Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 55687-55694 [2014-22082]

Agencies

• Library of Congress
• U.S. Copyright Office

[Federal Register Volume 79, Number 180 (Wednesday, September 17, 2014)]
[Proposed Rules]
[Pages 55687-55694]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-22082]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2014-07]


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

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of inquiry and request for petitions.

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SUMMARY: The United States Copyright Office is initiating the sixth 
triennial rulemaking proceeding under the Digital Millennium Copyright 
Act, concerning possible exemptions to the Act's prohibition against 
circumvention of technological measures that control access to 
copyrighted works. The Copyright Office invites written petitions for 
proposed exemptions from interested parties. Unlike in previous 
rulemakings, the Office is not requesting the submission of complete 
legal and factual support for such proposals at the outset of the 
proceeding. Instead, in this first step of the process, parties seeking 
an exemption may submit a petition setting forth specified elements of 
the proposed exemption, as explained in this notice. After receiving 
petitions for proposed exemptions, the Office will consider the 
petitions, group and/or consolidate related and overlapping proposals, 
and issue a notice of proposed rulemaking setting forth the list of 
proposed exemptions for further consideration. The notice of proposed 
rulemaking will invite full legal and evidentiary submissions and 
provide further guidance as to the types of evidence that may be 
expected or useful vis-[agrave]-vis particular proposals, with the aim 
of producing a well-developed administrative record.
    The Office believes that the adjustments it is making to its 
process, as discussed in this notice, will enhance public understanding 
of the rulemaking process, including its legal and evidentiary 
requirements, and facilitate more effective participation in the 
triennial proceeding.

DATES: Written petitions for proposed exemptions must be received no 
later than November 3, 2014.

ADDRESSES: Each proposal for an exemption should be submitted as a 
separate petition. The Copyright Office strongly prefers that petitions 
for proposed exemptions be submitted electronically. See the 
Supplementary Information section below for information about the 
content and format requirements for petitions. A petition submission 
page and a template petition form will be posted on the Copyright 
Office Web site at https://www.copyright.gov/1201/. To meet 
accessibility standards, all petitions must be uploaded in a single 
file in either the 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. Petitions will be posted publicly on the 
Copyright Office Web site in the form they are received, along with the 
name of the submitter or organization. If electronic submission is not 
feasible, please contact the Copyright Office at 202-707-8350 for 
special instructions.

FOR FURTHER INFORMATION CONTACT: Jacqueline C. Charlesworth, General 
Counsel and Associate Register of Copyrights, by email at 
jcharlesworth@loc.gov or by telephone at 202-707-8350; Sarang V. Damle, 
Special Advisor to the General Counsel, by email at sdam@loc.gov or by 
telephone at 202-707-8350; or Stephen Ruwe, Attorney-Advisor, by email 
at sruwe@loc.gov or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: As contemplated by 17 U.S.C. 1201(a)(1), the 
U.S. Copyright Office is initiating a proceeding 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. The Office invites submission of petitions 
for proposed exemptions, the requirements for which are described in 
part IV.B.1 below.

I. Background

    In 1998, Congress enacted the Digital Millennium Copyright Act 
(``DMCA'') to implement certain provisions of the WIPO Copyright Treaty 
and WIPO Performances and Phonograms Treaty. See generally Public Law 
105-304, 112 Stat. 2860 (1998). The DMCA governs many aspects of the 
digital marketplace for copyrighted works by establishing ``a wide 
range of rules . . . for electronic commerce'' and ``defin[ing] whether 
consumers and businesses may engage in certain conduct, or use certain 
devices, in the course of transacting electronic commerce.'' Report of 
the H. Comm. on Commerce on the Digital Millennium Copyright Act of 
1998, H.R. Rep. No. 105-551, pt. 2, at 22 (1998) (``Commerce Comm. 
Report'').
    Among other things, title I of the DMCA, which added a new chapter 
12 to title 17 of the U.S. Code, prohibits circumvention of 
technological measures employed by or on behalf of copyright owners to 
protect access to their works (also known as ``access controls''). 
Specifically, section 1201(a)(1)(A) provides in pertinent part that 
``[n]o person shall circumvent a technological measure that effectively 
controls access to a work protected under [title 17].'' Under the 
statute, 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.'' 17 U.S.C. 
1201(a)(3)(A). A technological measure that ``effectively controls 
access to a work'' is one that ``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). In enacting this prohibition, 
Congress noted that technological protection measures can ``support new 
ways of disseminating copyrighted materials to users, and to safeguard 
the availability of legitimate uses of those materials by 
individuals.'' Staff of House Comm. on the Judiciary, 105th Cong., 
Section-by-Section Analysis of H.R. 2281 as passed by the United States 
House of Representatives on August 4, 1998, at 6 (Comm. Print 1998) 
(``House Manager's Report'').
    As originally drafted, the prohibition in section 1201(a)(1)(A) did 
not provide for an exemption process.\1\ The House of

[[Page 55688]]

Representatives Commerce Committee was concerned, however, that the 
lack of such an ability to waive the prohibition might undermine the 
fair use of copyrighted works. Commerce Comm. Report at 35-36. The 
Committee acknowledged that the growth and development of the internet 
had had a significant positive impact on the access of students, 
researchers, consumers, and the public at large to information, and 
that a ``plethora of information, most of it embodied in materials 
subject to copyright protection, is available to individuals, often for 
free, that just a few years ago could have been located and acquired 
only through the expenditure of considerable time, resources, and 
money.'' Id. at 35-36. At the same time, the Committee was concerned 
that ``marketplace realities may someday dictate a different outcome, 
resulting in less access, rather than more, to copyrighted materials 
that are important to education, scholarship, and other socially vital 
endeavors.'' Id. at 36. The Committee thus concluded that it would be 
appropriate to ``modify the flat prohibition against the circumvention 
of effective technological measures that control access to copyrighted 
materials, in order to ensure that access for lawful purposes is not 
unjustifiably diminished.'' Id.
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    \1\ The original version of the bill did provide for certain 
permanent exemptions, including for library browsing, reverse 
engineering, and other activities, which were included in section 
1201 as finally enacted. See S. Rep. No. 105-190, at 13-16 (1998).
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    Accordingly, the Commerce Committee proposed a modification of 
proposed section 1201 that it characterized as a `` `fail-safe' 
mechanism.'' Id. The Committee Report noted that ``[t]his mechanism 
would monitor developments in the marketplace for copyrighted 
materials, and allow the enforceability of the prohibition against the 
act of circumvention to be selectively waived, for limited time 
periods, if necessary to prevent a diminution in the availability to 
individual users of a particular category of copyrighted materials.'' 
Id.
    As ultimately enacted, the ``fail-safe'' mechanism in section 
1201(a)(1) directs the Librarian of Congress, pursuant to a rulemaking 
proceeding, to publish any class of copyrighted works for which the 
Librarian has determined that noninfringing uses by persons who are 
users of a copyrighted work are, or are likely to be, adversely 
affected by the prohibition against circumvention in the succeeding 
three-year period, thereby exempting that class from the prohibition 
for that period. See 17 U.S.C. 1201(a)(1). The Librarian's 
determination to grant an exemption is based upon the recommendation of 
the Register of Copyrights. Id. at 1201(a)(1)(C). The Register in turn 
is to consult with the Assistant Secretary for Communications and 
Information of the Department of Commerce, who oversees the National 
Telecommunications and Information Administration (the ``Assistant 
Secretary'').\2\ Id. As explained by the Commerce Committee, ``[t]he 
goal of the proceeding is to assess whether the implementation of 
technological protection measures that effectively control access to 
copyrighted works is adversely affecting the ability of individual 
users to make lawful uses of copyrighted works.'' See Commerce Comm. 
Report at 37.
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    \2\ Exemptions adopted by rule under section 1201(a)(1)(C) apply 
only to the prohibition on the conduct of circumventing 
technological measures that control ``access'' to copyrighted works, 
e.g., decryption or hacking of access controls such as passwords. 
The Librarian of Congress has no authority to adopt exemptions for 
the prohibitions contained in subsections (a)(2) or (b) of section 
1201, which concern trafficking in circumvention tools. See 17 
U.S.C. 1201(a)(1)(E) (``Neither the exception under subparagraph (B) 
from the applicability of the prohibition contained in subparagraph 
(A), nor any determination made in a rulemaking conducted under 
subparagraph (C), may be used as a defense in any action to enforce 
any provision of this title other than this paragraph.''). The 
statute contains exemptions from the trafficking prohibitions for 
certain limited uses, such as reverse engineering or encryption 
research. See 17 U.S.C. 1201(f)(2), (g)(4).
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    In keeping with that goal, the primary responsibility of the 
Register and the Librarian in the rulemaking proceeding is to assess 
whether the implementation of access controls impairs the ability of 
individuals to make noninfringing use of copyrighted works within the 
meaning of section 1201(a)(1). To do this, the Register develops a 
comprehensive administrative record using information submitted by 
interested parties, and makes recommendations to the Librarian 
concerning whether exemptions are warranted based on that record.\3\
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    \3\ See H. R. Rep. No. 105-796, at 64 (1998) (``Conference 
Report'') (``[A]s is typical with other rulemaking under title 17, 
and in recognition of the expertise of the Copyright Office, the 
Register of Copyrights will conduct the rulemaking, including 
providing notice of the rulemaking, seeking comments from the 
public, consulting with the Assistant Secretary for Communications 
and Information of the Department of Commerce and any other agencies 
that are deemed appropriate, and recommending final regulations in 
the report to the Librarian.'').
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    Under the statutory framework, the Librarian, and thus the 
Register, must consider ``(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). As noted above, the Register must also consult 
with the Assistant Secretary, and report and comment on his views, in 
providing her recommendation. Upon receipt of the recommendation, the 
Librarian is responsible for promulgating the final rule setting forth 
any exempted classes of works.
    The Librarian has thus far made five determinations under section 
1201(a)(1) \4\ based upon the recommendations of the Register.\5\ This 
notice announces the commencement of the sixth triennial rulemaking 
under the statutory process.
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    \4\ 77 FR 65260 (Oct. 26, 2012) (``2012 Final Rule''), modified 
by 79 FR 50552 (Aug. 25, 2014) (codified at 37 CFR 201.40); 75 FR 
43825 (July 27, 2010) (``2010 Final Rule''); 71 FR 68472 (Nov. 27, 
2006); 68 FR 62011 (Oct. 31, 2003) (``2003 Final Rule''); 65 FR 
64555 (Oct. 27, 2000).
    \5\ Register of Copyrights, Section 1201 Rulemaking: Fifth 
Triennial Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights (Oct. 
2012) (``2012 Recommendation''); Recommendation of the Register of 
Copyrights in RM 2008-8, Rulemaking on Exemptions from Prohibition 
on Circumvention of Copyright Protection Systems for Access Control 
Technologies (June 11, 2010) (``2010 Recommendation''); 
Recommendation of the Register of Copyrights in RM 2005-11, 
Rulemaking on Exemptions from Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies (Nov. 
17, 2006); Recommendation of the Register of Copyrights in RM 2002-
4, Rulemaking on Exemptions from Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies (Oct. 
27, 2003); 65 FR 64555 (Oct. 27, 2000) (final rule including the 
full text of the Register's recommendation). The final rules and the 
Register's recommendations can be found at www.copyright.gov/1201/.
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II. The Unlocking Consumer Choice and Wireless Competition Act

    Earlier this year, Congress enacted the Unlocking Consumer Choice 
and Wireless Competition Act (``Unlocking Act''), effective as of 
August 1, 2014. Public Law 113-144, 128 Stat. 1751 (2014).\6\ The 
Unlocking Act did three things. First, it changed the existing 
exemption allowing circumvention of technological measures that control 
access to computer programs that enable wireless telephone handsets to 
connect to wireless communication networks--a process commonly known as 
``cellphone unlocking''--by substituting the version of the exemption 
adopted by the Librarian in 2010 \7\ for the narrower

[[Page 55689]]

version adopted in 2012. See Public Law 113-144, sec. 2(a).\8\ The 
language of the Unlocking Act makes clear, however, that the Register 
is to consider any proposal for a cellphone unlocking exemption 
according to the usual process in this triennial rulemaking. See Public 
Law 113-144, sec. 2(c)(2) (referencing the possibility of a new 
cellphone unlocking exemption adopted ``after the date of enactment'' 
of the Unlocking Act); id. sec. 2(d)(2) (``Nothing in this Act alters, 
or shall be construed to alter, the authority of the Librarian of 
Congress under section 1201(a)(1) of title 17, United States Code.'').
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    \6\ Subsequently, the Librarian adopted regulatory amendments to 
reflect the new legislation. See 79 FR 50552 (Aug. 25, 2014) 
(codified at 37 CFR 201.40(b)(3), (c)).
    \7\ Although it commenced in 2008, the fourth triennial 
rulemaking did not conclude until 2010. See 73 FR 79425 (Dec. 29, 
2008); 2010 Final Rule at 43827.
    \8\ The 2010 rule allowed unlocking of cellphones initiated by 
the owner of the copy of the handset computer program in order to 
connect to a wireless network in an authorized manner. 2010 Final 
Rule at 43839. Based on the record in the 2012 rulemaking 
proceeding, the 2012 rule ended the exemption with respect to new 
phones acquired after January 26, 2013 (90 days after the rule went 
into effect), but permitted the unlocking of older, or ``legacy,'' 
phones. 2012 Final Rule at 65263-66. Congress enacted the Unlocking 
Act after public calls for a broader exemption than provided in the 
2012 rule. See We the People, Making Unlocking Cell Phones Legal, 
https://petitions.whitehouse.gov/petition/make-unlocking-cell-phones-legal/1g9KhZG7 (last updated July 25, 2014).
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    Second, the legislation provides that the circumvention permitted 
under the reinstated 2010 exemption, as well as any future exemptions 
to permit wireless telephone handsets or other wireless devices to 
connect to wireless telecommunications networks, may be initiated by 
the owner of the handset or device, by another person at the direction 
of the owner, or by a provider of commercial mobile radio or data 
services to enable such owner or a family member to connect to a 
wireless network when authorized by the network operator. Public Law 
113-144, sec. 2(a), (c). This directive is permanent, and is now 
reflected in the relevant regulations.\9\ Accordingly, circumvention 
under any future ``unlocking'' exemption for wireless telephone 
handsets and other wireless devices adopted by the Librarian may be 
initiated by the persons Congress identified in the Unlocking Act.
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    \9\ See 79 FR at 50554; see also 37 CFR 201.40(c) (``To the 
extent authorized under paragraph (b) of this section, the 
circumvention of a technological measure that restricts wireless 
telephone handsets or other wireless devices from connecting to a 
wireless telecommunications network may be initiated by the owner of 
any such handset or other device, by another person at the direction 
of the owner, or by a provider of a commercial mobile radio service 
or a commercial mobile data service at the direction of such owner 
or other person, solely in order to enable such owner or a family 
member of such owner to connect to a wireless telecommunications 
network, when such connection is authorized by the operator of such 
network.'').
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    Third, the legislation directs the Librarian of Congress to 
consider as part of this next triennial rulemaking proceeding whether 
to ``extend'' the reinstated 2010 cellphone unlocking exemption ``to 
include any other category of wireless devices in addition to wireless 
telephone handsets'' based upon the recommendation of the Register of 
Copyrights, who in turn is to consult with the Assistant Secretary. 
Public Law 113-144, sec. 2(b). This provision does not alter or expand 
the Librarian's authority to grant exemptions under section 1201(a)(1), 
but merely directs the Librarian to exercise his existing regulatory 
authority to consider the adoption of an exemption for other wireless 
devices. Accordingly, as part of this rulemaking, the Copyright Office 
is soliciting and will consider proposals for one or more exemptions to 
allow unlocking of wireless devices other than wireless telephone 
handsets.
    The Office invites petitions regarding other wireless devices with 
the caveat that the proposals should be made with an appropriate level 
of specificity. The evaluation of whether an exemption would be 
appropriate under section 1201(a)(1)(C) is likely to be different for 
different types of wireless devices, requiring distinct legal and 
evidentiary showings. Thus, a petition proposing a general exemption 
for ``all wireless devices'' or ``all tablets'' could be quite 
difficult to support, in contrast to a petition that focuses on 
specific categories of devices, such as all-purpose tablet computers, 
dedicated e-book readers, mobile ``hotspots,'' smart watches with 
mobile data connections, etc.

III. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary 
requirements for the section 1201 rulemaking proceeding. Participants 
in the proceeding are encouraged to familiarize themselves with these 
requirements, which are summarized below, so they can maximize the 
effectiveness of their submissions.

A. Burden of Proof

    Those who seek an exemption from the prohibition on circumvention 
bear the burden of establishing that the requirements for granting an 
exemption have been satisfied. In enacting the DMCA, Congress explained 
that that ``prohibition [of section 1201(a)(1)] is presumed to apply to 
any and all kinds of works'' until the Librarian determines that the 
requirements for the adoption of an exemption have been met with 
respect to a particular class of works. Commerce Comm. Report at 37. In 
other words, the prohibition against circumvention applies unless and 
until the Librarian determines that ``persons who are users of a 
copyrighted work are, or are likely to be in the succeeding 3-year 
period, adversely affected by the prohibition . . . in their ability to 
make noninfringing uses under this title of a particular class of 
copyrighted works.'' 17 U.S.C. 1201(a)(1)(C). This approach is also 
consistent with general principles of agency rulemaking under the 
Administrative Procedure Act (``APA'').\10\ See 5 U.S.C. 556(d) 
(``Except as otherwise provided by statute, the proponent of a rule or 
order has the burden of proof.'').
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    \10\ Congress indicated that the rulemaking under section 
1201(a)(1) should be conducted ``as is typical with other rulemaking 
under title 17.'' Conference Report at 64. Thus, it is appropriate 
to look to the APA, which governs rulemaking under title 17. See 17 
U.S.C. 701(e).
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    To satisfy this burden, as the Copyright Office has previously 
explained, the proponent ``must prove by a preponderance of the 
evidence that the harm alleged is more likely than not.'' 2010 
Recommendation at 10. This requirement stems from the statute, which 
requires a demonstration that users are, or are likely to be adversely 
affected by the prohibition on circumvention. 17 U.S.C. 1201(a)(1)(B) 
(emphases added). The preponderance of the evidence standard conforms 
to basic principles of administrative law. The APA provides that a rule 
may not be issued pursuant to formal agency rulemaking ``except on 
consideration of the whole record or those parts thereof cited by a 
party and supported by and in accordance with the reliable, probative, 
and substantial evidence.'' See 5 U.S.C. 556(d) (emphasis added); see 
also Steadman v. SEC, 450 U.S. 91, 102 (1981) (holding that the APA 
``was intended to establish a standard of proof and that the standard 
adopted is the traditional preponderance-of-the-evidence standard'').

B. De Novo Consideration of Exemptions

    Congress made clear in enacting the DMCA that the basis for an 
exemption must be established de novo in each triennial proceeding. See 
Commerce Comm. Report at 37 (explaining that for every rulemaking, 
``the assessment of adverse impacts on particular categories of works 
is to be determined de novo.''). As Congress stressed, ``[t]he 
regulatory prohibition [of section 1201(a)(1)] is presumed to apply to 
any and all kinds of works, including those as to which a

[[Page 55690]]

waiver of applicability was previously in effect, unless, and until, 
the [Librarian] makes a new determination that the adverse impact 
criteria have been met with respect to a particular class and therefore 
issues a new waiver.'' Id. (emphases added). Accordingly, the fact that 
an exemption has been previously adopted creates no presumption that 
readoption is appropriate. This means that a proponent may not simply 
rely on the fact that the Register has recommended an exemption in the 
past, but must instead produce relevant evidence in each rulemaking to 
justify the continuation of the exemption.
    That said, however, where a proponent is seeking the readoption of 
an existing exemption, it may attempt to satisfy its burden by 
demonstrating that the conditions that led to the adoption of the prior 
exemption continue to exist today (or that new conditions exist to 
justify the exemption). This could include, for instance, a showing 
that the cessation of an exemption will adversely impact users' ability 
to make noninfringing uses of the class of works covered by the 
existing exemption. Assuming the proponent succeeds in making such a 
demonstration, it is incumbent upon any opponent of that exemption to 
rebut such evidence by showing that the exemption is no longer 
justified.

C. Adverse Effects on Noninfringing Uses

    Proponents who seek to have the Librarian exempt a particular class 
of works from section 1201(a)(1)'s prohibition on circumvention must 
show: (1) That uses affected by the prohibition on circumvention are or 
are likely to be noninfringing; and (2) that as a result of a 
technological measure controlling access to a copyrighted work, the 
prohibition is causing, or in the next three years is likely to cause, 
an adverse impact on those uses. See 17 U.S.C. 1201(a)(1)(B). These 
requirements are explained below. The Register also considers potential 
exemptions under the statutory factors set forth in section 
1201(a)(1)(C), as discussed below.
    Noninfringing Uses. As noted above, Congress believed that it is 
important to protect noninfringing uses. There are several types of 
noninfringing uses that could be affected by the prohibition of section 
1201(a)(1), including fair use (delineated in section 107), certain 
educational uses (section 110), certain uses of computer programs 
(section 117), and others.
    The Register will look to the Copyright Act and relevant judicial 
precedents when analyzing whether a proposed use is likely to be 
noninfringing. A proponent must show more than that a particular use 
could be noninfringing. Instead, the proponent must establish that the 
proposed use is likely to qualify as noninfringing under relevant law. 
As the Register has stated previously, there is no ``rule of doubt'' 
favoring an exemption when it is unclear that a particular use is a 
fair use. See 2012 Recommendation at 7. Rather, the statutory language 
requires that the use is or is likely to be noninfringing, not merely 
that the use might plausibly be considered noninfringing. See 17 U.S.C. 
1201(a)(1)(C). And, as noted above, the burden of proving that a 
particular use is or is likely to be noninfringing belongs to the 
proponent.
    Adverse effects. The second requirement is a showing that users of 
the class of copyrighted works currently are, or are likely in the 
ensuing three-year period to be adversely affected by the prohibition 
against circumvention. 17 U.S.C. 1201(a)(1)(C). In weighing adverse 
effects, the Register must assess, in particular, ``whether the 
prevalence of . . . technological protections, with respect to 
particular categories of copyrighted materials, is diminishing the 
ability of individuals to use these works in ways that are otherwise 
lawful.'' Commerce Comm. Report at 37.
    Congress stressed that the ``main focus of the rulemaking 
proceeding'' should be on whether a ``substantial diminution'' of the 
availability of works for noninfringing uses is ``actually occurring'' 
in the marketplace. House Manager's Report at 6. To prove the existence 
of such existing adverse effects, it is necessary to demonstrate 
``distinct, verifiable and measurable impacts'' occurring in the 
marketplace, as exemptions ``should not be based upon de minimis 
impacts.'' Committee Report at 37. Thus, ``mere inconveniences'' or 
``individual cases'' do not satisfy the rulemaking standard. House 
Manager's Report at 6.
    To the extent that a proponent is relying on claimed future impacts 
rather than existing impacts, the statute requires the proponent to 
establish that such future adverse impacts are ``likely.'' 17 U.S.C. 
1201(a)(1)(B) (emphasis added). An exemption may be based upon 
anticipated, rather than actual, adverse impacts ``only in 
extraordinary circumstances in which the evidence of likelihood of 
future adverse impact during that time period is highly specific, 
strong and persuasive.'' House Manager's Report at 6.
    The proponent must also demonstrate that the technological 
protection measure is the cause of the claimed adverse impact. 
``Adverse impacts that flow from other sources, or that are not clearly 
attributable to implementation of a technological protection measure, 
are outside the scope of the rulemaking.'' Commerce Comm. Report at 37. 
For instance, adverse effects stemming from ``marketplace trends, other 
technological developments, or changes in the roles of libraries, 
distributors or other intermediaries'' are not cognizable harms under 
the statute. House Manager's Report at 6.

D. Statutory Factors

    In conducting the rulemaking, the Librarian must also examine the 
statutory factors listed in section 1201(a)(1)(C). Those factors are: 
``(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). In some cases, weighing these factors requires the 
consideration of the benefits that the technological measure brings 
with respect to the overall creation and dissemination of works in the 
marketplace. As Congress explained, ``the rulemaking proceedings should 
consider the positive as well as the adverse effects of these 
technologies on the availability of copyrighted materials.'' House 
Manager's Report at 6.

E. Defining a Class

    Section 1201(a)(1) specifies that the exemption adopted as part of 
this rulemaking must be defined based on ``a particular class of 
works.'' See 17 U.S.C. 1201(a)(1)(B) (emphasis added). Thus, a major 
focus of the rulemaking proceeding is how to define the ``class'' of 
works for purposes of the exemption. The starting point for any 
definition of a ``particular class'' under section 1201(a)(1) is the 
list of categories appearing in section 102 of title 17, such as 
literary works, musical works, and sound recordings. House Manager's 
Report at 7. But, as Congress made clear, ``the `particular class of 
copyrighted works' [is intended to] be a narrow and focused subset of 
the broad categories of works . . . identified in section 102 of the 
Copyright Act.'' Commerce Comm. Report at 38 (emphasis added). For

[[Page 55691]]

example, while the category of ``literary works'' under section 
102(a)(1) ``embraces both prose creations such as journals, periodicals 
or books, and computer programs of all kinds,'' Congress explained that 
``[i]t is exceedingly unlikely that the impact of the prohibition on 
circumvention of access control technologies will be the same for 
scientific journals as it is for computer operating systems.'' House 
Manager's Report at 7. Thus, ``these two categories of works, while 
both `literary works,' do not constitute a single `particular class' 
for purposes of'' section 1201(a)(1). Id.
    At the same time, Congress emphasized that the Librarian ``should 
not draw the boundaries of `particular classes' too narrowly.'' Id. 
Thus, while the category of ``motion pictures and other audiovisual 
works'' in section 102 ``may appropriately be subdivided, for purposes 
of the rulemaking, into classes such as `motion pictures,' `television 
programs,' and other rubrics of similar breadth,'' Congress made clear 
that it would be inappropriate ``to subdivide overly narrowly into 
particular genres of motion pictures, such as Westerns, comedies, or 
live action dramas.'' Id.
    The determination of the appropriate scope of a ``class of works'' 
recommended for exemption may also take into account the adverse 
effects an exemption may have on the market for or value of copyrighted 
works. 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. But classifying a work solely by 
reference to the medium on which the work appears, or the access 
control measures applied to the work, would be inconsistent with 
Congress' intent in directing the Register and Librarian to define a 
``particular class'' of works.\11\
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    \11\ In the earliest rulemakings, consistent with the records in 
those proceedings, the Register rejected proposals to classify works 
by reference to the type of user or use (e.g., libraries, or 
scholarly research). In the 2006 proceeding, however, the Register 
concluded, based on the record before her, that in appropriate 
circumstances a ``class of works'' that is defined initially by 
reference to a section 102 category of works or subcategory thereof 
may additionally be refined not only by reference to the medium on 
which the works are distributed or particular access controls at 
issue, but also by reference to the particular type of use and/or 
user to which the exemption shall be applicable. The Register 
determined that there was no basis in the statute or in the 
legislative history that required her to delineate the contours of a 
``class of works'' in a factual vacuum. At the same time, tailoring 
a class solely by reference to the use and/or user would be beyond 
the scope of what a ``particular class of works'' is intended to be. 
See 2006 Recommendation at 9-10, 15-20.
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    Ultimately, ``[d]eciding the scope or boundaries of a `particular 
class' of copyrighted works as to which the prohibition contained in 
section 1201(a)(1) has been shown to have had an adverse impact is an 
important issue to be determined during the rulemaking proceedings.'' 
House Manager's Report at 7. Accordingly, the Register will look to the 
specific record before her to assess the proper scope of the class for 
a recommended exemption.

IV. Rulemaking Process

A. Prior Rulemakings

    The administrative process employed in the fifth triennial 
rulemaking largely paralleled that of prior earlier rulemakings. See 
generally 79 FR 60398 (Sept. 29, 2011). First, the Copyright Office 
initiated the rulemaking process by calling for the public to submit 
proposals for exemptions. Id. Notably, the Office required proponents 
to provide complete legal and evidentiary support for their proposals 
at the outset of the rulemaking process, in the proponents' initial 
submissions. See id. at 60403 (stressing that ``[p]roponents should 
present their entire case in their initial comments'' and explaining 
that ``the best evidence in support of an exemption would consist of 
concrete examples or specific instances'' of adverse effects on 
noninfringing uses).\12\ After receiving the initial submissions 
containing the proposed exemptions and posting them on its Web site, 
the Office published a notice of proposed rulemaking describing the 
proposals and inviting interested parties to submit comments both in 
support of and in opposition to those proposals. 76 FR 78866, 78868 
(Dec. 20, 2011) (asking for ``additional factual information that would 
assist the Office in assessing whether a Proposed Class is warranted 
for exemption and, if it is, how such a class already proposed should 
be properly tailored''). The Office then invited reply comments in 
support of and in opposition to the proposed classes, limited to 
addressing the points made earlier in the proceeding. Id. at 78868.
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    \12\ In the fifth triennial rulemaking, the Copyright Office 
provided a mechanism allowing for the submission of untimely 
proposed exemptions based on exceptional or unforeseen 
circumstances. 76 FR 60398 at 60404. However, the revised process 
described herein will make it substantially easier for a party to 
submit a proposal, as it does not require submission of a full-
fledged case at the outset. Thus, the Office is not providing for a 
specific process for untimely petitions. The Office nevertheless 
reserves its ability to exercise discretion to address unanticipated 
concerns as appropriate.
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    After the close of the comment period, the Office held a series of 
public hearings to further explore the proposed exemptions. 77 FR 15327 
(Mar. 15, 2012). The first hearing was a ``technology hearing'' 
conducted in Washington, DC in May 2012, and was limited to 
demonstrations of the ``technologies pertinent to the merits of the 
proposals.'' Id. at 15328.\13\ The Office requested that ``[w]itnesses 
wishing to present demonstrations . . . do so at this hearing rather 
than at the other hearings, in order to permit the other hearings to 
proceed on schedule.'' Id. Following the technology hearing, the Office 
held additional hearings in Los Angeles, California, and Washington, DC 
to hear testimony regarding the exemptions. Id. Those hearings 
``consist[ed] of presentations of facts and legal argument, followed by 
questions from Copyright Office staff.'' Id.
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    \13\ This was the first time in a triennial rulemaking that the 
Office had held a hearing specifically focused on the technologies 
involved.
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    After the hearing, the Office directed specific follow-up questions 
to a number of hearing participants in an effort to address unresolved 
questions regarding the proposed exemptions.\14\ Then, based on the 
resulting record before the Office, and following consideration of the 
Assistant Secretary's views,\15\ the Register provided a recommendation 
to the Librarian as to the classes of works that should be entitled to 
an exemption from section 1201(a)'s prohibition on circumvention.\16\ 
The Librarian, after consideration of that recommendation, adopted a 
final rule announcing the exemptions. 77 FR 65260 (Oct. 26, 2012).
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    \14\ The post-hearing questions and responses can be found on 
the Copyright Office's Web site at https://copyright.gov/1201/2012/responses/.
    \15\ See Letter from Lawrence E. Strickling, Assistant Secretary 
for Communications and Information, U.S. Department of Commerce, to 
Maria Pallante, Register of Copyrights, Sept. 21, 2012, available at 
https://copyright.gov/1201/2012/2012NTIALetter.pdf.
    \16\ The Register's 2012 recommendation can be found at https://
www.copyright.gov/1201/2012/
Section1201Rulemaking2012Recommen
dation.pdf.
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B. Sixth Triennial Rulemaking

    The Copyright Office is modifying its administrative process for 
the sixth triennial rulemaking. As in prior rulemakings, the overall 
aim of the process is to create a comprehensive record on which the 
Register can base her recommendation and the Librarian, in turn, can 
adopt final exemptions. The Office believes that the procedural changes 
it is making will further that objective by, among other things, making 
the process more accessible and understandable to the public, allowing 
greater opportunity for participants to coordinate their efforts, 
encouraging

[[Page 55692]]

participants to submit effective factual and legal in support for their 
positions, and reducing administrative burdens on both the participants 
and the Office.
    We describe below the administrative process that will be employed 
for this rulemaking.
1. Petition Phase
    With this notice of inquiry, the Copyright Office is calling for 
the public to submit petitions for proposed exemptions. In a departure 
from prior rulemakings, the Office is not requiring the proponent of an 
exemption to deliver the complete legal and evidentiary basis for its 
proposal with its initial submission. Instead, the purpose of the 
petition is to provide the Office with basic information regarding the 
essential elements of the proposed exemption, both to confirm that the 
threshold requirements of section 1201(a) can be met, and to aid the 
Office in describing the proposal for the next, more substantive, phase 
of the rulemaking proceeding. The petitions should comply with the 
below requirements. To assist participants, the Office has posted a 
recommended template form on its Web site, at https://www.copyright.gov/1201. If there are extenuating circumstances such that a participant 
cannot meet one or more of the requirements, the participant should 
contact the Copyright Office using the above contact information.
    a. Petitions requesting a proposed exemption should be limited to 
five pages in length (which may be single-spaced but should be in at 
least 12-point type).
    b. Petitions should address a single proposed exemption. That is, a 
separate petition must be filed for each proposal. Although a single 
petition may not encompass more than one proposed exemption, the same 
party may submit multiple petitions. The Office will be requiring 
participants in later rounds also to make separate submissions with 
respect to each proposed exemption (or group of related exemptions). 
The Office anticipates that it will receive a significant number of 
submissions, and requiring separate submissions for each proposed 
exemption will help both participants and the Office keep better track 
of the record for each proposed exemption. In the past, submitters 
sometimes combined their views on multiple proposals in a single 
filing, making it difficult and time-consuming for other participants 
and the Office to sort out which arguments and evidence pertained to 
which. Separating the submissions by proposal will allow for more 
focused responses and replies and a clearer record overall.
    The Office also urges submitters to consider the appropriate level 
of specificity for their petitions, including the particular type of 
copyrighted work, and the specific medium or device at issue. For 
instance, as noted above, with respect to petitions to unlock wireless 
devices, the Office encourages participants to submit petitions that 
clearly identify a particular category of device.
    c. The petition should concisely address each of the following 
elements of the proposed exemption, in separate sections as identified 
below, and in the below order, bearing in mind that more complete 
information--including legal and evidentiary support--will be permitted 
in later rounds of submissions.
Petition Requirements
1. Submitter and Contact Information
    The petition should clearly identify the submitter and, if desired, 
a means for others to contact the submitter or an authorized 
representative of the submitter by either email or telephone. Petitions 
will be published on the Copyright Office's Web site, and providing 
such contact information in the petition will allow parties with 
aligned interests to more easily coordinate their efforts during later 
stages of the rulemaking should they wish to do so.\17\ The Office 
believes that the opportunity for those with substantially similar 
proposals to combine their efforts with respect to their legal and 
evidentiary submissions may yield a more complete record in some 
cases.\18\ In addition, law clinics and other organizations that may be 
in a position to offer assistance to others will be aware of the 
proposals before full submissions are due.\19\
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    \17\ Note that apart from any contact information set forth in 
the petition itself, the Office requires the provision of certain 
contact information, including name, address, phone number, and 
email address, as part of the electronic submission process so that 
the Office may contact submitters (for example, to confirm receipt 
of the submission). Apart from the name of the submitter, the 
information requested as part of the electronic submitting process 
(as opposed to information contained in the petition) is not posted 
online.
    \18\ Those who oppose exemptions, too, are encouraged to 
coordinate their efforts at the opposition stage if they wish.
    \19\ Parties should keep in mind, however, that any private, 
confidential, or personally identifiable information appearing in 
their petition will be accessible to the public.
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2. Brief Overview of Proposed Exemption
    The submitter should provide a brief statement describing the 
overall proposed exemption (ideally in one to three sentences), 
explaining the type of copyrighted work involved, the technological 
protection measure (``TPM'') (or access control) sought to be 
circumvented, and any limitations or conditions that would apply (e.g., 
a limitation to certain types of users or a requirement that the 
circumvention be for a certain purpose). While the petition may seek to 
propose precise regulatory language for the exemption, it need not do 
so. The petition should focus instead on providing a clear description 
of the specific elements of the proposed exemption. The Office notes 
that the specific language for the regulation that the Office 
ultimately recommends to the Librarian will necessarily be tied to the 
full record at the end of the proceeding. Thus, at the petition phase, 
particularized regulatory language matters less than the substance of 
the proposal.
3. Copyrighted Works Sought to be Accessed
    The petition must identify the specific class, or category, of 
copyrighted works that the proponent wishes to access through 
circumvention. The works identified should reference a category of 
works referred to in section 102 of title 17 (the Copyright Act) (e.g., 
literary works, audiovisual works, etc.). Unless the submitter seeks an 
exemption for an entire category in section 102, the description of 
works should be further refined to identify the particular subset of 
work to be subject to the exemption (e.g., e-books, computer programs, 
or motion pictures) and, if applicable, by reference to the medium or 
device on which the works reside (e.g., motion pictures distributed on 
DVDs).
4. Technological Protection Measure(s)
    The petition should describe the TPM that controls access to the 
work. The submitter does not need to describe the specific technical 
details of the access control measure, but should offer sufficient 
information to allow the Office to understand the basic nature of the 
technological measure and why it prevents open access to the work 
(e.g., the encryption of motion pictures on DVD using the Content 
Scramble System or the cryptographic authentication protocol on a 
garage door opener).
5. Noninfringing Uses
    The petition must also identify the specific noninfringing uses of 
copyrighted works sought to be facilitated by circumvention (e.g., 
enabling accessibility for disabled users, or copying a lawfully owned 
computer program for archival purposes), and the statutory or doctrinal 
basis or bases that

[[Page 55693]]

support the view that the uses are or are likely noninfringing (e.g., 
because it is a fair use under section 107, or a permissible use under 
section 117). The description should include a brief explanation of 
how, and by whom, the works will be used. But while the petition must 
clearly articulate the proposed use and the legal basis for the claim 
that it is noninfringing under current law, it need not provide fully 
developed legal or factual arguments in support of the claim. Such 
arguments and additional legal support can and should be fleshed out in 
the proponents' later submissions.
6. Adverse Effects
    Finally, the petition needs to describe how the inability to 
circumvent the TPM has or is likely to have adverse effects on the 
proposed noninfringing uses (e.g., the TPM prevents connection to an 
alternative wireless communications network or prevents an electronic 
book from being accessed by screen reading software for the blind). The 
description should include a brief explanation of the negative impact 
on uses of copyrighted works. The adverse effects can be current, or 
may be adverse effects that are likely to occur during the next three 
years, or both. Again, while the petition must specifically describe 
the adverse effects of the TPM, it need not provide a full evidentiary 
basis for that claim. Such evidence should be presented during the 
public comment phase of the rulemaking.
    While the Office intends to err on the side of inclusiveness in 
interpreting petitions for proposed exemptions, it reserves the right 
to decline to proceed with further consideration of a proposed 
exemption if the proponent fails to identify the essential elements 
required for an exemption. In addition, if it is apparent from the face 
of the petition that the proposed exemption cannot be granted as a 
matter of law, the Office may decline to further consider the proposal. 
See, e.g., 77 FR 65260 at 65271-72 (concluding that a proposed 
exemption ``to access public domain works'' was beyond the scope of the 
rulemaking proceeding since section 1201's prohibition on circumvention 
applies only to works protected under title 17). Any such 
determinations will be noted in the Federal Register notice announcing 
the proposed exemptions to be considered.
2. Public Comment Phase
    The Copyright Office will study the petitions and publish a notice 
of proposed rulemaking identifying the proposed exemptions and 
initiating three rounds of public comment. The Office plans to 
consolidate or group related and/or overlapping proposed exemptions 
where possible to streamline the rulemaking process and encourage joint 
participation among parties with common interests (though such 
collaboration is not required). As in previous rulemakings, the 
exemptions as described in the notice of proposed rulemaking will 
represent only a starting point for further consideration in the 
rulemaking proceeding, and will be subject to further refinement based 
on the record. See 76 FR 78866, 78868 (Dec. 20, 2011). The notice of 
proposed rulemaking will also provide guidance regarding specific areas 
of legal and factual interest for the Office with respect to each 
proposed exemption, and suggest particular types of evidence that 
participants may wish to submit for the record. In the past, some 
submissions have been lacking in evidentiary support, which is critical 
to the process. The Office hopes that additional guidance as to the 
types of evidence that might be expected or useful vis-[agrave]-vis 
particular proposals will yield a more robust record.
    To ensure a clear and definite record for each of the proposals, as 
noted above, both proponents and opponents are required to provide 
separate submissions for each proposed exemption (or group of related 
exemptions) during each stage of the public comment period. Although 
participants may submit or comment on more than one proposal, a single 
submission may not address more than one exemption. The Office 
acknowledges that this format may require some parties to repeat 
certain general information (e.g., about their organization) across 
multiple submissions, but the Office believes that the administrative 
benefits for both participants and the Office of creating self-
contained, separate records for each proposal will be worth the modest 
amount of added effort involved.
    In an additional departure from past rulemakings, the first round 
of public comment will be limited to submissions from the proponents 
(i.e., those parties that proposed exemptions during the petition 
phase) and other members of the public that support the adoption of a 
proposed exemption, as well as any parties that neither support nor 
oppose an exemption but seek only to share pertinent information about 
a specific proposal. These submissions may suggest refinements to the 
proposed exemptions described in the notice of proposed rulemaking, but 
may not propose entirely new exemptions. The proponents should present 
their entire case for the exemption during this round of public comment 
(other than responding to any opponents), including the complete legal 
and evidentiary basis for the proposal. In the notice of proposed 
rulemaking, the Office will offer additional guidance as to the format 
and content of these submissions, including instructions for providing 
documentary evidence.
    In addition to their primary written submissions, where it may be 
helpful to establishing their case, proponents will have the option of 
submitting multimedia presentations of the proposed noninfringing use, 
adverse effects, and/or other pertinent material. More specific 
guidance with respect to the kinds of demonstrations the Office would 
find useful and the format and method for submitting, as well as the 
means to access such demonstrations, will be provided in the notice of 
proposed rulemaking.\20\
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    \20\ The notice of proposed rulemaking will also provide 
instructions for parties who seek to present demonstrations, but 
lack the means to record them.
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    The second round of public comment will be limited to submissions 
from opponents of the proposed exemptions. These, too, may include 
documentary evidence and/or multimedia presentations submitted in 
accordance with Office guidelines. The third round of public comment 
will be limited to supporters of particular proposals, or parties that 
neither support nor oppose a proposal, in either case who seek to reply 
to points made in the earlier rounds of comments. Reply comments shall 
not raise new issues, but should be limited to addressing arguments and 
evidence presented by others.
3. Public Hearings
    The Copyright Office intends to hold public hearings following the 
last round of public comments. The hearings are expected to be 
conducted in Washington DC and California, although the specific dates 
and locations have not yet been determined. A separate notice providing 
details about the hearings and how to participate will be published in 
the Federal Register. The Office expects to identify specific items of 
inquiry to be addressed during the hearings, and may offer particular 
participants the opportunity to demonstrate technologies that are 
unknown or are unclear to the Office.
4. Post-Hearing Questions
    Following the hearings, the Copyright Office may request additional 
information with respect to particular proposals from parties who have 
been involved in the rulemaking process. While this has been done in 
the past,

[[Page 55694]]

the Office may rely on this process somewhat more in this proceeding to 
the extent it believes it would be useful to provide a final 
opportunity for proponents, opponents or others to supply missing 
information for the record or otherwise resolve issues that the Office 
believes are material to particular exemptions. Such requests for 
responses to questions will take the form of a letter from the 
Copyright Office and will be addressed to individual parties involved 
in the proposal as to which more information is sought. While 
responding to such a request will be voluntary, any response will be 
need to be supplied by a specified deadline. After the receipt of all 
responses, the Office will post the questions and responses on the 
Office's Web site as part of the public record.
5. Recommendation and Final Rule
    Finally, in accordance with the statutory framework, the Register 
will review the record, consult with the Assistant Secretary, and 
prepare a recommendation with proposed regulations for the Librarian. 
See Conference Report at 64. Thereafter, the Librarian will make a 
final determination and publish the exemptions in the Federal Register 
for later codification in title 37 of the CFR 17 U.S.C. 1201(a)(1)(D).
6. Schedule of Proceedings
    As noted above, petitions for proposed rulemaking are due on 
November 3, 2014. After the Office publishes the notice of proposed 
rulemaking, it intends to give proponents at least 45 days to prepare 
and file their evidentiary submissions. The opponents will then have at 
least 45 days to respond, followed by a reply period of at least 30 
days. The Office will provide at least 30 days' notice before the 
public hearings begin. Parties who receive post-hearing questions will 
be given at least 14 days to respond. The precise dates for these 
future aspects of the proceeding will be provided in subsequent Federal 
Register notices.

    Dated: September 11, 2014.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2014-22082 Filed 9-16-14; 8:45 am]
BILLING CODE 1410-30-P