INFORMATION: Congress made an initial determination as to classes of works to be exempted from the prohibition for the first triennial period. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg. 2000). The exemptions promulgated by the Librarian in the first rulemaking remained in effect through October 27, 2003. On October 28, 2003, the Librarian of Congress announced the second determination as to classes of works to be exempted from the prohibition. Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 68 FR 62011, 62013 (2003) (hereinafter Final Reg. 2003). The four exemptions created in the second anticircumvention rulemaking will be in effect through October 27, 2006 and any exemptions promulgated as a result of the third anticircumvention rulemaking will take effect the next day for a 3–year period lasting through October 27, 2009. Both determinations by the Librarian of Congress were made upon the recommendation of the Register of Copyrights following extensive rulemaking proceedings. This notice announces the initiation of the third section 1201 rulemaking required under 17 U.S.C. 1201(a)(1)(C). 1. Mandate for Rulemaking Proceeding 2. Background Title I of the Digital Millennium Copyright Act was, inter alia, the congressional fulfillment of obligations of the United States under the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. For additional information on the historical background and the legislative history of Title I, see Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 64 FR 66139, 66140 (1999) [http://www.loc.gov/ copyright/fedreg/1999/64fr66139.html]. Section 1201 of title 17 of the United States Code prohibits two general types of activity: (1) the conduct of ‘‘circumvention’’ of technological protection measures that control access to copyrighted works and (2) trafficking in any technology, product, service, device, component, or part thereof that protects either ‘‘access’’ to a copyrighted work or that protects the ‘‘rights of the copyright owner,’’ if that device or service meets one of three conditions. The first type of activity, the conduct of circumvention, is prohibited in section 1201(a)(1). The latter activities, trafficking in devices or services that circumvent ‘‘access’’ or ‘‘the rights of the copyright owner’’ are contained in The Digital Millennium Copyright Act, Pub. L. 105–304 (1998), amended title 17 of the United States Code to add a new Chapter 12, which among other things prohibits circumvention of access control technologies employed by or on behalf of copyright owners to protect their works. Specifically, subsection 1201(a)(1)(A) provides, inter alia, that ‘‘No person shall circumvent a technological measure that effectively controls access to a work protected under this title.’’ Subparagraph (B) limits this prohibition. It provides that prohibition against circumvention ‘‘shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3–year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title’’ as determined in this rulemaking. This prohibition on circumvention became effective two years after the date of enactment, on October 28, 2000. At the end of the 2–year period between the enactment and effective date of the provision, the Librarian of VerDate Aug<31>2005 16:21 Sep 30, 2005 Jkt 205001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 57527 sections 1201(a)(2) and 1201(b), respectively. In addition to these prohibitions, section 1201 also includes a series of section–specific limitations and exemptions to the prohibitions of section 1201. The Anticircumvention Provision At Issue Subsection 1201(a)(1) applies when a person who is not authorized by the copyright owner to gain access to a work does so by circumventing a technological measure put in place with the authority of the copyright owner to control access to the work. See the Report of the House Committee on Commerce on the Digital Millennium Copyright Act of 1998, H.R. Rep. No. 105–551, pt. 2, at 36 (1998) (hereinafter Commerce Comm. Report). That section provides that ‘‘No person shall circumvent a technological measure that effectively controls access to a work protected under this title.’’ 17 U.S.C. 1201(a)(1)(A) (1998). The relevant terms are defined: (3) As used in this subsection– (A) to ‘‘circumvent a technological measure’’ means to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner; and (B) a technological measure ‘‘effectively controls access to a work’’ if the measure, in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work. 17 U.S.C. 1201(a)(3). Scope of the Rulemaking The statutory focus of this rulemaking is limited to one subsection of section 1201: the prohibition on the conduct of circumvention of technological measures that control access to copyrighted works. 17 U.S.C. 1201(a)(1)(C) [http:// www.copyright.gov/title17/ 92chap12.htmlι1201]. The Librarian of Congress has no authority to limit either of the anti–trafficking provisions contained in subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover, for a proposed exemption to be considered in this rulemaking, there must be a causal connection between the prohibition in 1201(a)(1) and the adverse effect on noninfringing uses. This rulemaking addresses only the prohibition on the conduct of circumventing measures that control ‘‘access’’ to copyrighted works,e.g., prohibiting unauthorized decryption of an encrypted work or bypassing E:\FR\FM\03OCP1.SGM 03OCP1 57528 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules passwords used to restrict access to copyrighted works. The structure of section 1201 is such that there exists no comparable prohibition on the conduct of circumventing technological measures that protect the ‘‘rights of the copyright owner’’ in 1201(b), e.g., the section 106 rights to reproduce, adapt, distribute, publicly perform, or publicly display a work. Circumventing a technological measure that protects these section 106 rights of the copyright owner is governed not by section 1201, but rather by the traditional copyright rights and the applicable limitations in the Copyright Act. For example, if a person circumvents a measure that prohibits printing or saving an electronic copy of an article, there is no provision in section 1201 that precludes this activity. Instead, it would be actionable as copyright infringement of the section 106 right of reproduction unless an applicable limitation applied, e.g., fair use. Since section 1201 contains no prohibition on the circumvention of technological measures that protect the ‘‘rights of the copyright owner,’’ sometimes referred to as ‘‘use’’ or ‘‘copy’’ control measures, any effect these measures may have on noninfringing uses would not be attributable to a section 1201 prohibition. On the other hand, because there is a prohibition on the act of circumventing a technological measure that controls access to a work, and since traditional Copyright Act limitations are not defenses to the act of circumventing a technological measure that controls access, Congress chose to create the current rulemaking proceeding as a ‘‘fail–safe mechanism’’ to monitor the effect of the anticircumvention provision in 1201(a)(1)(A). Commerce Comm. Report, at 36. This anticircumvention rulemaking is authorized to monitor the effect of the prohibition on ‘‘access’’ circumvention on noninfringing uses of copyrighted works. In this triennial rulemaking proceeding, effects on noninfringing uses that are unrelated to section 1201(a)(1)(A) may not be considered. 17 U.S.C. 1201(a)(1)(C). Burden of Proof In the first rulemaking, the Register concluded from the language of the statute and the legislative history that a determination to exempt a class of works from the prohibition on circumvention must be based on a showing that the prohibition has or is likely to have a substantial adverse effect on noninfringing uses of a particular class of works. It was determined that proponents of an VerDate Aug<31>2005 15:16 Sep 30, 2005 Jkt 208001 exemption bear the burden of proof that an exemption is warranted for a particular class of works and that the prohibition is presumed to apply to all classes of works unless an adverse impact has been shown. See Commerce Comm. Report, at 37 and see also, Final Reg. 2000, at 64558. Some have objected to the Register’s use of a standard that requires a showing of a ‘‘substantial’’ adverse effect on noninfringing uses, and have asserted that the Register has increased the evidentiary standard higher than the statutory requirement. In the most recent rulemaking in 2003, the Register addressed this criticism and found it to be misplaced, noting that Use of the term ‘‘substantial’’ does not impose a ‘‘heightened’’ requirement; it imposes the requirement found throughout the legislative history, which is variously stated as ‘‘substantial adverse impact,’’ ‘‘distinct, verifiable, and measurable impacts,’’ and more than ‘‘de minimis impacts.’’ As is apparent from the dictionary definition of ‘‘substantial,’’ and the Supreme Court’s treatment of the term (e.g., in its articulation of the substantial evidence rule), requiring that one’s proof be ‘‘substantial’’ simply means that it must have substance. Final Reg. 2003, at 62013. Whatever label one uses, proponents of an exemption bear the burden of providing sufficient evidence under the foregoing standards to support an exemption. How much evidence is sufficient will vary with the factual context of the alleged harm. Further, proof of harm is never the only consideration in the rulemaking process, and therefore the sufficiency of the harm will always be relative to other considerations, such as, the availability of the affected works for use, the availability of the works for nonprofit archival, preservation, and educational purposes, the impact that the prohibition has on criticism, comment, news reporting, teaching, scholarship, or research, the effect of circumvention on the market for or value of copyrighted works, and any other relevant factors. In order to meet the burden of proof, proponents of an exemption must provide evidence either that actual harm exists or that it is ‘‘likely’’ to occur in the ensuing 3–year period. Actual instances of verifiable problems occurring in the marketplace are generally necessary in order to prove actual harm. The most compelling cases of actual harm will be based on first– hand knowledge of such problems. Circumstantial evidence may also support a claim of present or likely harm, but such evidence must also reasonably demonstrate that a measure PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 protecting access was the cause of the harm and that the adversely affected use was, in fact, noninfringing. ‘‘Likely’’ adverse effects may also support an exemption. This standard of ‘‘likelihood’’ requires proof that adverse effects are more likely than not to occur. Claims based on ‘‘likely’’ adverse effects cannot be supported by speculation alone. The House Manager’s Report stated that an exemption based on ‘‘likely’’ future adverse impacts during the applicable period should only be made ‘‘in extraordinary circumstances in which the evidence of likelihood is highly specific, strong and persuasive.’’ Staff of House Committee on the Judiciary, 105th Cong., Section–By– Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, (hereinafter House Manager’s Report), at 6. This statement could be interpreted as raising the burden beyond a standard of a preponderance of the evidence. The statutory language enacted, however, – ‘‘whether 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’’ – does not specify a standard beyond mere likelihood and thus the preponderance standard will be applied by the Register. Nevertheless, as the Register’s final recommendation of 2000 explained, the expectation of ‘‘distinct, verifiable and measurable impacts’’ in the legislative history as to actual harm suggests that conjecture alone would be insufficient to support a finding of ‘‘likely’’ adverse effect. Final Reg. 2000, at 64559. Although a showing of ‘‘likely’’ adverse impact will necessarily involve prediction, the burden of proving that the expected adverse effect is more likely than other possible outcomes rests firmly on the proponent of the exemption. The identification of existing or likely problems is not, however, the end of the analysis. In order for an exemption of a particular class of works to be warranted, a proponent must show that such problems warrant an exemption in light of all of the relevant facts. The identification of isolated or anecdotal problems will be generally insufficient to warrant an exemption of a class of works. Similarly, the mere fact that the digital format would be more convenient to use for noninfringing purposes is generally insufficient factual support for an exemption. Further, purely theoretical critiques of Section 1201 will never satisfy the requisite showing. House Manager’s Report, at 6. Proponents of exemptions must show sufficient harm to warrant an exemption E:\FR\FM\03OCP1.SGM 03OCP1 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules from the default rule established by Congress – the prohibition in circumvention. There is a presumption that the § 1201 prohibition will apply to any and all classes of works, including previously exempted classes, unless a new showing is made that an exemption is warranted. Final Reg. 2000, at 64558. Exemptions are reviewed de novo and prior exemptions will expire unless sufficient new evidence is presented in each rulemaking that the prohibition has or is likely to have an adverse effect on noninfringing uses. The facts and argument that supported an exemption during any given 3–year period may be insufficient within the context of the marketplace in a different 3–year period. Similarly, proposals that were not found to warrant an exemption in any particular rulemaking could find factual support in the context of another rulemaking. Availability of Works in Unprotected Formats Other statutory considerations must also be balanced with evidence of adverse effects attributable to the prohibition. In making her recommendation to the Librarian, the Register is instructed to consider the availability for use of copyrighted works. 17 U.S.C. 1201(a)(1)(C)(i). This inquiry demands that the Register consider whether ‘‘works’’ protected by technological measures that control access are also available in the marketplace in formats that are unprotected. The fact that a ‘‘work’’ (in contrast to a particular ‘‘copy’’ of a work) is available in a format without technological protection measures may be significant because the unprotected formats might allow the public to make noninfringing uses of the work even though other formats of the work would not. For example, in the first rulemaking, many users claimed that the technological measures on motion pictures contained on Digital Versatile Disks (DVDs) restricted noninfringing uses of the motion pictures. A balancing consideration was that the record revealed that at that time, the vast majority of these works were also available in analog format on VHS tapes. Final Reg. 2000, at 64568. Thus, the full range of availability of a work for use is necessary to consider in assessing the need for an exemption to the prohibition on circumvention. Another consideration relating to the availability for use of copyrighted works is whether the measure supports a distribution model that benefits the public generally. For example, while a measure may limit the length of time VerDate Aug<31>2005 15:16 Sep 30, 2005 Jkt 208001 57529 that a work may be accessed (time– limited) or may limit the scope of access (scope–limited), e.g., access to only a portion of work, those limitations may benefit the public by providing ‘‘use– facilitating’’ models that allow users to obtain access to works at a lower cost than they would otherwise be able to obtain were such restrictions not in place. If there is sufficient evidence that particular classes of works would not be offered at all without the protection afforded by technological protection measures that control access, this evidence must be considered. House Manager’s Report, at 6. Accord, Final Reg. 2000, at 64559. Thus, the Register’s inquiry must assess any benefits to the public resulting from the prohibition as well as the adverse effects that may be established. for all literary works to be adversely affected by the prohibition and therefore, determining an appropriate subcategory of the works in this category would be the goal of the rulemaking. Id. The Register concluded that the starting point for identifying a particular ‘‘class of works’’ to be exempted must be one of the section 102 categories. Final Reg. 2000, at 64559–64561. From that starting point, it is likely that the scope or boundaries of a particular class would need to be further limited to remedy the particular harm to noninfringing uses identified in the rulemaking. As a result of the Register’s recommendation in 2003,the Librarian of Congress decided that four classes of works should be exempted: The Scope of the Term ‘‘Class of Works’’ Section 1201 does not define a critical term for the rulemaking process: ‘‘class of works.’’ In the first rulemaking, the Register elicited views on the scope and meaning of this term. After review of the statutory language, the legislative history and the extensive record in the proceeding [see Final Reg. 2000, at 64557 for a description of the record in the 2000 rulemaking proceeding], the Register reached certain conclusions on the scope of this term and requested further congressional guidance. [For a more detailed discussion, see Final Reg. 2000, at 64559.] The Register found that the statutory language required that the Librarian identify ‘‘classes of works’’ based upon attributes of the works themselves, and not by reference to some external criteria such as the intended use or users of the works. The phrase ‘‘class of works’’ connotes that the shared, common attributes of the ‘‘class’’ relate to the nature of authorship in the ‘‘works.’’ Thus, a ‘‘class of works’’ was intended to be a ‘‘narrow and focused subset of the broad categories of works of authorship * * * identified in section 102.’’ Commerce Comm. Report, at 38. The starting point for a proposed exemption of a particular class of works must be the section 102 categories of authorship: literary works; musical works; dramatic works; pantomimes and choreographic works; pictorial, graphic and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. This determination is supported by the House Manager’s Report, which discussed the importance of appropriately defining the proper scope of the exemption. House Manager’s Report, at 7. The legislative history stated that it would be highly unlikely (1) Compilations consisting of lists of Internet locations blocked by commercially marketed filtering software applications that are intended to prevent access to domains, websites or portions of websites, but not including lists of Internet locations blocked by software applications that operate exclusively to protect against damage to a computer or a computer network or lists of Internet locations blocked by software applications that operate exclusively to prevent receipt of email. (2) Computer programs protected by dongles that prevent access due to malfunction or damage and which are obsolete. (3) Computer programs and video games distributed in formats that have become obsolete and which require the original media or hardware as a condition of access. A format shall be considered obsolete if the machine or system necessary to render perceptible a work stored in that format is no longer manufactured or is no longer reasonably available in the commercial marketplace. (4) Literary works distributed in ebook format when all existing ebook editions of the work (including digital text editions made available by authorized entities) contain access controls that prevent the enabling of the ebook’s read–aloud function and that prevent the enabling of screen readers to render the text into a specialized format. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 Commenters should familiarize themselves with the Register’s recommendation in the prior rulemaking proceedings, since many of the issues addressed may provide guidance for current showings either for or against an exemption. This notice requests written comments from all interested parties. In addition to the necessary showing discussed above, in order to make a prima facie case for a proposed exemption, at least three critical points should be established. First, a proponent must attempt to identify the specific technological measure that is the causal source of the E:\FR\FM\03OCP1.SGM 03OCP1 57530 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules alleged problem, and show why that technological measure ‘‘effectively controls access to a [copyrighted] work.’’ Second, a proponent must specifically explain what noninfringing activity the prohibition is adversely affecting. Third, a proponent must establish that the prevented activity is, in fact, a noninfringing use under current law. The nature of the Librarian’s inquiry is further delineated by the statutory areas to be examined: (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. 17 U.S.C. 1201(a)(1)(C). These statutory considerations require examination and careful balancing. The harm identified by a proponent of an exemption must be balanced against the harm that would result from an exemption. In certain circumstances, an exemption could have a greater adverse effect on the public than would the adverse effects on noninfringing uses identified. The ultimate determination of the Librarian must take all of these factors into consideration. Therefore, a commenter’s analysis should also address these considerations. For the entire record of the two previous anticircumvention rulemakings, including all comments, testimony and notices published, see the Copyright Office’s website at: http:// www.loc.gov/copyright/1201/. 3. Written Comments In the first rulemaking, the Register determined that the burden of proof is on the proponent of an exemption to come forward with evidence supporting an exemption for a particular class of works. In this third triennial rulemaking, the Register shall continue with the procedure adopted in the second rulemaking: Comments submitted in the initial comment period should be confined to proposals for exempted classes. They should specifically identify particular classes of works adversely affected by the prohibition and provide evidentiary support for the need for the proposed exemptions. For each particular class of works that a commenter proposes for exemption, VerDate Aug<31>2005 15:16 Sep 30, 2005 Jkt 208001 the commenter should first identify that class, followed by a summary of the argument in favor of exempting that proposed class. The commenter should then specify the facts and evidence providing a basis for this exemption. Finally, the commenter should state any legal arguments in support of the exemption. This format of class/ summary/facts/argument should be sequentially followed for each class of work proposed as necessary. As discussed above, the best evidence in support of an exemption would consist of concrete examples or specific instances in which the prohibition on circumvention of technological measures protecting access has had or is likely to have an adverse effect on noninfringing uses. It would also be useful for the commenter to quantify the adverse effects in order to explain the scope of the present or likely problem. In the reply comments, persons who oppose or support any exemptions proposed in the initial comments will have the opportunity to respond to the proposals made in the initial comments and to provide factual information and legal argument addressing whether or not a proposed exemption should be adopted. Since the reply comments are intended to be responsive to the initial comments, reply commenters must identify which proposal(s) they are responding to, whether in opposition, support, amplification or correction. As with initial comments, reply comments should first identify the proposed class to which the reply is responsive, provide a summary of the argument, and then provide the factual and/or legal support for their argument. This format of class/summary/facts and/or legal argument should be repeated for each reply to a particular class of work proposed. The Copyright Office intends to place the comments and reply comments that are submitted in this proceeding on its public website (http:// www.copyright.gov/1201).1 Regardless of the mode of submission, all comments must, at a minimum, contain the legal name of the submitter and the entity, if any, on whose behalf the comment was submitted. If persons do not wish to have their address, telephone number, or email address publicly displayed on the Office’s website, comments should not include such information on the document itself but should only include the legal name of the commenter. The Office prefers 1 If a comment includes attached material that appears to be protected by copyright and there is no indication that the material was attached with permission of the copyright owner, the attached material will not be placed on the Office’s website. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 that comments and reply comments be submitted in electronic form. However, the Office recognizes that persons may be unable to submit their comments through the Office’s website or to deliver their comments in person. Therefore, comments may also be delivered through the United States Postal Service, addressed to the General Counsel, Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 20024–0400. Due to mail screening on Capitol Hill and possible delays in delivery, submission by means of the United States Postal Service is discouraged and there is a risk that the comment will not be received at the Copyright Office in time to be considered. Electronic filing or hand– delivery will help insure timely receipt of comments by the Office. Electronic comments successfully submitted through the Office’s website will generate a confirmation receipt to the submitter and submitters hand– delivering comments may request a date stamp on an extra copy provided by the submitter. Submission of Comments Comments may be submitted in the following ways: If submitted through the Copyright Office’s website: The Copyright Office’s website will contain a submission page at: http:// www.copyright.gov/1201/ commentlforms. Approximately thirty days prior to each applicable deadline (see DATES), the form page will be activated on the Copyright Office website allowing information to be entered into the required fields, including the name of the person making the submission, mailing address, telephone number, and email address. There will also be non– required fields for, e.g., the commenter’s title, the organization that the commenter is representing, whether the commenter is likely to request to testify at public hearings and if so, whether the commenter is likely to prefer to testify in Washington, DC or a location in California. For initial comments, there will be two additional fields required: 1) the proposed class or classes of copyrighted work(s) to be exempted, and 2) a brief summary of the argument(s). For reply comments, there will be two similar required fields: 1) the class or classes to which the reply is responsive, including the initial comment numbers, and 2) a brief summary of the argument. The comment or reply comment itself must be sent as an attachment, and must be in a single file in either Adobe Portable Document File (PDF) format (preferred), Microsoft Word Version E:\FR\FM\03OCP1.SGM 03OCP1 Federal Register / Vol. 70, No. 190 / Monday, October 3, 2005 / Proposed Rules 2003 or earlier, WordPerfect 9.0 or earlier, Rich Text Format (RTF), or ASCII text file format. There will be a browse button on the form that will allow submitters to attach the comment file to the form and then to submit the completed form to the Office. The personal information entered into the required fields on the form page will not be publicly posted on the Copyright Office website, but the Office intends to post on its website the proposed class and the summary of the argument, as well as the entire, attached comment document. Only the commenter’s name is required on the comment document itself and a commenter who does not want other personal information posted on the Office’s website should avoid including other private information on the comment itself. Except in exceptional circumstances, changes to the submitted comment will not be allowed and it will become a part of the permanent public record of this rulemaking. If by means of the United States Postal Service or hand delivery: Send, to the appropriate address listed above, two copies, each on a 3.5–inch write– protected diskette or CD–ROM, labeled with the legal name of the person making the submission and the entity on whose behalf the comment was submitted, if any. The document itself must be in a single file in either Adobe Portable Document File (PDF) format (preferred), Microsoft Word Version 2003 or earlier, WordPerfect Version 9 or earlier, Rich Text Format (RTF), or ASCII text file document. If the comment is hand delivered or mailed to the Office and the submitter does not wish to have the address, telephone number, or email address publicly displayed on the Office’s website, the comment should not include such information on the document itself, but only the name and affiliation, if any, of the commenter. In that case, a cover letter should be included with the comment that contains the commenter’s address, phone number, email address, and for initial comments, the proposed class of copyrighted work to be exempted and a brief summary of the argument. Anyone who is unable to submit a comment in electronic form (on the website as an attachment or by means of the United States Postal Service or hand delivery on disk or CD–ROM) should submit an original and fifteen paper copies by hand or by means of the United States Postal Service to the appropriate address listed above. It may not be feasible for the Office to place these comments on its website. VerDate Aug<31>2005 15:16 Sep 30, 2005 Jkt 208001 General Requirements for all submissions: All submissions (in either electronic or non–electronic form delivered through the website, by means of the United States Postal Service by hand–delivery or by courier) must contain on the comment itself, the name of the person making the submission and his or her title and affiliation, if the comment is being submitted on behalf of that organization. The mailing address, telephone number, telefax number, if any, and email address need not be included on the comment itself, but must be included in some form, e.g., on the website form or in a cover letter with the submission. All submissions must also include the class/summary/ factual and/or legal argument format in the comment itself for each class of work proposed or for each reply to a proposal. Initial comments and reply comments will be accepted for a 30–day period in each round, and a form will be placed on the Copyright Office website at least 30 days prior to the deadline for submission. Initial comments will be accepted from November 2, 2005 until December 1, 2005, at 5:00 P.M. Eastern Standard Time, at which time the submission form will be removed from the website. Reply comments will be accepted from January 4, 2006 until February 2, 2006, at 5:00 P.M. Eastern Standard Time. 4. Hearings and Further Comments The Register also plans on holding public hearings in the Spring after receipt of the comments and reply comments. The tentative dates for the Washington, DC hearings are currently March 29 and 31, 2006, and April 3 and 4, 2006, and the hearings most likely will take place in the James Madison Memorial Building of the Library of Congress in Washington, DC. The dates and location of hearings for the West Coast have yet to be decided. A separate notice for details on all hearings in this rulemaking proceeding will be published at a later time in the Federal Register and on the Copyright Office’s website. In order to assist the Copyright Office in identifying the number of days for hearings, the comment and reply comment form page will contain non– required fields asking whether the commenter is likely to request to testify and if so, in which location. Formal requests to testify will be solicited early in 2006. To provide sufficient flexibility in this proceeding, in the event that unforeseen developments occur that would significantly affect the Register’s recommendation, an opportunity to petition the Register for consideration of PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 57531 new information will be made available after the deadlines specified. A petition, including proposed new classes of works to be exempted, must be in writing and must set forth the reasons why the information could not have been made available earlier and why it should be considered by the Register after the deadline. A petition must also be accompanied by fifteen copies of any new proposed exemption that includes the proposed class of works to be exempted, a summary of the argument, the factual basis for such an exemption and the legal argument supporting such an exemption. These materials must be delivered to the Copyright Office at the address listed above. The Register will make a determination whether to accept such a petition based on the stage of the rulemaking process at which the request is made and the merits of the petition. If a petition is accepted, the Register will announce deadlines for comments in response to the petition. Dated: September 27, 2005 Marybeth Peters, Register of Copyrights. [FR Doc. 05–19721 Filed 9–30–05; 8:45 am] BILLING CODE 1410–33–S ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 62 [R07–OAR–2005–MO–0006; FRL–7978–2] Partial Approval and Partial Disapproval of Implementation Plans; State of Missouri Environmental Protection Agency (EPA). ACTION: Proposed rule. AGENCY: SUMMARY: This action proposes to partially approve and partially disapprove a State Implementation Plan (SIP) submission by the state of Missouri which revises the Restriction of Emission of Sulfur Compounds rule. The Missouri rule establishes general requirements for emissions of sulfur compounds from various source categories, and establishes specific emissions requirements for certain named sources. We propose to approve most of the revisions to the rule because they involve clarifications, updates, and other improvements to the current rule. This proposed action does not include a portion of the rule that regulates ambient concentrations of sulfur compounds, because this provision is not in the current SIP, and we do not E:\FR\FM\03OCP1.SGM 03OCP1

Agencies

[Federal Register Volume 70, Number 190 (Monday, October 3, 2005)]
[Proposed Rules]
[Pages 57526-57531]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-19721]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2005-11]


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

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

-----------------------------------------------------------------------

SUMMARY: The Copyright Office of the Library of Congress is preparing 
to conduct proceedings in accordance with section 1201(a)(1) of the 
Copyright Act, which was added by the Digital Millennium Copyright Act 
and which provides that the Librarian of Congress may exempt certain 
classes of works from the prohibition against circumvention of 
technological measures that control access to copyrighted works. The 
purpose of this rulemaking proceeding is to determine whether there are 
particular classes of works as to which users are, or are likely to be, 
adversely affected in their ability to make noninfringing uses due to 
the prohibition on circumvention. This notice requests written comments 
from all interested parties, including representatives of copyright 
owners, educational institutions, libraries and archives, scholars, 
researchers and members of the public, in order to elicit evidence on 
whether noninfringing uses of certain classes of works are, or are 
likely to be, adversely affected by this prohibition on the 
circumvention of measures that control access to copyrighted works.

DATES: Written comments are due by December 1, 2005. Reply comments are 
due by February 2, 2006.

ADDRESSES: Electronic submissions must be made through the Copyright 
Office website: http://www.copyright.gov/1201/comment_forms; see 
section 3 of the SUPPLEMENTARY INFORMATION section for file formats and 
other information about electronic and non-electronic filing 
requirements. Addresses for nonelectronic submissions are as follows: 
If hand delivered by a private party, deliver to Room LM-401 of the 
James Madison Memorial Building between 8:30 a.m. and 5 p.m. and the 
envelope should be addressed as follows: Office of the General Counsel, 
U.S. Copyright Office, James Madison Memorial Building, Room LM-401, 
101 Independence

[[Page 57527]]

Avenue, SE., Washington, DC 20559-6000. If hand delivered by a 
commercial courier, any comment must be delivered to the Congressional 
Courier Acceptance Site located at Second and D Streets, NE., 
Washington, DC, between 8:30 a.m. and 4 p.m. The envelope should be 
addressed as follows: Copyright Office General Counsel, Room LM-403, 
James Madison Memorial Building, 101 Independence Avenue, SE., 
Washington DC. If delivered by means of the United States Postal 
Service (see section 3 of the SUPPLEMENTARY INFORMATION about mail 
screening and possible delays), address to David O. Carson, General 
Counsel, Copyright GC/I&R, PO Box 70400, Washington, DC 20024-0400. See 
SUPPLEMENTARY INFORMATION section for information about requirements 
and formats of submissions. Comments may not be delivered by means of 
overnight delivery services such as Federal Express, United Parcel 
Service, etc., due to delays in processing receipt of such deliveries.

FOR FURTHER INFORMATION CONTACT: Rob Kasunic, Principal Legal Advisor, 
Office of the General Counsel, Copyright GC/I&R, PO Box 70400, 
Washington, DC 20024-0400. Telephone (202) 707-8380; telefax (202) 707-
8366.

SUPPLEMENTARY INFORMATION:

1. Mandate for Rulemaking Proceeding

    The Digital Millennium Copyright Act, Pub. L. 105-304 (1998), 
amended title 17 of the United States Code to add a new Chapter 12, 
which among other things prohibits circumvention of access control 
technologies employed by or on behalf of copyright owners to protect 
their works. Specifically, subsection 1201(a)(1)(A) provides, inter 
alia, that ``No person shall circumvent a technological measure that 
effectively controls access to a work protected under this title.''
    Subparagraph (B) limits this prohibition. It provides that 
prohibition against circumvention ``shall not apply to persons who are 
users of a copyrighted work which is in a particular class of works, if 
such persons are, or are likely to be in the succeeding 3-year period, 
adversely affected by virtue of such prohibition in their ability to 
make noninfringing uses of that particular class of works under this 
title'' as determined in this rulemaking. This prohibition on 
circumvention became effective two years after the date of enactment, 
on October 28, 2000.
    At the end of the 2-year period between the enactment and effective 
date of the provision, the Librarian of Congress made an initial 
determination as to classes of works to be exempted from the 
prohibition for the first triennial period. Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg. 2000). 
The exemptions promulgated by the Librarian in the first rulemaking 
remained in effect through October 27, 2003. On October 28, 2003, the 
Librarian of Congress announced the second determination as to classes 
of works to be exempted from the prohibition. Exemption to Prohibition 
on Circumvention of Copyright Protection Systems for Access Control 
Technologies, 68 FR 62011, 62013 (2003) (hereinafter Final Reg. 2003). 
The four exemptions created in the second anticircumvention rulemaking 
will be in effect through October 27, 2006 and any exemptions 
promulgated as a result of the third anticircumvention rulemaking will 
take effect the next day for a 3-year period lasting through October 
27, 2009. Both determinations by the Librarian of Congress were made 
upon the recommendation of the Register of Copyrights following 
extensive rulemaking proceedings. This notice announces the initiation 
of the third section 1201 rulemaking required under 17 U.S.C. 
1201(a)(1)(C).

2. Background

    Title I of the Digital Millennium Copyright Act was, inter alia, 
the congressional fulfillment of obligations of the United States under 
the WIPO Copyright Treaty and the WIPO Performances and Phonograms 
Treaty. For additional information on the historical background and the 
legislative history of Title I, see Exemption to Prohibition on 
Circumvention of Copyright Protection Systems for Access Control 
Technologies, 64 FR 66139, 66140 (1999) [http://www.loc.gov/copyright/
fedreg/1999/64fr66139.html].
    Section 1201 of title 17 of the United States Code prohibits two 
general types of activity: (1) the conduct of ``circumvention'' of 
technological protection measures that control access to copyrighted 
works and (2) trafficking in any technology, product, service, device, 
component, or part thereof that protects either ``access'' to a 
copyrighted work or that protects the ``rights of the copyright 
owner,'' if that device or service meets one of three conditions. The 
first type of activity, the conduct of circumvention, is prohibited in 
section 1201(a)(1). The latter activities, trafficking in devices or 
services that circumvent ``access'' or ``the rights of the copyright 
owner'' are contained in sections 1201(a)(2) and 1201(b), respectively. 
In addition to these prohibitions, section 1201 also includes a series 
of section-specific limitations and exemptions to the prohibitions of 
section 1201.

The Anticircumvention Provision At Issue

    Subsection 1201(a)(1) applies when a person who is not authorized 
by the copyright owner to gain access to a work does so by 
circumventing a technological measure put in place with the authority 
of the copyright owner to control access to the work. See the Report of 
the House Committee on Commerce on the Digital Millennium Copyright Act 
of 1998, H.R. Rep. No. 105-551, pt. 2, at 36 (1998) (hereinafter 
Commerce Comm. Report).
    That section provides that ``No person shall circumvent a 
technological measure that effectively controls access to a work 
protected under this title.'' 17 U.S.C. 1201(a)(1)(A) (1998).
    The relevant terms are defined:
    (3) As used in this subsection-
    (A) to ``circumvent a technological measure'' means to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner; and
    (B) a technological measure ``effectively controls access to a 
work'' if the measure, in the ordinary course of its operation, 
requires the application of information, or a process or a treatment, 
with the authority of the copyright owner, to gain access to the work.
    17 U.S.C. 1201(a)(3).

Scope of the Rulemaking

    The statutory focus of this rulemaking is limited to one subsection 
of section 1201: the prohibition on the conduct of circumvention of 
technological measures that control access to copyrighted works. 17 
U.S.C. 1201(a)(1)(C) [http://www.copyright.gov/title17/
92chap12.html1201]. The Librarian of Congress has no authority 
to limit either of the anti-trafficking provisions contained in 
subsections 1201(a)(2) or 1201(b). 17 U.S.C. 1201(a)(1)(E). Moreover, 
for a proposed exemption to be considered in this rulemaking, there 
must be a causal connection between the prohibition in 1201(a)(1) and 
the adverse effect on noninfringing uses.
    This rulemaking addresses only the prohibition on the conduct of 
circumventing measures that control ``access'' to copyrighted 
works,e.g., prohibiting unauthorized decryption of an encrypted work or 
bypassing

[[Page 57528]]

passwords used to restrict access to copyrighted works. The structure 
of section 1201 is such that there exists no comparable prohibition on 
the conduct of circumventing technological measures that protect the 
``rights of the copyright owner'' in 1201(b), e.g., the section 106 
rights to reproduce, adapt, distribute, publicly perform, or publicly 
display a work. Circumventing a technological measure that protects 
these section 106 rights of the copyright owner is governed not by 
section 1201, but rather by the traditional copyright rights and the 
applicable limitations in the Copyright Act. For example, if a person 
circumvents a measure that prohibits printing or saving an electronic 
copy of an article, there is no provision in section 1201 that 
precludes this activity. Instead, it would be actionable as copyright 
infringement of the section 106 right of reproduction unless an 
applicable limitation applied, e.g., fair use. Since section 1201 
contains no prohibition on the circumvention of technological measures 
that protect the ``rights of the copyright owner,'' sometimes referred 
to as ``use'' or ``copy'' control measures, any effect these measures 
may have on noninfringing uses would not be attributable to a section 
1201 prohibition.
    On the other hand, because there is a prohibition on the act of 
circumventing a technological measure that controls access to a work, 
and since traditional Copyright Act limitations are not defenses to the 
act of circumventing a technological measure that controls access, 
Congress chose to create the current rulemaking proceeding as a ``fail-
safe mechanism'' to monitor the effect of the anticircumvention 
provision in 1201(a)(1)(A). Commerce Comm. Report, at 36. This 
anticircumvention rulemaking is authorized to monitor the effect of the 
prohibition on ``access'' circumvention on noninfringing uses of 
copyrighted works. In this triennial rulemaking proceeding, effects on 
noninfringing uses that are unrelated to section 1201(a)(1)(A) may not 
be considered. 17 U.S.C. 1201(a)(1)(C).

Burden of Proof

    In the first rulemaking, the Register concluded from the language 
of the statute and the legislative history that a determination to 
exempt a class of works from the prohibition on circumvention must be 
based on a showing that the prohibition has or is likely to have a 
substantial adverse effect on noninfringing uses of a particular class 
of works. It was determined that proponents of an exemption bear the 
burden of proof that an exemption is warranted for a particular class 
of works and that the prohibition is presumed to apply to all classes 
of works unless an adverse impact has been shown. See Commerce Comm. 
Report, at 37 and see also, Final Reg. 2000, at 64558.
    Some have objected to the Register's use of a standard that 
requires a showing of a ``substantial'' adverse effect on noninfringing 
uses, and have asserted that the Register has increased the evidentiary 
standard higher than the statutory requirement. In the most recent 
rulemaking in 2003, the Register addressed this criticism and found it 
to be misplaced, noting that
Use of the term ``substantial'' does not impose a ``heightened'' 
requirement; it imposes the requirement found throughout the 
legislative history, which is variously stated as ``substantial 
adverse impact,'' ``distinct, verifiable, and measurable impacts,'' 
and more than ``de minimis impacts.'' As is apparent from the 
dictionary definition of ``substantial,'' and the Supreme Court's 
treatment of the term (e.g., in its articulation of the substantial 
evidence rule), requiring that one's proof be ``substantial'' simply 
means that it must have substance.
Final Reg. 2003, at 62013.
    Whatever label one uses, proponents of an exemption bear the burden 
of providing sufficient evidence under the foregoing standards to 
support an exemption. How much evidence is sufficient will vary with 
the factual context of the alleged harm. Further, proof of harm is 
never the only consideration in the rulemaking process, and therefore 
the sufficiency of the harm will always be relative to other 
considerations, such as, the availability of the affected works for 
use, the availability of the works for nonprofit archival, 
preservation, and educational purposes, the impact that the prohibition 
has on criticism, comment, news reporting, teaching, scholarship, or 
research, the effect of circumvention on the market for or value of 
copyrighted works, and any other relevant factors.
    In order to meet the burden of proof, proponents of an exemption 
must provide evidence either that actual harm exists or that it is 
``likely'' to occur in the ensuing 3-year period. Actual instances of 
verifiable problems occurring in the marketplace are generally 
necessary in order to prove actual harm. The most compelling cases of 
actual harm will be based on first-hand knowledge of such problems. 
Circumstantial evidence may also support a claim of present or likely 
harm, but such evidence must also reasonably demonstrate that a measure 
protecting access was the cause of the harm and that the adversely 
affected use was, in fact, noninfringing. ``Likely'' adverse effects 
may also support an exemption. This standard of ``likelihood'' requires 
proof that adverse effects are more likely than not to occur. Claims 
based on ``likely'' adverse effects cannot be supported by speculation 
alone. The House Manager's Report stated that an exemption based on 
``likely'' future adverse impacts during the applicable period should 
only be made ``in extraordinary circumstances in which the evidence of 
likelihood is highly specific, strong and persuasive.'' Staff of House 
Committee on the Judiciary, 105th Cong., Section-By-Section Analysis of 
H.R. 2281 as Passed by the United States House of Representatives on 
August 4, 1998, (hereinafter House Manager's Report), at 6. This 
statement could be interpreted as raising the burden beyond a standard 
of a preponderance of the evidence. The statutory language enacted, 
however, - ``whether 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'' - does not specify a standard beyond mere 
likelihood and thus the preponderance standard will be applied by the 
Register. Nevertheless, as the Register's final recommendation of 2000 
explained, the expectation of ``distinct, verifiable and measurable 
impacts'' in the legislative history as to actual harm suggests that 
conjecture alone would be insufficient to support a finding of 
``likely'' adverse effect. Final Reg. 2000, at 64559. Although a 
showing of ``likely'' adverse impact will necessarily involve 
prediction, the burden of proving that the expected adverse effect is 
more likely than other possible outcomes rests firmly on the proponent 
of the exemption.
    The identification of existing or likely problems is not, however, 
the end of the analysis. In order for an exemption of a particular 
class of works to be warranted, a proponent must show that such 
problems warrant an exemption in light of all of the relevant facts. 
The identification of isolated or anecdotal problems will be generally 
insufficient to warrant an exemption of a class of works. Similarly, 
the mere fact that the digital format would be more convenient to use 
for noninfringing purposes is generally insufficient factual support 
for an exemption. Further, purely theoretical critiques of Section 1201 
will never satisfy the requisite showing. House Manager's Report, at 6. 
Proponents of exemptions must show sufficient harm to warrant an 
exemption

[[Page 57529]]

from the default rule established by Congress - the prohibition in 
circumvention.
    There is a presumption that the Sec.  1201 prohibition will apply 
to any and all classes of works, including previously exempted classes, 
unless a new showing is made that an exemption is warranted. Final Reg. 
2000, at 64558. Exemptions are reviewed de novo and prior exemptions 
will expire unless sufficient new evidence is presented in each 
rulemaking that the prohibition has or is likely to have an adverse 
effect on noninfringing uses. The facts and argument that supported an 
exemption during any given 3-year period may be insufficient within the 
context of the marketplace in a different 3-year period. Similarly, 
proposals that were not found to warrant an exemption in any particular 
rulemaking could find factual support in the context of another 
rulemaking.

Availability of Works in Unprotected Formats

    Other statutory considerations must also be balanced with evidence 
of adverse effects attributable to the prohibition. In making her 
recommendation to the Librarian, the Register is instructed to consider 
the availability for use of copyrighted works. 17 U.S.C. 
1201(a)(1)(C)(i). This inquiry demands that the Register consider 
whether ``works'' protected by technological measures that control 
access are also available in the marketplace in formats that are 
unprotected. The fact that a ``work'' (in contrast to a particular 
``copy'' of a work) is available in a format without technological 
protection measures may be significant because the unprotected formats 
might allow the public to make noninfringing uses of the work even 
though other formats of the work would not. For example, in the first 
rulemaking, many users claimed that the technological measures on 
motion pictures contained on Digital Versatile Disks (DVDs) restricted 
noninfringing uses of the motion pictures. A balancing consideration 
was that the record revealed that at that time, the vast majority of 
these works were also available in analog format on VHS tapes. Final 
Reg. 2000, at 64568. Thus, the full range of availability of a work for 
use is necessary to consider in assessing the need for an exemption to 
the prohibition on circumvention.
    Another consideration relating to the availability for use of 
copyrighted works is whether the measure supports a distribution model 
that benefits the public generally. For example, while a measure may 
limit the length of time that a work may be accessed (time-limited) or 
may limit the scope of access (scope-limited), e.g., access to only a 
portion of work, those limitations may benefit the public by providing 
``use-facilitating'' models that allow users to obtain access to works 
at a lower cost than they would otherwise be able to obtain were such 
restrictions not in place. If there is sufficient evidence that 
particular classes of works would not be offered at all without the 
protection afforded by technological protection measures that control 
access, this evidence must be considered. House Manager's Report, at 6. 
Accord, Final Reg. 2000, at 64559. Thus, the Register's inquiry must 
assess any benefits to the public resulting from the prohibition as 
well as the adverse effects that may be established.

The Scope of the Term ``Class of Works''

    Section 1201 does not define a critical term for the rulemaking 
process: ``class of works.'' In the first rulemaking, the Register 
elicited views on the scope and meaning of this term. After review of 
the statutory language, the legislative history and the extensive 
record in the proceeding [see Final Reg. 2000, at 64557 for a 
description of the record in the 2000 rulemaking proceeding], the 
Register reached certain conclusions on the scope of this term and 
requested further congressional guidance. [For a more detailed 
discussion, see Final Reg. 2000, at 64559.]
    The Register found that the statutory language required that the 
Librarian identify ``classes of works'' based upon attributes of the 
works themselves, and not by reference to some external criteria such 
as the intended use or users of the works. The phrase ``class of 
works'' connotes that the shared, common attributes of the ``class'' 
relate to the nature of authorship in the ``works.'' Thus, a ``class of 
works'' was intended to be a ``narrow and focused subset of the broad 
categories of works of authorship * * * identified in section 102.'' 
Commerce Comm. Report, at 38. The starting point for a proposed 
exemption of a particular class of works must be the section 102 
categories of authorship: literary works; musical works; dramatic 
works; pantomimes and choreographic works; pictorial, graphic and 
sculptural works; motion pictures and other audiovisual works; sound 
recordings; and architectural works.
    This determination is supported by the House Manager's Report, 
which discussed the importance of appropriately defining the proper 
scope of the exemption. House Manager's Report, at 7. The legislative 
history stated that it would be highly unlikely for all literary works 
to be adversely affected by the prohibition and therefore, determining 
an appropriate subcategory of the works in this category would be the 
goal of the rulemaking. Id.
    The Register concluded that the starting point for identifying a 
particular ``class of works'' to be exempted must be one of the section 
102 categories. Final Reg. 2000, at 64559-64561. From that starting 
point, it is likely that the scope or boundaries of a particular class 
would need to be further limited to remedy the particular harm to 
noninfringing uses identified in the rulemaking.
    As a result of the Register's recommendation in 2003,the Librarian 
of Congress decided that four classes of works should be exempted:
(1) Compilations consisting of lists of Internet locations blocked 
by commercially marketed filtering software applications that are 
intended to prevent access to domains, websites or portions of 
websites, but not including lists of Internet locations blocked by 
software applications that operate exclusively to protect against 
damage to a computer or a computer network or lists of Internet 
locations blocked by software applications that operate exclusively 
to prevent receipt of email.
(2) Computer programs protected by dongles that prevent access due 
to malfunction or damage and which are obsolete.
(3) Computer programs and video games distributed in formats that 
have become obsolete and which require the original media or 
hardware as a condition of access. A format shall be considered 
obsolete if the machine or system necessary to render perceptible a 
work stored in that format is no longer manufactured or is no longer 
reasonably available in the commercial marketplace.
(4) Literary works distributed in ebook format when all existing 
ebook editions of the work (including digital text editions made 
available by authorized entities) contain access controls that 
prevent the enabling of the ebook's read-aloud function and that 
prevent the enabling of screen readers to render the text into a 
specialized format.
    Commenters should familiarize themselves with the Register's 
recommendation in the prior rulemaking proceedings, since many of the 
issues addressed may provide guidance for current showings either for 
or against an exemption.
    This notice requests written comments from all interested parties. 
In addition to the necessary showing discussed above, in order to make 
a prima facie case for a proposed exemption, at least three critical 
points should be established.
    First, a proponent must attempt to identify the specific 
technological measure that is the causal source of the

[[Page 57530]]

alleged problem, and show why that technological measure ``effectively 
controls access to a [copyrighted] work.''
    Second, a proponent must specifically explain what noninfringing 
activity the prohibition is adversely affecting.
    Third, a proponent must establish that the prevented activity is, 
in fact, a noninfringing use under current law.
    The nature of the Librarian's inquiry is further delineated by the 
statutory areas to be examined:
(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.
17 U.S.C. 1201(a)(1)(C).
    These statutory considerations require examination and careful 
balancing. The harm identified by a proponent of an exemption must be 
balanced against the harm that would result from an exemption. In 
certain circumstances, an exemption could have a greater adverse effect 
on the public than would the adverse effects on noninfringing uses 
identified. The ultimate determination of the Librarian must take all 
of these factors into consideration. Therefore, a commenter's analysis 
should also address these considerations.
    For the entire record of the two previous anticircumvention 
rulemakings, including all comments, testimony and notices published, 
see the Copyright Office's website at: http://www.loc.gov/copyright/
1201/.

3. Written Comments

    In the first rulemaking, the Register determined that the burden of 
proof is on the proponent of an exemption to come forward with evidence 
supporting an exemption for a particular class of works. In this third 
triennial rulemaking, the Register shall continue with the procedure 
adopted in the second rulemaking: Comments submitted in the initial 
comment period should be confined to proposals for exempted classes. 
They should specifically identify particular classes of works adversely 
affected by the prohibition and provide evidentiary support for the 
need for the proposed exemptions.
    For each particular class of works that a commenter proposes for 
exemption, the commenter should first identify that class, followed by 
a summary of the argument in favor of exempting that proposed class. 
The commenter should then specify the facts and evidence providing a 
basis for this exemption. Finally, the commenter should state any legal 
arguments in support of the exemption. This format of class/summary/
facts/argument should be sequentially followed for each class of work 
proposed as necessary.
    As discussed above, the best evidence in support of an exemption 
would consist of concrete examples or specific instances in which the 
prohibition on circumvention of technological measures protecting 
access has had or is likely to have an adverse effect on noninfringing 
uses. It would also be useful for the commenter to quantify the adverse 
effects in order to explain the scope of the present or likely problem.
    In the reply comments, persons who oppose or support any exemptions 
proposed in the initial comments will have the opportunity to respond 
to the proposals made in the initial comments and to provide factual 
information and legal argument addressing whether or not a proposed 
exemption should be adopted. Since the reply comments are intended to 
be responsive to the initial comments, reply commenters must identify 
which proposal(s) they are responding to, whether in opposition, 
support, amplification or correction. As with initial comments, reply 
comments should first identify the proposed class to which the reply is 
responsive, provide a summary of the argument, and then provide the 
factual and/or legal support for their argument. This format of class/
summary/facts and/or legal argument should be repeated for each reply 
to a particular class of work proposed.
    The Copyright Office intends to place the comments and reply 
comments that are submitted in this proceeding on its public website 
(http://www.copyright.gov/1201).\1\ Regardless of the mode of 
submission, all comments must, at a minimum, contain the legal name of 
the submitter and the entity, if any, on whose behalf the comment was 
submitted. If persons do not wish to have their address, telephone 
number, or email address publicly displayed on the Office's website, 
comments should not include such information on the document itself but 
should only include the legal name of the commenter. The Office prefers 
that comments and reply comments be submitted in electronic form. 
However, the Office recognizes that persons may be unable to submit 
their comments through the Office's website or to deliver their 
comments in person. Therefore, comments may also be delivered through 
the United States Postal Service, addressed to the General Counsel, 
Copyright GC/I&R, PO Box 70400, Southwest Station, Washington, DC 
20024-0400. Due to mail screening on Capitol Hill and possible delays 
in delivery, submission by means of the United States Postal Service is 
discouraged and there is a risk that the comment will not be received 
at the Copyright Office in time to be considered. Electronic filing or 
hand-delivery will help insure timely receipt of comments by the 
Office. Electronic comments successfully submitted through the Office's 
website will generate a confirmation receipt to the submitter and 
submitters hand-delivering comments may request a date stamp on an 
extra copy provided by the submitter.
---------------------------------------------------------------------------

    \1\ If a comment includes attached material that appears to be 
protected by copyright and there is no indication that the material 
was attached with permission of the copyright owner, the attached 
material will not be placed on the Office's website.
---------------------------------------------------------------------------

Submission of Comments

    Comments may be submitted in the following ways: If submitted 
through the Copyright Office's website: The Copyright Office's website 
will contain a submission page at: http://www.copyright.gov/1201/
comment_forms. Approximately thirty days prior to each applicable 
deadline (see DATES), the form page will be activated on the Copyright 
Office website allowing information to be entered into the required 
fields, including the name of the person making the submission, mailing 
address, telephone number, and email address. There will also be non-
required fields for, e.g., the commenter's title, the organization that 
the commenter is representing, whether the commenter is likely to 
request to testify at public hearings and if so, whether the commenter 
is likely to prefer to testify in Washington, DC or a location in 
California. For initial comments, there will be two additional fields 
required: 1) the proposed class or classes of copyrighted work(s) to be 
exempted, and 2) a brief summary of the argument(s). For reply 
comments, there will be two similar required fields: 1) the class or 
classes to which the reply is responsive, including the initial comment 
numbers, and 2) a brief summary of the argument.
    The comment or reply comment itself must be sent as an attachment, 
and must be in a single file in either Adobe Portable Document File 
(PDF) format (preferred), Microsoft Word Version

[[Page 57531]]

2003 or earlier, WordPerfect 9.0 or earlier, Rich Text Format (RTF), or 
ASCII text file format. There will be a browse button on the form that 
will allow submitters to attach the comment file to the form and then 
to submit the completed form to the Office. The personal information 
entered into the required fields on the form page will not be publicly 
posted on the Copyright Office website, but the Office intends to post 
on its website the proposed class and the summary of the argument, as 
well as the entire, attached comment document. Only the commenter's 
name is required on the comment document itself and a commenter who 
does not want other personal information posted on the Office's website 
should avoid including other private information on the comment itself. 
Except in exceptional circumstances, changes to the submitted comment 
will not be allowed and it will become a part of the permanent public 
record of this rulemaking.
    If by means of the United States Postal Service or hand delivery: 
Send, to the appropriate address listed above, two copies, each on a 
3.5-inch write-protected diskette or CD-ROM, labeled with the legal 
name of the person making the submission and the entity on whose behalf 
the comment was submitted, if any. The document itself must be in a 
single file in either Adobe Portable Document File (PDF) format 
(preferred), Microsoft Word Version 2003 or earlier, WordPerfect 
Version 9 or earlier, Rich Text Format (RTF), or ASCII text file 
document. If the comment is hand delivered or mailed to the Office and 
the submitter does not wish to have the address, telephone number, or 
email address publicly displayed on the Office's website, the comment 
should not include such information on the document itself, but only 
the name and affiliation, if any, of the commenter. In that case, a 
cover letter should be included with the comment that contains the 
commenter's address, phone number, email address, and for initial 
comments, the proposed class of copyrighted work to be exempted and a 
brief summary of the argument.
    Anyone who is unable to submit a comment in electronic form (on the 
website as an attachment or by means of the United States Postal 
Service or hand delivery on disk or CD-ROM) should submit an original 
and fifteen paper copies by hand or by means of the United States 
Postal Service to the appropriate address listed above. It may not be 
feasible for the Office to place these comments on its website.
    General Requirements for all submissions: All submissions (in 
either electronic or non-electronic form delivered through the website, 
by means of the United States Postal Service by hand-delivery or by 
courier) must contain on the comment itself, the name of the person 
making the submission and his or her title and affiliation, if the 
comment is being submitted on behalf of that organization. The mailing 
address, telephone number, telefax number, if any, and email address 
need not be included on the comment itself, but must be included in 
some form, e.g., on the website form or in a cover letter with the 
submission. All submissions must also include the class/summary/factual 
and/or legal argument format in the comment itself for each class of 
work proposed or for each reply to a proposal.
    Initial comments and reply comments will be accepted for a 30-day 
period in each round, and a form will be placed on the Copyright Office 
website at least 30 days prior to the deadline for submission. Initial 
comments will be accepted from November 2, 2005 until December 1, 2005, 
at 5:00 P.M. Eastern Standard Time, at which time the submission form 
will be removed from the website. Reply comments will be accepted from 
January 4, 2006 until February 2, 2006, at 5:00 P.M. Eastern Standard 
Time.

4. Hearings and Further Comments

    The Register also plans on holding public hearings in the Spring 
after receipt of the comments and reply comments. The tentative dates 
for the Washington, DC hearings are currently March 29 and 31, 2006, 
and April 3 and 4, 2006, and the hearings most likely will take place 
in the James Madison Memorial Building of the Library of Congress in 
Washington, DC. The dates and location of hearings for the West Coast 
have yet to be decided. A separate notice for details on all hearings 
in this rulemaking proceeding will be published at a later time in the 
Federal Register and on the Copyright Office's website. In order to 
assist the Copyright Office in identifying the number of days for 
hearings, the comment and reply comment form page will contain non-
required fields asking whether the commenter is likely to request to 
testify and if so, in which location. Formal requests to testify will 
be solicited early in 2006.
    To provide sufficient flexibility in this proceeding, in the event 
that unforeseen developments occur that would significantly affect the 
Register's recommendation, an opportunity to petition the Register for 
consideration of new information will be made available after the 
deadlines specified. A petition, including proposed new classes of 
works to be exempted, must be in writing and must set forth the reasons 
why the information could not have been made available earlier and why 
it should be considered by the Register after the deadline. A petition 
must also be accompanied by fifteen copies of any new proposed 
exemption that includes the proposed class of works to be exempted, a 
summary of the argument, the factual basis for such an exemption and 
the legal argument supporting such an exemption. These materials must 
be delivered to the Copyright Office at the address listed above. The 
Register will make a determination whether to accept such a petition 
based on the stage of the rulemaking process at which the request is 
made and the merits of the petition. If a petition is accepted, the 
Register will announce deadlines for comments in response to the 
petition.

    Dated: September 27, 2005
Marybeth Peters,
Register of Copyrights.
[FR Doc. 05-19721 Filed 9-30-05; 8:45 am]
BILLING CODE 1410-33-S