Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 60398-60405 [2011-25106]

Agencies

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

[Federal Register Volume 76, Number 189 (Thursday, September 29, 2011)]
[Proposed Rules]
[Pages 60398-60405]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-25106]


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LIBRARY OF CONGRESS

Copyright Office

37 CFR Part 201

[Docket No. RM 2011-7]


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

AGENCY: Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for comments.

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SUMMARY: The United States Copyright Office is preparing to conduct 
proceedings in accordance with provisions added by the Digital 
Millennium Copyright Act which provide that the Librarian of Congress, 
upon the recommendation of the Register of Copyrights, 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 1, 
2011. A notice of proposed rulemaking will be published in December 
2011 that will identify proposed classes of works and solicit comments 
on those proposed classes, which will be no later than February 15, 
2012.

ADDRESSES: The Copyright Office strongly prefers that comments be 
submitted electronically. A comment

[[Page 60399]]

page containing a comment form will be posted on the Copyright Office 
Web site at https://www.copyright.gov/1201/comment-forms. The online 
form contains fields for required information including the name and 
organization of the commenter, as applicable, and the ability to upload 
comments as an attachment. To meet accessibility standards, all 
comments must be uploaded in a single file in either the Adobe Portable 
Document File (PDF) format that contains searchable, accessible text 
(not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or 
ASCII text file format (not a scanned document). The maximum file size 
is 6 megabytes (MB). The name of the submitter and organization should 
appear on both the form and the face of the comments. All comments will 
be posted publicly on the Copyright Office Web site exactly as they are 
received, along with names and organizations. If electronic submission 
of comments is not feasible, please contact the Copyright Office at 
202-707-8380 for special instructions. See SUPPLEMENTARY INFORMATION 
section for information about requirements and formats of submissions.

FOR FURTHER INFORMATION CONTACT: David O. Carson, General Counsel, 
Copyright GC/I&R, PO Box 70400, Washington, DC 20024-0400. Telephone: 
(202) 707-8380; telefax: (202) 707-8366.

SUPPLEMENTARY INFORMATION: The United States Copyright Office announces 
the initiation of a rulemaking to determine whether there are any 
classes of copyrighted works for which noninfringing uses are, or in 
the next three years are likely to be, adversely affected by the 
prohibition on circumvention of technological measures that control 
access to copyrighted works. See 17 U.S.C. 1201(a)(1)(C).

1. Mandate for Rulemaking Proceeding

    The Digital Millennium Copyright Act, Public Law 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.
    Subparagraph (C) provides that every three years, the Librarian of 
Congress, upon the recommendation 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 four such determinations. This notice 
announces the commencement of the fifth rulemaking proceeding under 
section 1201(a)(1)(C).
    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, published in the Federal Register October 27, 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, published in the Federal Register 
October 31, 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, published in the Federal Register 
November 27, 2006 (hereinafter Final Reg. 2006). The six exemptions 
established in the third anticircumvention rulemaking remained in 
effect until August 6, 2010. On August 6, 2010, the Librarian of 
Congress published the fourth determination, which will remain in 
effect until the conclusion of the next rulemaking. Exemption to 
Prohibition on Circumvention of Copyright Protection Systems for Access 
Control Technologies, 75 FR 47464, published in the Federal Register 
August 6, 2010 (hereinafter Final Reg. 2010). All four of the previous 
determinations by the Librarian of Congress were made upon the 
recommendation of the Register of Copyrights following extensive 
rulemaking proceedings.

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 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

[[Page 60400]]

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.html#1201]. 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 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. (The meaning of the phrase ``class of works'' is described in 
section E of this Notice of Inquiry.) 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 effect 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

[[Page 60401]]

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 Web site 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.
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    \1\ See infra for a discussion of proposals raised after the 
initial comment period has expired.
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    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 Web site at: https://www.copyright.gov/1201.\2\
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    \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 a 
material is available on the Internet, the comment should identify 
where the material may be found.
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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 possibly 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 2012--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 before 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

[[Page 60402]]

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 three rulemakings, since many of the 
issues which were unsettled at the start of the first rulemaking have 
been addressed and developed in the four 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.
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    \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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    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 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.

[[Page 60403]]

    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 the fourth rulemaking concluded in 2010, similar refinements were 
made to certain classes of works. See 37 CFR 201.40(b)(1), (2), (3), 
and (4).
    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 
wishing to propose a class of works for exemption from the prohibition 
on circumvention. 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. In addition to describing 
the activity, the proponent should provide a factual basis for a 
determination that the technological measure has had or is likely to 
have a substantial adverse effect on noninfringing uses; demonstrating 
only isolated instances of relatively minimal adverse effects is not 
likely to meet the proponent's burden. 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;
    (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 fifth 
triennial rulemaking, the Register shall continue with the procedure 
adopted in the second, third and fourth 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).
    Proponents should present their entire case in their initial 
comments. A proponent of a particular class of works will not be 
permitted to submit an additional comment in support of that class in 
response to the December notice of proposed rulemaking unless, at least 
15 days before the deadline for comments in response to the notice of 
proposed rulemaking, the proponent has submitted a written request for 
permission to submit an additional comment demonstrating good cause to 
permit the submission of the comment, and the Copyright Office has 
approved the submission of the comment. The purpose of this requirement 
is to provide for the orderly presentation of evidence and arguments, 
and to permit both proponents and opponents to present their best 
cases.
    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. The 
legal argument should include an analysis of the factors set forth in 
17 U.S.C. 1201(a)(1)(C), discussed above. 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. 
As noted above, demonstrating only

[[Page 60404]]

isolated instances of relatively minimal adverse effects is not likely 
to meet the proponent's burden.
    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 proposed class of work.
    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 
strongly 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, 
anyone who cannot submit comments electronically may contact the 
Copyright Office at 202-707-8380 for special instructions. Electronic 
comments successfully submitted through the Office's website will 
generate a confirmation receipt to the submitter.

4. Submission of Comments

    The Copyright Office's Web site will contain a submission page at: 
https://www.copyright.gov/1201/comment-forms. Approximately thirty days 
prior to the deadline for submission of comments, the form page will be 
activated on the Copyright Office Web site 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 at a location in California. Commenters 
will also 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).
    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, WordPerfect, 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 possibly the summary of the argument, 
as well as the entire, attached comment document. Only the commenter's 
name is required on the comment document itself and a commenter who 
does not want other personal information posted on the Office's Web 
site 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.
    Comments will be accepted for a period of 30 days, and a form will 
be placed on the Copyright Office Web site 30 days prior to the 
deadline for submission. Initial comments will be accepted from 
November 2, 2011, until December 1, 2011, at 5 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 early in February 2012.

5. Hearings

    As mentioned above, after the conclusion of the comment periods, 
the Register intends to hold public hearings in the Spring. The dates 
and locations of the hearings in, have not yet been determined, 
although at a minimum hearings will be conducted in Washington DC and, 
possibly, in California. A separate notice providing details about 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 2012.
    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 a comment that meets the requirements for initial 
comments set forth in section 3 above. Any person wishing to submit a 
petition should contact the Copyright Office at 202-707-8380 for 
further information on how to submit the petition. Such petitions will 
be granted only when the Office has been satisfied that late submission 
is justified due to exceptional or unforeseen circumstances. 
Exceptional or unforeseen circumstances generally require that the 
proposal be based upon information that did not exist at the time of 
the comment periods. A person wishing to file any other untimely 
submission (e.g., a comment in response to a proposed class of works) 
may also petition the Register to consider such submission, but such 
untimely submissions will be disfavored. The Register will make a 
determination

[[Page 60405]]

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.

    Dated: September 23, 2011.
Maria A. Pallante,
Register of Copyrights.
[FR Doc. 2011-25106 Filed 9-28-11; 8:45 am]
BILLING CODE 1410-30-P