Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 58073-58079 [E8-23576]
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BILLING CODE 4910–15–P
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2008–8]
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
provisions added by the Digital
Millennium Copyright Act which
provide 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 must be
received no later than December 2,
2008. A notice of proposed rulemaking
will be published in December 2008 that
will identify proposed classes of works
and solicit comments on those proposed
classes, which will be due no later than
February 2, 2009.
ADDRESSES: Electronic submissions
should be made through the Copyright
Office website: https://
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. If a non–
electronic submission is hand delivered
by a private party, an original and ten
copies of any comment must be
delivered to Room LM–401 of the James
Madison Memorial Building between
8:30 a.m. and 5 p.m. and the envelope
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58073
should be addressed as follows: Office
of the General Counsel, U.S. Copyright
Office, James Madison Memorial
Building, Room LM–401, 101
Independence Avenue, SE.,
Washington, DC 20559–6000. If hand
delivered by a commercial courier, an
original and ten copies of 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 continuing delays), comments
should be addressed to 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:
Robert 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
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.
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Subparagraph (C) provides that every
three years, the Librarian of Congress,
upon the ecommendation of the Register
of Copyrights (who is to consult with
the Assistant Secretary for
Communications and Information of the
Department of Commerce) must ‘‘make
the determination in a rulemaking
proceeding for purposes of
subparagraph (B) of 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 under subparagraph (A) in
their ability to make noninfringing uses
under this title of a particular class of
copyrighted works.’’ The Librarian, on
the recommendation of the Register, has
thus far made three determinations as to
classes of works to be exempted from
the prohibition. The exemptions
promulgated by the Librarian in the first
rulemaking were in effect for the 3–year
period from October 28, 2000, through
October 28, 2003. See Exemption to
Prohibition on Circumvention of
Copyright Protection Systems for Access
Control Technologies, 65 FR 64556,
64564 (2000) (hereinafter Final Reg.
2000). On October 28, 2003, the
Librarian of Congress published 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 remained
in effect for a 3–year period. On
November 27, 2006, the Librarian of
Congress published the third
determination. Exemption to
Prohibition on Circumvention of
Copyright Protection Systems for Access
Control Technologies, 71 FR 68472,
68480 (2006) (hereinafter Final Reg.
2006). The six exemptions established
in the third anticircumvention
rulemaking will remain in effect until
October 28, 2009. All three of the
previous 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 fourth
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
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history of Title I, see Exemption to
Prohibition on Circumvention of
Copyright Protection Systems for Access
Control Technologies, 64 FR 66139,
66140 (1999) [https://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.
A. 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).
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B. 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) [https://
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.,
decryption or hacking of access controls
such as passwords or serial numbers.
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,’’ 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 having
lawful access to a work 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. The
trafficking in, inter alia, any device or
service that enabled others to
circumvent such a technological
protection measure may, however, be
actionable under section 1201(b).
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 section 1201(a)(1)(A).
Commerce Comm. Report, at 36. This
anticircumvention rulemaking is
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authorized to monitor the effect of the
prohibition against ‘‘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).
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, 65 FR at 64558.
The ‘‘substantial’’ adverse
requirement has also been described as
a requirement that the proponent of an
exemption must demonstrate ‘‘distinct,
verifiable, and measurable impacts,’’
and more than ‘‘de minimis impacts.’’
See Final Reg. 2003, 68 FR at 62013.
Whatever label one uses, proponents of
an exemption bear the burden of
providing sufficient evidence under this
standard 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 evidence of 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
currently 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.
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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. See 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, (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.’’). Conjecture alone is
insufficient to support a finding of
‘‘likely’’ adverse effect. Final Reg. 2000,
65 FR 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 justify 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. 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 cannot satisfy
the requisite showing. House Manager’s
Report, at 6. Proponents of exemptions
must show sufficient harm to warrant an
exemption from the default rule
established by Congress – the
prohibition against circumvention.
There is a presumption that the
section 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, 65 FR 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.
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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 justify an exemption
in any particular rulemaking could find
factual support in the context and on
the record of another rulemaking.
Evidence in support or in opposition
to an exemption should be contained in
the initial comments or, after
publication of the proposed classes in
the Federal Register, in the comments
on the proposed exemptions. The
purpose of this rulemaking is to survey
interested parties in the digital
environment to discover whether
section 1201(a)(1) is adversely affecting
noninfringing uses of particular classes
of copyrighted works. The proposals
received in the initial comments will
frame the inquiry throughout the rest of
the rulemaking process. The comments
submitted in response to this Notice of
Inquiry will be posted on the Copyright
Office website shortly after submission,
and a Notice of Proposed Rulemaking
identifying the classes of works
proposed will be published in the
Federal Register shortly thereafter.1 The
Notice of Proposed Rulemaking will
invite copyright owners and other
interested parties to offer their
comments in support of or opposition to
the proposed classes. Comments
responsive to the proposed classes may
also propose modest refinements to the
proposed classes and supply additional
evidence, but may not propose
completely new classes of works. Since
opponents to exemptions have only one
comment period to provide written
responses to the exemptions proposed,
opponents should have sufficient notice
of the exemptions to be addressed in the
rulemaking. Copyright owners and other
interested parties, however, should be
vigilant in monitoring classes proposed
in the initial comment period that may
implicate their interests as such classes
may be further refined in the ensuing
rulemaking process.
The Office will post all of the
comments, hearing transcripts, and
other relevant material in this
rulemaking proceeding, as the Office
has done since the inception of this
rulemaking proceeding, on the
Copyright Office’s website at:
www.copyright.gov/1201.2
1 See infra for a discussion of proposals raised
after the initial comment period has expired.
2 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.
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The Copyright Office will also
conduct a series of hearings on the
proposed exemptions in the Spring in
Washington, DC and at a location or
locations to be determined in California.
These hearings will offer proponents
and opponents of exemptions an
opportunity to present arguments and
answer questions from the Register and
her staff. These hearings–the time, date
and subject matter of which will be
announced early in 2009–will not
provide a forum in which to raise new
proposals or to submit wholly new
evidence. Evidence that demonstrates
how a technological measure operates
and affects noninfringing uses as well as
evidence that is responsive to earlier
disputes raised in the comment process
is welcomed, and is encouraged, at
these hearings. However, the hearings
may not be used as a vehicle for surprise
or to present untimely proposals.
The Register is also likely to pose
post–hearing questions to specific
parties or witnesses that participated in
the rulemaking proceeding. These
questions have historically sought
clarification of legal and factual
questions, including specific requests to
explain the operation of a technological
measure at issue. Such post–hearing
questions should not be construed as a
general public post–hearing comment
phase–there simply will not be
sufficient time to consider another
round of general public comments by
the statutory deadline for the
announcement of the newly exempted
classes–but rather are invitations
addressed to specific witnesses who
have offered testimony on an issue to
provide further clarification in response
to specific questions from the Register.
The questions and the responses to the
questions will be posted on the
Copyright Office’s website after the
responses have been received.
D. 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
If such material is available on the Internet, the
comment should identify where the material may
be found.
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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 at that time that the vast
majority of these works were also
available in analog format on VHS tapes.
Final Reg. 2000, 65 FR 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 charged
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, 65 FR 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.
E. The Scope of the Term ‘‘Class of
Works’’
Section 1201 does not define a critical
term for the rulemaking process: a
‘‘class of works.’’ With respect to this
issue and others, commenters should
familiarize themselves with the
Register’s recommendation and the
Librarian’s determination in the first
rulemaking and in the subsequent two
rulemakings, since many of the issues
which were unsettled at the start of the
first rulemaking have been addressed
and developed in the three
determinations. While the approach
taken in resolving the issues raised in
these rulemakings may continue to
develop in this and subsequent
proceedings, interested parties should
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assume that the standards developed
thus far will continue to apply in the
current proceeding. Of course,
commenters may argue for adoption of
alternative approaches,3 but a
persuasive case will have to be made to
warrant reconsideration of previous
decisions regarding interpretation of
section 1201.
In the first rulemaking, the Register
elicited views on the scope and meaning
of the term ‘‘class of works.’’ After
review of the statutory language, the
legislative history and the extensive
record in the proceeding [see Final Reg.,
65 FR at 64557 for a description of the
record in the last rulemaking
proceeding], the Register reached
certain conclusions on the scope of this
term. [For a more detailed discussion,
see Final Reg., 65 FR at 64559.]
The Register found that the statutory
language required that the Librarian
identify a ‘‘class of works’’ primarily
based upon attributes of the works
themselves, and not by reference to
some external criteria such as the
intended use or the 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.
Therefore, 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., 65 FR at
3 Proponents of an exemption may do so in their
comments proposing exemptions. Opponents of an
exemption should do so in their comments filed in
response to the forthcoming Notice of Proposed
Rulemaking.
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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.
In the first anticircumvention
rulemaking, the Register recommended
and the Librarian agreed that two
classes of works should be exempted:
1) Compilations consisting of lists of
websites blocked by filtering software
applications; and
2) Literary works, including
computer programs and databases,
protected by access control mechanisms
that fail to permit access because of
malfunction, damage or obsoleteness.
While the first class exempted fits
comfortably within the approach to
classification discussed above, the
second class includes the entire
category of literary works, but narrows
the exemption by reference to attributes
of the technological measures that
controls access to the works.
In the 2006 rulemaking, the Register
determined that a further refinement of
the approach to determining a particular
class of works was warranted. Even
though a class must begin, as its starting
point, by reference to one of the
categories of authorship enumerated in
section 102 of the Copyright Act (or
some subset thereof), that class should
be further tailored to address the harm
(actual or likely) alleged. The proper
tailoring of a class will depend on the
specific facts, but in some cases, the
most appropriate manner of further
tailoring the category or sub–category
may be to limit the class in relation to
particular uses or users.
The impetus for this refinement was
a proposed exemption for film and
media studies professors. The
proponents of the exemption
demonstrated that the reproduction and
public performance of short portions of
motion pictures or other audiovisual
works in the course of face–to–face
teaching activities of a film or media
studies course would generally
constitute a noninfringing use. The
proponents further demonstrated that
the digital version of the motion
pictures distributed on DVDs was not
merely a preferred format, but that the
digital version of these works was the
only version of the work that met the
pedagogical needs of the film and media
studies professors. The proponents of
the exemption also demonstrated that
their otherwise noninfringing uses of
the digital versions of these motion
pictures were adversely affected by the
prohibition on circumvention of
technological measures protecting
access to these works, because the
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Content Scrambling System (CSS)
contained on most commercially
released DVDs was an access control
system that prevented the making of a
compilation of film clips for classroom
use. Although opponents of the
exemption demonstrated a DVD player
that was alleged to meet the pedagogical
needs of educators, the device presented
obstacles for classroom use that were
found to be more than a mere
inconvenience for a subset of users –
film and media studies professors.
The proponents met their burden of
proving that section 1201(a)(1) was
adversely affecting film and media
studies educators’ ability to engage in
noninfringing uses for the ensuing 3–
year period and that no reasonable
substitute for the pedagogically
beneficial digital content was available
or likely to become available in the next
three years. The opponents of the
proposal expressed concern that if the
proposed class of works–audiovisual
works included in the educational
library of a college or university’s film
or media studies department and that
are protected by technological measures
that prevent their educational use–was
based only on attributes of the work
itself, the exemption would necessarily
exempt a much broader range of uses
than those in which the film professors
wished to engage. Moreover, copyright
owners were concerned that such an
exemption would create public
confusion about the circumstances in
which circumvention was appropriate.
Given the expanse of such a class of
works and the adverse effects that could
occur as a result of confusion about the
class, copyright owners argued that
overall harm of such an exemption
would outweigh the marginal benefits to
this subset of educators.
The Register concluded that a further
refinement of the scope of a class of
works was the proper balance to the
valid concerns of both educators and
copyright owners. By delineating the
class in relation to the relevant
noninfringing use proven to be, or likely
to be, adversely affected by the
prohibition on circumvention, film and
media studies educators’ needs could be
met while leaving the statutory
prohibition against circumvention intact
for that class with respect to other uses.
In all proposed exemptions, the
starting point for a class of works must
be a section 102 category of authorship,
or a subset thereof. That category or
subset should then be tailored by other
criteria as appropriate under the
particular facts presented. The goal is to
fashion an exemption that is neither too
narrow nor too broad to remedially
address the evidence of present and
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likely harm. An appropriately fashioned
exemption will assist users and
copyright owners alike, by temporarily
suspending the prohibition on
circumvention for appropriately tailored
adversely affected classes, while
preserving the prohibition in all other
classes.
The exemptions published for each
three–year period are temporary and
expire when the succeeding
determination of the Librarian of
Congress is published. This rulemaking
will examine adverse effects existing in
the marketplace or likely to exist in the
next three–year period to determine
whether any exemptions to the
prohibition on circumvention of
technological protection measures that
effectively control access to copyrighted
works are warranted by the evidence
raised during this rulemaking.
F. Considerations to Address within a
Comment
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, certain critical points
should be established. First, a
proponent should identify the
technological measure that is the
ultimate source of the alleged problem,
and the proponent should explain how
the technological measure effectively
controls access to a copyrighted work.
Second, a proponent must specifically
explain what noninfringing activity the
prohibition on circumvention is
preventing. Third, a proponent should
establish that the prevented activity is,
in fact, a noninfringing use under
current law. A proponent should also
demonstrate why the access–protected
copy of a work is needed for the
noninfringing use and why alternate
means of engaging in the noninfringing
uses (including use of available copies
of the work in unprotected formats), if
they exist, are an insufficient substitute
for accomplishing the noninfringing
use.
The nature of the Librarian’s inquiry
is further delineated by the statutory
areas to be examined by the Register of
Copyrights:
(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;
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(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 with the
harm that would result from an
exemption. In some circumstances, the
adverse effect of a proposed exemption
in light of these considerations may be
greater than the harm posed by the
prohibition on circumvention of works
in the proposed class. Perhaps the
proper balance can be resolved by
carefully tailoring the scope of the class,
but ultimately, the determination of the
Librarian must take all of these factors
into account.
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 fourth triennial
rulemaking, the Register shall continue
with the procedure adopted in the
second and third rulemakings:
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 (see section F above).
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.
This factual information should ideally
include the technological measure that
controls access and the manner in
which this technological measure
operates to control access to a
copyrighted work. Finally, the
commenter should state any legal
arguments in support of the exemption,
including the activity that is claimed to
be noninfringing, the legal basis for this
claim, and why this noninfringing
activity cannot be accomplished in
other ways. 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
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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.
Comments subsequently submitted in
response to exemptions proposed in the
first round of comments should provide
factual information and legal argument
addressing whether or not a proposed
exemption should be adopted. Since the
comments in this second round are
intended to be responsive to the initial
comments, commenters must identify
which proposal(s) they are responding
to, whether in opposition, support,
amplification or correction. As with
initial comments, these responsive
comments should first identify the
proposed class or classes to which the
comment 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 comment
responsive to a particular class of work
proposed.
Regardless of the mode of submission
(see section 4 below), 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 all comments be
submitted in electronic form and the
electronic form will provide a place to
provide the required information
separately from the attached comment
submission. 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 Office of the
General Counsel, Copyright GC/I&R, PO
Box 70400, Washington, DC 20024–
0400. A comment submitted by mail or
hand–delivery should include a cover
sheet that includes the required
information about the submitter (e.g.,
address, telephone, and email) and
should not include this information in
the comment itself if such information
is not desired to be placed on the
Copyright Office’s website. 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
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comment will not be received at the
Copyright Office in time to be
considered. Electronic filing or hand–
delivery will help ensure timely receipt
of comments by the Office. Electronic
comments successfully submitted
through the Office’s website will
generate a confirmation receipt to the
submitter.
4. 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: https://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. In addition, commenters
proposing classes of works in the first
round of comments will be required to
fill in two additional fields: (1) the
proposed class or classes of copyrighted
work(s) to be exempted, and (2) a brief
summary of the argument(s).
Commenters submitting comments in
response to the initial proposals will
similarly be required to fill in two
additional required fields: (1) the class
or classes to which the comment is
responsive, including the initial
comment numbers, and (2) a brief
summary of the argument.
All comments submitted
electronically 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 2003 or earlier,
WordPerfect 12.0 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 name of the
proponent, the proposed class and the
summary of the argument, as well as the
entire, attached comment document.
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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 personal 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 submitted by means of the United
States Postal Service or hand delivery:
a. Electronic copies: 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
2007 or earlier (.doc or .docx),
WordPerfect Version 12.0 or earlier
(.wpd) , Rich Text Format (.rtf), or ASCII
text file (.txt) 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.
b. Paper copies: 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 ten 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, fax number,
if any, and email address need not be
included on the comment itself, but
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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 comment
responsive to a proposed exemption.
Comments will be accepted for a 30–
day period, 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 3, 2008, until
December 2, 2008, at 5:00 P.M. Eastern
Standard Time, at which time the
submission form will be removed from
the website. The deadline for the second
round of comments will be announced
in the Notice of Proposed Rulemaking to
be published in December, and will
probably be on or about February 2,
2008.
5. Hearings
As mentioned above, after the
conclusion of the comment periods, the
Register intends to hold public hearings
in the Spring in Washington, DC and in
California. The Washington, DC
hearings will most likely take place in
the James Madison Memorial Building
of the Library of Congress. The dates
and confirmed location of hearings in
Washington, DC and California, have
not yet been determined. 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 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 2009.
As noted above, following the
hearings, the Copyright Office may
request additional information from
parties who have been involved in the
rulemaking process. Such requests for
responses to questions will take the
form of a letter from the Copyright
Office and will be addressed to
particular parties involved in an issue in
which more information is sought.
These inquiries will include deadlines
based on when the requests for
information are sent. After the receipt of
all responses to all inquiries from the
Copyright Office, the Office will post
the questions, the parties to whom the
questions were sent, and the responses
on the Copyright Office’s website.
6. Process for Untimely Submissions
based on Exceptional or Unforeseen
Circumstances
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58079
To provide sufficient flexibility in this
proceeding, in the event that unforeseen
developments occur after the deadlines
for the filing of initial comments, a
person wishing to propose an
exemption for a particular class of
works after the specified deadline for
initial comments may petition the
Register to consider an additional
exemption. 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 ten copies of a
comment that meets the requirements
for initial comments set forth in section
3 above, 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. A person wishing to file any
other untimely submission may also
petition the Register to consider such
submission, but such untimely
submissions will be disfavored.
Exceptional or unforeseen
circumstances generally entail
information that did not exist at the
time of the comment periods. The
Register will make a determination
whether to accept a petition based on
the stage of the rulemaking process at
which the request is made and the
merits of the petition. A substantively
meritorious petition may be denied if
the petition comes so late in the process
that adequate notice and comment
cannot be accommodated within the
statutory time frame of the rulemaking
process. The mere fact that an interested
party was unaware of this proceeding or
of any particular exemptions proposed
in this proceeding is not a valid
justification for a late submission. If a
petition is accepted, the Register will
publish the proposal in the Federal
Register and announce deadlines for
comments. If a petition is denied, the
Register will set forth the reasons for the
denial in a letter to the petitioner. All
petitions and responses will become
part of the public record in this
rulemaking process.
October 1, 2008
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8–23576 Filed 10–3–08; 8:45 am]
BILLING CODE 1410–33–S
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[Federal Register Volume 73, Number 194 (Monday, October 6, 2008)]
[Proposed Rules]
[Pages 58073-58079]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23576]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2008-8]
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 provisions added by the
Digital Millennium Copyright Act which provide 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 must be received no later than December 2,
2008. A notice of proposed rulemaking will be published in December
2008 that will identify proposed classes of works and solicit comments
on those proposed classes, which will be due no later than February 2,
2009.
ADDRESSES: Electronic submissions should be made through the Copyright
Office website: https://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. If a non-electronic submission is hand delivered by a
private party, an original and ten copies of any comment must be
delivered 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 Avenue, SE.,
Washington, DC 20559-6000. If hand delivered by a commercial courier,
an original and ten copies of 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
continuing delays), comments should be addressed to 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: Robert 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 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.
[[Page 58074]]
Subparagraph (C) provides that every three years, the Librarian of
Congress, upon the ecommendation of the Register of Copyrights (who is
to consult with the Assistant Secretary for Communications and
Information of the Department of Commerce) must ``make the
determination in a rulemaking proceeding for purposes of subparagraph
(B) of 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 under subparagraph (A) in their ability to make
noninfringing uses under this title of a particular class of
copyrighted works.'' The Librarian, on the recommendation of the
Register, has thus far made three determinations as to classes of works
to be exempted from the prohibition. The exemptions promulgated by the
Librarian in the first rulemaking were in effect for the 3-year period
from October 28, 2000, through October 28, 2003. See Exemption to
Prohibition on Circumvention of Copyright Protection Systems for Access
Control Technologies, 65 FR 64556, 64564 (2000) (hereinafter Final Reg.
2000). On October 28, 2003, the Librarian of Congress published 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 remained in effect for a 3-year
period. On November 27, 2006, the Librarian of Congress published the
third determination. Exemption to Prohibition on Circumvention of
Copyright Protection Systems for Access Control Technologies, 71 FR
68472, 68480 (2006) (hereinafter Final Reg. 2006). The six exemptions
established in the third anticircumvention rulemaking will remain in
effect until October 28, 2009. All three of the previous 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 fourth 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) [https://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.
A. 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).
B. 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) [https://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., decryption or hacking of access controls such as passwords or
serial numbers. 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,'' 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 having lawful access to a work 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. The trafficking in, inter alia, any device or service that enabled
others to circumvent such a technological protection measure may,
however, be actionable under section 1201(b).
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 section 1201(a)(1)(A). Commerce Comm. Report, at 36. This
anticircumvention rulemaking is
[[Page 58075]]
authorized to monitor the effect of the prohibition against ``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).
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, 65 FR at 64558.
The ``substantial'' adverse requirement has also been described as
a requirement that the proponent of an exemption must demonstrate
``distinct, verifiable, and measurable impacts,'' and more than ``de
minimis impacts.'' See Final Reg. 2003, 68 FR at 62013. Whatever label
one uses, proponents of an exemption bear the burden of providing
sufficient evidence under this standard 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 evidence
of 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 currently 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. See 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, (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.''). Conjecture alone is
insufficient to support a finding of ``likely'' adverse effect. Final
Reg. 2000, 65 FR 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 justify 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. 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 cannot satisfy
the requisite showing. House Manager's Report, at 6. Proponents of
exemptions must show sufficient harm to warrant an exemption from the
default rule established by Congress - the prohibition against
circumvention.
There is a presumption that the section 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, 65 FR 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 justify an
exemption in any particular rulemaking could find factual support in
the context and on the record of another rulemaking.
Evidence in support or in opposition to an exemption should be
contained in the initial comments or, after publication of the proposed
classes in the Federal Register, in the comments on the proposed
exemptions. The purpose of this rulemaking is to survey interested
parties in the digital environment to discover whether section
1201(a)(1) is adversely affecting noninfringing uses of particular
classes of copyrighted works. The proposals received in the initial
comments will frame the inquiry throughout the rest of the rulemaking
process. The comments submitted in response to this Notice of Inquiry
will be posted on the Copyright Office website shortly after
submission, and a Notice of Proposed Rulemaking identifying the classes
of works proposed will be published in the Federal Register shortly
thereafter.\1\ The Notice of Proposed Rulemaking will invite copyright
owners and other interested parties to offer their comments in support
of or opposition to the proposed classes. Comments responsive to the
proposed classes may also propose modest refinements to the proposed
classes and supply additional evidence, but may not propose completely
new classes of works. Since opponents to exemptions have only one
comment period to provide written responses to the exemptions proposed,
opponents should have sufficient notice of the exemptions to be
addressed in the rulemaking. Copyright owners and other interested
parties, however, should be vigilant in monitoring classes proposed in
the initial comment period that may implicate their interests as such
classes may be further refined in the ensuing rulemaking process.
---------------------------------------------------------------------------
\1\ See infra for a discussion of proposals raised after the
initial comment period has expired.
---------------------------------------------------------------------------
The Office will post all of the comments, hearing transcripts, and
other relevant material in this rulemaking proceeding, as the Office
has done since the inception of this rulemaking proceeding, on the
Copyright Office's website at: www.copyright.gov/1201.\2\
_____________________________________-
\2\ 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. If such
material is available on the Internet, the comment should identify
where the material may be found.
---------------------------------------------------------------------------
[[Page 58076]]
The Copyright Office will also conduct a series of hearings on the
proposed exemptions in the Spring in Washington, DC and at a location
or locations to be determined in California. These hearings will offer
proponents and opponents of exemptions an opportunity to present
arguments and answer questions from the Register and her staff. These
hearings-the time, date and subject matter of which will be announced
early in 2009-will not provide a forum in which to raise new proposals
or to submit wholly new evidence. Evidence that demonstrates how a
technological measure operates and affects noninfringing uses as well
as evidence that is responsive to earlier disputes raised in the
comment process is welcomed, and is encouraged, at these hearings.
However, the hearings may not be used as a vehicle for surprise or to
present untimely proposals.
The Register is also likely to pose post-hearing questions to
specific parties or witnesses that participated in the rulemaking
proceeding. These questions have historically sought clarification of
legal and factual questions, including specific requests to explain the
operation of a technological measure at issue. Such post-hearing
questions should not be construed as a general public post-hearing
comment phase-there simply will not be sufficient time to consider
another round of general public comments by the statutory deadline for
the announcement of the newly exempted classes-but rather are
invitations addressed to specific witnesses who have offered testimony
on an issue to provide further clarification in response to specific
questions from the Register. The questions and the responses to the
questions will be posted on the Copyright Office's website after the
responses have been received.
D. 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 at that time that the vast majority of
these works were also available in analog format on VHS tapes. Final
Reg. 2000, 65 FR 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 charged 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, 65 FR 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.
E. The Scope of the Term ``Class of Works''
Section 1201 does not define a critical term for the rulemaking
process: a ``class of works.'' With respect to this issue and others,
commenters should familiarize themselves with the Register's
recommendation and the Librarian's determination in the first
rulemaking and in the subsequent two rulemakings, since many of the
issues which were unsettled at the start of the first rulemaking have
been addressed and developed in the three determinations. While the
approach taken in resolving the issues raised in these rulemakings may
continue to develop in this and subsequent proceedings, interested
parties should assume that the standards developed thus far will
continue to apply in the current proceeding. Of course, commenters may
argue for adoption of alternative approaches,\3\ but a persuasive case
will have to be made to warrant reconsideration of previous decisions
regarding interpretation of section 1201.
---------------------------------------------------------------------------
\3\ Proponents of an exemption may do so in their comments
proposing exemptions. Opponents of an exemption should do so in
their comments filed in response to the forthcoming Notice of
Proposed Rulemaking.
---------------------------------------------------------------------------
In the first rulemaking, the Register elicited views on the scope
and meaning of the term ``class of works.'' After review of the
statutory language, the legislative history and the extensive record in
the proceeding [see Final Reg., 65 FR at 64557 for a description of the
record in the last rulemaking proceeding], the Register reached certain
conclusions on the scope of this term. [For a more detailed discussion,
see Final Reg., 65 FR at 64559.]
The Register found that the statutory language required that the
Librarian identify a ``class of works'' primarily based upon attributes
of the works themselves, and not by reference to some external criteria
such as the intended use or the 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.
Therefore, 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., 65 FR at
[[Page 58077]]
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.
In the first anticircumvention rulemaking, the Register recommended
and the Librarian agreed that two classes of works should be exempted:
1) Compilations consisting of lists of websites blocked by
filtering software applications; and
2) Literary works, including computer programs and databases,
protected by access control mechanisms that fail to permit access
because of malfunction, damage or obsoleteness.
While the first class exempted fits comfortably within the approach
to classification discussed above, the second class includes the entire
category of literary works, but narrows the exemption by reference to
attributes of the technological measures that controls access to the
works.
In the 2006 rulemaking, the Register determined that a further
refinement of the approach to determining a particular class of works
was warranted. Even though a class must begin, as its starting point,
by reference to one of the categories of authorship enumerated in
section 102 of the Copyright Act (or some subset thereof), that class
should be further tailored to address the harm (actual or likely)
alleged. The proper tailoring of a class will depend on the specific
facts, but in some cases, the most appropriate manner of further
tailoring the category or sub-category may be to limit the class in
relation to particular uses or users.
The impetus for this refinement was a proposed exemption for film
and media studies professors. The proponents of the exemption
demonstrated that the reproduction and public performance of short
portions of motion pictures or other audiovisual works in the course of
face-to-face teaching activities of a film or media studies course
would generally constitute a noninfringing use. The proponents further
demonstrated that the digital version of the motion pictures
distributed on DVDs was not merely a preferred format, but that the
digital version of these works was the only version of the work that
met the pedagogical needs of the film and media studies professors. The
proponents of the exemption also demonstrated that their otherwise
noninfringing uses of the digital versions of these motion pictures
were adversely affected by the prohibition on circumvention of
technological measures protecting access to these works, because the
Content Scrambling System (CSS) contained on most commercially released
DVDs was an access control system that prevented the making of a
compilation of film clips for classroom use. Although opponents of the
exemption demonstrated a DVD player that was alleged to meet the
pedagogical needs of educators, the device presented obstacles for
classroom use that were found to be more than a mere inconvenience for
a subset of users - film and media studies professors.
The proponents met their burden of proving that section 1201(a)(1)
was adversely affecting film and media studies educators' ability to
engage in noninfringing uses for the ensuing 3-year period and that no
reasonable substitute for the pedagogically beneficial digital content
was available or likely to become available in the next three years.
The opponents of the proposal expressed concern that if the proposed
class of works-audiovisual works included in the educational library of
a college or university's film or media studies department and that are
protected by technological measures that prevent their educational use-
was based only on attributes of the work itself, the exemption would
necessarily exempt a much broader range of uses than those in which the
film professors wished to engage. Moreover, copyright owners were
concerned that such an exemption would create public confusion about
the circumstances in which circumvention was appropriate. Given the
expanse of such a class of works and the adverse effects that could
occur as a result of confusion about the class, copyright owners argued
that overall harm of such an exemption would outweigh the marginal
benefits to this subset of educators.
The Register concluded that a further refinement of the scope of a
class of works was the proper balance to the valid concerns of both
educators and copyright owners. By delineating the class in relation to
the relevant noninfringing use proven to be, or likely to be, adversely
affected by the prohibition on circumvention, film and media studies
educators' needs could be met while leaving the statutory prohibition
against circumvention intact for that class with respect to other uses.
In all proposed exemptions, the starting point for a class of works
must be a section 102 category of authorship, or a subset thereof. That
category or subset should then be tailored by other criteria as
appropriate under the particular facts presented. The goal is to
fashion an exemption that is neither too narrow nor too broad to
remedially address the evidence of present and likely harm. An
appropriately fashioned exemption will assist users and copyright
owners alike, by temporarily suspending the prohibition on
circumvention for appropriately tailored adversely affected classes,
while preserving the prohibition in all other classes.
The exemptions published for each three-year period are temporary
and expire when the succeeding determination of the Librarian of
Congress is published. This rulemaking will examine adverse effects
existing in the marketplace or likely to exist in the next three-year
period to determine whether any exemptions to the prohibition on
circumvention of technological protection measures that effectively
control access to copyrighted works are warranted by the evidence
raised during this rulemaking.
F. Considerations to Address within a Comment
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, certain critical points
should be established. First, a proponent should identify the
technological measure that is the ultimate source of the alleged
problem, and the proponent should explain how the technological measure
effectively controls access to a copyrighted work. Second, a proponent
must specifically explain what noninfringing activity the prohibition
on circumvention is preventing. Third, a proponent should establish
that the prevented activity is, in fact, a noninfringing use under
current law. A proponent should also demonstrate why the access-
protected copy of a work is needed for the noninfringing use and why
alternate means of engaging in the noninfringing uses (including use of
available copies of the work in unprotected formats), if they exist,
are an insufficient substitute for accomplishing the noninfringing use.
The nature of the Librarian's inquiry is further delineated by the
statutory areas to be examined by the Register of Copyrights:
(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;
[[Page 58078]]
(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 with the harm that would result from an exemption. In some
circumstances, the adverse effect of a proposed exemption in light of
these considerations may be greater than the harm posed by the
prohibition on circumvention of works in the proposed class. Perhaps
the proper balance can be resolved by carefully tailoring the scope of
the class, but ultimately, the determination of the Librarian must take
all of these factors into account.
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 fourth
triennial rulemaking, the Register shall continue with the procedure
adopted in the second and third rulemakings: 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 (see section F above).
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. This factual information should ideally
include the technological measure that controls access and the manner
in which this technological measure operates to control access to a
copyrighted work. Finally, the commenter should state any legal
arguments in support of the exemption, including the activity that is
claimed to be noninfringing, the legal basis for this claim, and why
this noninfringing activity cannot be accomplished in other ways. 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.
Comments subsequently submitted in response to exemptions proposed
in the first round of comments should provide factual information and
legal argument addressing whether or not a proposed exemption should be
adopted. Since the comments in this second round are intended to be
responsive to the initial comments, commenters must identify which
proposal(s) they are responding to, whether in opposition, support,
amplification or correction. As with initial comments, these responsive
comments should first identify the proposed class or classes to which
the comment 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 comment responsive to a particular class of work proposed.
Regardless of the mode of submission (see section 4 below), 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 all comments
be submitted in electronic form and the electronic form will provide a
place to provide the required information separately from the attached
comment submission. 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
Office of the General Counsel, Copyright GC/I&R, PO Box 70400,
Washington, DC 20024-0400. A comment submitted by mail or hand-delivery
should include a cover sheet that includes the required information
about the submitter (e.g., address, telephone, and email) and should
not include this information in the comment itself if such information
is not desired to be placed on the Copyright Office's website. 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 ensure timely receipt of comments by the Office.
Electronic comments successfully submitted through the Office's website
will generate a confirmation receipt to the submitter.
4. 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: https://
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. In addition,
commenters proposing classes of works in the first round of comments
will be required to fill in two additional fields: (1) the proposed
class or classes of copyrighted work(s) to be exempted, and (2) a brief
summary of the argument(s). Commenters submitting comments in response
to the initial proposals will similarly be required to fill in two
additional required fields: (1) the class or classes to which the
comment is responsive, including the initial comment numbers, and (2) a
brief summary of the argument.
All comments submitted electronically 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 2003 or
earlier, WordPerfect 12.0 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 name of the
proponent, the proposed class and the summary of the argument, as well
as the entire, attached comment document.
[[Page 58079]]
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 personal 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 submitted by means of the United States Postal Service or hand
delivery:
a. Electronic copies: 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 2007 or
earlier (.doc or .docx), WordPerfect Version 12.0 or earlier (.wpd) ,
Rich Text Format (.rtf), or ASCII text file (.txt) 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.
b. Paper copies: 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 ten 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, fax 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 comment responsive to a proposed exemption.
Comments will be accepted for a 30-day period, 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 3, 2008, until December 2, 2008, at 5:00 P.M. Eastern Standard
Time, at which time the submission form will be removed from the
website. The deadline for the second round of comments will be
announced in the Notice of Proposed Rulemaking to be published in
December, and will probably be on or about February 2, 2008.
5. Hearings
As mentioned above, after the conclusion of the comment periods,
the Register intends to hold public hearings in the Spring in
Washington, DC and in California. The Washington, DC hearings will most
likely take place in the James Madison Memorial Building of the Library
of Congress. The dates and confirmed location of hearings in
Washington, DC and California, have not yet been determined. 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 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 2009.
As noted above, following the hearings, the Copyright Office may
request additional information from parties who have been involved in
the rulemaking process. Such requests for responses to questions will
take the form of a letter from the Copyright Office and will be
addressed to particular parties involved in an issue in which more
information is sought. These inquiries will include deadlines based on
when the requests for information are sent. After the receipt of all
responses to all inquiries from the Copyright Office, the Office will
post the questions, the parties to whom the questions were sent, and
the responses on the Copyright Office's website.
6. Process for Untimely Submissions based on Exceptional or
Unforeseen Circumstances
To provide sufficient flexibility in this proceeding, in the event
that unforeseen developments occur after the deadlines for the filing
of initial comments, a person wishing to propose an exemption for a
particular class of works after the specified deadline for initial
comments may petition the Register to consider an additional exemption.
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 ten copies of a comment that meets the requirements for
initial comments set forth in section 3 above, 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. A
person wishing to file any other untimely submission may also petition
the Register to consider such submission, but such untimely submissions
will be disfavored. Exceptional or unforeseen circumstances generally
entail information that did not exist at the time of the comment
periods. The Register will make a determination whether to accept a
petition based on the stage of the rulemaking process at which the
request is made and the merits of the petition. A substantively
meritorious petition may be denied if the petition comes so late in the
process that adequate notice and comment cannot be accommodated within
the statutory time frame of the rulemaking process. The mere fact that
an interested party was unaware of this proceeding or of any particular
exemptions proposed in this proceeding is not a valid justification for
a late submission. If a petition is accepted, the Register will publish
the proposal in the Federal Register and announce deadlines for
comments. If a petition is denied, the Register will set forth the
reasons for the denial in a letter to the petitioner. All petitions and
responses will become part of the public record in this rulemaking
process.
October 1, 2008
Marybeth Peters,
Register of Copyrights.
[FR Doc. E8-23576 Filed 10-3-08; 8:45 am]
BILLING CODE 1410-33-S