Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 43825-43839 [2010-18339]

Agencies

• Library of Congress
• Copyright Office
• Copyright Office, Library of Congress

[Federal Register Volume 75, Number 143 (Tuesday, July 27, 2010)]
[Rules and Regulations]
[Pages 43825-43839]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-18339]


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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: Final rule.

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SUMMARY: The Librarian of Congress announces that the prohibition 
against

[[Page 43826]]

circumvention of technological measures that effectively control access 
to copyrighted works shall not apply to persons who engage in 
noninfringing uses of six classes of copyrighted works.

EFFECTIVE DATE: July 27, 2010.

FOR FURTHER INFORMATION CONTACT: Robert Kasunic, Assistant General 
Counsel, and David O. Carson, General Counsel, Copyright GC/I&R, P.O. 
Box 70400, Washington, D.C. 20024. Telephone: (202) 707-8380. Telefax: 
(202) 707-8366.

SUPPLEMENTARY INFORMATION: In this notice, the Librarian of Congress, 
upon the recommendation of the Register of Copyrights, announces that 
the prohibition against circumvention of technological measures that 
effectively control access to copyrighted works shall not apply to 
persons who engage in noninfringing uses of six classes of works. This 
announcement is the culmination of a rulemaking proceeding commenced by 
the Register on October 6, 2008. A more comprehensive statement of the 
background and legal requirements of the rulemaking, a discussion of 
the record and the Register's analysis may be found in the Register's 
memorandum to the Librarian of Congress dated June 11, 2010, which 
contains the full explanation of the Register's recommendation. A copy 
of the Register's memorandum may be found at https://www.copyright.gov/1201. This notice summarizes the Register's recommendation, announces 
the Librarian's determination, and publishes the regulatory text 
codifying the six exempted classes of works.

I. Background

A. Legislative Requirements for Rulemaking Proceeding
    The Digital Millennium Copyright Act (``DMCA'') was enacted to 
implement certain provisions of the WIPO Copyright Treaty and WIPO 
Performances and Phonograms Treaty. It established a wide range of 
rules that govern not only copyright owners in the marketplace for 
electronic commerce, but also consumers, manufacturers, distributors, 
libraries, educators, and on-line service providers. It defined whether 
consumers and businesses may engage in certain conduct, or use certain 
devices, in the course of transacting electronic commerce.
    Chapter 12 of title 17 of the United States Code prohibits 
circumvention of certain technological measures employed by or on 
behalf of copyright owners to protect their works (i.e., ``access 
controls''). Specifically, Section 1201(a)(1)(A) provides, in part, 
that no person shall circumvent a technological measure that 
effectively controls access to a work protected under this title. In 
order to ensure that the public will have continued ability to engage 
in noninfringing uses of copyrighted works, such as fair use, 
subparagraph (B) limits this prohibition. It provides that the 
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 three-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 a rulemaking. The proceeding is 
conducted by the Register of Copyrights, who is to provide notice of 
the rulemaking, seek comments from the public, consult with the 
Assistant Secretary for Communications and Information of the 
Department of Commerce, and recommend final regulations to the 
Librarian of Congress. The regulations, to be issued by the Librarian 
of Congress, announce ``any class of copyrighted works for which the 
Librarian has determined, pursuant to the rulemaking conducted under 
subparagraph (c), that noninfringing uses by persons who are users of a 
copyrighted work are, or are likely to be, adversely affected, and the 
prohibition contained in subparagraph (A) shall not apply to such users 
with respect to such class of works for the ensuing 3-year period.'' 
This is the fourth Section 1201 rulemaking.
B. Responsibilities of Register of Copyrights and Librarian of Congress
    The primary responsibility of the Register and the Librarian in 
this rulemaking proceeding was to assess whether the implementation of 
access control measures is diminishing the ability of individuals to 
use copyrighted works in ways that are not infringing and to designate 
any classes of works with respect to which users have been adversely 
affected in their ability to make noninfringing uses. Congress intended 
that the Register solicit input that would enable consideration of a 
broad range of current or likely future adverse impacts. The statute 
directs that in conducting the rulemaking, the Register and the 
Librarian shall examine:
    (1) The availability for use of copyrighted works;
    (2) The availability for use of works for nonprofit archival, 
preservation, and educational purposes;
    (3) The impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research;
    (4) The effect of circumvention of technological measures on the 
market for or value of copyrighted works; and
    (5) Such other factors as the Librarian considers appropriate.
    These factors to be considered in the rulemaking process require 
the Register and the Librarian to carefully balance the availability of 
works for use, the effect of the prohibition on particular uses, and 
the effect of circumvention on copyrighted works.
C. The Purpose and Focus of the Rulemaking

1. Purpose of the Rulemaking

    The task of this rulemaking is to determine whether the 
availability and use of access control measures has already diminished 
or is about to diminish the ability of the users of any particular 
classes of copyrighted works to engage in noninfringing uses of those 
works similar or analogous to those that the public had traditionally 
been able to make prior to the enactment of the DMCA. In examining the 
factors set forth in Section 1201(a)(1)(C), the focus is on whether the 
implementation of technological protection measures has had an adverse 
impact on the ability of users to make lawful uses.

2. The Necessary Showing

    Proponents of a class of works have the burden of proof. In order 
to make a prima facie case for designation of a class of works, 
proponents must show by a preponderance of the evidence that there has 
been or is likely to be a substantial adverse effect on noninfringing 
uses by users of copyrighted works. De minimis problems, isolated harm 
or mere inconveniences are insufficient to provide the necessary 
showing. Similarly, for proof of ``likely'' adverse effects on 
noninfringing uses, a proponent must prove by a preponderance of the 
evidence that the harm alleged is more likely than not; a proponent may 
not rely on speculation alone to sustain a prima facie case of likely 
adverse effects on noninfringing uses. It is also necessary to show a 
causal nexus between the prohibition on circumvention and the alleged 
harm.
    Proposed classes are reviewed de novo. The existence of a 
previously designated class creates no presumption for consideration of 
a new class, but rather the proponent of such a class of works must 
make a prima facie case in each three-year period.

[[Page 43827]]

3. Determination of ``Class of Works''

    The starting point for any definition of a ``particular class'' of 
works in this rulemaking must be one of the categories of works set 
forth in section 102 of the Copyright Act. However, those categories 
are only a starting point and a ``class'' will generally constitute 
some subset of a section 102 category. The determnation of the 
appropriate scope of a ''class of works''; recommended for exemption 
will also take into account the likely adverse effects on noninfringing 
uses and the adverse effects that designation of the class may have on 
the market for or value of copyrighted works.
    While starting with a section 102 category of works, or a 
subcategory thereof, the description of a ``particular class''of works 
ordinarily should be further refined by reference to other factors that 
assist in ensuring that the scope of the class addresses the scope of 
the harm to noninfringing uses. For example, the class might be defined 
in part by reference to the medium on which the works are distributed, 
or even to the access control measures applied to them. The description 
of a class of works may also be refined, in appropriate cases, by 
reference to the type of user who may take advantage of the designation 
of the class of works or by reference to the type of use of the work 
that may be made pursuant to the designation. The ``class'' must be 
properly tailored not only to address the harm demonstrated, but also 
to limit the adverse consequences that may result from the creation of 
an exempted class. In every case, the contours of a ``class'' will 
depend on the unique factual circumstances established in the 
rulemaking record on a case-by-case basis.
D. Consultation with the Assistant Secretary for Communications and 
Information
    Section 1201(a)(1)(C) requires the Register of Copyrights to 
consult with the Assistant Secretary for Communications and Information 
of the Department of Commerce (who is also the Administrator of the 
National Telecommunications and Information Administration) and report 
and comment on the views of the Assistant Secretary (``NTIA'') when she 
makes her recommendation to the Librarian of Congress.
    In addition to informal consultations throughout the course of the 
rulemaking proceeding, NTIA formally communicated its views in letters 
to the Register on November 4, 2009, and April 16, 2010. NTIA's views 
were considered by the Register in forming her recommendation. A 
discussion of NTIA's substantive analysis of particular proposals is 
presented in the relevant sections of the Register's recommendation.

II. Solicitation of Public Comments and Hearings

    On October 6, 2008, the Register initiated this rulemaking 
proceeding pursuant to Section 1201(a)(1)(C) with publication of a 
Notice of Inquiry. The NOI requested written comments from all 
interested parties, including representatives of copyright owners, 
educational institutions, libraries and archives, scholars, 
researchers, and members of the public.
    During the initial comment period that ended on December 2, 2008, 
the Copyright Office received nineteen written comments proposing 
twenty-five classes of works, all of which were posted on the Office's 
website. Because some of the initial comments contained similar or 
overlapping proposals, the Copyright Office arranged related classes 
into groups, and set forth and summarized all proposed classes in a 
Notice of Proposed Rulemaking (``NPRM'') published on December 29, 
2008. This NPRM did not present the initial classes in the form of 
proposed rule, but merely as ``a starting point for further 
consideration.''
    The NPRM asked interested parties to submit comments providing 
support, opposition, clarification, or correction regarding the 
proposals, and to provide factual and/or legal arguments in support of 
their positions. The Copyright Office received a total of fifty-six 
responsive comments before the comment period closed on February 2, 
2009, all of which were posted on the Copyright Office website.
    Four days of public hearings were conducted by the Register in May 
2009 at Stanford University and the Library of Congress. Thirty-seven 
witnesses, representing proponents and opponents of proposed classes of 
works, testified on twenty-one proposed classes. Following the 
hearings, the Copyright Office sent follow-up questions to some of the 
hearing witnesses, and responses were received during the summer. The 
entire record in this and the previous section 1201(a)(1)(C) 
rulemakings are available on the Office's website, https://www.copyright.gov/1201/.
    On October 27, 2009, the Librarian of Congress published in the 
Federal Register a Notice of an interim rule, extending the existing 
classes of works exempted from the prohibition until the conclusion of 
the current rulemaking proceeding and the designation of any classes of 
works to be exempt from the prohibition for the ensuing three-year 
period by the Librarian of Congress.

III. The Designated Classes

A. Motion pictures on DVDs that are lawfully made and acquired and that 
are protected by the Content Scrambling System when circumvention is 
accomplished solely in order to accomplish the incorporation of short 
portions of motion pictures into new works for the purpose of criticism 
or comment, and where the person engaging in circumvention believes and 
has reasonable grounds for believing that circumvention is necessary to 
fulfill the purpose of the use in the following instances:
     Educational uses by college and university 
professors and by college and university film and media studies 
students;
     Documentary filmmaking;
     Noncommercial videos.
    DVDs protected by the Content Scrambling System (CSS) have been an 
issue in this rulemaking proceeding since its inception in 2000. In the 
2006 rulemaking proceeding, the Librarian designated a class of 
``[a]udiovisual works included in the educational library of a college 
or university's film or media studies department, when circumvention is 
accomplished for the purpose of making compilations of portions of 
those works for educational use in the classroom by media studies or 
film professors.''
    In the current rulemaking, educators sought to renew and, in a 
number of ways, to expand the existing class of works designated in the 
last proceeding. The proposed expansions of the class involved 
extending the class to include all of the motion pictures on CSS-
protected DVDs contained in a college or university library (rather 
than just a film or media studies department) and to encompass 
classroom use by all college and university professors and students as 
well as elementary and secondary school teachers and students.
    Apart from educators, others sought designation of similar classes 
of works to address what they contended are adverse impacts on their 
ability to engage in noninfringing uses of copyrighted works. 
Documentary filmmakers argued that the prohibition on circumvention 
adversely affects their ability to use portions of motion pictures in 
documentary films, many of which would qualify as noninfringing uses 
for the purposes of criticism or comment. Creators of noncommercial 
videos that incorporate portions of

[[Page 43828]]

motion pictures contained on CSS-protected DVDs also alleged that the 
prohibition on circumvention adversely affected their ability to engage 
in noninfringing criticism or comment.
    Based on the record in this proceeding, the Register determines 
that CSS is a technological measure that protects access to copyrighted 
motion pictures. She also determined that a substantial number of uses 
in the record with respect to education, documentary filmmaking, and 
noncommercial videos qualify as noninfringing uses.
    NTIA supports expansion of the existing class of audiovisual works 
to include all college and university level instructors and students 
but does not believe the record justifies an expansion that would 
include elementary and secondary school teachers and students. NTIA 
also recommended limiting the class to address the use of DVDs included 
in the educational library or departments of the academic institutions. 
It also supported the proposal to designate a class of works for the 
benefit of documentary filmmakers. Finally, it expressed general 
support for the request to designate a class that would permit 
extraction of film clips for use in noncommercial videos, but suggested 
a requirement that the clips from the audiovisual work must be for 
remix videos that are used for social comment or criticism, or that are 
used in transformative-type works according to established fair use 
principles.
    Given that all of these proposed classes at issue involved motion 
pictures on CSS-protected DVDs, the Register recommends that the 
Librarian designate a single class addressing all of these adversely 
affected uses of DVDs. However, the Register concludes that the record 
does not support all of the proposed expansions of the existing class 
of audiovisual works and that in at least one respect, the record 
supported a contraction of that class.
    What the record does demonstrate is that college and university 
educators, college and university film and media studies students, 
documentary filmmakers, and creators of noncommercial videos frequently 
make and use short film clips from motion pictures to engage in 
criticism or commentary about those motion pictures, and that in many 
cases it is necessary to be able to make and incorporate high-quality 
film clips in order effectively to engage in such criticism or 
commentary. In such cases, it will be difficult or impossible to engage 
in the noninfringing use without circumventing CSS in order to make 
high-quality copies of short portions of the motion pictures. Because 
not all uses by educators, documentary filmmakers or makers of 
noncommerical videos will be noninfringing or will require such high-
quality copies, the class of works recommended by the Register is not 
as extensive as what was requested by some proponents, and the class 
contains some limitations. First, proponents for educators failed to 
demonstrate that high-quality resolution film clips are necessary for 
K-12 teachers and students, or for college and university students 
other than film and media studies students. Because other means, such 
as the use of screen capture software, exist that permit the making of 
lower-quality film clips without circumventing access controls, the 
Register finds no justification in the record for expanding the class 
of works to include such persons as express beneficiaries of the 
designation of this class of works.
    Second, the circumvention of access controls must be accomplished 
solely in order to enable incorporation of short portions of motion 
pictures into new works for purposes of criticism of comment. The 
justification offered by proponents for designating a class of 
audiovisual works, and a key element of the Register's conclusion that 
the intended uses will frequently be noninfringing fair uses, was that 
the uses that justify designation of the class were for purposes of 
criticism and commentary, which are classic ``fair use'' purposes. 
Moreover, all of the evidence in the rulemaking demonstrating 
noninfringing uses involved the use of short portions of motion 
pictures. While the Register is persuaded that it would be difficult 
and imprudent to quantify the precise contours of what constitutes a 
``short portion,'' there was no evidence in the record to support the 
conclusion that anything more than incorporating relatively short 
portions of motion pictures into a new work for purposes of criticism 
or commentary would be a fair use. Similarly, in order to meet the 
requirements of the designated class of works, a new work must be 
created, whether that work is a compilation of clips for use in the 
classroom, or a documentary or video incorporating a clip or clips from 
a copyrighted motion picture.
    The final requirement of the recommended class is that the person 
engaging in the circumvention must reasonably believe that the 
circumvention is necessary in order to fulfill the purpose of the use - 
i.e., the noninfringing criticism or commentary. Because alternatives 
to circumvention such as video capture may suffice in many, and perhaps 
the vast majority of situations, users must make a reasonable 
determination that heightened quality is necessary to achieve the 
desired goal. The justification for designating this class of works is 
that some criticism and/or commentary requires the use of high-quality 
portions of motion pictures in order to adequately present the speech-
related purpose of the use. Where alternatives to circumvention can be 
used to achieve the noninfringing purpose, such non-circumventing 
alternatives should be used. Thus, this limitation seeks to avoid an 
overly broad class of works given the limited number of uses that may 
require circumvention to achieve the intended noninfringing end.
    The class has also been limited to include only motion pictures 
rather than all audiovisual works. Because there was no evidence 
presented that addressed any audiovisual works other than motion 
pictures, there was no basis for including the somewhat broader class 
of audiovisual works (which includes not only motion pictures, but also 
works such as video games and slide presentations).
B. Computer programs that enable wireless telephone handsets to execute 
software applications, where circumvention is accomplished for the sole 
purpose of enabling interoperability of such applications, when they 
have been lawfully obtained, with computer programs on the telephone 
handset.
    The Electronic Frontier Foundation (EFF) proposed a class that 
would allow circumvention of the technological measures contained on 
certain wireless phone handsets (known as ``smartphones'') that prevent 
third-party software applications from being installed and run on such 
phones. This circumvention activity is colloquially referred to as 
``jailbreaking'' a phone.
    The factual record with respect to this proposed class focused 
primarily on Apple's iPhone, although there are allegations in the 
record involving other mobile phone manufacturers as well. EFF 
asserted, and Apple's testimony confirmed, that any software or 
application to be used on the iPhone must be validated with the 
firmware that controls the iPhone's operation. This validation process 
is intended to make it impossible for an owner of an iPhone to install 
and use third-party applications on the iPhone that have not been 
approved for distribution through Apple's iTunes App Store.
    EFF argued that jailbreaking is a noninfringing activity for three 
reasons. First, it alleged that at least in some cases, jailbreaking 
can be done within

[[Page 43829]]

the scope of what is authorized under the license Apple grants to every 
iPhone user. It stated that ``[t]o the extent a jailbreaking technique 
does not modify any of the individual software programs that comprise 
the iPhone firmware collection, but instead simply adds additional 
software components to the collection, the practice may not exceed the 
scope of the license to `use the iPhone software' or constitute a 
`modification' of any Apple software components, any more than the 
addition of a new printer driver to a computer constitutes a 
`modification' of the operating system already installed on the 
computer.''
    Second, EFF asserted that ``to the extent a jailbreak technique 
requires the reproduction or adaptation of existing firmware beyond the 
scope of any license or other authorization by the copyright owner, it 
would fall within the ambit of 17 U.S.C. Sec.  1l7(a).'' EFF contended 
that the iPhone owner is also the owner of the copy of the firmware on 
the iPhone and that jailbreaking falls within the owner's privilege 
``to adapt those copies to add new capabilities, so long as the changes 
do not ``harm the interests of the copyright proprietor.''
    Finally, EFF contended that in any event, jailbreaking constitutes 
fair use of the firmware because jailbreaking is a purely 
noncommercial, private use of computer software, a largely functional 
work that operates the phone, and that the phone owner must reuse the 
vast majority of the original firmware in order for the phone to 
operate. Because the phone owner is simply modifying the firmware for 
her own use on the phone, there is no harm to the market for the 
firmware.
    Apple responded that jailbreaking by purchasers of the iPhone is a 
violation of the prohibition against circumvention of access controls. 
It stated that its validation system is necessary to protect consumers 
and Apple from harm. Apple further contended that modifying Apple's 
operating system constituted the creation of an infringing derivative 
work. Specifically, Apple argued that because purchasers of an iPhone 
are licensees, not owners, of the computer programs contained on the 
iPhone, Section 117 of the Copyright Act is inapplicable as an 
exemption to the adaptation right. Apple further argued that the fair 
use defense codified in Sec.  107 would not apply to jailbreaking 
activity under the statutory factors.
    Based on the record, the Register has determined that the 
encryption and authentication processes on the iPhone's computer 
programs are technological measures that control access to the 
copyrighted work (the firmware) for purposes of Sec.  1201(a)(1). 
Moreover, the Register finds that the evidence supports the contention 
that a technological protection measure is adversely affecting adding 
applications to the iPhone. The critical question is whether 
jailbreaking an iPhone in order to add applications to the phone 
constitutes a noninfringing use.
    The Register does not find that the contract between Apple and 
purchasers of the iPhone authorize modification of the iPhone. 
Moreover, the Register cannot clearly determine whether the various 
versions of the iPhone contracts with consumers constituted a sale or 
license of a copy of the computer programs contained on the iPhone. The 
contractual language is unclear with respect to particular copies of 
the computer programs. Although Apple retains ownership of the computer 
programs, the contracts also expressly grant users ownership of the 
device. Since the ``copy'' of the computer program is fixed in hardware 
of the device, it is unclear what ownership status is to be given to 
the particular copy of the computer program contained in the device. 
Apple unquestionably has retained ownership of the intangible works, 
but the ownership of the particular copies of those works is unclear.
    Moreover, the state of the law with respect to the determination of 
ownership is in a state of flux in the courts. Both proponents and 
opponents cited case law in support of their respective positions, but 
the Register finds it impossible to determine how a court would resolve 
the issue of ownership on the facts presented here. While both parties 
agreed that the Second Circuit's decision in Krause v. Titleserv, 402 
F.3d 119 (2d Cir. 2005) is ``good law,'' that case dealt with a 
situation that is distinguishable in many respects from the present 
situation. The Register finds that the Krause case does not provide 
clear guidance as to how resolve the current issue.
    However, the Register does find that the proponent's fair use 
argument is compelling and consistent with the congressional interest 
in interoperability. The four fair use factors tend to weigh in favor 
of a finding of fair use.
    Under the first factor in Section 107, it appears fair to say that 
the purpose and character of the modification of the operating system 
is to engage in a private, noncommercial use intended to add 
functionality to a device owned by the person making the modification, 
albeit beyond what Apple has determined to be acceptable. The user is 
not engaging in any commercial exploitation of the firmware, at least 
not when the jailbreaking is done for the user's own private use of the 
device.
    The fact that the person engaging in jailbreaking is doing so in 
order to use Apple's firmware on the device that it was designed to 
operate, which the jailbreaking user owns, and to use it for precisely 
the purpose for which it was designed (but for the fact that it has 
been modified to run applications not approved by Apple) favors a 
finding that the purpose and character of the use is innocuous at worst 
and beneficial at best. Apple's objections to the installation and use 
of ``unapproved'' applications appears to have nothing to do with its 
interests as the owner of copyrights in the computer programs embodied 
in the iPhone, and running the unapproved applications has no adverse 
effect on those interests. Rather, Apple's objections relate to its 
interests as a manufacturer and distributor of a device, the iPhone.
    Moreover, Congress has determined that reverse engineering for the 
purpose of making computer programs interoperable is desirable when 
certain conditions are met, and has crafted a specific exemption from 
Section 1201(a)'s prohibition on circumvention in such cases. While an 
iPhone owner who ``jailbreaks'' does not fall within the four corners 
of the statutory exemption in Section 1201(f), the fact that he or she 
is engaging in jailbreaking in order to make the iPhone's firmware 
interoperable with an application specially created for the iPhone 
suggests that the purpose and character of the use are favored.
    Turning to the second fair use factor, it is customary for 
operating systems - functional works - to enable third party programs 
to interoperate with them. It does not and should not infringe any of 
the exclusive rights of the copyright owner to run an application 
program on a computer over the objections of the owner of the copyright 
in the computer's operating system. Thus, if Apple sought to restrict 
the computer programs that could be run on its computers, there would 
be no basis for copyright law to assist Apple in protecting its 
restrictive business model. The second factor decisively favors a 
finding of fair use.
    Turning to the third factor, ``the amount and substantiality of the 
portion used in relation to the copyrighted work as a whole,'' EFF 
admitted that because the Apple firmware is necessary in order to 
operate the iPhone, it is necessary for individuals who jailbreak their 
phones to reuse the vast majority of the original firmware. However, 
the amount of the copyrighted work

[[Page 43830]]

modified in a typical jailbreaking scenario is fewer than 50 bytes of 
code out of more than 8 million bytes, or approximately 1/160,000 of 
the copyrighted work as a whole. Where the alleged infringement 
consists of the making of an unauthorized derivative work, and the only 
modifications are so de minimis, the fact that iPhone users are using 
almost the entire iPhone firmware for the purpose for which it was 
provided to them by Apple undermines the significance of this factor. 
While the third factor arguably disfavors a fair use finding, the 
weight to be given to it under the circumstances is slight.
    Addressing the fourth factor, ``the effect of the use upon the 
potential market for or value of the copyrighted work,'' EFF asserted 
that the firmware has no independent economic value, pointing out that 
the iPhone firmware is not sold separately, but is simply included when 
one purchases an iPhone. EFF also argued that the ability to lawfully 
jailbreak a phone will increase, not decrease, overall sales of the 
phones because users will know that by jailbreaking, they can ``take 
advantage of a wider array of third party applications.
    Apple responded that unauthorized uses diminish the value of the 
copyrighted works to Apple. However, Apple is not concerned that the 
practice of jailbreaking will displace sales of its firmware or of 
iPhones; indeed, since one cannot engage in that practice unless one 
has acquired an iPhone, it would be difficult to make that argument. 
Rather, the harm that Apple fears is harm to its reputation. Apple is 
concerned that jailbreaking will breach the integrity of the iPhone's 
``ecosystem.'' The Register concludes that such alleged adverse effects 
are not in the nature of the harm that the fourth fair use factor is 
intended to address.
    NTIA does not support designating the proposed class. While 
acknowledging that permitting iPhone jailbreaking could facilitate 
innovation, better serve customers, and encourage the market to utilize 
open platforms, NTIA believes ``it might just as likely deter 
innovation by not allowing the developer to recoup its development 
costs and to be rewarded for its innovation.'' NTIA also believes that 
the proponents' ``public policy'' arguments should properly be 
considered by expert regulatory agencies, the Department of Justice, 
and the Congress. It concludes that the ``Register ought only to 
consider recommending the proposed class if she concludes that the 
access control measure would be a bar to actions that the above bodies 
might take in response to policy judgments made at those agencies.
    The Register appreciates that many regulatory and policy issues 
pertaining to jailbreaking and smartphones fall within the competence 
of other agencies, and the Register has no desire to interfere with 
those agencies' jurisdiction. However, the only question before the 
Register and the Librarian is whether Section 1201(a)(1)'s prohibition 
on circumvention is adversely affecting the ability of users of 
smartphones from engaging in noninfringing uses of the firmware on 
their devices. No other agency has the power to limit the application 
of the prohibition on circumvention in this (or any other) context. Any 
future action by a federal agency to permit jailbreaking will be futile 
without an exemption from liability under Section 1201(a)(1), but if a 
class is not designated in this rulemaking, all that it will mean is 
that Section 1201 cannot be used to prevent jailbreaking, without 
prejudice to any other legal or regulatory authority that might limit 
or prohibit jailbreaking.
    On balance, the Register concludes that when one jailbreaks a 
smartphone in order to make the operating system on that phone 
interoperable with an independently created application that has not 
been approved by the maker of the smartphone or the maker of its 
operating system, the modifications that are made purely for the 
purpose of such interoperability are fair uses. Case law and 
Congressional enactments reflect a judgment that interoperability is 
favored. The Register also finds that designating a class of works that 
would permit jailbreaking for purposes of interoperability will not 
adversely affect the market for or value of the copyrighted works to 
the copyright owner.
    Accordingly, the Register recommends that the Librarian designate 
the following class of works:

     Computer programs that enable wireless communication handsets 
to execute software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of 
such applications, when they have been lawfully obtained, with 
computer programs on the telephone handset.
C. Computer programs, in the form of firmware or software, that enable 
used wireless telephone handsets to connect to a wireless 
telecommunications network, when circumvention is initiated by the 
owner of the copy of the computer program solely in order to connect to 
a wireless telecommunications network and access to the network is 
authorized by the operator of the network.
    In 2006, the Librarian designated a class of ``Computer programs in 
the form of firmware that enable wireless telephone handsets to connect 
to a wireless telephone communication network, when circumvention is 
accomplished for the sole purpose of lawfully connecting to a wireless 
telephone communication network,'' in order to permit the circumvention 
of access controls that prevent the owner of a cellphone from switching 
service on that cellphone to another wireless communication network. 
The access controls in question are embedded in the mobile phone's 
firmware or software and prevent the mobile phone owner from gaining 
access to the settings that connect the mobile phone to a network 
(e.g., Verizon's) other than the original network (e.g., AT&T's). 
Beneficiaries of that designation have now requested that the Librarian 
again designate a similar class of works. Representatives of wireless 
communication networks have opposed the request.
    As she did three years ago, the Register recognizes that the 
requests fall within the zone of interest subject to this rulemaking. 
That is, circumventing a mobile phone lock, without the authority of 
the copyright owner, to gain access to the protected work (i.e., the 
firmware) is likely actionable under Section 1201(a)(1) of the Act. 
Further, a wireless carrier who is harmed by the circumvention of the 
software lock may bring an action for violation of Section 1201(a)(1) 
against anyone who circumvents such a technological protection measure.
    The proponents of this class have presented a prima facie case that 
the prohibition on circumvention has had an adverse effect on 
noninfringing uses of firmware on wireless telephone handsets. 
Proponents have shown that mobile phone locks prevent consumers from 
legally accessing alternative wireless networks with the phone of their 
choice. This is the same type of activity that was at issue when the 
existing class of works was being considered in 2006.
    The wireless networks asserted that by using a cellphone on another 
network, an act that is not authorized

[[Page 43831]]

under their contracts, the customers infringe the exclusive right to 
reproduce copies of the computer software, because use of the mobile 
phones necessarily involves the making of copies in the random access 
memory of the mobile phone. Moreover, they asserted that the alteration 
of the computer programs in order enable the mobile phones to connect 
to another network constituted the unlawful making of derivative works, 
in violation of the copyright owner's exclusive right to prepare 
derivative works.
    Proponents of the class asserted that the owners of mobile phones 
are also the owners of the copies of the computer programs on those 
phones and that as owners they are entitled to exercise their 
privileges under Section 117 of the Copyright Act, which gives the 
owner of a copy of a computer program the privilege to make or 
authorize the making of another copy or adaptation of that computer 
program under certain circumstances. The wireless networks responded 
that their contracts with their customers restrict the uses of the 
customers' mobile phones and retain ownership of the copies of the 
computer programs that are loaded onto the mobile phones and enable the 
phones to operate. They also asserted those contractual restrictions 
make the networks - and not the customers - the owners of the copies of 
the computer programs, and therefore the privilege under Section 117 to 
make copies and adaptations of computer programs does not apply because 
that privilege is enjoyed only by the owner of the copy of the computer 
program. They also argued that the privilege does not extend to the 
customers' conduct because the making of a new copy or adaptation in 
order to use the mobile phone on a network other than the original 
network is not, as the statute requires, ``an essential step in the 
utilization of the computer program in conjunction with a machine.``
    The Register has reviewed the appropriate case law with respect to 
who is the ``owner'' of a copy of a computer program for purposes of 
Section 117 when a license or agreement imposes restrictions on the use 
of the computer program and has concluded that the state of the law is 
unclear. The Register cannot determine whether most mobile phone owners 
are also the owners of the copies of the computer programs on their 
mobile phones. However, based on the record in this proceeding, the 
Register finds that the proponents of the class have made a prima facie 
case that mobile phone owners are the owners of those copies. While the 
wireless networks have made a case that many mobile phone owners may 
not own the computer program copies because the wireless network's 
contract with the consumer retains ownership of the copies, they have 
not presented evidence that this is always the case even if their 
interpretation of the law governing ownership is correct. The record 
therefore leads to the conclusion that a substantial portion of mobile 
phone owners also own the copies of the software on their phones.
    The Register also concludes that when the owner of a mobile makes 
RAM copies of the software in order to operate the phone - even if she 
is operating it on another network - she is making a noninfringing use 
of the software under Section 117 because the making of that copy is an 
essential step in the utilization of that software in conjunction with 
a machine.
    Similarly, the making of modifications in the computer program in 
order to enable the mobile phone to operate on another network would be 
a noninfringing act under Section 117. As a general rule, anyone who 
wishes to switch her mobile phone from one network to another must 
alter some information embedded in the device. However, in a 
substantial number of cases those alterations do not appear to 
implicate Section 117 because the elimination and insertion of codes or 
digits, or completely reflashing a phone, cannot be considered an 
infringement of the computer program controlling the device. When 
specific codes or digits are altered to identify the new network to 
which the phone will connect, those minor alterations of data also do 
not implicate any of the exclusive rights of copyright owners. And 
complete reflashing does not even constitute circumvention of an access 
control because it actually deletes the copy of the entire work that 
had been protected by the access control, thereby permanently denying 
access to that work.
    In those cases where more substantial changes must be made to the 
computer program in order to enable use of the mobile phone on another 
network, those changes might implicate the exclusive right to prepare 
derivative works. However, those changes would be privileged under 
Section 117, which permits the making of ``a new copy or adaptation'' 
that is created as an essential step in the utilization of the computer 
program in conjunction with a machine.
    Section 1201(a)(1)(C) factors. As was the case in 2006, the 
Register finds that the four factors enumerated in Section 
1201(a)(1)(C)(i)-(iv) do not weigh either in favor of or against 
designation of the proposed class of works. Moreover, because it 
appears that the opposition to designating the proposed class is based 
primarily on the desires of wireless carriers to preserve an existing 
business model that has little if anything to do with protecting works 
of authorship, it is appropriate to address the additional factor 
(``such other factors as the Librarian considers appropriate'') set 
forth in Section 1201(a)(1)(C)(v). It seems clear that the primary 
purpose of the locks is to keep consumers bound to their existing 
networks, rather than to protect the rights of copyright owners in 
their capacity as copyright owners. This observation is not a criticism 
of the mobile phone industry's business plans and practices, which may 
well be justified for reasons having nothing to do with copyright law 
and policy, but simply a recognition of existing circumstances. Because 
there appear to be no copyright-based reasons why circumvention under 
these circumstances should not be permitted, the Register recommends 
that the Librarian designate a class of works similar to the class 
designated in 2006.
    The Register notes that the 2006 class, and the new one designated 
herein, are both narrow, apply only to claims under Section 1201(a)(1), 
and do not establish a general federal policy of ensuring that 
customers have the freedom to switch wireless communications service 
providers. The designated classes, both new and old, simply reflect a 
conclusion that unlocking a mobile phone to be used on another wireless 
network does not ordinarily constitute copyright infringement and that 
Section 1201(a)(1), a statute intended to protect copyright interests, 
should not be used to prevent mobile phone owners from engaging in such 
noninfringing activity.
    NTIA supported designation of a class similar to the class 
designated in 2006, but proposed that while non-profit entities should 
be permitted to take advantage of the exemption, commercial users 
should not. The Register's recommendation, in contrast, would permit 
some commercial activity, so long as it (1) involves only used 
handsets, (2) is done by the owner of the copy of the computer program, 
and (3) is done ``solely in order to access such a wireless 
telecommunications network and access to the network is authorized by 
the operator of the network.'' The Register believes that these 
limitations ensure that the designation of this class will not benefit 
those who engage in the type of commercial activity that is at the 
heart of the objections of opponents of the proposed class: the ``bulk 
resellers'' who purchase new mobile phone

[[Page 43832]]

handsets at subsidized prices and, without actually using them on the 
networks of the carriers who market those handsets, resell them for 
profit. The type of commercial activity that would be permitted would 
be the resale of used handsets after the owners of the handsets have 
used them and then given or sold them to somebody else, who then 
resells them just as a used bookstore sells used books. The Register 
acknowledges that NTIA's general view that the class should not extend 
to any commercial activity is inconsistent with aspects of the 
Register's recommendation, but believes that to the extent her 
recommendation goes beyond what NTIA was willing to endorse, it does so 
in a way that, in NTIA's words, ``prevents unlawful use by those that 
would misuse the exemption for commercial purposes.''
    However, the applicability of the proposed class to commercial 
recyclers, such as the ones who had proposed the original class of 
works, is limited. When the commercial recycler has made a derivative 
work that is within Section 117's privilege for making ``adaptations,'' 
the recycler is subject to a significant limitation contained within 
Section 117: such adaptations may be transferred only with the 
authorization of the copyright owner. Thus, a recycler who prepares 
such an adaptation may not transfer ownership of the copy of the 
adapted computer program to anybody else without the authorization of 
the copyright owner. On the other hand, a recycler who has not prepared 
an adaptation is free to resell the mobile phone along with the copy of 
the computer program contained within it.
    The new class is also cabined by existing law in two important 
respects. First, as with any regulation under Section 1201(a)(1)(C) and 
(D), the designation of this class offers no safe harbor from liability 
under Section 1201(a)(2) which strictly prohibits an entity from 
offering a circumvention service. Second, a wireless carrier's ``Terms 
of Purchase'' and ``Terms of Service'', which are binding contracts, 
still impose use restrictions on consumers notwithstanding the 
designation of this class. However, the wireless carrier must seek a 
remedy by asserting a claim of breach of contract, and not a claim 
under Section 1201(a)(1).
D. Video games accessible on personal computers and protected by 
technological protection measures that control access to lawfully 
obtained works, when circumvention is accomplished solely for the 
purpose of good faith testing for, investigating, or correcting 
security flaws or vulnerabilities, if:
    The information derived from the security testing is used 
primarily to promote the security of the owner or operator of a 
computer, computer system, or computer network; and
    The information derived from the security testing is used 
or maintained in a manner that does not facilitate copyright 
infringement or a violation of applicable law.
    Professor J. Alex Halderman proposed two classes of works relating 
to investigating and correcting security flaws or vulnerabilities 
created or exploited by technological measures protecting certain kinds 
of works. The Register concludes that Halderman has made the case for a 
class pertaining to video games, but has not made the case for a 
broader class pertaining to literary works, sound recordings and 
audiovisual works.
    In each case, Halderman qualified the scope of the proposed class 
by restricting it to (1) lawfully obtained works protected by access 
control measures that create or exploit security flaws or 
vulnerabilities that compromise the security of personal computers, and 
(2) cases where circumvention is accomplished solely for the purpose of 
good faith testing, investigating, or correcting such security flaws or 
vulnerabilities.
    In the current proceeding, Halderman did not present any evidence 
that the prohibition on circumvention is adversely affecting or is 
likely, in the next three years, to adversely affect the ability to 
engage in noninfringing uses of sound recordings or audiovisual works, 
or of literary works except to the extent that video games may be 
considered, in part, to constitute audiovisual works associated with 
such sound recordings. There is no information in the record that would 
justify again exempting the class designated three years ago.
    However, Halderman did present evidence and legal analysis in 
support of a class of works limited to video games. Under Section 
102(a) of the Copyright Act, video games are ``hybrid'' in that they 
fall within two statutory classes of works. Video games typically are, 
in part, computer programs, which are a subset of the statutory 
category of ``literary works.'' The evidence related to two types of 
access controls applied to video games: Macrovision's SafeDisc software 
and Sony's SecuRom software. Halderman asserted that the measures 
constitute access controls because, in both cases, the measures 
authenticate discs and enforce access policies.
    The alleged underlying noninfringing use involved is two-fold. 
First, purchasers of video games (including researchers) are engaged in 
noninfringing use when they install, access, and play authorized copies 
of such video games while further seeking to protect the security of 
their computers. Second, researchers in lawful possession of copies of 
games are engaged in noninfringing uses when they seek solely to 
research and investigate whether a video game, or the technological 
measure protecting it, creates security vulnerabilities or flaws. 
Professor Halderman asserted that such good faith research that does 
not cause or promote infringement generally constitutes fair use.
    Halderman alleged that SecuROM may create security flaws or 
vulnerabilities. He referred to a number of articles and class action 
lawsuits suggesting that SecuROM may contain flaws or cause 
vulnerabilities. He further stated that a single definitive scientific 
study might quell the ``panic, protests, and litigation'' to ``what may 
turn out to be nonexistent or easily reparable faults.''
    Halderman also alleged that harm is caused by Macrovision's 
SafeDisc. He alleged that SafeDisc was pre-installed on ``nearly every 
copy of the Microsoft Windows XP and Windows 2003 operating systems, 
[and that] the vulnerability affected nearly one billion PCs, two 
thousand times more than the [Sony] rootkit,''`` the security 
vulnerability that serviced as the factual basis for designating a 
class in the last rulemaking. He claimed that the security flaw created 
by SafeDisc was much more dangerous than the Sony rootkit flaw involved 
in the previous rulemaking that concluded in 2006, because this flaw 
allowed attackers to execute unrestricted `kernel-level' code and read 
or write to any area of the hard disk or memory of the PC, thus 
facilitating the complete compromise of the security of the PC.
    Opponents raised three principal arguments against Halderman's 
proposal. First, they argued that he provided little concrete or 
documented evidence that any security flaws or vulnerabilities 
associated with access control mechanisms used in connection with video 
games exist. Second, they argued that there is no evidence that 
research has been chilled, pointing to

[[Page 43833]]

what they called a robust ecosystem within which security experts 
routinely identify such flaws, collaborate on remedies, and disseminate 
information to alert computer users of the problems and them to 
solutions. Third, they argued that Professor Halderman failed to 
establish that the conduct at issue is prohibited by Section 
1201(a)(1), since a statutory exemption (in particular, 17 U.S.C. 
1201(j) might apply to the security research.
    NTIA has advised the Register that he believes the record supports 
designating the requested class relating to video games and other works 
accessible on personal computers. NTIA believed that the proponents 
have ``persuasively argued that without a research exemption, research 
into all current and future vulnerabilities will be and is chilled 
now,'' and concurred with the Librarian's conclusion in 2006 that the 
research may not be covered completely by the existing statutory 
exemptions. NTIA further believes that although the Sony Rootkit 
vulnerability no longer exists, ``it seems to be a certainty that new 
vulnerabilities will emerge in the next three years.''
    Overall, the Register has concluded that the factors set forth in 
17 U.S.C. 107 tend to strongly support a finding that such good faith 
research constitutes fair use. The socially productive purpose of 
investigating computer security and informing the public do not involve 
use of the creative aspects of the work and are unlikely to have an 
adverse effect on the market for or value of the copyrighted work 
itself. The proponents established an underlying noninfringing use.
    The next question is whether the prohibition is causing an adverse 
effect on such noninfringing uses. The record is essentially limited to 
SecuRom and SafeDisc. The evidence relating to SecuRom tends to be 
highly speculative, but Professor Halderman asserted that ``this 
situation has been crying out for an investigation by reputable 
security researchers in order to rigorously determine the nature of the 
problem that this system cause[s], and dispel this uncertainty about 
exactly what's going on.'' He believed that the prohibition on 
circumvention is at least in part to blame for the lack of rigorous, 
independent analysis.
    In contrast to SecuROM, SafeDisc has created a verifiable security 
vulnerability on a large number of computers. Opponents of the proposed 
class did not dispute that SafeDisc created a security vulnerability, 
but they argued that the security flaw was patched by Microsoft in 
2007, without the need of an exemption. However, SafeDisc was pre-
loaded on nearly every copy of Microsoft's Windows XP and Windows 2003 
operating systems and was on the market for over six years before a 
security researcher discovered malware exploiting the security. The 
vulnerability had the capacity to affect nearly one billion PCs.
    The record supports the conclusion that since the 2006 rulemaking, 
substantial vulnerabilities have existed with respect to video games - 
certainly with respect to SafeDisc and possibly with respect to 
SecuROM. Within the same class of works, security researchers have 
proposed investigation of unconfirmed allegations of security 
vulnerabilities on another technological protection measure (SecureROM) 
that protects access, but have expressed unwillingness to do so without 
clear legal authority. Aggregating the evidentiary record, the 
proponents have shown that they need to be able to fix flaws that are 
identified in this class of works and they need to be able to 
investigate other alleged security vulnerabilities in this class.
    Opponents argued that there may be no need to designate a class in 
this proceeding because circumvention may already be excused pursuant 
to Section 1201(j), which provides an exemption for security testing. 
However, the Register has concluded, as she did three years ago, that 
it is unclear whether Section 1201(j) applies in cases where the person 
engaging in security testing is not seeking to gain access to, in the 
words of Section 1201(j), ``a computer, computer system, or computer 
network.'' Therefore, it is appropriate to designate a class of works 
in this proceeding.
    Section 1201(j) does, however, influence both the decision to 
recommend designation of a class and the decision on how to fashion the 
class. Section 1201(j) is evidence of Congress's general concern to 
permit circumvention under appropriate circumstances for purposes of 
security testing, and it also is evidence of the conditions Congress 
believes should be imposed on those who take advantage of an exemption 
for security testing. Accordingly the Register recommends that the 
Librarian designate a class of video games protected by access 
controls, when circumvention is done for the purpose of good faith 
testing for, investigating, or correcting security flaws or 
vulnerabilities. Further refinements to the class include a requirement 
that the information derived from the testing be used primarily to 
promote the security of the owner or operator of a computer, computer 
system, or computer network; and a requirement that that information be 
used or maintained in a manner that does not facilitate copyright 
infringement or a violation of applicable law.
E. Computer programs protected by dongles that prevent access due to 
malfunction or damage and which are obsolete. A dongle shall be 
considered obsolete if it is no longer manufactured or if a replacement 
or repair is no longer reasonably available in the commercial 
marketplace.
    Three years ago, the Librarian designated the above-referenced 
class of works, which is similar to classes of works designated in each 
of the previous rulemakings. In the current proceeding the proponent of 
that class, Joseph V. Montoro, Jr., on behalf of Spectrum Software, 
Inc., has proposed an expanded class of works related to dongles. 
Dongles are a type of hardware that attach to either the printer port 
or the USB port of a computer in order to make secured software 
function. Montoro stated that dongles are sold along with certain types 
of software and are necessary for the user to access that software on a 
computer. He further explained that in order for the dongle to operate 
properly, the operating system must support the hardware and the 
required device driver must be installed. Montoro submitted that there 
are four situations where an exemption is necessary to rectify actual 
harm: (1) when dongles become obsolete; (2) when dongles fail; (3) 
where there are incompatibilities between the dongle and the operating 
system, and (4) where there are incompatibilities between the dongle 
and certain hardware. Montoro had stressed that his proposal is as much 
about the computer ecosystem as it is about dongles, in particular. He 
said that it is important to realize that the dongle, the operating 
system software and the computer hardware work in tandem and that the 
proposed class necessarily covers all of these parts.
    Representatives of the computer software industry stated that they 
do not oppose renewing the existing class of works, but object to 
expanding it beyond its current terms.
    As in 2006, the Register finds that the case has been made for 
designation of a class of works protected by dongles. Montoro has 
effectively met his burden of proof for a class relating to dongles 
that are malfunctioning or damaged and that are obsolete, a point on 
which there is no disagreement in the record. When the dongle no longer 
functions and is obsolete, there is a substantial adverse effect on 
noninfringing uses because there is no other means to access the

[[Page 43834]]

lawfully acquired software. When a dongle malfunctions or becomes 
obsolete, a person lawfully entitled to access the software should be 
able to rely on self-help if remedial measures are not reasonably 
available in the commercial marketplace. Moreover, the record reveals 
no evidence of harm to the market for, or value of, copyrighted works 
protected by dongles since the designation of the original class of 
works in 2000.
    The class, however, should not include cases where a replacement 
dongle is reasonably available or can be easily repaired. Some 
copyright owners legitimately use dongles to control access to a 
computer program by unauthorized users and are entitled to the full 
benefit of the prohibition as long as reasonable accommodations are 
offered for malfunctioning or damaged dongles. Montoro has not 
demonstrated that the standard previously applied - reasonably 
available in the marketplace - is insufficient to meet the needs of 
users of copyrighted works whose dongles malfunction or are damaged.
    Montoro also argues that the current class should be expanded to 
reach situations involving incompatibility between the dongle and a new 
or upgraded version of an operating system. The Register finds that he 
has failed to submit cogent evidence to support an expanded class in 
this context. A sufficient record would require more detail about the 
precise cause of the problems, the scope of the problem, and the 
noninfringing means available to resolve the problem.
    The evidence presented in the record also does not support 
Montoro's request to expand the class in relation to obsolete hardware, 
specifically parallel ports on computers. While it appears to be the 
case that parallel ports may be obsolescent, there is insufficient 
evidence in the record to support the conclusion that parallel ports 
are currently, or in the next three years will be, obsolete. In order 
to make a case for an expanded class in relation to obsolete hardware, 
Montoro would have to demonstrate that the hardware is, or is likely to 
be, obsolete in the next three year period (either as a pre-installed 
item or as an optional configuration), that the unavailability of this 
obsolete hardware would adversely affect noninfringing uses, and that 
copyright owners are not meeting the legitimate needs of existing 
users.

IV. Other Classes Considered, but Not Recommended

A. Subscription based services that offer DRM-protected streaming video 
where the provider has only made available players for a limited number 
of platforms, effectively creating an access control that requires a 
specific operating system version and/or set of hardware to view 
purchased material; and Motion pictures protected by anti-access 
measures, such that access to the motion picture content requires use 
of a certain platform.
    Two proposals sought designation of classes of works that would 
allow circumvention of technological protection measures in order to 
provide access to motion pictures on platforms other than those 
authorized by content providers or their licensees.
    Megan Carney proposed a class of works in order to allow 
circumvention of DRM-protected streaming videos offered by subscription 
based services, where the provider has made players available only for 
a limited number of platforms. She argued that this restriction of 
viewing options effectively constitutes an access control by requiring 
a specific operating system version and/or set of hardware to view 
purchased material. She sought to use Netflix's ``Watch Instantly'' 
streaming video feature, which installs digital rights management and 
runs only on certain platforms of computer software and hardware. 
``Watch Instantly'' is included, at no charge, in the monthly Netflix 
membership, but Carney said that she is unable to use it because she 
does not own a computer that operates on a compatible platform (PCs 
running Windows or Apple computers with Intel chips). Carney proposed 
that the Librarian designate a class or works in order to allow a user 
in her situation to create a separate program to circumvent the DRM on 
the streaming service system in order to