Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 73856-73872 [2014-29237]
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Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9Y, Airspace
Designations and Reporting Points,
dated August 6, 2014, and effective
September 15, 2014 is amended as
follows:
■
Paragraph 6006
Airspace Areas.
En Route Domestic
*
*
*
*
*
AWP NV E6 Coaldale, NV [New]
Coaldale VORTAC, NV
(Lat. 38°00′12″ N., long. 117°46′14″ W.)
That airspace extending upward from
1,200 feet above the surface within an area
bounded by a line beginning at lat. 39°39′28″
N., long. 117°59′55″ W.; to lat. 37°55′11″ N.,
long. 117°53′37″ W.; to lat. 38°13′30″ N.,
long. 117°16′30″ W.; to lat. 38°05′00″ N.,
long. 117°16′00″ W.; to lat. 37°53′00″ N.,
long. 117°05′41″ W.; to lat. 37°33′00″ N.,
long. 117°05′41″ W.; to lat. 37°26′30″ N.,
long. 117°04′33″ W.; to lat. 37°22′00″ N.,
long. 117°00′30″ W.; to lat. 37°12′00″ N.,
long. 117°20′00″ W.; to lat. 37°12′02″ N.,
long. 117°53′49″ W.; to lat. 37°12′00″ N.,
long. 118°35′00″ W.; to lat. 36°08′00″ N.,
long. 118°35′00″ W.; to lat. 36°08′00″ N.,
long. 118°52′00″ W.; to lat. 37°47′57″ N.,
long. 120°22′00″ W.; to lat. 38°53′30″ N.,
long. 119°49′00″ W.; thence to the point of
beginning.
Issued in Seattle, Washington, on
December 2, 2014.
Clark Desing,
Manager, Operations Support Group, Western
Service Center.
[FR Doc. 2014–29184 Filed 12–11–14; 8:45 am]
BILLING CODE 4910–13–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2014–07]
Exemption to Prohibition on
Circumvention of Copyright Protection
Systems for Access Control
Technologies
U.S. Copyright Office, Library
of Congress.
ACTION: Notice of proposed rulemaking.
rljohnson on DSK3VPTVN1PROD with PROPOSALS
AGENCY:
The United States Copyright
Office is conducting the sixth triennial
rulemaking proceeding under the Digital
Millennium Copyright Act (‘‘DMCA’’)
concerning possible exemptions to the
DMCA’s prohibition against
circumvention of technological
SUMMARY:
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measures that control access to
copyrighted works. On September 17,
2014, the Office published a Notice of
Inquiry requesting petitions for
proposed exemptions, and it has
received forty-four petitions in
response. With this Notice of Proposed
Rulemaking, the Office is initiating
three rounds of public comment on
exemptions proposed in the petitions.
Interested parties are invited to make
full legal and evidentiary submissions
in support of or opposition to the
proposed exemptions, in accordance
with the requirements set forth below.
The Office is providing a ‘‘long
comment’’ form for this purpose. The
Office is also offering members of the
public the opportunity to express
general support for or opposition to any
of the proposals via a ‘‘short comment’’
form. Commenters should carefully
review the legal and evidentiary
standards for the granting of exemptions
under the DMCA, which are set forth in
the September Notice of Inquiry.
Commenters should also review the
guidance provided in this document
regarding specific areas of legal and
factual interest with respect to each
proposed exemption or category of
exemptions, and the types of evidence
that commenters may wish to submit for
the record. This document also provides
information concerning the
recommended format and content for
submissions, including documentary
and multimedia evidence.
Initial written comments
(including documentary evidence) and
multimedia evidence from proponents
and other members of the public who
support the adoption of a proposed
exemption, as well as parties that
neither support nor oppose an
exemption but seek to share pertinent
information about a proposal, are due
February 6, 2015. Written response
comments (including documentary
evidence) and multimedia evidence
from those who oppose the adoption of
a proposed exemption are due March
27, 2015. Written reply comments from
supporters of particular proposals and
parties that neither support nor oppose
a proposal are due May 1, 2015.
DATES:
The Copyright Office
strongly prefers that written comments
be submitted electronically using the
comment submission page on the
Copyright Office Web site at https://
www.copyright.gov/1201/. Commenters
are required to provide separate
submissions for each proposed class
during each stage of the public comment
period. Although a single comment may
not encompass more than one proposed
ADDRESSES:
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class, the same party may submit
comments on multiple classes.
As noted, the Office is providing two
comment forms on its Web site: A long
form for those who wish to provide a
full legal and evidentiary basis for their
position in support of or opposition to
a proposed exemption, and a short form
for those who wish briefly to express
general support for or opposition to a
proposed exemption. The formats and
content of these forms are described in
the SUPPLEMENTARY INFORMATION section
below. Long form comments should be
submitted together with any
documentary evidence. To meet
accessibility standards, written
comments and all associated
documentary evidence (but not
multimedia evidence, as discussed
below) must be uploaded in a single file
in either 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 submission form and
the face of the comment.
Commenters submitting long form
comments may also separately submit
multimedia evidence, as further
explained in the SUPPLEMENTARY
INFORMATION section below. Commenters
submitting multimedia evidence should
so indicate on the first page of their
written submission. Multimedia
evidence should not be uploaded via the
Web site; instead, it should be delivered
to the Office, together with a hard copy
of the written comment, on a CD–ROM,
DVD–ROM, or flash drive in one of the
acceptable file formats listed on the
Copyright Office Web site at https://
copyright.gov/eco/help-file-types.html.
The disc or flash drive should be
labeled with the name of the submitter
and the number of the proposed class to
which the evidence pertains. The file
name of each file contained on the disc
or flash drive should consist of the
submitter’s name, followed by the
proposed class number and exhibit
number, in the following format: ‘‘Jane
Smith Class 1 Ex. 1.’’ Multimedia
evidence may be submitted either by
U.S. mail addressed to Copyright Office,
Office of General Counsel, P.O. Box
70400, Washington, DC 20024, or by
hand delivery to Room LM–403 of the
Copyright Office in the James Madison
Memorial Building of the Library of
Congress, 101 Independence Ave. SE.,
Washington, DC 20540. In either case, to
ensure proper delivery, the package
should be clearly labeled ‘‘Attention:
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Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules
Office of General Counsel—Section
1201 Proceeding.’’
All written comments and
documentary evidence will be posted
publicly on the Copyright Office Web
site in the form in which they are
received. Depending upon technological
constraints and other factors, the Office
may also post some or all multimedia
evidence on its Web site, with the
remainder made available for inspection
and copying at the Office upon written
email request to the Office of General
Counsel using the contact information
provided below. If a commenter cannot
meet a particular submission
requirement, the commenter should
contact the Copyright Office using the
contact information provided below.
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, AttorneyAdvisor, by email at sruwe@loc.gov or
by telephone at 202–707–8350.
On
September 17, 2014, the Copyright
Office published a Notice of Inquiry
(‘‘September Notice’’) in the Federal
Register to initiate the sixth triennial
rulemaking proceeding under 17 U.S.C.
1201(a)(1) 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
protection measures (‘‘TPMs’’) that
control access to copyrighted works
(sometimes also referred to as ‘‘access
controls’’).1 The September Notice
invited interested parties to submit
petitions for proposed exemptions that
set forth the essential elements of the
exemption.2
The Office received forty-four
petitions in response to the September
Notice, which are posted on the
Copyright Office Web site.3 With this
Notice of Proposed Rulemaking, the
Office is initiating three rounds of
public written comment regarding the
proposed exemptions.
rljohnson on DSK3VPTVN1PROD with PROPOSALS
SUPPLEMENTARY INFORMATION:
1 79
FR 55687 (Sept. 17, 2014).
at 55692–93.
3 See https://copyright.gov/1201/2014/petitions/.
References to these petitions in this document are
by party name followed by ‘‘Pet.’’ Where a single
party has filed multiple petitions, the reference will
include the party name and a short description of
the relevant proposal (e.g., ‘‘EFF Jailbreaking Pet.’’).
2 Id.
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I. Written Comments
Persons wishing to address proposed
exemptions in written comments should
carefully review the September Notice
to familiarize themselves with the
substantive legal and evidentiary
standards for the granting of an
exemption under section 1201(a)(1).4 In
addressing factual matters, commenters
should be aware that the Office favors
specific, ‘‘real-world’’ examples
supported by evidence over speculative,
hypothetical observations. For example,
a proponent seeking to demonstrate that
a TPM is having or is likely to have
adverse effects should provide detailed
evidence of actual noninfringing uses
that are precluded by the TPM, rather
than conclusory declarations or isolated
harms. Likewise, an opponent seeking
to establish, for instance, that alternative
means of accessing the work obviate the
need for an exemption should provide
specific and detailed evidence of such
alternatives rather than unsupported
assertions.
Commenters’ legal analysis should
explain why the proposal meets or fails
to meet the criteria for an exemption
under section 1201(a)(1), including,
without limitation, why the uses sought
are or are not noninfringing as a matter
of law. The legal analysis should also
identify and discuss statutory or other
legal provisions that could impact the
necessity for or scope of the proposed
exemption (for example, the Unlocking
Consumer Choice and Wireless
Competition Act (‘‘Unlocking Act’’),5 or
17 U.S.C. 117). Legal assertions should
be supported by statutory citations,
relevant case law, and other pertinent
authority.
The Office is accepting comments in
two ways. First, commenters who wish
to provide a legal and evidentiary basis
for their position may submit comments
in a long form format as set forth below.
To assist participants, the Office has
posted a recommended form for such
longer submissions on its Web site at
https://copyright.gov/1201/.
Second, for those commenters who
wish only to briefly express general
support for or opposition to a proposed
exemption, the Office has provided a
short form for single-page comments,
also available at https://copyright.gov/
1201/, which may be completed and
uploaded to the Office’s Web site.
The deadlines for each round of
submissions are set forth in the DATES
section above. Commenting parties
should be aware that rather than reserve
time for potential extensions of time to
file comments, the Office has already
established what it believes to be the
most generous possible deadlines
consistent with the goal of concluding
the triennial proceeding in a timely
fashion.
To ensure a clear and definite record
for each of the proposals, as explained
in the September Notice, both long form
and short form commenters are required
to provide a separate submission for
each proposed class during each stage
of the public comment period. Although
a single comment may not address more
than one proposed class, the same party
may submit multiple written comments
on different proposals. For example, a
commenter may not submit a single
comment addressing both Class 7 and
Class 8, but may submit two comments
addressing each separately. The Office
acknowledges that the requirement of
separate submissions may require
commenters to repeat certain
information across multiple
submissions, but the Office believes that
the administrative benefits for both
participants and the Office of creating a
self-contained, separate record for each
proposal will be worth the modest
amount of added effort.6
The first round of public comment is
limited to submissions from the
proponents (i.e., those parties who
proposed exemptions during the
petition phase) and other members of
the public who support the adoption of
a proposed exemption, as well as any
members of the public who neither
support nor oppose an exemption but
seek only to share pertinent information
about a specific proposal.7 Proponents
of exemptions—as well as supporters—
should present their complete
affirmative case for an exemption during
the initial round of public comment,
including all legal and evidentiary
support for the proposal. Those who
neither support nor oppose an
exemption but seek to offer relevant
evidence in response to a proposal
should also file comments in the initial
round.
Members of the public who oppose an
exemption should present the full legal
and evidentiary basis for their
opposition in the second round of
public comment.
The third round of public comment
will be limited to proponents and
supporters of particular proposals, and
those who neither support nor oppose a
proposal, in either case who seek to
reply to points made in the earlier
6 See
4 79
FR at 55689–91.
5 Pub. L. 113–144, sec. 2(b)–(c), 128 Stat. 1751,
1751–52 (2014).
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79 FR at 55692.
submissions may suggest refinements to
the proposed exemptions, but may not propose
entirely new exemptions.
7 These
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rounds of comments. Reply comments
should not raise new issues, but should
instead be limited to addressing
arguments and evidence presented by
others.
Parties seeking to make submissions
who believe they cannot adhere to the
guidelines set forth in this notice should
contact the Office, using the contact
information above, to discuss their
concern.
Long Form Comment Guidelines
Commenters who wish to submit long
form comments are strongly encouraged
to use the long comment form template
available on the Office’s Web site at
https://copyright.gov/1201/. Long form
comments should be limited to 25 pages
in length (which may be single-spaced
but should be in at least 12-point type),
not including any documentary
evidence attached to the comment.
Proponents’ initial comments should,
at a minimum, address the below points
in separately labeled sections, as
indicated below and set forth on the
long comment form template. Others
who wish to provide a legal and/or
evidentiary submission in support of or
in opposition to an exemption should
follow the same format, as should those
submitting reply comments. While, as
noted, proponents should complete
each portion of the long form in making
their initial submission, other
commenters (including reply
commenters) may note ‘‘N/A’’ in any
substantive section of the template that
they do not wish to complete.
• Commenter Information. Identify
the commenter, and, if desired, provide
a means for others to contact the
submitter or an authorized
representative of the submitter by email
and/or telephone. (Parties should keep
in mind that any private, confidential,
or personally identifiable information
appearing in their submissions will be
accessible to the public.)
• Proposed Class Addressed. Identify
the proposed exemption the comment
addresses by the number and name of
the class set forth in this Notice of
Proposed Rulemaking (e.g., ‘‘Proposed
Class 7: Audiovisual works—
noncommercial remix videos).
• Overview. Provide a brief, general
explanation of the circumvention
activity sought to be exempted or
opposed and why.
• Technological Protection
Measure(s) and Method(s) of
Circumvention. Describe the TPM(s)
that control access to the work and
method(s) of circumvention. The
description should provide sufficient
information to allow the Office to
understand the nature and basic
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operation of the relevant technologies,
as well as how they are disabled or
bypassed.
• Asserted Noninfringing Use(s).
Explain the asserted noninfringing
use(s) of copyrighted works said to be
facilitated by the proposed exemption.
Commenters should provide an
evidentiary basis to support their
arguments regarding noninfringing uses,
including discussion or refutation of
specific examples of such uses and, if
available, relevant documentary and/or
multimedia evidence. This section
should identify all statutory provisions,
case law, and/or other legal authority
the commenter wishes the Office to
consider in connection with the analysis
of whether the asserted uses are
noninfringing.
• Adverse Effects. Explain whether
the inability to circumvent the TPM(s)
at issue has or is likely to have adverse
effects on the asserted noninfringing
use(s). The adverse effects can be
current, or may be adverse effects that
are likely to occur during the next three
years, or both. Commenters should also
address potential alternatives that
permit users to engage in the asserted
noninfringing use(s) without the need
for circumvention. Commenters should
provide an evidentiary basis to support
their arguments regarding asserted
adverse effects, including discussion or
refutation of specific examples of such
uses and, if available, relevant
documentary or multimedia evidence.
This section should identify all
statutory provisions, case law, and/or
other legal authority the commenter
wishes the Office to consider in
connection with the analysis of the
claimed adverse effects.
• Statutory Factors. Evaluate the
proposed exemption in light of each of
the statutory factors set forth in 17
U.S.C. 1201(a)(1)(C): (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 TPMs applied to
copyrighted works has on criticism,
comment, news reporting, teaching,
scholarship, or research; (iv) the effect
of circumvention of TPMs on the market
for or value of copyrighted works; and
(v) any other factor that may be
appropriate for the Librarian to consider
in evaluating the exemption. This
section should identify all statutory
provisions, case law, and/or other legal
authority the commenter wishes the
Office to consider in connection with
the analysis of these factors.
• Documentary evidence.
Commenters are encouraged to submit
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documentary evidence to support or
illustrate the information and arguments
addressed in the written comments. As
indicated in the ADDRESSES section
above, such documentary evidence must
be attached to the written comment
(though it does not count towards the
25-page limit).
• Multimedia evidence. Commenters
are also encouraged, when feasible, to
submit multimedia evidence to support
or illustrate relevant technologies or
points made in written comments.
Multimedia evidence must be submitted
separately via mail or hand-delivered to
the Office and must be contained on
specified digital media, in an approved
file format, and appropriately labeled, as
described in the ADDRESSES section
above. Where possible and permissible
to post the multimedia submission on a
publicly accessible Web site,
commenters may wish to include a link
to the materials in their comments
(although providing such a link is not a
substitute for the submission of a
physical copy to the Office for inclusion
in the official record). As noted above,
the Office may post some or all
multimedia evidence to its Web site,
depending upon file types and sizes,
overall volume, and other constraints.
To the extent a multimedia submission
is not made available on the Office’s
Web site, the Office will make it
available for public inspection and
copying at the Copyright Office upon
written email request. Copying charges
for multimedia files will be assessed at
the applicable Office rate under 37 CFR
201.3 for copies of the relevant type. If
there are unusual practical or other
constraints that preclude the submission
of multimedia evidence with the initial
written comment, the commenter
should contact the Office at least 21
days before the applicable submission
deadline to discuss whether it would be
appropriate to provide a live
demonstration at the public hearing
and, if so, how any such demonstration
would be captured for the official
record.
Short Form Comment Guidelines
• Commenters who wish to submit a
brief statement in support of or
opposition to a particular proposed
exemption are strongly encouraged to
use the short comment form template
available at https://www.copyright.gov/
1201/. After supplying the Commenter
Information and noting the Proposed
Class Addressed as described above, the
commenter may offer a general
statement of support or opposition.
Short form comment submissions
should not exceed one single-spaced
typed page (in at least 12-point type).
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rljohnson on DSK3VPTVN1PROD with PROPOSALS
II. Review and Classification of
Proposed Exemptions
The Office has reviewed and
classified the proposed exemptions set
forth in the forty-four petitions received
in response to its September Notice, in
some cases combining overlapping or
similar proposed exemptions, and in
other cases subdividing proposals to
allow for a more focused record, as
detailed below.
At the outset, the Office observes that
three of the petitions seek an exemption
that cannot be granted as a matter of
law, as each seeks to permit
circumvention of any and all TPMs
constituting ‘‘DRM’’ 8 with respect to
unspecified types of copyrighted works
for the purpose of engaging in
unidentified personal and/or consumer
uses.9 As the Office explained in its
September Notice, the DMCA provides
that any exemptions adopted as part of
this rulemaking must be defined based
on ‘‘a particular class of works.’’ 10 And,
as legislative history elaborates, ‘‘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.’’ 11 That is because the
purpose of the rulemaking is to ‘‘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.’’ 12
In contrast, the three petitions at issue
seek an exemption for all works in all
media. Moreover, these broad petitions
fail to identify ‘‘distinct’’ and
‘‘measurable’’ impacts on noninfringing
uses as contemplated by the DMCA.13
Because it is apparent that the Office
may not adopt the sweeping type of
exemption proposed by these three
petitions consistent with the standards
8 ‘‘DRM,’’ or digital rights management, is content
protection software intended to prevent
unauthorized redistribution of copyrighted
material. See, e.g., In re Sony BMG Audio Compact
Disc Litig., 429 F. Supp. 2d 1378, 1380 (J.P.M.L.
2006).
9 See Eldridge Alexander Pet. at 1 (asking the
Office to ‘‘add an exemption to the DMCA that
allows for the removal of DRM for personal, legal
uses.’’); Ed Grossheim Pet. at 1 (‘‘If I purchase a
product it should be mine to do with as I choose
without violating copyright.’’); Jeremy Putnam Pet.
at 1 (‘‘I ask that legal exceptions be made for
consumers to remove DRM from all digital content
without repercussion.’’).
10 17 U.S.C. 1201(a)(1)(B) (emphasis added); see
also 79 FR at 55690–91.
11 Report of the H. Comm. on Commerce on the
Digital Millennium Copyright Act of 1998, H.R. Rep.
No. 105–551, pt. 2, at 38 (1992) (emphasis added).
12 Id. at 36 (emphases added).
13 See id. at 37; see also 17 U.S.C. 1201(a)(1)(C).
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of section 1201(a)(1), the Office declines
to put these proposals forward for
public comment.14
The Office has studied the remaining
forty-one proposals and categorized
them into twenty-seven proposed
classes of works. In some cases,
overlapping proposals have been
merged into a single proposed class. In
other cases, individual proposals that
encompass multiple proposed uses have
been subdivided. For administrative
convenience, similar or related classes
have also been grouped into overarching
categories; the Office notes, however,
that it will be considering exemptions
on a class-by-class basis.
The Office further notes that it has not
put forward precise regulatory language
for the proposed classes, because any
specific language for exemptions that
the Register ultimately recommends to
the Librarian will necessarily depend on
the full record developed during this
rulemaking.15 Instead, each proposed
class is briefly described in Part III
below; additional information about the
proposals can be found in the
underlying petitions posted on the
Office’s Web site. As explained in the
September Notice, the proposed classes
as described here ‘‘represent only a
starting point for further consideration
in the rulemaking proceeding, and will
be subject to further refinement based
on the record.’’ 16
In addition, after examining the
petitions, the Office has preliminarily
identified some initial legal and factual
areas of interest with respect to each
proposed class. The Office, accordingly,
offers guidance below concerning legal
and factual issues that commenters may
wish to address in connection with
particular proposals, as well as
particular types of evidence that they
may wish to submit. The Office stresses,
however, that this preliminary guidance
is not exhaustive, and commenters
should consider and offer all legal
argument and evidence they believe
necessary to create a complete record. In
addition, the Office’s early observations
are offered without prejudice to the
Office’s ability to raise other questions
or concerns at later stages of the
proceeding.
III. The Proposed Classes
A. Audiovisual Works on DVD, Blu-Ray,
and Downloaded/Streamed Video
Several petitions seek exemptions for
circumvention of access controls
protecting audiovisual works embodied
on DVDs, on Blu-ray discs, and/or in
14 See
79 FR at 55693.
at 55692.
16 Id. at 55693.
Frm 00007
Fmt 4702
downloaded or streamed videos in
connection with three general categories
of uses—educational uses; derivative
uses; and format and space-shifting.
These proposals raise some shared
concerns, including the impact of TPMs
on the alleged noninfringing uses of
audiovisual works and whether
alternative methods of accessing the
content, such as screen-capture
technology, could alleviate potential
adverse impacts. Nonetheless, the
evidentiary support for these proposed
exemptions is likely to vary according to
the specific formats and proposed uses.
For example, a film studies professor
may have a different need to access
higher-resolution material than a
teacher displaying an excerpt of a
copyrighted work to a kindergarten
class, and distribution standards for
commercial documentary films may
require use of higher-resolution material
than required for use in noncommercial
remix videos. Accordingly, the Office
has further subdivided the three general
categories of uses into more specific
individual classes to permit proponents
to better focus their submissions.
1. Audiovisual Works—Educational
Uses
Multiple petitions seek exemptions
for educational uses of audiovisual
works. The Office notes that prior
rulemakings have granted exemptions
relating to uses of motion picture
excerpts for commentary, criticism, and
educational uses by college and
university faculty and staff and by
kindergarten through twelfth-grade
educators.17 The current petitions
generally seek to readopt those
previously granted exemptions, and
some also seek to expand an exemption
to accommodate additional
technologies, such as Blu-ray discs, or
new users, such as museums, libraries,
or students and faculty participating in
Massive Open Online Courses
(‘‘MOOCs’’).
The Office has identified some legal
and factual issues that appear common
to all of the proposed classes relating to
educational uses of audiovisual works.
In addition to other more specific areas
of concern, for each of these proposals,
the Office encourages commenters, in
the course of detailing how the
proposed exemption meets the legal and
evidentiary requirements of section
1201(a)(1), to also address—including
through the submission of relevant
evidence—the following:
17 37 CFR 201.40(b)(4)–(7) (2013). See 77 FR
65260, 65266–70 (Oct. 26, 2012) (discussing the
most recent prior exemptions).
15 Id.
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• Whether the proposed exemptions
may be limited to ‘‘motion pictures’’ as
defined under the Copyright Act 18 as
opposed to all ‘‘audiovisual works’’ 19 (a
broader category that encompasses, for
example, video games).
• For each type of requested use,
whether circumvention alternatives,
such as licensing or screen-capture
technology, obviate the need for an
exemption.
• Specific examples illustrating the
need for the exemption to extend
beyond DVDs to other formats, such as
Blu-ray discs and TPM-protected
content distributed online.
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(a) Proposed Class 1: Audiovisual
Works—Educational Uses—Colleges
and Universities
This proposed class would allow
college and university faculty and
students to circumvent access controls
on lawfully made and acquired motion
pictures and other audiovisual works for
purposes of criticism and comment.
This exemption has been requested for
audiovisual material made available in
all formats, including DVDs protected
by the Content Scramble System
(‘‘CSS’’), Blu-ray discs protected by the
Advanced Access Content System
(‘‘AACS’’), and TPM-protected online
distribution services.
Professor Peter Decherney, the College
Art Association, the International
Communication Association, and the
Society for Cinema and Media Studies
(collectively referred to here as ‘‘Joint
Educators’’) have filed a petition seeking
adoption of a revised version of the
previously granted exemptions to
permit circumvention of TPMs on
DVDs, Blu-ray discs, and videos
acquired via online distribution
services, for purposes of facilitating
educational uses of motion picture
excerpts at the college and university
level.20
18 ‘‘‘Motion pictures’ are audiovisual works
consisting of a series of related images which, when
shown in succession, impart an impression of
motion, together with accompanying sounds, if
any.’’ 17 U.S.C. 101.
19 ‘‘‘Audiovisual works’ are works that consist of
a series of related images which are intrinsically
intended to be shown by the use of machines or
devices such as projectors, viewers, or electronic
equipment, together with accompanying sounds, if
any, regardless of the nature of the material objects,
such as films or tapes, in which the works are
embodied.’’ Id.
20 Joint Educators propose, in relevant part, the
following regulatory language: ‘‘audiovisual works
embodied in physical media (such as DVDs and
Blu-Ray Discs) or obtained online (such as through
online distribution services and streaming media)
that are lawfully made and acquired and that are
protected by various technological protection
measures, where the circumvention is
accomplished by college and university students or
faculty (including teaching and research
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The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The proposed scope of the
exemption, such as (a) whether it can be
limited to uses requiring close analysis
of the copyrighted work (such as in a
film studies course), as opposed to
general-purpose classroom uses, (b)
whether it needs to extend to Blu-ray in
addition to other formats, and (c)
whether the exemption should be
extended to students in addition to
materials prepared by faculty.
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works.
(b) Proposed Class 2: Audiovisual
Works—Educational Uses—Primary and
Secondary Schools (K–12)
This proposed class would allow
kindergarten through twelfth-grade
educators and students to circumvent
access controls on lawfully made and
acquired motion pictures and other
audiovisual works for educational
purposes. This exemption has been
requested for audiovisual material made
available in all formats, including DVDs
protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected
online distribution services.
Two submitters—Professor Renee
Hobbs and the Library Copyright
Alliance (‘‘LCA’’)—filed petitions
seeking adoption of a revised version of
the previously granted exemption to
permit circumvention of TPMs on
DVDs, Blu-ray discs, and videos
acquired via online distribution
services, for purposes of facilitating
educational uses of motion picture
excerpts by kindergarten through
twelfth grade educators and students.21
assistants).’’ Joint Educators Pet. at 1. See 37 CFR
201.40(b)(4)–(7) (2013); 77 FR at 65266–70.
21 Hobbs proposes ‘‘an exemption that enables
educators and students in grades K–12 . . . to ‘rip’
encrypted or copy-protected lawfully accessed
audiovisual works used for educational purposes.’’
Hobbs Pet. at 1. LCA requests ‘‘renewal of the
exemption granted in the 2012 rulemaking for
motion picture excerpts. The exemption should be
broadened to apply to all storage media, including
Blu-Ray. Further, the exemption for educational
purposes should be expanded to apply to students
in kindergarten through twelfth grade. LCA also
seeks simplification of the exemption so that it
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The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The proposed scope of the
exemption, such as (a) whether it can be
limited to uses requiring close analysis
of the copyrighted work, as opposed to
general-purpose classroom uses, (b)
whether it needs to extend to Blu-ray in
addition to other formats, and (c)
whether it can be limited to materials
prepared by faculty.
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works.
(c) Proposed Class 3: Audiovisual
Works—Educational Uses—Massive
Open Online Courses (‘‘MOOCs’’)
This proposed class would allow
students and faculty participating in
Massive Open Online Courses
(‘‘MOOCs’’) to circumvent access
controls on lawfully made and acquired
motion pictures and other audiovisual
works for purposes of criticism and
comment. This exemption has been
requested for audiovisual material made
available in all formats, including DVDs
protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected
online distribution services.
The Joint Educators petition requests
that any exemption for college and
university faculty and staff include
those participating in MOOCs, a type of
distance education which has become
increasingly popular over the last few
years.22
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
could be readily understood by the authors,
filmmakers, students, and educators it is intended
to benefit.’’ LCA Motion Picture Pet. at 1. See 37
CFR 201.40(b)(4)–(7) (2013); 77 FR at 65266–70.
22 Joint Educators, in relevant part, propose the
following regulatory language: ‘‘audiovisual works
embodied in physical media (such as DVDs and
Blu-Ray Discs) or obtained online (such as through
online distribution services and streaming media)
that are lawfully made and acquired and that are
protected by various technological protection
measures, where the circumvention is
accomplished by . . . students and faculty
participating in Massive Open Online Courses
(MOOCs) for the purpose of criticism or comment.’’
Joint Educators Pet. at 1.
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submission of relevant evidence—the
following:
• The definition of a ‘‘MOOC’’ for
purpose of the proposed exemption,
with reference to the various
distinctions among MOOCs in relation
to the proposed exemption, including
but not limited to (a) courses offered
with free and open content versus
courses that require course materials to
be licensed by users, (b) courses
requiring registration and/or identity
verification versus courses without such
requirements, (c) courses offered for free
versus paid courses, and (d) whether the
provider is a nonprofit or for-profit
entity.
• How the proposed exemption might
affect the market for or value of the
accessed copyrighted works, including
how access to materials resulting from
circumvention of TPMs could be limited
to the intended audience.
• Whether or how the exception in 17
U.S.C. 110(2) for distance education is
relevant the proposed exemption.
• The proposed scope of the
exemption (in light of the proposed
definition of MOOC), including (a)
whether the exemption can be limited to
lower-resolution content, (b) whether it
can be limited to uses requiring close
analysis of the copyrighted work, and
(c) whether it can be limited to materials
prepared by faculty.
(d) Proposed Class 4: Audiovisual
Works—Educational Uses—Educational
Programs Operated by Museums,
libraries, or Nonprofits
This proposed class would allow
educators and learners in libraries,
museums and nonprofit organizations to
circumvent access controls on lawfully
made and acquired motion pictures and
other audiovisual works for educational
purposes. This exemption has been
requested for audiovisual material made
available in all formats, including DVDs
protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected
online distribution services.
Professor Hobbs has proposed that
any exemption for kindergarten through
twelfth-grade educators and students
include ‘‘educators and learners’’ in
libraries, museums, and nonprofit
organizations.23
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
23 Hobbs proposes that the Register recommend
‘‘an exemption that enables . . . educators and
learners in libraries, museum and nonprofit
organizations to ‘rip’ encrypted or copy-protected
lawfully accessed audiovisual works used for
educational purposes.’’ Hobbs Pet. at 1.
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submission of relevant evidence—the
following:
• The proposed scope of the
exemption, such as (a) whether the
exemption can be limited to video
production, film, and media studies
and/or other close analysis of
copyrighted works, (b) whether it can be
limited to lower-resolution media, (c)
the people who would be entitled to use
the exemption, including an
explanation of who would be included
in the proposed categories of
‘‘educators’’ and ‘‘learners,’’ (d) whether
the exemption can be limited to
prepared presentations by museums,
libraries and non-profit entities, and (e)
whether the exemption can be limited to
use and display within physical spaces
as opposed to online use and display.
• How the proposed exemption might
affect the market for or value of the
accessed copyrighted works, including
how access to materials resulting from
circumvention of TPMs could be limited
to the intended users and intended uses.
2. Audiovisual Works—Derivative Uses
Multiple petitions seek exemptions
for derivative uses of audiovisual works,
including for use in multimedia ebooks, in filmmaking, and in noncommercial remix videos. The Office
notes that prior rulemakings have
granted exemptions relating to uses of
motion picture excerpts in
noncommercial videos, documentary
films, and nonfiction multimedia ebooks offering film analysis.24 The
current petitions generally seek to
readopt the most recent previously
granted exemption while expanding its
contours to encompass additional
technologies or types of uses.
The Office has identified some legal
and factual issues that appear common
to all of the proposed classes relating to
derivative uses of audiovisual works. In
addition to other more specific areas of
concern, for each of these proposals, the
Office encourages commenters, in the
course of detailing how the proposed
exemption meets the requirements of
section 1201(a)(1), to address—
including through the submission of
relevant evidence—the following:
• Whether circumvention
alternatives, such as licensing or screencapture technology, would be suitable
for each type of requested use.
• Specific examples illustrating the
need for the exemption to extend
beyond DVDs to other formats, such as
Blu-ray discs and TPM-protected
content distributed online.
24 See 37 CFR 201.40(b)(4)–(7) (2013); 77 FR at
65266–70.
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(a) Proposed Class 5: Audiovisual
Works—Derivative Uses—Multimedia
E-Books
This proposed class would allow
circumvention of access controls on
lawfully made and acquired motion
pictures used in connection with
multimedia e-book authorship. This
exemption has been requested for
audiovisual material made available in
all formats, including DVDs protected
by CSS, Blu-ray discs protected by
AACS, and TPM-protected online
distribution services.
Authors Alliance and Professor
Bobette Buster (collectively referred to
here as ‘‘Authors Alliance’’) seek
adoption of a revised version of the
previously granted exemption for
multimedia e-books, to permit
circumvention of TPMs on DVDs, Bluray discs, and videos acquired via
online distribution services, for
purposes of facilitating uses of motion
picture excerpts in nonfiction
multimedia e-books offering film
analysis.25
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Whether the exemption should be
limited to multimedia e-books
containing film analysis or whether a
broader exemption is warranted.
• Whether and how the need for an
exemption has increased over the last
three years due to ‘‘new authorship
tools, sophisticated digital distribution
networks, and widespread consumer
adoption of e-book readers.’’26
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works.
(b) Proposed Class 6: Audiovisual
Works—Derivative Uses—Filmmaking
Uses
This proposed class would allow
circumvention of access controls on
25 Authors Alliance requests an exemption ‘‘that
permits authors of multimedia e-books to
circumvent Content Scramble System (‘‘CSS’’) on
DVDs, Advanced Access Content System (‘‘AACS’’)
on Blu-ray discs, and encryption and authentication
protocols on digitally transmitted video in order to
make fair use of motion picture content in their ebooks.’’ Authors Alliance Pet. at 2. See 37 CFR
201.40(b)(4)–(7) (2013); 77 FR at 65266–70.
26 See Authors Alliance Pet. at 2.
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works for the sole purpose of extracting
clips for inclusion in noncommercial
videos that do not infringe copyright.
This exemption has been requested for
audiovisual material made available on
DVDs protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected
online distribution services.
Electronic Frontier Foundation
(‘‘EFF’’) and Organization for
Transformative Works (‘‘OTW’’) jointly
seek adoption of a revised version of the
previously granted exemption to permit
circumvention of TPMs on DVDs, Bluray discs, or videos acquired via online
distribution services, for purposes of
facilitating uses of motion picture
excerpts in noncommercial remix
videos.28
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The proposed scope of the
exemption, including whether the
exemption can be limited to: (a)
‘‘Motion pictures’’ as defined under the
Copyright Act rather than extending to
all ‘‘audiovisual works,’’ (b) uses of
short portions or clips of motion
pictures or audiovisual works, (c) uses
for purposes of criticism, comment, or
education, as opposed to other
‘‘noninfringing’’ or ‘‘fair’’ uses, (d)
‘‘noncommercial videos’’ as opposed to
‘‘primarily noncommercial videos,’’ (e)
with respect to works distributed
online, those works that are not readily
available on DVD and/or Blu-ray disc,
and (f) with respect to Blu-ray discs,
those works or content that are not
readily available on DVD.
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
(c) Proposed Class 7: Audiovisual
Works—Derivative Uses—
Noncommercial Remix Videos
rljohnson on DSK3VPTVN1PROD with PROPOSALS
lawfully made and acquired motion
pictures for filmmaking purposes. This
exemption has been requested for
audiovisual material made available in
all formats, including DVDs protected
by CSS, Blu-ray discs protected by
AACS, and TPM-protected online
distribution services.
International Documentary
Association, Film Independent,
Kartemquin Educational Films, Inc., and
National Alliance for Media Arts and
Culture (collectively referred to here as
‘‘IDA’’) seek adoption of a revised
version of the previously granted
exemption to permit circumvention of
TPMs on DVDs, Blu-ray discs, and
videos acquired via online distribution
services, for purposes of facilitating uses
of motion picture excerpts in
documentary films.27
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Whether the proposed exemption
should extend to commercial uses in
fictional (i.e., nondocumentary) films,
including whether such uses could
supplant derivative markets for the
copyrighted works used.
• Whether the exemption can be
limited to use of only short portions or
clips of motion pictures or, if not, the
basis for a broader exemption.
• Specific examples of whether
access to Blu-ray content or other highresolution content is necessary to meet
applicable distribution standards for
documentary and/or fictional
filmmaking.
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works.
28 EFF/OTW filed two petitions which relate to
this class; one for DVD and Blu-ray discs, and one
for online content. The respective petitions seek
exemptions for ‘‘[a]udiovisual works on DVDs and
Blu-Ray discs that are lawfully made and acquired
and that are protected by Digital Rights
Management schemes, where circumvention is
undertaken for the sole purpose of extracting clips
for inclusion in noncommercial videos that do not
infringe copyright’’ and ‘‘[a]udiovisual works that
are lawfully made and acquired via online
distribution services, where circumvention is
undertaken solely for the purpose of extracting clips
for inclusion in noncommercial videos that do not
infringe copyright.’’ See EFF/OTW Disc Remix Pet.
at 1; EFF/OTW Online Remix Pet. at 1. See 37 CFR
201.40(b)(4)–(7) (2013); 77 FR at 65266–70.
This proposed class would allow
circumvention of access controls on
lawfully made and acquired audiovisual
27 IDA requests an exemption for filmmakers who
seek to make fair use in their filmmaking of
copyrighted motion pictures protected by TPMs on
DVDs, Blu-Ray discs, and digitally transmitted
video, such as streaming video, digital downloads,
or transmissions captured on digital video
recorders. IDA Pet. at 2–3. See 37 CFR 201.40(b)(4)–
(7) (2013); 77 FR at 65266–70.
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the marketplace for the accessed
copyrighted works.
3. Proposed Class 8: Audiovisual
Works—Space-Shifting and FormatShifting
This proposed class would allow
circumvention of access controls on
lawfully made and acquired audiovisual
works for the purpose of noncommercial
space-shifting or format-shifting. This
exemption has been requested for
audiovisual material made available on
DVDs protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected
online distribution services.
Public Knowledge filed a petition
seeking an exemption permitting
circumvention of TPMs on DVDs, Bluray discs, and videos acquired via
online distribution services for spaceshifting or format-shifting for personal
use.29 The Office notes that in the 2006
and 2012 triennial rulemakings, the
Librarian rejected proposed exemptions
for space-shifting or format-shifting,
finding that the proponents had failed to
establish under applicable law that
space-shifting is a noninfringing use.30
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Legal and factual bases that
establish that space-shifting and formatshifting are noninfringing fair uses.
• The potential adverse effects likely
to be suffered over the next three years
in the absence of the requested
exemption.
• Evidentiary support for the
contention that the DVD is becoming
obsolete and incompatible with
currently produced computing devices,
and any contention that the same
concern also applies to Blu-ray discs or
downloaded video files.
29 Public Knowledge proposes ‘‘an exemption for
digital rights management-encrypted motion
pictures and other audiovisual works on lawfully
made and lawfully acquired DVDs, Blu-ray discs
(‘BDs’), and downloaded files, when circumvention
is accomplished for the purpose of noncommercial
space shifting of the contained audiovisual
content.’’ Public Knowledge Space-Shifting Pet. at
1. Relatedly, in addition, in the context of a general
objection to digital rights management technology,
Alpheus Madsen has requested an exemption to
allow circumvention of CSS for purposes of playing
DVDs on the Linux Operating System. See Madsen
Pet. at 1.
30 See 77 FR at 65276–77; 71 FR 68472, 68478
(Nov. 27, 2006). The Librarian also previously
declined to adopt an exemption to allow motion
pictures on DVDs to be played on the Linux
operating system. See 68 FR 62011, 62017 (Oct. 31,
2003).
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• The specific TPMs sought to be
circumvented, including whether they
are access or copy controls.
• Whether the proposed exemption
can be limited to ‘‘motion pictures’’ as
defined under the Copyright Act rather
than extending to all ‘‘audiovisual
works.’’
• Whether viable alternatives to
circumvention exist, such as screencapture technology, external drives,
alternative playback devices, online
subscription services, etc.
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B. Literary Works Distributed
Electronically
1. Proposed Class 9: Literary Works
Distributed Electronically—Assistive
Technologies
This proposed class would allow
circumvention of access controls on
lawfully made and acquired literary
works distributed electronically for
purposes of accessibility for persons
who are print disabled. This exemption
has been requested for literary works
distributed electronically, including ebooks, digital textbooks, and PDF
articles.
The American Foundation for the
Blind (‘‘AFB’’) and the American
Council of the Blind (‘‘ACB’’) have
jointly requested renewal of an
exemption allowing accessibility for
persons who are print disabled.31 The
AFB/ACB petition notes that granting
such an exemption has historically been
relatively uncontroversial and that no
one appeared at the 2012 triennial
rulemaking hearing to oppose this
exemption.32
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific evidence relating to
whether and the extent to which the
prohibition on circumvention has or is
likely to have an adverse effect on the
ability of persons who are blind,
visually impaired, or print disabled to
engage in noninfringing uses, such as by
providing a significant representative
sample of titles across various e-book
formats that are otherwise inaccessible.
• Any changed circumstances in the
need for an exemption over the last
31 AFB/ACB request an exemption to allow
‘‘people who are blind, visually impaired, or print
disabled, as well as the authorized entities that
serve them, to circumvent technological protection
measures . . . that prevent or interfere with the use
of assistive technologies with electronically
distributed literary works.’’ AFB/ACB Pet. at 2. See
37 CFR 201.40 (2013); 77 FR at 65262–63.
32 AFB/ACB Pet. at 5.
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three years, including whether previous
similar exemptions have improved
accessibility for persons who are blind,
visually impaired, or print disabled.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works and whether the
market has evolved to enhance
accessibility.
• How accessibility software interacts
with TPMs and e-book technology to
improve accessibility for persons who
are blind, visually impaired, or print
disabled.
• To what extent the ‘‘anti-copying
encryptions’’ mentioned in the petition
can be described as access controls
within the meaning of 1201(a)(1).
2. Proposed Class 10: Literary Works
Distributed Electronically—SpaceShifting and Format-Shifting
This proposed class would allow
circumvention of access controls on
lawfully made and acquired literary
works distributed electronically for the
purpose of noncommercial spaceshifting or format-shifting. This
exemption has been requested for
literary works distributed electronically
in e-books.
Christopher Meadows has requested
an exemption to allow space-shifting
and format-shifting of lawfully
purchased e-books.33 As noted above, in
previous rulemakings, upon
recommendation by the Register, the
Librarian declined to adopt an
exemption for purposes of spaceshifting and format-shifting due to the
lack of legal precedent establishing that
space-shifting and format-shifting are
noninfringing uses.34
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Legal and factual bases that
establish that space-shifting and formatshifting are noninfringing fair uses.
• Existing alternatives in the market,
if any, that may ameliorate potential
adverse effects, such as the extent to
which people can purchase material in
DRM-free formats.
33 Meadows proposes that ‘‘[c]onsumers should
be legally permitted to remove DRM from electronic
books that they have purchased in order to back
them up, read them on other e-book platforms, or
otherwise make section 107 fair use of the
material.’’ Meadows Pet. at 1.
34 See 77 FR at 65276–77; 68 FR at 62015–17; 71
FR at 68478. The Register also declined to
recommend, and the Librarian declined to adopt, an
exemption for creating back-up copies. See 71 FR
at 68479.
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• Evidentiary support for the concern
that e-books distributed by vendors that
have gone out of business will become,
or have become, unreadable due to
TPMs.
• Whether allowing an exemption
could harm the market for e-books,
including e-book subscription and
lending services.
C. Software/firmware That Enable
Devices To Connect to a Wireless
Network That Offers
Telecommunications and/or
Information Services (‘‘Unlocking’’)
The Office has received several
petitions seeking exemptions permitting
the circumvention of access controls on
computer programs that enable wireless
telephone handsets (i.e., cellphones)
and other wireless devices to connect to
a mobile wireless communications
network, for purpose of allowing the
device to connect to an alternate
network. This process is commonly
known as ‘‘unlocking.’’ Consistent with
the Unlocking Act,35 the Office will be
considering whether to grant an
exemption for wireless telephone
handsets and whether to ‘‘extend’’ any
exemption for wireless telephone
handsets to ‘‘any other category of
wireless devices.’’ 36
A few petitions address multiple
types of wireless devices. As the Office
indicated in its September Notice,
however, ‘‘[t]he 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.’’37 For
instance, in past rulemakings,
determining the existence of a
noninfringing use has involved asking
whether the software is owned or
licensed by the owner of the wireless
device.38 The answer to that question
may vary for different types of devices.
In addition, the marketplace for
cellphones and that for, e.g., tablet
computing devices may be quite
different with respect to carrier
subsidies, service commitments,
availability of unlocked devices, and
other factors. These differences
necessarily will impact the factual and
legal analysis. Accordingly, the Office
has categorized the petitions into the
five proposed classes below, with
Proposed Classes 11 through 13 each
covering a specific type of device,
Proposed Class 14 generally covering
35 Pub. L. 113–144, sec. 2(b), 128 Stat. at 1751; see
also 79 FR at 55688 (explaining the Unlocking Act).
36 70 FR at 55689.
37 Id.
38 See, e.g., 77 FR at 65265.
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‘‘wearable’’ wireless devices, and
Proposed Class 15 representing a broad
exemption for all ‘‘consumer
machines.’’ While Proposed Classes 14
and 15 appear challenging because of
the wide range of devices they purport
to cover, the Office hopes to encourage
the creation of an adequate
administrative record for as many types
of devices as possible within the
unlocking category.
The Office has identified some legal
and factual issues that appear common
to all of the proposed classes relating to
unlocking. In addition to other more
specific areas of concern, for each of
these proposals, the Office encourages
commenters, in the course of detailing
how the proposed exemption meets the
requirements of section 1201(a)(1), to
also address—including through the
submission of relevant evidence—the
following:
• Whether an owner of a device at
issue in the class also owns the
firmware and/or software that runs the
device for purposes of 17 U.S.C. 117,
which gives software owners certain
rights to copy and adapt such programs.
In addition, the Office is interested in
the relevance, if any, to the section 117
analysis of section 2(c)(2) of the
Unlocking Act, which provides that the
current cellphone unlocking exemption
and any future unlocking exemptions
may be initiated ‘‘by the owner of any
such handset or other device.’’ 39
• The technical details of how each
type of locking mechanism operates—
e.g., service provider code locks, system
operator code locks, band order locks,
and subscriber identity module locks—
and how those locks are circumvented.
In particular, the Office is interested in
determining with precision the
instances in which unlocking merely
involves changing underlying variables
relied upon by the device firmware, and
those in which unlocking requires
copying or rewriting the firmware itself.
• The Office understands that the
unlocking exemption is aimed at
permitting a device to connect to an
alternative mobile wireless
telecommunications or data network,
such as CDMA, GSM, HSPA+, LTE, or
other similar networks.40 The petitions
use differing terminology to refer to
these networks, including ‘‘wireless
39 Pub. L. 113–144, sec. 2(c)(2), 128 Stat. at 1752
(emphasis added); see also 37 CFR 201.40(c).
40 The Office does not understand the concept of
‘‘unlocking’’ to be relevant to other types of wireless
communications, such as those using the IEEE
802.11 standard employed in Wi-Fi routers, the
Bluetooth standard, or the ANT wireless network
technology, though it invites comment on that issue
to the extent the Office may misunderstand the
proposals.
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communications networks,’’ ‘‘wireless
telecommunications networks,’’
‘‘wireless networks that offer
telecommunications and/or information
services.’’ The Office invites discussion
on what terminology most accurately
describes the networks to which the
proposed unlocking exemptions would
apply.
1. Proposed Class 11: Unlocking—
Wireless Telephone Handsets
This proposed class would allow the
unlocking of wireless telephone
handsets. ‘‘Wireless telephone
handsets’’ includes all mobile
telephones including feature phones,
smart phones, and ‘‘phablets’’ that are
used for two-way voice
communications.
Five parties—Consumers Union,41 the
Competitive Carriers Association
(‘‘CCA’’),42 the Institute of Scrap
Recycling Industries (‘‘ISRI’’),43
Pymatuning Communications
41 Consumers Union’s proposed regulatory
language reads as follows: ‘‘Computer programs, in
the form of firmware or software, that enable a
mobile wireless communications device to connect
to a wireless communications network, when
circumvention is initiated by—(1) the owner of the
device, (2) another person at the direction of the
owner, (3) 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 the device to connect to other
wireless communications networks, subject to the
connection to any such other wireless
communications network being authorized by the
operator of such network. The term ‘mobile wireless
communications device’ means (1) a wireless
telephone handset, or (2) a hand-held mobile
wireless device used for any of the same wireless
communications functions, and using equivalent
technology, as a wireless telephone handset.’’
Consumers Union Pet. at 3.
42 CCA’s proposed regulatory language reads as
follows: ‘‘Computer programs, in the form of
firmware, software, or data used by firmware or
software, that enable wireless handsets to connect
to a wireless network that offers
telecommunications and/or information services,
when circumvention is initiated by the owner of the
device, or by another person at the direction of the
owner of the device, in order to connect to a
wireless network that offers telecommunications
and/or information services, and access to the
network is authorized by the operator of the
network.’’ CCA Cellphone Unlocking Pet. at 1–2.
43 ISRI’s proposed regulatory language reads as
follows: ‘‘Computer programs, in the form of
firmware or software, that enable wireless
telephone handsets to connect to a wireless
telecommunications network, when circumvention,
including individual and bulk circumvention for
used devices, is initiated by the owner of any such
handset, 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, family
member of such owner, or subsequent owner or
purchaser of such handset to connect to a wireless
telecommunications network when such
connection is authorized by the operator of such
network.’’ ISRI Cellphone Unlocking Pet. at 1.
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(‘‘Pymatuning’’),44 and the Rural
Wireless Association (‘‘RWA’’)45—seek,
in essence, renewal of the unlocking
exemption for wireless telephone
handsets (as reinstated by the Unlocking
Act) for another three-year period. Two
of the petitions vary in their particulars,
however. Pymatuning’s proposal is
limited to ‘‘used’’ handsets, but does not
define that term. ISRI asks that the
exemption specifically allow both
‘‘individual and bulk circumvention.’’
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The current cellphone unlocking
policies for all significant wireless
carriers, including (a) whether those
carriers are adhering to mobile wireless
device unlocking guidelines issued by
CTIA-The Wireless Association, (b)
whether, under those policies, a
consumer’s completion of the term of a
service contract, or payment of early
termination fees, affects his or her
ability to unlock a cellphone, and (c) the
extent to which those policies obviate
the need for an exemption.
• The extent to which unlocked
mobile phones are available for
purchase, and whether the availability
of such phones is a viable alternative to
circumvention.
• Whether the exemption should be
limited to ‘‘used’’ handsets, and what
would qualify a handset as ‘‘used.’’
• The practice and market effects of
‘‘bulk circumvention’’ (or unlocking),
and whether the exemption should
address ‘‘bulk circumvention.’’
• Any changed circumstances in the
need for an exemption over the last
three years, including whether any
44 Pymatuning’s proposed regulatory language
reads as follows: ‘‘Computer programs, in the form
of firmware or software, that enable used wireless
telephone handsets and other used wireless
telecommunications devices to connect to a
wireless telecommunications network, when
circumvention is
initiated by the owner of the copy of the
computer program solely in order to connect to a
wireless telecommunications network and access to
the network is authorized by the operator of the
network.’’ Pymatuning Pet. at 2.
45 RWA’s proposal would ‘‘allow for the
circumvention of the technological measures that
control access to Wireless Telephone Handset
software and firmware to allow the owner of a
lawfully acquired handset, or a person designated
by the owner of the lawfully acquired handset, to
modify the device’s software and firmware so that
the wireless device may be used on a
technologically compatible wireless network of the
customer’s choosing when the connection to the
network is authorized by the operator of the
network.’’ See RWA Cellphone Unlocking Pet. at 1–
2.
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viable alternatives to circumvention
have emerged or evolved during this
period.
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for the accessed
copyrighted works.
2. Proposed Class 12: Unlocking—AllPurpose Tablet Computers
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This proposed class would allow the
unlocking of all-purpose tablet
computers. This class would encompass
devices such as the Apple iPad,
Microsoft Surface, Amazon Kindle Fire,
and Samsung Galaxy Tab, but would
exclude specialized devices such as
dedicated e-book readers and dedicated
handheld gaming devices.
The Office received several
petitions—from CCA,46 ISRI,47 and
RWA48—that specifically seek an
exemption to allow the unlocking of allpurpose tablet computers. Two other
petitions—from Consumers Union 49
and Pymatuning 50—seek tablet
46 CCA’s proposed regulatory language reads as
follows: ‘‘Computer programs, in the form of
firmware or software, or data used by firmware or
software, that enable all-purpose tablet computers
to connect to a wireless network that offers
telecommunications and/or information services,
when circumvention is initiated by the owner of the
device, or by another person at the direction of the
owner of the device, in order to connect to a
wireless network that offers telecommunications
and/or information services, and access to the
network is authorized by the operator of the
network.’’ CCA Tablet Unlocking Pet. at 1–2.
47 ISRI’s proposed regulatory language reads as
follows: ‘‘Computer programs, in the form of
firmware or software, that enable all-purpose tablet
computers to connect to a wireless
telecommunications network, when circumvention,
including individual and bulk circumvention for
used devices, is initiated by the owner of any such
tablet, 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, family
member of such owner, or subsequent owner or
purchaser of such tablet to connect to a wireless
telecommunications network when such
connection is authorized by the operator of such
network.’’ ISRI Tablet Unlocking Pet. at 1.
48 RWA’s proposal would ‘‘allow for the
circumvention of the technological measures that
control access to all purpose tablet computer
(‘Tablet’) software and firmware to allow the owner
of a lawfully acquired Tablet, or a person
designated by the owner of the lawfully acquired
Tablet, to modify the device’s software and
firmware so that the wireless device may be used
on a technologically compatible wireless network of
the customer’s choosing, and when the connection
to the network is authorized by the operator of the
network.’’ See RWA Tablet Unlocking Pet. at 1–2.
49 Consumers Union Pet. at 2–3 (‘‘Consumers
Union’s proposed exemption accordingly includes
all hand-held mobile wireless devices that are used
for essentially the same functions and in the same
manner as wireless telephone handsets, including
tablets.’’).
50 Pymatuning Pet. at 2 (stating that because ‘‘the
justifications underlying the [Unlocking] Act also
apply to all portable computers, tablets and other
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exemptions as part of their cellphone
unlocking petitions. Again,
Pymatuning’s proposal is limited to
‘‘used’’ tablets, but does not define that
term, and ISRI asks that the exemption
specifically allow both ‘‘individual and
bulk circumvention.’’
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The definition of ‘‘all-purpose tablet
computer’’ that would govern the
proposed exemption.
• The marketplace for tablets with
mobile data connections, including (a)
any relevant differences between the
marketplace for cellphones and that for
tablets, (b) the extent to which wireless
carriers subsidize consumer purchases
of tablets, and require service
commitments in return, and (c) the
tablet unlocking policies for all
significant wireless carriers, including
the extent to which those policies
obviate the need for an exemption.
• The extent to which unlocked
tablets are available for purchase, and
whether the availability of such tablets
is a viable alternative to circumvention.
• Whether the exemption should be
limited to ‘‘used’’ tablets, and what
would qualify a tablet as ‘‘used.’’
• The practice and market effects of
‘‘bulk circumvention’’ (or unlocking),
and whether the exemption for tablets
should address ‘‘bulk circumvention.’’
3. Proposed Class 13: Unlocking—
Mobile Connectivity Devices
This proposed class would allow the
unlocking of mobile connectivity
devices. ‘‘Mobile connectivity devices’’
are devices that allow users to connect
to a mobile data network through either
a direct connection or the creation of a
local Wi-Fi network created by the
device. The category includes mobile
hotspots and removable wireless
broadband modems.
types of devices that communicate via wireless
telecommunications networks, and that are often
locked much the same as wireless telephone
handsets, Pymatuning requests that the scope of
‘handsets’ be clarified to include all such wireless
telecommunications devices.’’).
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Two petitions—from CCA 51 and
RWA52—seek an exemption to allow the
unlocking of mobile connectivity
devices such as mobile hotspots and
aircards.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The marketplace for mobile
connectivity devices, including (a) any
relevant differences between the
marketplace for cellphones and that for
mobile connectivity devices, (b) the
extent to which wireless carriers
subsidize consumer purchases of such
devices, and require service
commitments in return, and (c) the
unlocking policies for all significant
wireless carriers with respect to mobile
connectivity devices.
• The extent to which unlocked
mobile connectivity devices are
available for purchase, and whether the
availability of such mobile connectivity
devices is a viable alternative to
circumvention.
4. Proposed Class 14: Unlocking—
Wearable Computing Devices
This proposed class would allow the
unlocking of wearable wireless devices.
‘‘Wearable wireless devices’’ include all
wireless devices that are designed to be
worn on the body, including smart
watches, fitness devices, and health
monitoring devices.
51 CCA’s proposed regulatory language reads as
follows: ‘‘Computer programs, in the form of
firmware or software, or data used by firmware or
software, that enable mobile hotspots and MiFi
devices to connect to a wireless network that offers
telecommunications and/or information services,
when circumvention is initiated by the owner of the
device, or by another person at the direction of the
owner of the device, in order to connect to a
wireless network that offers telecommunications
and/or information services, and access to the
network is authorized by the operator of the
network.’’ CCA Mobile Hotspot and MiFi Device
Unlocking Pet., at 2.
52 RWA filed two petitions, one addressed to
mobile broadband wireless modems, and the other
addressed to mobile hotspots. See RWA Mobile
Broadband Wireless Unlocking Pet. at 1–2 (seeking
exemption ‘‘to allow for the circumvention of the
technological measures that control access to the
software and firmware of mobile broadband
wireless modems, which are also known as wireless
air cards (‘Air Card’), to allow the owner of a
lawfully acquired Air Card, or a person designated
by the owner of the lawfully acquired Air Card, to
modify the Air Card’s software and firmware so that
the device may be used on a technologically
compatible wireless network of the customer’s
choosing, and when the connection to the network
is authorized by the operator of the network’’);
RWA Mobile Hotspot Unlocking Pet. at 1–2 (same,
except that it seeks to circumvent access controls
on ‘‘Mobile Wireless Personal Hotspot (‘Mobile
Hotspot’) software and firmware’’).
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CCA 53 and RWA 54 both propose an
exemption to permit unlocking of
wearable mobile wireless devices, a
broad category that would include smart
watches, fitness devices, health
monitoring devices, and perhaps
devices such as Google Glass.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The specific types of devices that
would fall under the proposed
exemption.
• The Office’s understanding is that
most smart watches, and most if not all
fitness and health monitoring devices,
do not employ mobile
telecommunications or data networks
(e.g., HSPA+ or LTE networks) for
wireless connections, but instead use
either Wi-Fi to connect to a local
wireless network, or Bluetooth or ANT
technologies to connect to a smartphone
or computer. The Office is interested in
the extent to which there are wearable
wireless devices that directly connect
with mobile telecommunications or data
networks—and what those devices are—
or whether the exemption seeks to
permit circumvention of access controls
on devices that use Wi-Fi, Bluetooth, or
ANT technologies.
• The marketplace for wearable
computing devices, including (a) the
extent to which wireless carriers
subsidize consumer purchases of such
devices, and require service
commitments in return, and (b) the
unlocking policies for all significant
wireless carriers with respect to
wearable computing devices.
• The extent to which unlocked
devices are available for purchase, and
whether the availability of such devices
is a viable alternative to circumvention.
53 CCA addressed what it called ‘‘consumer
wearables’’ in the course of its broad catch-all
proposal, the remainder of which is addressed in
Proposed Class 15. See CCA Connected Wearables
and Consumer Machines Unlocking Pet. at 1–2.
54 RWA’s proposed exemption would ‘‘allow for
the circumvention of the technological measures
that control access to wearable mobile wireless
device (‘Wearable Wireless Device’) software and
firmware to allow the owner of a lawfully acquired
Wearable Wireless Device, or a person designated
by the owner of the lawfully acquired Wearable
Wireless Device, to modify the device’s software
and firmware so that the Wearable Wireless Device
may be used on a technologically compatible
wireless network of the customer’s choosing, and
when the connection to the network is authorized
by the operator of the network.’’ RWA Wearable
Wireless Device Unlocking Pet. at 1–2. RWA
explains that ‘‘[a] Wearable Wireless Device is a
wearable Internet-connected, voice and touch
screen enabled, mobile wireless computing device
that is designed to be worn on the body, including
but not limited to a smart watch.’’ Id. at 2 n.3.
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5. Proposed Class 15: Unlocking—
consumer machines
This proposed class would allow the
unlocking of all wireless ‘‘consumer
machines,’’ including smart meters,
appliances, and precision-guided
commercial equipment.
CCA has proposed a broad, openended exemption for all ‘‘consumer
machines’’—or ‘‘the ‘Internet of
Things’ ’’—which would encompass a
diverse range of devices and
equipment.55 At least as currently
framed, it appears that it may be
difficult to build an adequate
administrative record for this exemption
in light of the fact-bound analysis
required by section 1201(a)(1). For
example, CCA’s proposal refers to
‘‘precision-guided commercial
equipment’’ but provides no
explanation as to the kind of equipment
to which it refers. The Office invites
commenters to provide targeted
argument and evidence that would
allow the Office to narrow this category
appropriately.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The extent to which devices
understood to be in this class use
mobile telecommunications or data
networks (e.g., HSPA+ or LTE networks)
for wireless connections, rather than
Wi-Fi or Bluetooth, or some other
technology, and whether parties are
seeking to circumvent access controls
on devices that use such other
technologies.
• The extent to which consumers,
rather than the device manufacturer or
some other entity, select and/or pay for
the mobile wireless connection for a
smart meter, an appliance, or a piece of
precision-guided commercial
equipment.
• Specific examples demonstrating
adverse effects stemming from a
55 In relevant part, CCA proposes the following
regulatory language: ‘‘Computer programs, in the
form of firmware or software, or data used by
firmware or software, that enable . . . consumer
machines to connect to a wireless network that
offers telecommunications and/or information
services, when circumvention is initiated by the
owner of the device, or by another person at the
direction of the owner of the device, in order to
connect to a wireless network that offers
telecommunications and/or information services,
and access to the network is authorized by the
operator of the network.’’ CCA Connected
Wearables and Consumer Machines Unlocking Pet.
at 2. CCA states that the ‘‘consumer machines’’
category encompasses ‘‘smart meters, connected
appliances, connected precision-guided commercial
equipment, among others.’’ Id. at 1.
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consumer’s inability to choose the
mobile wireless communications
provider used by a smart meter, an
appliance, or a piece of precisionguided commercial equipment.
D. Software That Restricts the Use of
Lawfully Obtained Software
(‘‘Jailbreaking’’)
The Office received several petitions
for exemptions to allow users to
circumvent TPMs protecting computer
programs in devices such as cellphones,
all-purpose tablets, and smart TVs and
that prevent users from running certain
software on, or removing preinstalled
software from, these devices. This type
of circumvention is commonly referred
to as the ‘‘jailbreaking’’ or ‘‘rooting’’ of
a device, and has been the subject of
proposed classes in the last triennial
rulemaking and earlier proceedings.56
The Office has categorized the proposals
into Proposed Classes 16 through 20,
with each class covering a different type
of device.
The Office has identified some legal
and factual issues that appear common
to all of the proposed classes relating to
jailbreaking. In addition to other more
specific areas of concern, for each of
these proposals, the Office encourages
commenters, in the course of detailing
how the proposed exemption meets the
requirements of section 1201(a)(1), to
also address—including through the
submission of relevant evidence—the
following:
• The extent to which consumers may
legally purchase devices that do not
contain the complained-of access
controls, and whether the availability of
such devices eliminates the need for an
exemption.
• Whether jailbreaking the device
facilitates infringing uses, including
access to or consumption of infringing
content. The Office is particularly
interested in specific examples of
noninfringing versus infringing uses,
and any available evidence regarding
the relative volume of lawful versus
pirated content installed on or
consumed via jailbroken devices, as
well as whether there is a practical way
to segregate lawful from unlawful uses.
1. Proposed Class 16: Jailbreaking—
Wireless Telephone Handsets
This proposed class would permit the
jailbreaking of wireless telephone
handsets to allow the devices to run
lawfully acquired software that is
otherwise prevented from running, or to
56 See, e.g., 77 FR at 65263–64 (wireless telephone
handsets); id. at 65272–76 (video game consoles);
id. at 65274–75 (personal computing devices).
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remove unwanted preinstalled software
from the device.
EFF seeks readoption of an existing
exemption allowing the jailbreaking of
wireless telephone handsets to allow
those devices to interoperate with
lawfully obtained software and to allow
users to remove unwanted preinstalled
software from the device.57
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Whether the previously granted
exemption has had an adverse effect on
the marketplace for wireless telephone
handsets or the applications that run on
them.
• Specific examples of the following:
(a) The manner in which access controls
are being used to prevent installation of
software that competes with software
offered by the device manufacturer, and
(b) ‘‘unwanted software installed by the
manufacturer’’ that ‘‘consumes energy,
shortens the device’s battery life, or
sends personal information to
advertisers’’ that cannot be
uninstalled.58
2. Proposed Class 17: Jailbreaking—AllPurpose Mobile Computing Devices
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This proposed class would permit the
jailbreaking of all-purpose mobile
computing devices to allow the devices
to run lawfully acquired software that is
otherwise prevented from running, or to
remove unwanted preinstalled software
from the device. The category ‘‘allpurpose mobile computing device’’
includes all-purpose non-phone devices
(such as the Apple iPod touch) and allpurpose tablets (such as the Apple iPad
or the Google Nexus). The category does
not include specialized devices such as
e-book readers or handheld gaming
devices, or laptop or desktop computers.
57 EFF’s petition encompassed wireless telephone
handsets and other all-purpose mobile computing
devices. See EFF Jailbreaking Pet. at 1 (suggesting
an exemption for ‘‘[c]omputer programs that enable
mobile computing devices, such as telephone
handsets and tablets, to execute lawfully obtained
software, where circumvention is accomplished for
the sole purposes of enabling interoperability of
such software with computer programs of the
device, or removing software from the device’’).
Proposed Class 16 encompasses EFF’s proposal
with respect to wireless telephone handsets, and
Proposed Class 17 encompasses the remainder of
EFF’s proposal. See 37 CFR 201.40(b)(2) (2013); see
also 77 FR at 65263–64.
58 EFF Jailbreaking Pet. at 4.
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EFF 59 and Maneesh Pangasa 60 seek to
extend any exemption allowing the
jailbreaking of wireless telephone
handsets 61 to other all-purpose mobile
computing devices, including nonphone handheld devices and allpurpose tablets. In the 2012 triennial
rulemaking, the Librarian rejected a
jailbreaking exemption for tablets
because ‘‘the record lacked a sufficient
basis to develop an appropriate
definition for the ‘tablet’ category of
devices, a necessary predicate to
extending the exemption beyond
smartphones.’’ 62 The Librarian
acknowledged, however, that ‘‘[i]n
future rulemakings, as mobile
computing technology evolves, such a
definition may be more attainable.’’ 63
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The specific types of devices that
would be encompassed by the
exemption.
• Whether there are any relevant
differences between wireless telephone
handsets and other all-purpose
computing devices, such as non-phone
handheld computing devices and
tablets, for purposes of analyzing the
proposed exemption.
• Although the EFF’s proposed
exemption encompasses all-purpose
mobile computing devices, it
specifically excludes laptop and
desktop computers.64 The Office is
interested in the rationale for that
exclusion, and how any exemption
would distinguish between those
devices that would fall within the
59 EFF’s petition seeks, in relevant part, the
following proposed class: ‘‘Computer programs that
enable mobile computing devices, such as . . .
tablets, to execute lawfully obtained software,
where circumvention is accomplished for the sole
purposes of enabling interoperability of such
software with computer programs on the device, or
removing software from the device.’’ EFF
Jailbreaking Pet. at 1.
60 Mr. Pangasa’s tablet jailbreaking petition
encompasses two distinct proposals. Pangasa Tablet
Jailbreaking Pet. at 1–4. The Office has consolidated
the portion of Mr. Pangasa’s petition addressing
jailbreaking of general purpose tablets with the
EFF’s proposal in Proposed Class 17. See id. at 1
(‘‘I would like to request an exemption to the Digital
Millennium Copyright Act for jail-breaking or
rooting tablets like the Apple iPad Air & iPad Mini,
Amazon’s Kindle Fire HD, Microsoft Surface line of
tablets (particularly the RT version to install hacks
that permit running desktop applications on RT
devices.’’). Mr. Pangasa’s proposal with respect to
e-book readers is made part of Proposed Class 18.
61 See 37 CFR 201.40(b)(2) (2013).
62 See 77 FR at 65264.
63 Id.
64 See EFF Jailbreaking Pet. at 2.
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exemption and those that would fall
outside it.
• Specific examples of the following:
(a) The manner in which access controls
are being used to prevent installation of
software that competes with software
offered by the device manufacturer, and
(b) ‘‘unwanted software installed by the
manufacturer’’ that ‘‘consumes energy,
shortens the device’s battery life, or
sends personal information to
advertisers’’ that cannot be
uninstalled.65
3. Proposed Class 18: Jailbreaking—
Dedicated E-Book Readers
This proposed class would permit the
jailbreaking of dedicated e-book readers
to allow those devices to run lawfully
acquired software that is otherwise
prevented from running.
Maneesh Pangasa filed a petition that,
in relevant part, seeks an exemption to
allow jailbreaking of dedicated e-book
readers such as Amazon’s Kindle
Paperwhite and Barnes and Noble’s
Nook.66 Mr. Pangasa provided only a
limited explanation of the noninfringing
uses that would be facilitated by
jailbreaking e-book readers, or of the
adverse effects caused by the relevant
access controls. In part, it appears his
concern may be related to the inability
to format-shift or space-shift e-books, a
topic that is addressed in Proposed
Class 10. Mr. Pangasa also makes a
passing reference to enabling ‘‘universal
access functionality’’; the Office notes
that e-book accessibility concerns are
addressed in Proposed Class 9. Reading
the petition generously, Mr. Pangasa
does appear to raise a concern that
dedicated e-readers may not be able to
run lawfully acquired third-party
applications. Accordingly, the Office
has elected to put forward this proposed
class for further comment.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The TPMs that are included with
dedicated e-book readers, and how they
prevent access to the e-book reader’s
firmware or software.
• Specific examples of noninfringing
uses that are facilitated by the
jailbreaking of a dedicated e-book
reader, other than enabling accessibility
for persons who are print disabled.
65 Id.
at 4.
Pangasa Tablet Jailbreaking Pet. at 2–4 (‘‘I
therefore request an exemption to the Digital
Millennium Copyright Act be granted extending the
protections for (class #5) mobile phones to include
. . . dedicated e-readers like the Amazon Kindle.’’).
66 See
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• Whether allowing an exemption
could harm the market for e-books,
including e-book subscription and
lending services.
4. Proposed Class 19: Jailbreaking—
Video Game Consoles
means to limit the exemption to
facilitate noninfringing rather than
infringing conduct.
• Specific evidence regarding the
adverse impact of access controls in
video game consoles on noninfringing
uses, including an explanation of why it
is necessary to employ the console for
particular uses rather than an alternative
device such as a general-purpose
computer.
• Whether allowing an exemption
could harm the market for video game
consoles or video games.
• Whether the Librarian’s analysis
should distinguish between currentgeneration game consoles and older
game consoles and, if so, how.
rljohnson on DSK3VPTVN1PROD with PROPOSALS
This proposed class would permit the
jailbreaking of home video game
consoles. Asserted noninfringing uses
include installing alternative operating
systems, running lawfully acquired
applications, preventing the reporting of
personal usage information to the
manufacturer, and removing region
locks. The requested exemption would
apply both to older and currently
marketed game consoles.
Maneesh Pangasa has proposed an
exemption to permit circumvention of
home video game consoles for an
assortment of asserted noninfringing
uses, including installing alternative
operating systems and removing region
locks.67 In the 2012 triennial
rulemaking, the Librarian rejected a
proposed class seeking an exemption for
jailbreaking of video game consoles.68
Among other things, the Librarian
concluded based on the evidentiary
record that the jailbreaking of video
game consoles ‘‘leads to a higher level
of infringing activity.’’ 69 At the same
time, the Librarian determined that
there was insufficient evidence of
adverse impacts on noninfringing uses,
because the asserted noninfringing uses
were not substantial, and there were
alternative devices that allowed users to
engage in those uses.70
Particularly in light of those earlier
conclusions, the Office encourages
commenters, in the course of detailing
how the proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• The nature of the specific TPMs at
issue and how they operate, and the
particular acts of circumvention
required for the jailbreaking of video
game consoles as sought in the proposal
(including any significant differences
among platforms).
• The relationship between the ability
to jailbreak consoles and the
dissemination and consumption of
pirated content, including any practical
This proposed class would permit the
jailbreaking of computer-embedded
televisions (‘‘smart TVs’’). Asserted
noninfringing uses include accessing
lawfully acquired media on external
devices, installing user-supplied
licensed applications, enabling the
operating system to interoperate with
local networks and external peripherals,
and enabling interoperability with
external devices, and improving the
TV’s accessibility features (e.g., for
hearing-impaired viewers). The TPMs at
issue include firmware encryption and
administrative access controls that
prevent access to the TV’s operating
system.
The Software Freedom Conservancy
(‘‘SFC’’) has proposed an exemption to
permit circumvention of TPMs that
protect access to firmware and software
on ‘‘smart TVs.’’ 71 It asserts that
although modern smart TVs are ‘‘fullfeatured computers,’’ manufacturers
limit their capabilities in a number of
ways. For instance, SFC asserts that
while smart TVs are internet enabled,
they are ‘‘limited to accessing only
services chosen by the manufacturer.’’ 72
In addition, SFC asserts that many TVs
have USB ports that ‘‘can only be used
to install manufacturer-supplied
updates and connect to manufacturersanctioned devices.’’ 73
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
67 Mr. Panagasa seeks an exemption ‘‘for jailbreaking or rooting home video game consoles like
Nintendo’s Wii U, Sony’s Play Station 4, Microsoft’s
Xbox One and home media devices like Apple TV
which may in future gain the ability to natively play
video games.’’ Pangasa Video Game Console
Jailbreaking Pet. at 1.
68 77 FR at 65272–74.
69 Id. at 65274.
70 Id.
71 SFC’s proposal would ‘‘permit owners of
computer-embedded televisions (‘Smart TVs’) to
circumvent firmware encryption and administrative
access controls that control access to the TVs’
operating systems, for the purpose of accessing
lawfully-acquired media, installing licensed
applications, and enabling interoperability with
external devices.’’ SFC Pet. at 1.
72 Id. at 3.
73 Id.
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address—including through the
submission of relevant evidence—the
following:
• The specific TPMs on smart TVs,
how they operate, and methods of
circumventing such access controls.
• Specific examples of noninfringing
uses that would be facilitated by
circumvention.
• What users seek to do with
jailbroken smart TVs, including specific
examples of the following: (a) Usersupplied software that users wish to
install, (b) external hardware users are
prevented from connecting absent
circumvention, (c) improvements to
accessibility for hearing-impaired users
that would be facilitated by jailbreaking,
and (d) external storage devices through
which users seek to access media.
• The reasons smart TV
manufacturers limit end users’ ability to
install third-party applications and/or
restrict interoperability with external
devices.
• The role of any licensing
arrangements between smart TV
manufacturers and content or
application providers and the extent to
which the TPMs at issue protect opensource software.
E. Vehicle Software
Several petitions seek exemptions to
permit circumvention of TPMs on
software that is embedded in vehicles.
The Office has initially consolidated
these proposals into the two classes
below based on the asserted
noninfringing uses and may further
refine the two proposed classes based
on the record as it develops.
The Office has identified certain areas
of inquiry that appear to be common to
both of these proposed classes. In
addition to other more specific areas of
concern, for each of these proposals, the
Office encourages commenters, in the
course of detailing how the proposed
exemption meets the requirements of
section 1201(a)(1), to also address—
including through the submission of
relevant evidence—the following:
• The computers and TPMs used in
connection with different types of
vehicles, including personal
automobiles, commercial motor
vehicles, and agricultural machinery,
and how they operate.
• Whether the proposed exemption is
warranted for all types of motorized
land vehicles—including personal
automobiles, commercial motor
vehicles, and agricultural machinery—
and whether and how the analysis may
differ for each type of vehicle.
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1. Proposed Class 21: Vehicle
Software—Diagnosis, Repair, or
Modification
This proposed class would allow
circumvention of TPMs protecting
computer programs that control the
functioning of a motorized land vehicle,
including personal automobiles,
commercial motor vehicles, and
agricultural machinery, for purposes of
lawful diagnosis and repair, or
aftermarket personalization,
modification, or other improvement.
Under the exemption as proposed,
circumvention would be allowed when
undertaken by or on behalf of the lawful
owner of the vehicle.
EFF has proposed an exemption to
allow the circumvention of TPMs on
computer programs that are embedded
in vehicles for purposes of
personalization, modification, or other
improvement and would apply to all
motorized land vehicles.74 The
Intellectual Property & Technology Law
Clinic of the University of Southern
California Gould School of Law (‘‘U.S.C.
Law’’) has proposed a similar exemption
for agricultural machinery
specifically.75 EFF explains that
‘‘[v]ehicle owners expect to be able to
repair and tinker with their vehicles[,]’’
but TPMs on vehicle software ‘‘block
such legitimate activities, forcing
vehicle owners to choose between
breaking the law or tinkering and
repairing their vehicles.’’ 76 U.S.C. Law
similarly observes that farmers
specifically require unfettered access to
this vehicle software ‘‘to make any
significant modifications to the
efficiency and/or functionality of . . .
their increasingly sophisticated
agricultural machinery’’ 77 and to
‘‘obtain vital diagnostic information.’’ 78
74 EFF’s proposed regulatory language reads as
follows: ‘‘Lawfully-obtained computer programs
that control or are intended to control the
functioning of a motorized land vehicle, including
firmware and firmware updates, where
circumvention is undertaken by or on behalf of the
lawful owner of such a vehicle for the purpose of
lawful aftermarket personalization, improvement,
or repair.’’ EFF Vehicle Software Repair Pet. at 1.
75 U.S.C. Law filed two petitions relating
agricultural machinery software. The first seeks an
exemption to ‘‘allow[ ] farmers to circumvent . . .
TPMs for the purpose of modifying their own
agricultural machinery to improve efficiency and/
or functionality.’’ U.S.C. Law Vehicle Software
Modification Pet. at 1. The second seeks an
exemption to ‘‘allow[ ] farmers to circumvent . . .
TPMs for the purpose of diagnosing and/or
repairing their own agricultural machinery.’’ U.S.C.
Law Vehicle Software Repair Pet. at 1. At least at
this stage of the rulemaking, the Office believes that
the two petitions are similar enough that they may
be addressed as part of the same proposed class.
76 EFF Vehicle Software Repair Pet. at 5.
77 U.S.C. Law Vehicle Software Modification Pet.
at 2.
78 U.S.C. Law Vehicle Software Repair Pet. at 1.
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The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific examples of the adverse
effects of the TPMs, including how they
prevent vehicle owners or others from
engaging in lawful diagnosis, repair, or
modification activities.
• With respect to each of the
proposed uses—diagnosis, repair, and
modification—(a) the extent to which
any of the asserted noninfringing
activities merely requires examination
or changing of variables or codes relied
upon by the vehicle software, or instead
requires copying or rewriting of the
vehicle software, and (b) whether
vehicle owners can properly be
considered ‘‘owners’’ of the vehicle
software.
• The applicability (or not) of the
statutory exemption for reverse
engineering in 17 U.S.C. 1201(f) to the
proposed uses.
• Whether a third party—rather than
the owner of the vehicle—may lawfully
offer or engage in the proposed
circumvention activities with respect to
that vehicle pursuant to an exemption
granted under 17 U.S.C. 1201(a)(1).
2. Proposed Class 22: Vehicle
Software—Security and Safety Research
This proposed class would allow
circumvention of TPMs protecting
computer programs that control the
functioning of a motorized land vehicle
for the purpose of researching the
security or safety of such vehicles.
Under the exemption as proposed,
circumvention would be allowed when
undertaken by or on behalf of the lawful
owner of the vehicle.
EFF seeks an exemption that would
permit circumvention of TPMs on
computer programs that are embedded
in vehicles for purposes of researching
the security or safety of that vehicle.79
According to EFF, TPMs on vehicle
software prevent researchers from
‘‘discover[ing] programming errors that
endanger passengers’’ or ‘‘errors that
would allow a remote attacker to take
control of a vehicle’s functions.’’ 80
Thus, separate and apart from Proposed
Class 21, EFF seeks a specific exemption
79 EFF’s proposed regulatory language reads as
follows: ‘‘Lawfully-obtained computer programs
that control or are intended to control the
functioning of a motorized land vehicle, including
firmware and firmware updates, where
circumvention is undertaken by or on behalf of the
lawful owner of such a vehicle for the purpose of
researching the security or safety of such vehicles.’’
EFF Vehicle Software Security Pet. at 1.
80 EFF Vehicle Software Security Pet. at 2.
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to permit vehicle safety and security
research.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific examples of the adverse
effects of the TPMs, including how they
prevent vehicle owners or others from
engaging in lawful safety and security
research activities.
• With respect to the proposed uses,
(a) the extent to which any of the
asserted noninfringing activities merely
requires examination or changing of
variables or codes relied upon by the
vehicle software, or instead requires
copying or rewriting of the vehicle
software, and (b) whether vehicle
owners can properly be considered
‘‘owners’’ of the vehicle software.
• Whether granting the exemption
could have negative repercussions with
respect to the safety or security of
vehicles, for example, by making it
easier for wrongdoers to access a
vehicle’s software.
• The applicability (or not) of the
statutory exemptions for reverse
engineering in 17 U.S.C. 1201(f) and
encryption research in 17 U.S.C. 1201(g)
to the proposed uses.
• Whether a third party—rather than
the owner of the vehicle—may lawfully
offer or engage in the proposed
circumvention activities with respect to
that vehicle pursuant to an exemption
granted under 17 U.S.C. 1201(a)(1).
F. Abandoned Software
1. Proposed Class 23: Abandoned
Software—Video Games Requiring
Server Communication
This proposed class would allow
circumvention of TPMs on lawfully
acquired video games consisting of
communication with a developeroperated server for the purpose of either
authentication or to enable multiplayer
matchmaking, where developer support
for those server communications has
ended. This exception would not apply
to video games whose audiovisual
content is primarily stored on the
developer’s server, such as massive
multiplayer online role-playing games.
EFF has proposed an exemption to
permit circumvention of TPMs on video
games that require communication with
a server to ‘‘enable core functionality’’—
that is, either ‘‘single-player or
multiplayer play’’—where the developer
no longer supports the requisite server
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or services.81 EFF claims that an
exemption allowing video game owners
to circumvent relevant authentication
and multiplayer TPMs is necessary to
‘‘serve player communities that wish to
continue playing their purchased games,
as well as archivists, historians, and
other academic researchers who
preserve and study videogames.’’ 82
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific descriptions of the TPMs
and methods of circumvention
involved.
• Specific examples of video games
that would be covered by this proposed
class, including games that can no
longer be played at all and games for
which single-player play remains
possible but cannot be played in
multiplayer mode.
• Whether the exemption would
threaten the current market for video
games (a) by allowing users of
unlawfully acquired video games to
similarly bypass server checks, (b) by
contributing to the circumvention of
client-server protocols for nonabandoned video games, or (c) by
threatening the market for older video
games or discouraging the market for
backward compatibility of video games.
• The standard for determining when
developer support has ended, including
whether that standard should have a
notice or grace period for developers
before the exemption can be used.
• The proposed scope of an
exemption, including (a) whether the
exemption should differ with respect to
games that cannot be played at all
because developer support has ended,
and those for which only multiplayer
support has ended, (b) whether it
should exclude video games that are
hosted on or played through a remote
server, and (c) whether it should be
limited to libraries, archivists,
historians, or other academic
researchers who preserve or study video
games.
• Whether the exemption should
differ with respect to video games that
are made for personal computers, those
81 EFF’s proposed regulatory language reads as
follows: ‘‘Literary works in the form of computer
programs, where circumvention is undertaken for
the purpose of restoring access to single-player or
multiplayer video gaming on consoles, personal
computers or personal handheld gaming devices
when the developer and its agents have ceased to
support such gaming.’’ EFF Abandoned Video
Games Pet. at 1.
82 Id. at 1–2.
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made for consoles, and those made for
handheld devices.
2. Proposed Class 24: Abandoned
Software—Music Recording Software
This proposed class would allow
circumvention of access controls
consisting of the PACE content
protection system, which restricts
access to the full functionality of
lawfully acquired Ensoniq PARIS music
recording software.
In three similar petitions, Richard
Kelley, James McCloskey, and Michael
Yanoska have proposed an exemption to
permit circumvention of a TPM called
PACE that protects access to a specific
hardware and software system used for
music production called Ensoniq
PARIS.83 The petitions explain that,
when PARIS is installed on a new
computer or the hosting computer is
modified in some way, the PACE access
control requires the user to enter a
response code, but these codes soon will
no longer be available. Petitioners assert
that an exemption will allow for both
continued use of the PARIS system and
access to existing sound recording files
saved using that system, which would
otherwise be unrecoverable.
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific evidence that response
codes will no longer be provided to
Ensoniq PARIS owners.
• The applicability (or not) of 17
U.S.C. 117 to the maintenance or repair
of the hardware and software
comprising Ensoniq PARIS or the PACE
protection system.
• Whether any portions of the
Ensoniq PARIS hardware or software
will remain functional without the
83 Mr. Kelley alone proposed specific regulatory
language as follows: ‘‘(1) Obsolete software/
hardware combinations protected by a software
based copy protection mechanism (software dongle)
when the manufacturer is unable (because of no
longer being in business) or unwilling to provide
access via this system to those who are otherwise
entitled access; (2) Obsolete software/hardware
combinations protected by a software based copy
protection mechanism (software dongle) that
prevents the hardware and software from running
on current operating systems or current hardware
by those otherwise entitled to access to the software
and hardware.’’ Kelley Pet. at 1; see also McCloskey
Pet. at 1 (seeking ‘‘a minor broadening of a previous
exemption, namely ‘Computer programs protected
by dongles that prevent access due to malfunction
or damage and which are obsolete’’); Yanoska Pet.
at 1 (seeking exemption to allow ‘‘[e]limination of
the PACE control on recording software that was
created and sold over 15 years ago (which is no
longer sold or supported by the creating
company)’’).
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ability to circumvent the PACE access
control.
• Whether the proposed
circumvention could impact others, if
any, who use the PACE protection
system, including federal agencies and
state and local law enforcement
personnel who apparently rely upon
services from Intelligent Devices, the
current proprietor of the PACE access
control system.
G. Miscellaneous
1. Proposed Class 25: Software—
Security Research
This proposed class would allow
researchers to circumvent access
controls in relation to computer
programs, databases, and devices for
purposes of good-faith testing,
identifying, disclosing, and fixing of
malfunctions, security flaws, or
vulnerabilities.
Two submissions—by Professor
Matthew D. Green,84 and by a group of
academic security researchers
comprising Professors Steven M.
Bellovin, Matt Blaze, Edward W. Felten,
J. Alex Halderman, and Nadia Heninger
(‘‘Security Researchers’’) 85—seek
exemptions for researchers performing
good-faith security research. According
to the submissions, an exemption is
needed to identify, disclose, and fix
malfunctions, security flaws, and/or
vulnerabilities across a wide range of
systems and devices. Petitioners seek to
circumvent TPMs in medical devices;
car components; supervisory control
and data acquisition (‘‘SCADA’’)
84 Professor Green’s proposed regulatory language
reads as follows: ‘‘Computer programs and software,
a subcategory of literary works, accessible on
personal computers and personal devices and
protected by technological protection measures
(‘TPMs’) that control access to lawfully obtained
works when circumvention is accomplished for the
purposes of good faith testing, investigating, or
correcting security flaws and vulnerabilities,
commentary, criticism, scholarship, or teaching.’’
Green Pet. at 1.
85 Security Researchers’ proposed regulatory
language reads as follows: ‘‘Literary works,
including computer programs and databases,
protected by access control mechanisms that
potentially expose the public to risk of harm due
to malfunction, security flaws or vulnerabilities
when (a) circumvention is accomplished for the
purposes of good faith testing for, investigating, or
correcting such malfunction, security flaws or
vulnerabilities in a technological protection
measures or the underlying work it protects; OR (b)
circumvention was part of the testing or
investigation into a malfunction, security flaw or
vulnerability that resulted in the public
dissemination of security research when (1) a
copyright holder fails to comply with the standards
set forth in ISO 29147 and 30111; or (2) the finder
of the malfunction, security flaw or vulnerability
reports the malfunction, security flaw or
vulnerability to the copyright holder by providing
the information set forth in Form A* in advance of
or concurrently with public dissemination of the
security research.’’ Security Researchers Pet. at 1.
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systems; and other critical
infrastructure, such as the computer
code that controls nuclear power plants,
smartgrids, and industrial control
systems; smartphones that operate
critical applications, such as pacemaker
applications; internet-enabled consumer
goods in the home; and transit
systems.86 According to petitioners, the
exemptions codified in subsection (f) of
17 U.S.C. 1201 for reverse engineering,
subsection (g) for encryption research,
subsection (i) for protection of
personally identifying information, and
subsection (j) for security testing do not
sufficiently capture the breadth of the
research they seek to facilitate, and
suffer from ‘‘ambiguities . . . and
burdensome requirements to qualify for
those exemptions.’’ 87 As a result, the
petitioners say that they have ‘‘chosen
not to perform specific acts of security
research that they believe would have
prevented harms to and benefited [the]
safety of human persons.’’ 88
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific examples of the types of
noninfringing uses that are, or in the
next three years, are likely to be
adversely affected by a prohibition on
circumvention, including the security
risks sought to be avoided.
• The specific TPMs sought to be
circumvented in connection with
particular classes of works and the
methods for circumventing those access
controls, including the environment
(academic or otherwise) in which the
circumvention would be accomplished.
• Specific examples of acts of security
research that have been foregone or
delayed due to the current lack of the
proposed exemption.
• Whether granting the exemption
could have negative repercussions with
respect to the safety or security of the
works that are subject to research, for
example, by making it easier for
wrongdoers to access sensitive
applications or databases.
• Any industry standards that the
Office should consider in evaluating
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86 See
Security Researchers Pet. at 2.
Pet. at 4; see also Security Researchers
Pet. at 2.
88 Security Researchers Pet. at 3. The Office notes
that prior exemptions granted in 2006 and 2010
addressed circumvention for investigation or
security purposes for the more limited categories of
compact discs or video games accessible on
personal computers. See 37 CFR 201.40(b)(6) (2007)
(compact discs); 37 CFR 201.40(b)(4) (2011) (video
games); 71 FR at 68477; 75 FR 43825, 43832 (July
27, 2010).
87 Green
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this request, such as the ISO 29147 and
ISO 30111 security guidelines,
including an explanation of how these
standards may relate to the proposed
exemption.
2. Proposed Class 26: Software—3D
Printers
This proposed class would allow
circumvention of TPMs on firmware or
software in 3D printers to allow use of
non-manufacturer-approved feedstock
in the printer.
Public Knowledge seeks an exemption
to circumvent TPMs on computer
programs used in 3D printers to allow
use of non-manufacturer-approved
feedstock in such printers.89
The Office encourages commenters, in
the course of detailing how the
proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific examples of 3D printers
that include the complained-of access
controls, including a description of the
applicable TPMs, how they operate, and
methods of circumvention.
• The extent to which there are
available for purchase 3D printers that
do not include such access controls, and
whether the existence of such printers
obviates the need for an exemption.
3. Proposed Class 27: Software—
Networked Medical Devices
The proposed class would allow
circumvention of TPMs protecting
computer programs in medical devices
designed for attachment to or
implantation in patients and in their
corresponding monitoring devices, as
well as the outputs generated through
those programs. As proposed, the
exemption would be limited to cases
where circumvention is at the direction
of a patient seeking access to
information generated by his or her own
device, or at the direction of those
conducting research into the safety,
security, and effectiveness of such
devices. The proposal would cover
devices such as pacemakers,
implantable cardioverter defibrillators,
insulin pumps, and continuous glucose
monitors.
This proposal, filed by a coalition of
medical device patients and researchers
(‘‘Medical Device Research Coalition’’),
seeks an exemption to allow
circumvention of TPMs in the firmware
89 Public Knowledge ‘‘seeks an exemption for
users of 3D printers that are protected by control
technologies when circumvention is accomplishe[d]
solely for the purpose of using non-manufacturer
approved feedstock in the printer.’’ Public
Knowledge 3D Printer Pet. at 2.
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73871
or software of medical devices and their
corresponding monitoring systems at
patient direction or for purposes of
safety, security, or effectiveness
research.90 According to the petition,
‘‘[m]any medical device manufacturers
use measures to control access’’ to
medical device software, including
password systems and encryption of
outputs.91 The Office encourages
commenters, in the course of detailing
how the proposed exemption meets the
requirements of section 1201(a)(1), to
address—including through the
submission of relevant evidence—the
following:
• Specific examples demonstrating
the noninfringing uses and adverse
effects of the TPMs, including how
patients seeking access to information
generated by their own devices, and/or
those seeking to conduct research into
the safety, security, and effectiveness of
such devices, are prevented from
engaging in lawful activities because of
the TPMs.
• Whether the exemption should
distinguish among different users
(researchers, patients, healthcare
providers at the direction of the deviceuser patient, etc.) and/or the proposed
use (examining output of devices,
research into safety, security, and
effectiveness of devices, etc.).
• Whether the outputs generated by
the medical device programs constitute
copyright-protected materials.
• Whether granting the exemption
could have negative repercussions with
respect to the safety or security of the
relevant medical devices, for example,
by making it easier for wrongdoers to
access such medical devices’ software or
outputs.
• The relevance of the statutory
exemptions for reverse engineering in
17 U.S.C. 1201(f) and for encryption
research in 17 U.S.C. 1201(g) to the
proposed uses.
• Whether a third party—rather than
the owner of the device—may lawfully
offer or engage in the proposed
circumvention activities with respect to
that device pursuant to an exemption
granted under 17 U.S.C. 1201(a)(1).
90 The Medical Device Research Coalition’s
proposed regulatory language reads as follows:
‘‘Computer programs, in the form of firmware or
software, including the outputs generated by those
programs, that are contained within or generated by
medical devices and their corresponding
monitoring systems, when such devices are
designed for attachment to or implantation in
patients, and where such circumvention is at the
direction of a patient seeking access to information
generated by his or her own device or at the
direction of those conducting research into the
safety, security, and effectiveness of such devices.’’
Medical Device Research Coalition Pet. at 1–2.
91 Id. at 2.
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Federal Register / Vol. 79, No. 239 / Friday, December 12, 2014 / Proposed Rules
Dated: December 9, 2014.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of
Copyrights.
[FR Doc. 2014–29237 Filed 12–11–14; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R06–OAR–2005–TX–0002; FRL–9920–
33–Region 6]
Approval and Promulgation of Air
Quality Implementation Plans; Texas;
Repeal of Lead Emission Rules for
Stationary Sources in El Paso and
Dallas County
will be withdrawn and all public
comments received will be addressed in
a subsequent final rule based on this
proposed rule. EPA will not institute a
second comment period. Any parties
interested in commenting on this action
should do so at this time.
For additional information, see the
direct final rule which is located in the
rules section of this Federal Register
and the electronic docket found in the
www.regulations.gov Web site (Docket
ID No. EPA–R06–OAR–2005–TX–0002).
Dated: November 19, 2014.
Ron Curry,
Regional Administrator, Region 6.
[FR Doc. 2014–29144 Filed 12–11–14; 8:45 am]
BILLING CODE 6560–50–P
Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
ENVIRONMENTAL PROTECTION
AGENCY
The Environmental Protection
Agency (EPA) is proposing to approve a
revision to the State Implementation
Plan (SIP) for Texas which repeals lead
emission rules which cover stationary
sources in El Paso and Dallas county
that are no longer in existence. This
action is being taken under section
110(k) and part D of the Clean Air Act.
DATES: Written comments should be
received on or before January 12, 2015.
ADDRESSES: Comments may be mailed to
Mr. Guy Donaldson, Chief, Air Planning
Section (6PD–L), Environmental
Protection Agency, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202–2733.
Comments may also be submitted
electronically or through hand delivery/
courier by following the detailed
instructions in the ADDRESSES section of
the direct final rule located in the rules
section of this Federal Register.
FOR FURTHER INFORMATION CONTACT:
Kenneth W. Boyce, (214) 665–7259,
boyce.kenneth@epa.gov.
SUPPLEMENTARY INFORMATION: In the
final rules section of this Federal
Register, EPA is approving the State’s
SIP submittal repealing lead emission
rules which cover stationary sources
that are no longer operating in both El
Paso County and Dallas County. We are
taking this action as a direct final rule
without prior proposal because the
Agency views this as a noncontroversial
action and anticipates no adverse
comments. A detailed rationale for the
proposed approval is set forth in the
direct final rule. If no relevant adverse
comments are received in response to
this action no further activity is
contemplated. If EPA receives relevant
adverse comments, the direct final rule
[EPA–HQ–OAR–2012–0522; FRL–9920–39–
OAR]
AGENCY:
rljohnson on DSK3VPTVN1PROD with PROPOSALS
SUMMARY:
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40 CFR Parts 60 and 63
RIN 2060–AQ20
Phosphoric Acid Manufacturing and
Phosphate Fertilizer Production RTR
and Standards of Performance for
Phosphate Processing; Extension of
Comment Period
Environmental Protection
Agency.
ACTION: Notice of proposed rulemaking;
extension of public comment period.
AGENCY:
On November 7, 2014, the
Environmental Protection Agency (EPA)
proposed amendments to the national
emission standards for hazardous air
pollutants for Phosphoric Acid
Manufacturing and Phosphate Fertilizer
Production source categories and to new
source performance standards for
several phosphate processing categories.
The EPA is extending the deadline for
written comments on the proposed
amendments by 30 days to January 21,
2015. The EPA received requests for an
extension from The Fertilizer Institute,
several phosphate facilities and a testing
company that supports the industry.
The Fertilizer Institute has requested the
extension in order to allow more time to
review the proposed rule and associated
emissions data, risk assessment and
technology review.
DATES: Comments. The public comment
period for the proposed rule published
in the Federal Register on November 7,
2014, (79 FR 66512) is being extended
for 30 days to January 21, 2015.
ADDRESSES: Comments. Written
comments on the proposed rule may be
submitted to the EPA electronically, by
SUMMARY:
PO 00000
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mail, by facsimile or through hand
delivery/courier. Please refer to the
proposal for the addresses and detailed
instructions.
Docket. The EPA has established a
docket for this rulemaking under Docket
ID Number EPA–HQ–OAR–2012–0522.
All documents in the docket are listed
in the https://www.regulations.gov index.
Although listed in the index, some
information is not publicly available,
e.g., confidential business information
or other information whose disclosure is
restricted by statute. Certain other
material, such as copyrighted material,
is not placed on the Internet and will be
publicly available only in hard copy.
Publicly available docket materials are
available either electronically in https://
www.regulations.gov or in hard copy at
the EPA Docket Center, Room 3334,
EPA WJC West Building, 1301
Constitution Avenue NW., Washington,
DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding legal
holidays. The telephone number for the
Public Reading Room is (202) 566–1744,
and the telephone number for the EPA
Docket Center is (202) 566–1742.
World Wide Web. The EPA Web site
for this rulemaking is at https://
www.epa.gov/ttn/atw/phosph/
phosphpg.html.
Ms.
Tina Ndoh, Sector Policies and
Programs Division (D243–02), Office of
Air Quality Planning and Standards,
U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina
27711; telephone number: (919) 541–
2750; fax number: (919) 541–5450; and
email address: Ndoh.Tina@epa.gov.
FOR FURTHER INFORMATION CONTACT:
SUPPLEMENTARY INFORMATION:
Comment Period
After considering requests received
from industry to extend the public
comment period, the EPA has decided
to extend the public comment period for
an additional 30 days. Therefore, the
public comment period will end on
January 21, 2015, rather than December
22, 2014. This extension will help
ensure that the public has sufficient
time to review the proposed rule and
the supporting technical documents and
data available in the docket.
Dated: December 5, 2014.
Mary E. Henigin,
Acting Director, Office of Air Quality Planning
and Standards.
[FR Doc. 2014–29193 Filed 12–11–14; 8:45 am]
BILLING CODE 6560–50–P
E:\FR\FM\12DEP1.SGM
12DEP1
Agencies
[Federal Register Volume 79, Number 239 (Friday, December 12, 2014)]
[Proposed Rules]
[Pages 73856-73872]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-29237]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
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 proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The United States Copyright Office is conducting the sixth
triennial rulemaking proceeding under the Digital Millennium Copyright
Act (``DMCA'') concerning possible exemptions to the DMCA's prohibition
against circumvention of technological measures that control access to
copyrighted works. On September 17, 2014, the Office published a Notice
of Inquiry requesting petitions for proposed exemptions, and it has
received forty-four petitions in response. With this Notice of Proposed
Rulemaking, the Office is initiating three rounds of public comment on
exemptions proposed in the petitions. Interested parties are invited to
make full legal and evidentiary submissions in support of or opposition
to the proposed exemptions, in accordance with the requirements set
forth below. The Office is providing a ``long comment'' form for this
purpose. The Office is also offering members of the public the
opportunity to express general support for or opposition to any of the
proposals via a ``short comment'' form. Commenters should carefully
review the legal and evidentiary standards for the granting of
exemptions under the DMCA, which are set forth in the September Notice
of Inquiry. Commenters should also review the guidance provided in this
document regarding specific areas of legal and factual interest with
respect to each proposed exemption or category of exemptions, and the
types of evidence that commenters may wish to submit for the record.
This document also provides information concerning the recommended
format and content for submissions, including documentary and
multimedia evidence.
DATES: Initial written comments (including documentary evidence) and
multimedia evidence from proponents and other members of the public who
support the adoption of a proposed exemption, as well as parties that
neither support nor oppose an exemption but seek to share pertinent
information about a proposal, are due February 6, 2015. Written
response comments (including documentary evidence) and multimedia
evidence from those who oppose the adoption of a proposed exemption are
due March 27, 2015. Written reply comments from supporters of
particular proposals and parties that neither support nor oppose a
proposal are due May 1, 2015.
ADDRESSES: The Copyright Office strongly prefers that written comments
be submitted electronically using the comment submission page on the
Copyright Office Web site at https://www.copyright.gov/1201/. Commenters
are required to provide separate submissions for each proposed class
during each stage of the public comment period. Although a single
comment may not encompass more than one proposed class, the same party
may submit comments on multiple classes.
As noted, the Office is providing two comment forms on its Web
site: A long form for those who wish to provide a full legal and
evidentiary basis for their position in support of or opposition to a
proposed exemption, and a short form for those who wish briefly to
express general support for or opposition to a proposed exemption. The
formats and content of these forms are described in the SUPPLEMENTARY
INFORMATION section below. Long form comments should be submitted
together with any documentary evidence. To meet accessibility
standards, written comments and all associated documentary evidence
(but not multimedia evidence, as discussed below) must be uploaded in a
single file in either 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
submission form and the face of the comment.
Commenters submitting long form comments may also separately submit
multimedia evidence, as further explained in the Supplementary
Information section below. Commenters submitting multimedia evidence
should so indicate on the first page of their written submission.
Multimedia evidence should not be uploaded via the Web site; instead,
it should be delivered to the Office, together with a hard copy of the
written comment, on a CD-ROM, DVD-ROM, or flash drive in one of the
acceptable file formats listed on the Copyright Office Web site at
https://copyright.gov/eco/help-file-types.html. The disc or flash drive
should be labeled with the name of the submitter and the number of the
proposed class to which the evidence pertains. The file name of each
file contained on the disc or flash drive should consist of the
submitter's name, followed by the proposed class number and exhibit
number, in the following format: ``Jane Smith Class 1 Ex. 1.''
Multimedia evidence may be submitted either by U.S. mail addressed to
Copyright Office, Office of General Counsel, P.O. Box 70400,
Washington, DC 20024, or by hand delivery to Room LM-403 of the
Copyright Office in the James Madison Memorial Building of the Library
of Congress, 101 Independence Ave. SE., Washington, DC 20540. In either
case, to ensure proper delivery, the package should be clearly labeled
``Attention:
[[Page 73857]]
Office of General Counsel--Section 1201 Proceeding.''
All written comments and documentary evidence will be posted
publicly on the Copyright Office Web site in the form in which they are
received. Depending upon technological constraints and other factors,
the Office may also post some or all multimedia evidence on its Web
site, with the remainder made available for inspection and copying at
the Office upon written email request to the Office of General Counsel
using the contact information provided below. If a commenter cannot
meet a particular submission requirement, the commenter should contact
the Copyright Office using the contact information provided below.
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: On September 17, 2014, the Copyright Office
published a Notice of Inquiry (``September Notice'') in the Federal
Register to initiate the sixth triennial rulemaking proceeding under 17
U.S.C. 1201(a)(1) 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 protection measures (``TPMs'') that
control access to copyrighted works (sometimes also referred to as
``access controls'').\1\ The September Notice invited interested
parties to submit petitions for proposed exemptions that set forth the
essential elements of the exemption.\2\
---------------------------------------------------------------------------
\1\ 79 FR 55687 (Sept. 17, 2014).
\2\ Id. at 55692-93.
---------------------------------------------------------------------------
The Office received forty-four petitions in response to the
September Notice, which are posted on the Copyright Office Web site.\3\
With this Notice of Proposed Rulemaking, the Office is initiating three
rounds of public written comment regarding the proposed exemptions.
---------------------------------------------------------------------------
\3\ See https://copyright.gov/1201/2014/petitions/. References to
these petitions in this document are by party name followed by
``Pet.'' Where a single party has filed multiple petitions, the
reference will include the party name and a short description of the
relevant proposal (e.g., ``EFF Jailbreaking Pet.'').
---------------------------------------------------------------------------
I. Written Comments
Persons wishing to address proposed exemptions in written comments
should carefully review the September Notice to familiarize themselves
with the substantive legal and evidentiary standards for the granting
of an exemption under section 1201(a)(1).\4\ In addressing factual
matters, commenters should be aware that the Office favors specific,
``real-world'' examples supported by evidence over speculative,
hypothetical observations. For example, a proponent seeking to
demonstrate that a TPM is having or is likely to have adverse effects
should provide detailed evidence of actual noninfringing uses that are
precluded by the TPM, rather than conclusory declarations or isolated
harms. Likewise, an opponent seeking to establish, for instance, that
alternative means of accessing the work obviate the need for an
exemption should provide specific and detailed evidence of such
alternatives rather than unsupported assertions.
---------------------------------------------------------------------------
\4\ 79 FR at 55689-91.
---------------------------------------------------------------------------
Commenters' legal analysis should explain why the proposal meets or
fails to meet the criteria for an exemption under section 1201(a)(1),
including, without limitation, why the uses sought are or are not
noninfringing as a matter of law. The legal analysis should also
identify and discuss statutory or other legal provisions that could
impact the necessity for or scope of the proposed exemption (for
example, the Unlocking Consumer Choice and Wireless Competition Act
(``Unlocking Act''),\5\ or 17 U.S.C. 117). Legal assertions should be
supported by statutory citations, relevant case law, and other
pertinent authority.
---------------------------------------------------------------------------
\5\ Pub. L. 113-144, sec. 2(b)-(c), 128 Stat. 1751, 1751-52
(2014).
---------------------------------------------------------------------------
The Office is accepting comments in two ways. First, commenters who
wish to provide a legal and evidentiary basis for their position may
submit comments in a long form format as set forth below. To assist
participants, the Office has posted a recommended form for such longer
submissions on its Web site at https://copyright.gov/1201/.
Second, for those commenters who wish only to briefly express
general support for or opposition to a proposed exemption, the Office
has provided a short form for single-page comments, also available at
https://copyright.gov/1201/, which may be completed and uploaded to the
Office's Web site.
The deadlines for each round of submissions are set forth in the
DATES section above. Commenting parties should be aware that rather
than reserve time for potential extensions of time to file comments,
the Office has already established what it believes to be the most
generous possible deadlines consistent with the goal of concluding the
triennial proceeding in a timely fashion.
To ensure a clear and definite record for each of the proposals, as
explained in the September Notice, both long form and short form
commenters are required to provide a separate submission for each
proposed class during each stage of the public comment period. Although
a single comment may not address more than one proposed class, the same
party may submit multiple written comments on different proposals. For
example, a commenter may not submit a single comment addressing both
Class 7 and Class 8, but may submit two comments addressing each
separately. The Office acknowledges that the requirement of separate
submissions may require commenters to repeat certain information across
multiple submissions, but the Office believes that the administrative
benefits for both participants and the Office of creating a self-
contained, separate record for each proposal will be worth the modest
amount of added effort.\6\
---------------------------------------------------------------------------
\6\ See 79 FR at 55692.
---------------------------------------------------------------------------
The first round of public comment is limited to submissions from
the proponents (i.e., those parties who proposed exemptions during the
petition phase) and other members of the public who support the
adoption of a proposed exemption, as well as any members of the public
who neither support nor oppose an exemption but seek only to share
pertinent information about a specific proposal.\7\ Proponents of
exemptions--as well as supporters--should present their complete
affirmative case for an exemption during the initial round of public
comment, including all legal and evidentiary support for the proposal.
Those who neither support nor oppose an exemption but seek to offer
relevant evidence in response to a proposal should also file comments
in the initial round.
---------------------------------------------------------------------------
\7\ These submissions may suggest refinements to the proposed
exemptions, but may not propose entirely new exemptions.
---------------------------------------------------------------------------
Members of the public who oppose an exemption should present the
full legal and evidentiary basis for their opposition in the second
round of public comment.
The third round of public comment will be limited to proponents and
supporters of particular proposals, and those who neither support nor
oppose a proposal, in either case who seek to reply to points made in
the earlier
[[Page 73858]]
rounds of comments. Reply comments should not raise new issues, but
should instead be limited to addressing arguments and evidence
presented by others.
Parties seeking to make submissions who believe they cannot adhere
to the guidelines set forth in this notice should contact the Office,
using the contact information above, to discuss their concern.
Long Form Comment Guidelines
Commenters who wish to submit long form comments are strongly
encouraged to use the long comment form template available on the
Office's Web site at https://copyright.gov/1201/. Long form comments
should be limited to 25 pages in length (which may be single-spaced but
should be in at least 12-point type), not including any documentary
evidence attached to the comment.
Proponents' initial comments should, at a minimum, address the
below points in separately labeled sections, as indicated below and set
forth on the long comment form template. Others who wish to provide a
legal and/or evidentiary submission in support of or in opposition to
an exemption should follow the same format, as should those submitting
reply comments. While, as noted, proponents should complete each
portion of the long form in making their initial submission, other
commenters (including reply commenters) may note ``N/A'' in any
substantive section of the template that they do not wish to complete.
Commenter Information. Identify the commenter, and, if
desired, provide a means for others to contact the submitter or an
authorized representative of the submitter by email and/or telephone.
(Parties should keep in mind that any private, confidential, or
personally identifiable information appearing in their submissions will
be accessible to the public.)
Proposed Class Addressed. Identify the proposed exemption
the comment addresses by the number and name of the class set forth in
this Notice of Proposed Rulemaking (e.g., ``Proposed Class 7:
Audiovisual works--noncommercial remix videos).
Overview. Provide a brief, general explanation of the
circumvention activity sought to be exempted or opposed and why.
Technological Protection Measure(s) and Method(s) of
Circumvention. Describe the TPM(s) that control access to the work and
method(s) of circumvention. The description should provide sufficient
information to allow the Office to understand the nature and basic
operation of the relevant technologies, as well as how they are
disabled or bypassed.
Asserted Noninfringing Use(s). Explain the asserted
noninfringing use(s) of copyrighted works said to be facilitated by the
proposed exemption. Commenters should provide an evidentiary basis to
support their arguments regarding noninfringing uses, including
discussion or refutation of specific examples of such uses and, if
available, relevant documentary and/or multimedia evidence. This
section should identify all statutory provisions, case law, and/or
other legal authority the commenter wishes the Office to consider in
connection with the analysis of whether the asserted uses are
noninfringing.
Adverse Effects. Explain whether the inability to
circumvent the TPM(s) at issue has or is likely to have adverse effects
on the asserted noninfringing use(s). The adverse effects can be
current, or may be adverse effects that are likely to occur during the
next three years, or both. Commenters should also address potential
alternatives that permit users to engage in the asserted noninfringing
use(s) without the need for circumvention. Commenters should provide an
evidentiary basis to support their arguments regarding asserted adverse
effects, including discussion or refutation of specific examples of
such uses and, if available, relevant documentary or multimedia
evidence. This section should identify all statutory provisions, case
law, and/or other legal authority the commenter wishes the Office to
consider in connection with the analysis of the claimed adverse
effects.
Statutory Factors. Evaluate the proposed exemption in
light of each of the statutory factors set forth in 17 U.S.C.
1201(a)(1)(C): (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 TPMs applied to copyrighted works has on criticism,
comment, news reporting, teaching, scholarship, or research; (iv) the
effect of circumvention of TPMs on the market for or value of
copyrighted works; and (v) any other factor that may be appropriate for
the Librarian to consider in evaluating the exemption. This section
should identify all statutory provisions, case law, and/or other legal
authority the commenter wishes the Office to consider in connection
with the analysis of these factors.
Documentary evidence. Commenters are encouraged to submit
documentary evidence to support or illustrate the information and
arguments addressed in the written comments. As indicated in the
ADDRESSES section above, such documentary evidence must be attached to
the written comment (though it does not count towards the 25-page
limit).
Multimedia evidence. Commenters are also encouraged, when
feasible, to submit multimedia evidence to support or illustrate
relevant technologies or points made in written comments. Multimedia
evidence must be submitted separately via mail or hand-delivered to the
Office and must be contained on specified digital media, in an approved
file format, and appropriately labeled, as described in the ADDRESSES
section above. Where possible and permissible to post the multimedia
submission on a publicly accessible Web site, commenters may wish to
include a link to the materials in their comments (although providing
such a link is not a substitute for the submission of a physical copy
to the Office for inclusion in the official record). As noted above,
the Office may post some or all multimedia evidence to its Web site,
depending upon file types and sizes, overall volume, and other
constraints. To the extent a multimedia submission is not made
available on the Office's Web site, the Office will make it available
for public inspection and copying at the Copyright Office upon written
email request. Copying charges for multimedia files will be assessed at
the applicable Office rate under 37 CFR 201.3 for copies of the
relevant type. If there are unusual practical or other constraints that
preclude the submission of multimedia evidence with the initial written
comment, the commenter should contact the Office at least 21 days
before the applicable submission deadline to discuss whether it would
be appropriate to provide a live demonstration at the public hearing
and, if so, how any such demonstration would be captured for the
official record.
Short Form Comment Guidelines
Commenters who wish to submit a brief statement in support
of or opposition to a particular proposed exemption are strongly
encouraged to use the short comment form template available at https://www.copyright.gov/1201/. After supplying the Commenter Information and
noting the Proposed Class Addressed as described above, the commenter
may offer a general statement of support or opposition. Short form
comment submissions should not exceed one single-spaced typed page (in
at least 12-point type).
[[Page 73859]]
II. Review and Classification of Proposed Exemptions
The Office has reviewed and classified the proposed exemptions set
forth in the forty-four petitions received in response to its September
Notice, in some cases combining overlapping or similar proposed
exemptions, and in other cases subdividing proposals to allow for a
more focused record, as detailed below.
At the outset, the Office observes that three of the petitions seek
an exemption that cannot be granted as a matter of law, as each seeks
to permit circumvention of any and all TPMs constituting ``DRM'' \8\
with respect to unspecified types of copyrighted works for the purpose
of engaging in unidentified personal and/or consumer uses.\9\ As the
Office explained in its September Notice, the DMCA provides that any
exemptions adopted as part of this rulemaking must be defined based on
``a particular class of works.'' \10\ And, as legislative history
elaborates, ``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.'' \11\ That is
because the purpose of the rulemaking is to ``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.'' \12\
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\8\ ``DRM,'' or digital rights management, is content protection
software intended to prevent unauthorized redistribution of
copyrighted material. See, e.g., In re Sony BMG Audio Compact Disc
Litig., 429 F. Supp. 2d 1378, 1380 (J.P.M.L. 2006).
\9\ See Eldridge Alexander Pet. at 1 (asking the Office to ``add
an exemption to the DMCA that allows for the removal of DRM for
personal, legal uses.''); Ed Grossheim Pet. at 1 (``If I purchase a
product it should be mine to do with as I choose without violating
copyright.''); Jeremy Putnam Pet. at 1 (``I ask that legal
exceptions be made for consumers to remove DRM from all digital
content without repercussion.'').
\10\ 17 U.S.C. 1201(a)(1)(B) (emphasis added); see also 79 FR at
55690-91.
\11\ Report of the H. Comm. on Commerce on the Digital
Millennium Copyright Act of 1998, H.R. Rep. No. 105-551, pt. 2, at
38 (1992) (emphasis added).
\12\ Id. at 36 (emphases added).
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In contrast, the three petitions at issue seek an exemption for all
works in all media. Moreover, these broad petitions fail to identify
``distinct'' and ``measurable'' impacts on noninfringing uses as
contemplated by the DMCA.\13\ Because it is apparent that the Office
may not adopt the sweeping type of exemption proposed by these three
petitions consistent with the standards of section 1201(a)(1), the
Office declines to put these proposals forward for public comment.\14\
---------------------------------------------------------------------------
\13\ See id. at 37; see also 17 U.S.C. 1201(a)(1)(C).
\14\ See 79 FR at 55693.
---------------------------------------------------------------------------
The Office has studied the remaining forty-one proposals and
categorized them into twenty-seven proposed classes of works. In some
cases, overlapping proposals have been merged into a single proposed
class. In other cases, individual proposals that encompass multiple
proposed uses have been subdivided. For administrative convenience,
similar or related classes have also been grouped into overarching
categories; the Office notes, however, that it will be considering
exemptions on a class-by-class basis.
The Office further notes that it has not put forward precise
regulatory language for the proposed classes, because any specific
language for exemptions that the Register ultimately recommends to the
Librarian will necessarily depend on the full record developed during
this rulemaking.\15\ Instead, each proposed class is briefly described
in Part III below; additional information about the proposals can be
found in the underlying petitions posted on the Office's Web site. As
explained in the September Notice, the proposed classes as described
here ``represent only a starting point for further consideration in the
rulemaking proceeding, and will be subject to further refinement based
on the record.'' \16\
---------------------------------------------------------------------------
\15\ Id. at 55692.
\16\ Id. at 55693.
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In addition, after examining the petitions, the Office has
preliminarily identified some initial legal and factual areas of
interest with respect to each proposed class. The Office, accordingly,
offers guidance below concerning legal and factual issues that
commenters may wish to address in connection with particular proposals,
as well as particular types of evidence that they may wish to submit.
The Office stresses, however, that this preliminary guidance is not
exhaustive, and commenters should consider and offer all legal argument
and evidence they believe necessary to create a complete record. In
addition, the Office's early observations are offered without prejudice
to the Office's ability to raise other questions or concerns at later
stages of the proceeding.
III. The Proposed Classes
A. Audiovisual Works on DVD, Blu-Ray, and Downloaded/Streamed Video
Several petitions seek exemptions for circumvention of access
controls protecting audiovisual works embodied on DVDs, on Blu-ray
discs, and/or in downloaded or streamed videos in connection with three
general categories of uses--educational uses; derivative uses; and
format and space-shifting. These proposals raise some shared concerns,
including the impact of TPMs on the alleged noninfringing uses of
audiovisual works and whether alternative methods of accessing the
content, such as screen-capture technology, could alleviate potential
adverse impacts. Nonetheless, the evidentiary support for these
proposed exemptions is likely to vary according to the specific formats
and proposed uses. For example, a film studies professor may have a
different need to access higher-resolution material than a teacher
displaying an excerpt of a copyrighted work to a kindergarten class,
and distribution standards for commercial documentary films may require
use of higher-resolution material than required for use in
noncommercial remix videos. Accordingly, the Office has further
subdivided the three general categories of uses into more specific
individual classes to permit proponents to better focus their
submissions.
1. Audiovisual Works--Educational Uses
Multiple petitions seek exemptions for educational uses of
audiovisual works. The Office notes that prior rulemakings have granted
exemptions relating to uses of motion picture excerpts for commentary,
criticism, and educational uses by college and university faculty and
staff and by kindergarten through twelfth-grade educators.\17\ The
current petitions generally seek to readopt those previously granted
exemptions, and some also seek to expand an exemption to accommodate
additional technologies, such as Blu-ray discs, or new users, such as
museums, libraries, or students and faculty participating in Massive
Open Online Courses (``MOOCs'').
---------------------------------------------------------------------------
\17\ 37 CFR 201.40(b)(4)-(7) (2013). See 77 FR 65260, 65266-70
(Oct. 26, 2012) (discussing the most recent prior exemptions).-
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The Office has identified some legal and factual issues that appear
common to all of the proposed classes relating to educational uses of
audiovisual works. In addition to other more specific areas of concern,
for each of these proposals, the Office encourages commenters, in the
course of detailing how the proposed exemption meets the legal and
evidentiary requirements of section 1201(a)(1), to also address--
including through the submission of relevant evidence--the following:
[[Page 73860]]
Whether the proposed exemptions may be limited to ``motion
pictures'' as defined under the Copyright Act \18\ as opposed to all
``audiovisual works'' \19\ (a broader category that encompasses, for
example, video games).
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\18\ ```Motion pictures' are audiovisual works consisting of a
series of related images which, when shown in succession, impart an
impression of motion, together with accompanying sounds, if any.''
17 U.S.C. 101.
\19\ ```Audiovisual works' are works that consist of a series of
related images which are intrinsically intended to be shown by the
use of machines or devices such as projectors, viewers, or
electronic equipment, together with accompanying sounds, if any,
regardless of the nature of the material objects, such as films or
tapes, in which the works are embodied.'' Id.
---------------------------------------------------------------------------
For each type of requested use, whether circumvention
alternatives, such as licensing or screen-capture technology, obviate
the need for an exemption.
Specific examples illustrating the need for the exemption
to extend beyond DVDs to other formats, such as Blu-ray discs and TPM-
protected content distributed online.
(a) Proposed Class 1: Audiovisual Works--Educational Uses--Colleges and
Universities
This proposed class would allow college and university faculty and
students to circumvent access controls on lawfully made and acquired
motion pictures and other audiovisual works for purposes of criticism
and comment. This exemption has been requested for audiovisual material
made available in all formats, including DVDs protected by the Content
Scramble System (``CSS''), Blu-ray discs protected by the Advanced
Access Content System (``AACS''), and TPM-protected online distribution
services.
Professor Peter Decherney, the College Art Association, the
International Communication Association, and the Society for Cinema and
Media Studies (collectively referred to here as ``Joint Educators'')
have filed a petition seeking adoption of a revised version of the
previously granted exemptions to permit circumvention of TPMs on DVDs,
Blu-ray discs, and videos acquired via online distribution services,
for purposes of facilitating educational uses of motion picture
excerpts at the college and university level.\20\
---------------------------------------------------------------------------
\20\ Joint Educators propose, in relevant part, the following
regulatory language: ``audiovisual works embodied in physical media
(such as DVDs and Blu-Ray Discs) or obtained online (such as through
online distribution services and streaming media) that are lawfully
made and acquired and that are protected by various technological
protection measures, where the circumvention is accomplished by
college and university students or faculty (including teaching and
research assistants).'' Joint Educators Pet. at 1. See 37 CFR
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The proposed scope of the exemption, such as (a) whether
it can be limited to uses requiring close analysis of the copyrighted
work (such as in a film studies course), as opposed to general-purpose
classroom uses, (b) whether it needs to extend to Blu-ray in addition
to other formats, and (c) whether the exemption should be extended to
students in addition to materials prepared by faculty.
Any changed circumstances in the need for an exemption
over the last three years, including whether any viable alternatives to
circumvention have emerged or evolved during this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
(b) Proposed Class 2: Audiovisual Works--Educational Uses--Primary and
Secondary Schools (K-12)
This proposed class would allow kindergarten through twelfth-grade
educators and students to circumvent access controls on lawfully made
and acquired motion pictures and other audiovisual works for
educational purposes. This exemption has been requested for audiovisual
material made available in all formats, including DVDs protected by
CSS, Blu-ray discs protected by AACS, and TPM-protected online
distribution services.
Two submitters--Professor Renee Hobbs and the Library Copyright
Alliance (``LCA'')--filed petitions seeking adoption of a revised
version of the previously granted exemption to permit circumvention of
TPMs on DVDs, Blu-ray discs, and videos acquired via online
distribution services, for purposes of facilitating educational uses of
motion picture excerpts by kindergarten through twelfth grade educators
and students.\21\
---------------------------------------------------------------------------
\21\ Hobbs proposes ``an exemption that enables educators and
students in grades K-12 . . . to `rip' encrypted or copy-protected
lawfully accessed audiovisual works used for educational purposes.''
Hobbs Pet. at 1. LCA requests ``renewal of the exemption granted in
the 2012 rulemaking for motion picture excerpts. The exemption
should be broadened to apply to all storage media, including Blu-
Ray. Further, the exemption for educational purposes should be
expanded to apply to students in kindergarten through twelfth grade.
LCA also seeks simplification of the exemption so that it could be
readily understood by the authors, filmmakers, students, and
educators it is intended to benefit.'' LCA Motion Picture Pet. at 1.
See 37 CFR 201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The proposed scope of the exemption, such as (a) whether
it can be limited to uses requiring close analysis of the copyrighted
work, as opposed to general-purpose classroom uses, (b) whether it
needs to extend to Blu-ray in addition to other formats, and (c)
whether it can be limited to materials prepared by faculty.
Any changed circumstances in the need for an exemption
over the last three years, including whether any viable alternatives to
circumvention have emerged or evolved during this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
(c) Proposed Class 3: Audiovisual Works--Educational Uses--Massive Open
Online Courses (``MOOCs'')
This proposed class would allow students and faculty participating
in Massive Open Online Courses (``MOOCs'') to circumvent access
controls on lawfully made and acquired motion pictures and other
audiovisual works for purposes of criticism and comment. This exemption
has been requested for audiovisual material made available in all
formats, including DVDs protected by CSS, Blu-ray discs protected by
AACS, and TPM-protected online distribution services.
The Joint Educators petition requests that any exemption for
college and university faculty and staff include those participating in
MOOCs, a type of distance education which has become increasingly
popular over the last few years.\22\
---------------------------------------------------------------------------
\22\ Joint Educators, in relevant part, propose the following
regulatory language: ``audiovisual works embodied in physical media
(such as DVDs and Blu-Ray Discs) or obtained online (such as through
online distribution services and streaming media) that are lawfully
made and acquired and that are protected by various technological
protection measures, where the circumvention is accomplished by . .
. students and faculty participating in Massive Open Online Courses
(MOOCs) for the purpose of criticism or comment.'' Joint Educators
Pet. at 1.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the
[[Page 73861]]
submission of relevant evidence--the following:
The definition of a ``MOOC'' for purpose of the proposed
exemption, with reference to the various distinctions among MOOCs in
relation to the proposed exemption, including but not limited to (a)
courses offered with free and open content versus courses that require
course materials to be licensed by users, (b) courses requiring
registration and/or identity verification versus courses without such
requirements, (c) courses offered for free versus paid courses, and (d)
whether the provider is a nonprofit or for-profit entity.
How the proposed exemption might affect the market for or
value of the accessed copyrighted works, including how access to
materials resulting from circumvention of TPMs could be limited to the
intended audience.
Whether or how the exception in 17 U.S.C. 110(2) for
distance education is relevant the proposed exemption.
The proposed scope of the exemption (in light of the
proposed definition of MOOC), including (a) whether the exemption can
be limited to lower-resolution content, (b) whether it can be limited
to uses requiring close analysis of the copyrighted work, and (c)
whether it can be limited to materials prepared by faculty.
(d) Proposed Class 4: Audiovisual Works--Educational Uses--Educational
Programs Operated by Museums, libraries, or Nonprofits
This proposed class would allow educators and learners in
libraries, museums and nonprofit organizations to circumvent access
controls on lawfully made and acquired motion pictures and other
audiovisual works for educational purposes. This exemption has been
requested for audiovisual material made available in all formats,
including DVDs protected by CSS, Blu-ray discs protected by AACS, and
TPM-protected online distribution services.
Professor Hobbs has proposed that any exemption for kindergarten
through twelfth-grade educators and students include ``educators and
learners'' in libraries, museums, and nonprofit organizations.\23\
---------------------------------------------------------------------------
\23\ Hobbs proposes that the Register recommend ``an exemption
that enables . . . educators and learners in libraries, museum and
nonprofit organizations to `rip' encrypted or copy-protected
lawfully accessed audiovisual works used for educational purposes.''
Hobbs Pet. at 1.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The proposed scope of the exemption, such as (a) whether
the exemption can be limited to video production, film, and media
studies and/or other close analysis of copyrighted works, (b) whether
it can be limited to lower-resolution media, (c) the people who would
be entitled to use the exemption, including an explanation of who would
be included in the proposed categories of ``educators'' and
``learners,'' (d) whether the exemption can be limited to prepared
presentations by museums, libraries and non-profit entities, and (e)
whether the exemption can be limited to use and display within physical
spaces as opposed to online use and display.
How the proposed exemption might affect the market for or
value of the accessed copyrighted works, including how access to
materials resulting from circumvention of TPMs could be limited to the
intended users and intended uses.
2. Audiovisual Works--Derivative Uses
Multiple petitions seek exemptions for derivative uses of
audiovisual works, including for use in multimedia e-books, in
filmmaking, and in non-commercial remix videos. The Office notes that
prior rulemakings have granted exemptions relating to uses of motion
picture excerpts in noncommercial videos, documentary films, and
nonfiction multimedia e-books offering film analysis.\24\ The current
petitions generally seek to readopt the most recent previously granted
exemption while expanding its contours to encompass additional
technologies or types of uses.
---------------------------------------------------------------------------
\24\ See 37 CFR 201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------
The Office has identified some legal and factual issues that appear
common to all of the proposed classes relating to derivative uses of
audiovisual works. In addition to other more specific areas of concern,
for each of these proposals, the Office encourages commenters, in the
course of detailing how the proposed exemption meets the requirements
of section 1201(a)(1), to address--including through the submission of
relevant evidence--the following:
Whether circumvention alternatives, such as licensing or
screen-capture technology, would be suitable for each type of requested
use.
Specific examples illustrating the need for the exemption
to extend beyond DVDs to other formats, such as Blu-ray discs and TPM-
protected content distributed online.
(a) Proposed Class 5: Audiovisual Works--Derivative Uses--Multimedia E-
Books
This proposed class would allow circumvention of access controls on
lawfully made and acquired motion pictures used in connection with
multimedia e-book authorship. This exemption has been requested for
audiovisual material made available in all formats, including DVDs
protected by CSS, Blu-ray discs protected by AACS, and TPM-protected
online distribution services.
Authors Alliance and Professor Bobette Buster (collectively
referred to here as ``Authors Alliance'') seek adoption of a revised
version of the previously granted exemption for multimedia e-books, to
permit circumvention of TPMs on DVDs, Blu-ray discs, and videos
acquired via online distribution services, for purposes of facilitating
uses of motion picture excerpts in nonfiction multimedia e-books
offering film analysis.\25\
---------------------------------------------------------------------------
\25\ Authors Alliance requests an exemption ``that permits
authors of multimedia e-books to circumvent Content Scramble System
(``CSS'') on DVDs, Advanced Access Content System (``AACS'') on Blu-
ray discs, and encryption and authentication protocols on digitally
transmitted video in order to make fair use of motion picture
content in their e-books.'' Authors Alliance Pet. at 2. See 37 CFR
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Whether the exemption should be limited to multimedia e-
books containing film analysis or whether a broader exemption is
warranted.
Whether and how the need for an exemption has increased
over the last three years due to ``new authorship tools, sophisticated
digital distribution networks, and widespread consumer adoption of e-
book readers.''\26\
---------------------------------------------------------------------------
\26\ See Authors Alliance Pet. at 2.
---------------------------------------------------------------------------
Any changed circumstances in the need for an exemption
over the last three years, including whether any viable alternatives to
circumvention have emerged or evolved during this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
(b) Proposed Class 6: Audiovisual Works--Derivative Uses--Filmmaking
Uses
This proposed class would allow circumvention of access controls on
[[Page 73862]]
lawfully made and acquired motion pictures for filmmaking purposes.
This exemption has been requested for audiovisual material made
available in all formats, including DVDs protected by CSS, Blu-ray
discs protected by AACS, and TPM-protected online distribution
services.
International Documentary Association, Film Independent, Kartemquin
Educational Films, Inc., and National Alliance for Media Arts and
Culture (collectively referred to here as ``IDA'') seek adoption of a
revised version of the previously granted exemption to permit
circumvention of TPMs on DVDs, Blu-ray discs, and videos acquired via
online distribution services, for purposes of facilitating uses of
motion picture excerpts in documentary films.\27\
---------------------------------------------------------------------------
\27\ IDA requests an exemption for filmmakers who seek to make
fair use in their filmmaking of copyrighted motion pictures
protected by TPMs on DVDs, Blu-Ray discs, and digitally transmitted
video, such as streaming video, digital downloads, or transmissions
captured on digital video recorders. IDA Pet. at 2-3. See 37 CFR
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
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The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Whether the proposed exemption should extend to commercial
uses in fictional (i.e., nondocumentary) films, including whether such
uses could supplant derivative markets for the copyrighted works used.
Whether the exemption can be limited to use of only short
portions or clips of motion pictures or, if not, the basis for a
broader exemption.
Specific examples of whether access to Blu-ray content or
other high-resolution content is necessary to meet applicable
distribution standards for documentary and/or fictional filmmaking.
Any changed circumstances in the need for an exemption
over the last three years, including whether any viable alternatives to
circumvention have emerged or evolved during this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
(c) Proposed Class 7: Audiovisual Works--Derivative Uses--Noncommercial
Remix Videos
This proposed class would allow circumvention of access controls on
lawfully made and acquired audiovisual works for the sole purpose of
extracting clips for inclusion in noncommercial videos that do not
infringe copyright. This exemption has been requested for audiovisual
material made available on DVDs protected by CSS, Blu-ray discs
protected by AACS, and TPM-protected online distribution services.
Electronic Frontier Foundation (``EFF'') and Organization for
Transformative Works (``OTW'') jointly seek adoption of a revised
version of the previously granted exemption to permit circumvention of
TPMs on DVDs, Blu-ray discs, or videos acquired via online distribution
services, for purposes of facilitating uses of motion picture excerpts
in noncommercial remix videos.\28\
---------------------------------------------------------------------------
\28\ EFF/OTW filed two petitions which relate to this class; one
for DVD and Blu-ray discs, and one for online content. The
respective petitions seek exemptions for ``[a]udiovisual works on
DVDs and Blu-Ray discs that are lawfully made and acquired and that
are protected by Digital Rights Management schemes, where
circumvention is undertaken for the sole purpose of extracting clips
for inclusion in noncommercial videos that do not infringe
copyright'' and ``[a]udiovisual works that are lawfully made and
acquired via online distribution services, where circumvention is
undertaken solely for the purpose of extracting clips for inclusion
in noncommercial videos that do not infringe copyright.'' See EFF/
OTW Disc Remix Pet. at 1; EFF/OTW Online Remix Pet. at 1. See 37 CFR
201.40(b)(4)-(7) (2013); 77 FR at 65266-70.
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The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The proposed scope of the exemption, including whether the
exemption can be limited to: (a) ``Motion pictures'' as defined under
the Copyright Act rather than extending to all ``audiovisual works,''
(b) uses of short portions or clips of motion pictures or audiovisual
works, (c) uses for purposes of criticism, comment, or education, as
opposed to other ``noninfringing'' or ``fair'' uses, (d)
``noncommercial videos'' as opposed to ``primarily noncommercial
videos,'' (e) with respect to works distributed online, those works
that are not readily available on DVD and/or Blu-ray disc, and (f) with
respect to Blu-ray discs, those works or content that are not readily
available on DVD.
Any changed circumstances in the need for an exemption
over the last three years, including whether any viable alternatives to
circumvention have emerged or evolved during this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
3. Proposed Class 8: Audiovisual Works--Space-Shifting and Format-
Shifting
This proposed class would allow circumvention of access controls on
lawfully made and acquired audiovisual works for the purpose of
noncommercial space-shifting or format-shifting. This exemption has
been requested for audiovisual material made available on DVDs
protected by CSS, Blu-ray discs protected by AACS, and TPM-protected
online distribution services.
Public Knowledge filed a petition seeking an exemption permitting
circumvention of TPMs on DVDs, Blu-ray discs, and videos acquired via
online distribution services for space-shifting or format-shifting for
personal use.\29\ The Office notes that in the 2006 and 2012 triennial
rulemakings, the Librarian rejected proposed exemptions for space-
shifting or format-shifting, finding that the proponents had failed to
establish under applicable law that space-shifting is a noninfringing
use.\30\
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\29\ Public Knowledge proposes ``an exemption for digital rights
management-encrypted motion pictures and other audiovisual works on
lawfully made and lawfully acquired DVDs, Blu-ray discs (`BDs'), and
downloaded files, when circumvention is accomplished for the purpose
of noncommercial space shifting of the contained audiovisual
content.'' Public Knowledge Space-Shifting Pet. at 1. Relatedly, in
addition, in the context of a general objection to digital rights
management technology, Alpheus Madsen has requested an exemption to
allow circumvention of CSS for purposes of playing DVDs on the Linux
Operating System. See Madsen Pet. at 1.
\30\ See 77 FR at 65276-77; 71 FR 68472, 68478 (Nov. 27, 2006).
The Librarian also previously declined to adopt an exemption to
allow motion pictures on DVDs to be played on the Linux operating
system. See 68 FR 62011, 62017 (Oct. 31, 2003).
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The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Legal and factual bases that establish that space-shifting
and format-shifting are noninfringing fair uses.
The potential adverse effects likely to be suffered over
the next three years in the absence of the requested exemption.
Evidentiary support for the contention that the DVD is
becoming obsolete and incompatible with currently produced computing
devices, and any contention that the same concern also applies to Blu-
ray discs or downloaded video files.
[[Page 73863]]
The specific TPMs sought to be circumvented, including
whether they are access or copy controls.
Whether the proposed exemption can be limited to ``motion
pictures'' as defined under the Copyright Act rather than extending to
all ``audiovisual works.''
Whether viable alternatives to circumvention exist, such
as screen-capture technology, external drives, alternative playback
devices, online subscription services, etc.
B. Literary Works Distributed Electronically
1. Proposed Class 9: Literary Works Distributed Electronically--
Assistive Technologies
This proposed class would allow circumvention of access controls on
lawfully made and acquired literary works distributed electronically
for purposes of accessibility for persons who are print disabled. This
exemption has been requested for literary works distributed
electronically, including e-books, digital textbooks, and PDF articles.
The American Foundation for the Blind (``AFB'') and the American
Council of the Blind (``ACB'') have jointly requested renewal of an
exemption allowing accessibility for persons who are print
disabled.\31\ The AFB/ACB petition notes that granting such an
exemption has historically been relatively uncontroversial and that no
one appeared at the 2012 triennial rulemaking hearing to oppose this
exemption.\32\
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\31\ AFB/ACB request an exemption to allow ``people who are
blind, visually impaired, or print disabled, as well as the
authorized entities that serve them, to circumvent technological
protection measures . . . that prevent or interfere with the use of
assistive technologies with electronically distributed literary
works.'' AFB/ACB Pet. at 2. See 37 CFR 201.40 (2013); 77 FR at
65262-63.
\32\ AFB/ACB Pet. at 5.
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The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific evidence relating to whether and the extent to
which the prohibition on circumvention has or is likely to have an
adverse effect on the ability of persons who are blind, visually
impaired, or print disabled to engage in noninfringing uses, such as by
providing a significant representative sample of titles across various
e-book formats that are otherwise inaccessible.
Any changed circumstances in the need for an exemption
over the last three years, including whether previous similar
exemptions have improved accessibility for persons who are blind,
visually impaired, or print disabled.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works
and whether the market has evolved to enhance accessibility.
How accessibility software interacts with TPMs and e-book
technology to improve accessibility for persons who are blind, visually
impaired, or print disabled.
To what extent the ``anti-copying encryptions'' mentioned
in the petition can be described as access controls within the meaning
of 1201(a)(1).
2. Proposed Class 10: Literary Works Distributed Electronically--Space-
Shifting and Format-Shifting
This proposed class would allow circumvention of access controls on
lawfully made and acquired literary works distributed electronically
for the purpose of noncommercial space-shifting or format-shifting.
This exemption has been requested for literary works distributed
electronically in e-books.
Christopher Meadows has requested an exemption to allow space-
shifting and format-shifting of lawfully purchased e-books.\33\ As
noted above, in previous rulemakings, upon recommendation by the
Register, the Librarian declined to adopt an exemption for purposes of
space-shifting and format-shifting due to the lack of legal precedent
establishing that space-shifting and format-shifting are noninfringing
uses.\34\
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\33\ Meadows proposes that ``[c]onsumers should be legally
permitted to remove DRM from electronic books that they have
purchased in order to back them up, read them on other e-book
platforms, or otherwise make section 107 fair use of the material.''
Meadows Pet. at 1.
\34\ See 77 FR at 65276-77; 68 FR at 62015-17; 71 FR at 68478.
The Register also declined to recommend, and the Librarian declined
to adopt, an exemption for creating back-up copies. See 71 FR at
68479.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Legal and factual bases that establish that space-shifting
and format-shifting are noninfringing fair uses.
Existing alternatives in the market, if any, that may
ameliorate potential adverse effects, such as the extent to which
people can purchase material in DRM-free formats.
Evidentiary support for the concern that e-books
distributed by vendors that have gone out of business will become, or
have become, unreadable due to TPMs.
Whether allowing an exemption could harm the market for e-
books, including e-book subscription and lending services.
C. Software/firmware That Enable Devices To Connect to a Wireless
Network That Offers Telecommunications and/or Information Services
(``Unlocking'')
The Office has received several petitions seeking exemptions
permitting the circumvention of access controls on computer programs
that enable wireless telephone handsets (i.e., cellphones) and other
wireless devices to connect to a mobile wireless communications
network, for purpose of allowing the device to connect to an alternate
network. This process is commonly known as ``unlocking.'' Consistent
with the Unlocking Act,\35\ the Office will be considering whether to
grant an exemption for wireless telephone handsets and whether to
``extend'' any exemption for wireless telephone handsets to ``any other
category of wireless devices.'' \36\
---------------------------------------------------------------------------
\35\ Pub. L. 113-144, sec. 2(b), 128 Stat. at 1751; see also 79
FR at 55688 (explaining the Unlocking Act).
\36\ 70 FR at 55689.
---------------------------------------------------------------------------
A few petitions address multiple types of wireless devices. As the
Office indicated in its September Notice, however, ``[t]he 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.''\37\ For
instance, in past rulemakings, determining the existence of a
noninfringing use has involved asking whether the software is owned or
licensed by the owner of the wireless device.\38\ The answer to that
question may vary for different types of devices. In addition, the
marketplace for cellphones and that for, e.g., tablet computing devices
may be quite different with respect to carrier subsidies, service
commitments, availability of unlocked devices, and other factors. These
differences necessarily will impact the factual and legal analysis.
Accordingly, the Office has categorized the petitions into the five
proposed classes below, with Proposed Classes 11 through 13 each
covering a specific type of device, Proposed Class 14 generally
covering
[[Page 73864]]
``wearable'' wireless devices, and Proposed Class 15 representing a
broad exemption for all ``consumer machines.'' While Proposed Classes
14 and 15 appear challenging because of the wide range of devices they
purport to cover, the Office hopes to encourage the creation of an
adequate administrative record for as many types of devices as possible
within the unlocking category.
---------------------------------------------------------------------------
\37\ Id.
\38\ See, e.g., 77 FR at 65265.
---------------------------------------------------------------------------
The Office has identified some legal and factual issues that appear
common to all of the proposed classes relating to unlocking. In
addition to other more specific areas of concern, for each of these
proposals, the Office encourages commenters, in the course of detailing
how the proposed exemption meets the requirements of section
1201(a)(1), to also address--including through the submission of
relevant evidence--the following:
Whether an owner of a device at issue in the class also
owns the firmware and/or software that runs the device for purposes of
17 U.S.C. 117, which gives software owners certain rights to copy and
adapt such programs. In addition, the Office is interested in the
relevance, if any, to the section 117 analysis of section 2(c)(2) of
the Unlocking Act, which provides that the current cellphone unlocking
exemption and any future unlocking exemptions may be initiated ``by the
owner of any such handset or other device.'' \39\
---------------------------------------------------------------------------
\39\ Pub. L. 113-144, sec. 2(c)(2), 128 Stat. at 1752 (emphasis
added); see also 37 CFR 201.40(c).
---------------------------------------------------------------------------
The technical details of how each type of locking
mechanism operates--e.g., service provider code locks, system operator
code locks, band order locks, and subscriber identity module locks--and
how those locks are circumvented. In particular, the Office is
interested in determining with precision the instances in which
unlocking merely involves changing underlying variables relied upon by
the device firmware, and those in which unlocking requires copying or
rewriting the firmware itself.
The Office understands that the unlocking exemption is
aimed at permitting a device to connect to an alternative mobile
wireless telecommunications or data network, such as CDMA, GSM, HSPA+,
LTE, or other similar networks.\40\ The petitions use differing
terminology to refer to these networks, including ``wireless
communications networks,'' ``wireless telecommunications networks,''
``wireless networks that offer telecommunications and/or information
services.'' The Office invites discussion on what terminology most
accurately describes the networks to which the proposed unlocking
exemptions would apply.
---------------------------------------------------------------------------
\40\ The Office does not understand the concept of ``unlocking''
to be relevant to other types of wireless communications, such as
those using the IEEE 802.11 standard employed in Wi-Fi routers, the
Bluetooth standard, or the ANT wireless network technology, though
it invites comment on that issue to the extent the Office may
misunderstand the proposals.
---------------------------------------------------------------------------
1. Proposed Class 11: Unlocking--Wireless Telephone Handsets
This proposed class would allow the unlocking of wireless telephone
handsets. ``Wireless telephone handsets'' includes all mobile
telephones including feature phones, smart phones, and ``phablets''
that are used for two-way voice communications.
Five parties--Consumers Union,\41\ the Competitive Carriers
Association (``CCA''),\42\ the Institute of Scrap Recycling Industries
(``ISRI''),\43\ Pymatuning Communications (``Pymatuning''),\44\ and the
Rural Wireless Association (``RWA'')\45\--seek, in essence, renewal of
the unlocking exemption for wireless telephone handsets (as reinstated
by the Unlocking Act) for another three-year period. Two of the
petitions vary in their particulars, however. Pymatuning's proposal is
limited to ``used'' handsets, but does not define that term. ISRI asks
that the exemption specifically allow both ``individual and bulk
circumvention.''
---------------------------------------------------------------------------
\41\ Consumers Union's proposed regulatory language reads as
follows: ``Computer programs, in the form of firmware or software,
that enable a mobile wireless communications device to connect to a
wireless communications network, when circumvention is initiated
by--(1) the owner of the device, (2) another person at the direction
of the owner, (3) 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 the device to connect to
other wireless communications networks, subject to the connection to
any such other wireless communications network being authorized by
the operator of such network. The term `mobile wireless
communications device' means (1) a wireless telephone handset, or
(2) a hand-held mobile wireless device used for any of the same
wireless communications functions, and using equivalent technology,
as a wireless telephone handset.'' Consumers Union Pet. at 3.
\42\ CCA's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware, software, or data used
by firmware or software, that enable wireless handsets to connect to
a wireless network that offers telecommunications and/or information
services, when circumvention is initiated by the owner of the
device, or by another person at the direction of the owner of the
device, in order to connect to a wireless network that offers
telecommunications and/or information services, and access to the
network is authorized by the operator of the network.'' CCA
Cellphone Unlocking Pet. at 1-2.
\43\ ISRI's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware or software, that
enable wireless telephone handsets to connect to a wireless
telecommunications network, when circumvention, including individual
and bulk circumvention for used devices, is initiated by the owner
of any such handset, 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, family member of
such owner, or subsequent owner or purchaser of such handset to
connect to a wireless telecommunications network when such
connection is authorized by the operator of such network.'' ISRI
Cellphone Unlocking Pet. at 1.
\44\ Pymatuning's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware or software, that
enable used wireless telephone handsets and other used wireless
telecommunications devices to connect to a wireless
telecommunications network, when circumvention is
initiated by the owner of the copy of the computer program
solely in order to connect to a wireless telecommunications network
and access to the network is authorized by the operator of the
network.'' Pymatuning Pet. at 2.
\45\ RWA's proposal would ``allow for the circumvention of the
technological measures that control access to Wireless Telephone
Handset software and firmware to allow the owner of a lawfully
acquired handset, or a person designated by the owner of the
lawfully acquired handset, to modify the device's software and
firmware so that the wireless device may be used on a
technologically compatible wireless network of the customer's
choosing when the connection to the network is authorized by the
operator of the network.'' See RWA Cellphone Unlocking Pet. at 1-2.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The current cellphone unlocking policies for all
significant wireless carriers, including (a) whether those carriers are
adhering to mobile wireless device unlocking guidelines issued by CTIA-
The Wireless Association, (b) whether, under those policies, a
consumer's completion of the term of a service contract, or payment of
early termination fees, affects his or her ability to unlock a
cellphone, and (c) the extent to which those policies obviate the need
for an exemption.
The extent to which unlocked mobile phones are available
for purchase, and whether the availability of such phones is a viable
alternative to circumvention.
Whether the exemption should be limited to ``used''
handsets, and what would qualify a handset as ``used.''
The practice and market effects of ``bulk circumvention''
(or unlocking), and whether the exemption should address ``bulk
circumvention.''
Any changed circumstances in the need for an exemption
over the last three years, including whether any
[[Page 73865]]
viable alternatives to circumvention have emerged or evolved during
this period.
Whether the previously granted exemption has had an
adverse effect on the marketplace for the accessed copyrighted works.
2. Proposed Class 12: Unlocking--All-Purpose Tablet Computers
This proposed class would allow the unlocking of all-purpose tablet
computers. This class would encompass devices such as the Apple iPad,
Microsoft Surface, Amazon Kindle Fire, and Samsung Galaxy Tab, but
would exclude specialized devices such as dedicated e-book readers and
dedicated handheld gaming devices.
The Office received several petitions--from CCA,\46\ ISRI,\47\ and
RWA\48\--that specifically seek an exemption to allow the unlocking of
all-purpose tablet computers. Two other petitions--from Consumers Union
\49\ and Pymatuning \50\--seek tablet exemptions as part of their
cellphone unlocking petitions. Again, Pymatuning's proposal is limited
to ``used'' tablets, but does not define that term, and ISRI asks that
the exemption specifically allow both ``individual and bulk
circumvention.''
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\46\ CCA's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware or software, or data
used by firmware or software, that enable all-purpose tablet
computers to connect to a wireless network that offers
telecommunications and/or information services, when circumvention
is initiated by the owner of the device, or by another person at the
direction of the owner of the device, in order to connect to a
wireless network that offers telecommunications and/or information
services, and access to the network is authorized by the operator of
the network.'' CCA Tablet Unlocking Pet. at 1-2.
\47\ ISRI's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware or software, that
enable all-purpose tablet computers to connect to a wireless
telecommunications network, when circumvention, including individual
and bulk circumvention for used devices, is initiated by the owner
of any such tablet, 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, family member of
such owner, or subsequent owner or purchaser of such tablet to
connect to a wireless telecommunications network when such
connection is authorized by the operator of such network.'' ISRI
Tablet Unlocking Pet. at 1.
\48\ RWA's proposal would ``allow for the circumvention of the
technological measures that control access to all purpose tablet
computer (`Tablet') software and firmware to allow the owner of a
lawfully acquired Tablet, or a person designated by the owner of the
lawfully acquired Tablet, to modify the device's software and
firmware so that the wireless device may be used on a
technologically compatible wireless network of the customer's
choosing, and when the connection to the network is authorized by
the operator of the network.'' See RWA Tablet Unlocking Pet. at 1-2.
\49\ Consumers Union Pet. at 2-3 (``Consumers Union's proposed
exemption accordingly includes all hand-held mobile wireless devices
that are used for essentially the same functions and in the same
manner as wireless telephone handsets, including tablets.'').
\50\ Pymatuning Pet. at 2 (stating that because ``the
justifications underlying the [Unlocking] Act also apply to all
portable computers, tablets and other types of devices that
communicate via wireless telecommunications networks, and that are
often locked much the same as wireless telephone handsets,
Pymatuning requests that the scope of `handsets' be clarified to
include all such wireless telecommunications devices.'').
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The definition of ``all-purpose tablet computer'' that
would govern the proposed exemption.
The marketplace for tablets with mobile data connections,
including (a) any relevant differences between the marketplace for
cellphones and that for tablets, (b) the extent to which wireless
carriers subsidize consumer purchases of tablets, and require service
commitments in return, and (c) the tablet unlocking policies for all
significant wireless carriers, including the extent to which those
policies obviate the need for an exemption.
The extent to which unlocked tablets are available for
purchase, and whether the availability of such tablets is a viable
alternative to circumvention.
Whether the exemption should be limited to ``used''
tablets, and what would qualify a tablet as ``used.''
The practice and market effects of ``bulk circumvention''
(or unlocking), and whether the exemption for tablets should address
``bulk circumvention.''
3. Proposed Class 13: Unlocking--Mobile Connectivity Devices
This proposed class would allow the unlocking of mobile
connectivity devices. ``Mobile connectivity devices'' are devices that
allow users to connect to a mobile data network through either a direct
connection or the creation of a local Wi-Fi network created by the
device. The category includes mobile hotspots and removable wireless
broadband modems.
Two petitions--from CCA \51\ and RWA\52\--seek an exemption to
allow the unlocking of mobile connectivity devices such as mobile
hotspots and aircards.
---------------------------------------------------------------------------
\51\ CCA's proposed regulatory language reads as follows:
``Computer programs, in the form of firmware or software, or data
used by firmware or software, that enable mobile hotspots and MiFi
devices to connect to a wireless network that offers
telecommunications and/or information services, when circumvention
is initiated by the owner of the device, or by another person at the
direction of the owner of the device, in order to connect to a
wireless network that offers telecommunications and/or information
services, and access to the network is authorized by the operator of
the network.'' CCA Mobile Hotspot and MiFi Device Unlocking Pet., at
2.
\52\ RWA filed two petitions, one addressed to mobile broadband
wireless modems, and the other addressed to mobile hotspots. See RWA
Mobile Broadband Wireless Unlocking Pet. at 1-2 (seeking exemption
``to allow for the circumvention of the technological measures that
control access to the software and firmware of mobile broadband
wireless modems, which are also known as wireless air cards (`Air
Card'), to allow the owner of a lawfully acquired Air Card, or a
person designated by the owner of the lawfully acquired Air Card, to
modify the Air Card's software and firmware so that the device may
be used on a technologically compatible wireless network of the
customer's choosing, and when the connection to the network is
authorized by the operator of the network''); RWA Mobile Hotspot
Unlocking Pet. at 1-2 (same, except that it seeks to circumvent
access controls on ``Mobile Wireless Personal Hotspot (`Mobile
Hotspot') software and firmware'').
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The marketplace for mobile connectivity devices, including
(a) any relevant differences between the marketplace for cellphones and
that for mobile connectivity devices, (b) the extent to which wireless
carriers subsidize consumer purchases of such devices, and require
service commitments in return, and (c) the unlocking policies for all
significant wireless carriers with respect to mobile connectivity
devices.
The extent to which unlocked mobile connectivity devices
are available for purchase, and whether the availability of such mobile
connectivity devices is a viable alternative to circumvention.
4. Proposed Class 14: Unlocking--Wearable Computing Devices
This proposed class would allow the unlocking of wearable wireless
devices. ``Wearable wireless devices'' include all wireless devices
that are designed to be worn on the body, including smart watches,
fitness devices, and health monitoring devices.
[[Page 73866]]
CCA \53\ and RWA \54\ both propose an exemption to permit unlocking
of wearable mobile wireless devices, a broad category that would
include smart watches, fitness devices, health monitoring devices, and
perhaps devices such as Google Glass.
---------------------------------------------------------------------------
\53\ CCA addressed what it called ``consumer wearables'' in the
course of its broad catch-all proposal, the remainder of which is
addressed in Proposed Class 15. See CCA Connected Wearables and
Consumer Machines Unlocking Pet. at 1-2.
\54\ RWA's proposed exemption would ``allow for the
circumvention of the technological measures that control access to
wearable mobile wireless device (`Wearable Wireless Device')
software and firmware to allow the owner of a lawfully acquired
Wearable Wireless Device, or a person designated by the owner of the
lawfully acquired Wearable Wireless Device, to modify the device's
software and firmware so that the Wearable Wireless Device may be
used on a technologically compatible wireless network of the
customer's choosing, and when the connection to the network is
authorized by the operator of the network.'' RWA Wearable Wireless
Device Unlocking Pet. at 1-2. RWA explains that ``[a] Wearable
Wireless Device is a wearable Internet-connected, voice and touch
screen enabled, mobile wireless computing device that is designed to
be worn on the body, including but not limited to a smart watch.''
Id. at 2 n.3.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The specific types of devices that would fall under the
proposed exemption.
The Office's understanding is that most smart watches, and
most if not all fitness and health monitoring devices, do not employ
mobile telecommunications or data networks (e.g., HSPA+ or LTE
networks) for wireless connections, but instead use either Wi-Fi to
connect to a local wireless network, or Bluetooth or ANT technologies
to connect to a smartphone or computer. The Office is interested in the
extent to which there are wearable wireless devices that directly
connect with mobile telecommunications or data networks--and what those
devices are--or whether the exemption seeks to permit circumvention of
access controls on devices that use Wi-Fi, Bluetooth, or ANT
technologies.
The marketplace for wearable computing devices, including
(a) the extent to which wireless carriers subsidize consumer purchases
of such devices, and require service commitments in return, and (b) the
unlocking policies for all significant wireless carriers with respect
to wearable computing devices.
The extent to which unlocked devices are available for
purchase, and whether the availability of such devices is a viable
alternative to circumvention.
5. Proposed Class 15: Unlocking--consumer machines
This proposed class would allow the unlocking of all wireless
``consumer machines,'' including smart meters, appliances, and
precision-guided commercial equipment.
CCA has proposed a broad, open-ended exemption for all ``consumer
machines''--or ``the `Internet of Things' ''--which would encompass a
diverse range of devices and equipment.\55\ At least as currently
framed, it appears that it may be difficult to build an adequate
administrative record for this exemption in light of the fact-bound
analysis required by section 1201(a)(1). For example, CCA's proposal
refers to ``precision-guided commercial equipment'' but provides no
explanation as to the kind of equipment to which it refers. The Office
invites commenters to provide targeted argument and evidence that would
allow the Office to narrow this category appropriately.
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\55\ In relevant part, CCA proposes the following regulatory
language: ``Computer programs, in the form of firmware or software,
or data used by firmware or software, that enable . . . consumer
machines to connect to a wireless network that offers
telecommunications and/or information services, when circumvention
is initiated by the owner of the device, or by another person at the
direction of the owner of the device, in order to connect to a
wireless network that offers telecommunications and/or information
services, and access to the network is authorized by the operator of
the network.'' CCA Connected Wearables and Consumer Machines
Unlocking Pet. at 2. CCA states that the ``consumer machines''
category encompasses ``smart meters, connected appliances, connected
precision-guided commercial equipment, among others.'' Id. at 1.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The extent to which devices understood to be in this class
use mobile telecommunications or data networks (e.g., HSPA+ or LTE
networks) for wireless connections, rather than Wi-Fi or Bluetooth, or
some other technology, and whether parties are seeking to circumvent
access controls on devices that use such other technologies.
The extent to which consumers, rather than the device
manufacturer or some other entity, select and/or pay for the mobile
wireless connection for a smart meter, an appliance, or a piece of
precision-guided commercial equipment.
Specific examples demonstrating adverse effects stemming
from a consumer's inability to choose the mobile wireless
communications provider used by a smart meter, an appliance, or a piece
of precision-guided commercial equipment.
D. Software That Restricts the Use of Lawfully Obtained Software
(``Jailbreaking'')
The Office received several petitions for exemptions to allow users
to circumvent TPMs protecting computer programs in devices such as
cellphones, all-purpose tablets, and smart TVs and that prevent users
from running certain software on, or removing preinstalled software
from, these devices. This type of circumvention is commonly referred to
as the ``jailbreaking'' or ``rooting'' of a device, and has been the
subject of proposed classes in the last triennial rulemaking and
earlier proceedings.\56\ The Office has categorized the proposals into
Proposed Classes 16 through 20, with each class covering a different
type of device.
---------------------------------------------------------------------------
\56\ See, e.g., 77 FR at 65263-64 (wireless telephone handsets);
id. at 65272-76 (video game consoles); id. at 65274-75 (personal
computing devices).
---------------------------------------------------------------------------
The Office has identified some legal and factual issues that appear
common to all of the proposed classes relating to jailbreaking. In
addition to other more specific areas of concern, for each of these
proposals, the Office encourages commenters, in the course of detailing
how the proposed exemption meets the requirements of section
1201(a)(1), to also address--including through the submission of
relevant evidence--the following:
The extent to which consumers may legally purchase devices
that do not contain the complained-of access controls, and whether the
availability of such devices eliminates the need for an exemption.
Whether jailbreaking the device facilitates infringing
uses, including access to or consumption of infringing content. The
Office is particularly interested in specific examples of noninfringing
versus infringing uses, and any available evidence regarding the
relative volume of lawful versus pirated content installed on or
consumed via jailbroken devices, as well as whether there is a
practical way to segregate lawful from unlawful uses.
1. Proposed Class 16: Jailbreaking--Wireless Telephone Handsets
This proposed class would permit the jailbreaking of wireless
telephone handsets to allow the devices to run lawfully acquired
software that is otherwise prevented from running, or to
[[Page 73867]]
remove unwanted preinstalled software from the device.
EFF seeks readoption of an existing exemption allowing the
jailbreaking of wireless telephone handsets to allow those devices to
interoperate with lawfully obtained software and to allow users to
remove unwanted preinstalled software from the device.\57\
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\57\ EFF's petition encompassed wireless telephone handsets and
other all-purpose mobile computing devices. See EFF Jailbreaking
Pet. at 1 (suggesting an exemption for ``[c]omputer programs that
enable mobile computing devices, such as telephone handsets and
tablets, to execute lawfully obtained software, where circumvention
is accomplished for the sole purposes of enabling interoperability
of such software with computer programs of the device, or removing
software from the device''). Proposed Class 16 encompasses EFF's
proposal with respect to wireless telephone handsets, and Proposed
Class 17 encompasses the remainder of EFF's proposal. See 37 CFR
201.40(b)(2) (2013); see also 77 FR at 65263-64.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Whether the previously granted exemption has had an
adverse effect on the marketplace for wireless telephone handsets or
the applications that run on them.
Specific examples of the following: (a) The manner in
which access controls are being used to prevent installation of
software that competes with software offered by the device
manufacturer, and (b) ``unwanted software installed by the
manufacturer'' that ``consumes energy, shortens the device's battery
life, or sends personal information to advertisers'' that cannot be
uninstalled.\58\
---------------------------------------------------------------------------
\58\ EFF Jailbreaking Pet. at 4.
---------------------------------------------------------------------------
2. Proposed Class 17: Jailbreaking--All-Purpose Mobile Computing
Devices
This proposed class would permit the jailbreaking of all-purpose
mobile computing devices to allow the devices to run lawfully acquired
software that is otherwise prevented from running, or to remove
unwanted preinstalled software from the device. The category ``all-
purpose mobile computing device'' includes all-purpose non-phone
devices (such as the Apple iPod touch) and all-purpose tablets (such as
the Apple iPad or the Google Nexus). The category does not include
specialized devices such as e-book readers or handheld gaming devices,
or laptop or desktop computers.
EFF \59\ and Maneesh Pangasa \60\ seek to extend any exemption
allowing the jailbreaking of wireless telephone handsets \61\ to other
all-purpose mobile computing devices, including non-phone handheld
devices and all-purpose tablets. In the 2012 triennial rulemaking, the
Librarian rejected a jailbreaking exemption for tablets because ``the
record lacked a sufficient basis to develop an appropriate definition
for the `tablet' category of devices, a necessary predicate to
extending the exemption beyond smartphones.'' \62\ The Librarian
acknowledged, however, that ``[i]n future rulemakings, as mobile
computing technology evolves, such a definition may be more
attainable.'' \63\
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\59\ EFF's petition seeks, in relevant part, the following
proposed class: ``Computer programs that enable mobile computing
devices, such as . . . tablets, to execute lawfully obtained
software, where circumvention is accomplished for the sole purposes
of enabling interoperability of such software with computer programs
on the device, or removing software from the device.'' EFF
Jailbreaking Pet. at 1.
\60\ Mr. Pangasa's tablet jailbreaking petition encompasses two
distinct proposals. Pangasa Tablet Jailbreaking Pet. at 1-4. The
Office has consolidated the portion of Mr. Pangasa's petition
addressing jailbreaking of general purpose tablets with the EFF's
proposal in Proposed Class 17. See id. at 1 (``I would like to
request an exemption to the Digital Millennium Copyright Act for
jail-breaking or rooting tablets like the Apple iPad Air & iPad
Mini, Amazon's Kindle Fire HD, Microsoft Surface line of tablets
(particularly the RT version to install hacks that permit running
desktop applications on RT devices.''). Mr. Pangasa's proposal with
respect to e-book readers is made part of Proposed Class 18.
\61\ See 37 CFR 201.40(b)(2) (2013).
\62\ See 77 FR at 65264.
\63\ Id.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The specific types of devices that would be encompassed by
the exemption.
Whether there are any relevant differences between
wireless telephone handsets and other all-purpose computing devices,
such as non-phone handheld computing devices and tablets, for purposes
of analyzing the proposed exemption.
Although the EFF's proposed exemption encompasses all-
purpose mobile computing devices, it specifically excludes laptop and
desktop computers.\64\ The Office is interested in the rationale for
that exclusion, and how any exemption would distinguish between those
devices that would fall within the exemption and those that would fall
outside it.
---------------------------------------------------------------------------
\64\ See EFF Jailbreaking Pet. at 2.
---------------------------------------------------------------------------
Specific examples of the following: (a) The manner in
which access controls are being used to prevent installation of
software that competes with software offered by the device
manufacturer, and (b) ``unwanted software installed by the
manufacturer'' that ``consumes energy, shortens the device's battery
life, or sends personal information to advertisers'' that cannot be
uninstalled.\65\
---------------------------------------------------------------------------
\65\ Id. at 4.
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3. Proposed Class 18: Jailbreaking--Dedicated E-Book Readers
This proposed class would permit the jailbreaking of dedicated e-
book readers to allow those devices to run lawfully acquired software
that is otherwise prevented from running.
Maneesh Pangasa filed a petition that, in relevant part, seeks an
exemption to allow jailbreaking of dedicated e-book readers such as
Amazon's Kindle Paperwhite and Barnes and Noble's Nook.\66\ Mr. Pangasa
provided only a limited explanation of the noninfringing uses that
would be facilitated by jailbreaking e-book readers, or of the adverse
effects caused by the relevant access controls. In part, it appears his
concern may be related to the inability to format-shift or space-shift
e-books, a topic that is addressed in Proposed Class 10. Mr. Pangasa
also makes a passing reference to enabling ``universal access
functionality''; the Office notes that e-book accessibility concerns
are addressed in Proposed Class 9. Reading the petition generously, Mr.
Pangasa does appear to raise a concern that dedicated e-readers may not
be able to run lawfully acquired third-party applications. Accordingly,
the Office has elected to put forward this proposed class for further
comment.
---------------------------------------------------------------------------
\66\ See Pangasa Tablet Jailbreaking Pet. at 2-4 (``I therefore
request an exemption to the Digital Millennium Copyright Act be
granted extending the protections for (class #5) mobile phones to
include . . . dedicated e-readers like the Amazon Kindle.'').
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The TPMs that are included with dedicated e-book readers,
and how they prevent access to the e-book reader's firmware or
software.
Specific examples of noninfringing uses that are
facilitated by the jailbreaking of a dedicated e-book reader, other
than enabling accessibility for persons who are print disabled.
[[Page 73868]]
Whether allowing an exemption could harm the market for e-
books, including e-book subscription and lending services.
4. Proposed Class 19: Jailbreaking--Video Game Consoles
This proposed class would permit the jailbreaking of home video
game consoles. Asserted noninfringing uses include installing
alternative operating systems, running lawfully acquired applications,
preventing the reporting of personal usage information to the
manufacturer, and removing region locks. The requested exemption would
apply both to older and currently marketed game consoles.
Maneesh Pangasa has proposed an exemption to permit circumvention
of home video game consoles for an assortment of asserted noninfringing
uses, including installing alternative operating systems and removing
region locks.\67\ In the 2012 triennial rulemaking, the Librarian
rejected a proposed class seeking an exemption for jailbreaking of
video game consoles.\68\ Among other things, the Librarian concluded
based on the evidentiary record that the jailbreaking of video game
consoles ``leads to a higher level of infringing activity.'' \69\ At
the same time, the Librarian determined that there was insufficient
evidence of adverse impacts on noninfringing uses, because the asserted
noninfringing uses were not substantial, and there were alternative
devices that allowed users to engage in those uses.\70\
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\67\ Mr. Panagasa seeks an exemption ``for jail-breaking or
rooting home video game consoles like Nintendo's Wii U, Sony's Play
Station 4, Microsoft's Xbox One and home media devices like Apple TV
which may in future gain the ability to natively play video games.''
Pangasa Video Game Console Jailbreaking Pet. at 1.
\68\ 77 FR at 65272-74.
\69\ Id. at 65274.
\70\ Id.
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Particularly in light of those earlier conclusions, the Office
encourages commenters, in the course of detailing how the proposed
exemption meets the requirements of section 1201(a)(1), to address--
including through the submission of relevant evidence--the following:
The nature of the specific TPMs at issue and how they
operate, and the particular acts of circumvention required for the
jailbreaking of video game consoles as sought in the proposal
(including any significant differences among platforms).
The relationship between the ability to jailbreak consoles
and the dissemination and consumption of pirated content, including any
practical means to limit the exemption to facilitate noninfringing
rather than infringing conduct.
Specific evidence regarding the adverse impact of access
controls in video game consoles on noninfringing uses, including an
explanation of why it is necessary to employ the console for particular
uses rather than an alternative device such as a general-purpose
computer.
Whether allowing an exemption could harm the market for
video game consoles or video games.
Whether the Librarian's analysis should distinguish
between current-generation game consoles and older game consoles and,
if so, how.
5. Proposed Class 20: Jailbreaking--Smart TVs
This proposed class would permit the jailbreaking of computer-
embedded televisions (``smart TVs''). Asserted noninfringing uses
include accessing lawfully acquired media on external devices,
installing user-supplied licensed applications, enabling the operating
system to interoperate with local networks and external peripherals,
and enabling interoperability with external devices, and improving the
TV's accessibility features (e.g., for hearing-impaired viewers). The
TPMs at issue include firmware encryption and administrative access
controls that prevent access to the TV's operating system.
The Software Freedom Conservancy (``SFC'') has proposed an
exemption to permit circumvention of TPMs that protect access to
firmware and software on ``smart TVs.'' \71\ It asserts that although
modern smart TVs are ``full-featured computers,'' manufacturers limit
their capabilities in a number of ways. For instance, SFC asserts that
while smart TVs are internet enabled, they are ``limited to accessing
only services chosen by the manufacturer.'' \72\ In addition, SFC
asserts that many TVs have USB ports that ``can only be used to install
manufacturer-supplied updates and connect to manufacturer-sanctioned
devices.'' \73\
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\71\ SFC's proposal would ``permit owners of computer-embedded
televisions (`Smart TVs') to circumvent firmware encryption and
administrative access controls that control access to the TVs'
operating systems, for the purpose of accessing lawfully-acquired
media, installing licensed applications, and enabling
interoperability with external devices.'' SFC Pet. at 1.
\72\ Id. at 3.
\73\ Id.
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The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
The specific TPMs on smart TVs, how they operate, and
methods of circumventing such access controls.
Specific examples of noninfringing uses that would be
facilitated by circumvention.
What users seek to do with jailbroken smart TVs, including
specific examples of the following: (a) User-supplied software that
users wish to install, (b) external hardware users are prevented from
connecting absent circumvention, (c) improvements to accessibility for
hearing-impaired users that would be facilitated by jailbreaking, and
(d) external storage devices through which users seek to access media.
The reasons smart TV manufacturers limit end users'
ability to install third-party applications and/or restrict
interoperability with external devices.
The role of any licensing arrangements between smart TV
manufacturers and content or application providers and the extent to
which the TPMs at issue protect open-source software.
E. Vehicle Software
Several petitions seek exemptions to permit circumvention of TPMs
on software that is embedded in vehicles. The Office has initially
consolidated these proposals into the two classes below based on the
asserted noninfringing uses and may further refine the two proposed
classes based on the record as it develops.
The Office has identified certain areas of inquiry that appear to
be common to both of these proposed classes. In addition to other more
specific areas of concern, for each of these proposals, the Office
encourages commenters, in the course of detailing how the proposed
exemption meets the requirements of section 1201(a)(1), to also
address--including through the submission of relevant evidence--the
following:
The computers and TPMs used in connection with different
types of vehicles, including personal automobiles, commercial motor
vehicles, and agricultural machinery, and how they operate.
Whether the proposed exemption is warranted for all types
of motorized land vehicles--including personal automobiles, commercial
motor vehicles, and agricultural machinery--and whether and how the
analysis may differ for each type of vehicle.
[[Page 73869]]
1. Proposed Class 21: Vehicle Software--Diagnosis, Repair, or
Modification
This proposed class would allow circumvention of TPMs protecting
computer programs that control the functioning of a motorized land
vehicle, including personal automobiles, commercial motor vehicles, and
agricultural machinery, for purposes of lawful diagnosis and repair, or
aftermarket personalization, modification, or other improvement. Under
the exemption as proposed, circumvention would be allowed when
undertaken by or on behalf of the lawful owner of the vehicle.
EFF has proposed an exemption to allow the circumvention of TPMs on
computer programs that are embedded in vehicles for purposes of
personalization, modification, or other improvement and would apply to
all motorized land vehicles.\74\ The Intellectual Property & Technology
Law Clinic of the University of Southern California Gould School of Law
(``U.S.C. Law'') has proposed a similar exemption for agricultural
machinery specifically.\75\ EFF explains that ``[v]ehicle owners expect
to be able to repair and tinker with their vehicles[,]'' but TPMs on
vehicle software ``block such legitimate activities, forcing vehicle
owners to choose between breaking the law or tinkering and repairing
their vehicles.'' \76\ U.S.C. Law similarly observes that farmers
specifically require unfettered access to this vehicle software ``to
make any significant modifications to the efficiency and/or
functionality of . . . their increasingly sophisticated agricultural
machinery'' \77\ and to ``obtain vital diagnostic information.'' \78\
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\74\ EFF's proposed regulatory language reads as follows:
``Lawfully-obtained computer programs that control or are intended
to control the functioning of a motorized land vehicle, including
firmware and firmware updates, where circumvention is undertaken by
or on behalf of the lawful owner of such a vehicle for the purpose
of lawful aftermarket personalization, improvement, or repair.'' EFF
Vehicle Software Repair Pet. at 1.
\75\ U.S.C. Law filed two petitions relating agricultural
machinery software. The first seeks an exemption to ``allow[ ]
farmers to circumvent . . . TPMs for the purpose of modifying their
own agricultural machinery to improve efficiency and/or
functionality.'' U.S.C. Law Vehicle Software Modification Pet. at 1.
The second seeks an exemption to ``allow[ ] farmers to circumvent .
. . TPMs for the purpose of diagnosing and/or repairing their own
agricultural machinery.'' U.S.C. Law Vehicle Software Repair Pet. at
1. At least at this stage of the rulemaking, the Office believes
that the two petitions are similar enough that they may be addressed
as part of the same proposed class.
\76\ EFF Vehicle Software Repair Pet. at 5.
\77\ U.S.C. Law Vehicle Software Modification Pet. at 2.
\78\ U.S.C. Law Vehicle Software Repair Pet. at 1.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific examples of the adverse effects of the TPMs,
including how they prevent vehicle owners or others from engaging in
lawful diagnosis, repair, or modification activities.
With respect to each of the proposed uses--diagnosis,
repair, and modification--(a) the extent to which any of the asserted
noninfringing activities merely requires examination or changing of
variables or codes relied upon by the vehicle software, or instead
requires copying or rewriting of the vehicle software, and (b) whether
vehicle owners can properly be considered ``owners'' of the vehicle
software.
The applicability (or not) of the statutory exemption for
reverse engineering in 17 U.S.C. 1201(f) to the proposed uses.
Whether a third party--rather than the owner of the
vehicle--may lawfully offer or engage in the proposed circumvention
activities with respect to that vehicle pursuant to an exemption
granted under 17 U.S.C. 1201(a)(1).
2. Proposed Class 22: Vehicle Software--Security and Safety Research
This proposed class would allow circumvention of TPMs protecting
computer programs that control the functioning of a motorized land
vehicle for the purpose of researching the security or safety of such
vehicles. Under the exemption as proposed, circumvention would be
allowed when undertaken by or on behalf of the lawful owner of the
vehicle.
EFF seeks an exemption that would permit circumvention of TPMs on
computer programs that are embedded in vehicles for purposes of
researching the security or safety of that vehicle.\79\ According to
EFF, TPMs on vehicle software prevent researchers from ``discover[ing]
programming errors that endanger passengers'' or ``errors that would
allow a remote attacker to take control of a vehicle's functions.''
\80\ Thus, separate and apart from Proposed Class 21, EFF seeks a
specific exemption to permit vehicle safety and security research.
---------------------------------------------------------------------------
\79\ EFF's proposed regulatory language reads as follows:
``Lawfully-obtained computer programs that control or are intended
to control the functioning of a motorized land vehicle, including
firmware and firmware updates, where circumvention is undertaken by
or on behalf of the lawful owner of such a vehicle for the purpose
of researching the security or safety of such vehicles.'' EFF
Vehicle Software Security Pet. at 1.
\80\ EFF Vehicle Software Security Pet. at 2.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific examples of the adverse effects of the TPMs,
including how they prevent vehicle owners or others from engaging in
lawful safety and security research activities.
With respect to the proposed uses, (a) the extent to which
any of the asserted noninfringing activities merely requires
examination or changing of variables or codes relied upon by the
vehicle software, or instead requires copying or rewriting of the
vehicle software, and (b) whether vehicle owners can properly be
considered ``owners'' of the vehicle software.
Whether granting the exemption could have negative
repercussions with respect to the safety or security of vehicles, for
example, by making it easier for wrongdoers to access a vehicle's
software.
The applicability (or not) of the statutory exemptions for
reverse engineering in 17 U.S.C. 1201(f) and encryption research in 17
U.S.C. 1201(g) to the proposed uses.
Whether a third party--rather than the owner of the
vehicle--may lawfully offer or engage in the proposed circumvention
activities with respect to that vehicle pursuant to an exemption
granted under 17 U.S.C. 1201(a)(1).
F. Abandoned Software
1. Proposed Class 23: Abandoned Software--Video Games Requiring Server
Communication
This proposed class would allow circumvention of TPMs on lawfully
acquired video games consisting of communication with a developer-
operated server for the purpose of either authentication or to enable
multiplayer matchmaking, where developer support for those server
communications has ended. This exception would not apply to video games
whose audiovisual content is primarily stored on the developer's
server, such as massive multiplayer online role-playing games.
EFF has proposed an exemption to permit circumvention of TPMs on
video games that require communication with a server to ``enable core
functionality''--that is, either ``single-player or multiplayer
play''--where the developer no longer supports the requisite server
[[Page 73870]]
or services.\81\ EFF claims that an exemption allowing video game
owners to circumvent relevant authentication and multiplayer TPMs is
necessary to ``serve player communities that wish to continue playing
their purchased games, as well as archivists, historians, and other
academic researchers who preserve and study videogames.'' \82\
---------------------------------------------------------------------------
\81\ EFF's proposed regulatory language reads as follows:
``Literary works in the form of computer programs, where
circumvention is undertaken for the purpose of restoring access to
single-player or multiplayer video gaming on consoles, personal
computers or personal handheld gaming devices when the developer and
its agents have ceased to support such gaming.'' EFF Abandoned Video
Games Pet. at 1.
\82\ Id. at 1-2.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific descriptions of the TPMs and methods of
circumvention involved.
Specific examples of video games that would be covered by
this proposed class, including games that can no longer be played at
all and games for which single-player play remains possible but cannot
be played in multiplayer mode.
Whether the exemption would threaten the current market
for video games (a) by allowing users of unlawfully acquired video
games to similarly bypass server checks, (b) by contributing to the
circumvention of client-server protocols for non-abandoned video games,
or (c) by threatening the market for older video games or discouraging
the market for backward compatibility of video games.
The standard for determining when developer support has
ended, including whether that standard should have a notice or grace
period for developers before the exemption can be used.
The proposed scope of an exemption, including (a) whether
the exemption should differ with respect to games that cannot be played
at all because developer support has ended, and those for which only
multiplayer support has ended, (b) whether it should exclude video
games that are hosted on or played through a remote server, and (c)
whether it should be limited to libraries, archivists, historians, or
other academic researchers who preserve or study video games.
Whether the exemption should differ with respect to video
games that are made for personal computers, those made for consoles,
and those made for handheld devices.
2. Proposed Class 24: Abandoned Software--Music Recording Software
This proposed class would allow circumvention of access controls
consisting of the PACE content protection system, which restricts
access to the full functionality of lawfully acquired Ensoniq PARIS
music recording software.
In three similar petitions, Richard Kelley, James McCloskey, and
Michael Yanoska have proposed an exemption to permit circumvention of a
TPM called PACE that protects access to a specific hardware and
software system used for music production called Ensoniq PARIS.\83\ The
petitions explain that, when PARIS is installed on a new computer or
the hosting computer is modified in some way, the PACE access control
requires the user to enter a response code, but these codes soon will
no longer be available. Petitioners assert that an exemption will allow
for both continued use of the PARIS system and access to existing sound
recording files saved using that system, which would otherwise be
unrecoverable.
---------------------------------------------------------------------------
\83\ Mr. Kelley alone proposed specific regulatory language as
follows: ``(1) Obsolete software/hardware combinations protected by
a software based copy protection mechanism (software dongle) when
the manufacturer is unable (because of no longer being in business)
or unwilling to provide access via this system to those who are
otherwise entitled access; (2) Obsolete software/hardware
combinations protected by a software based copy protection mechanism
(software dongle) that prevents the hardware and software from
running on current operating systems or current hardware by those
otherwise entitled to access to the software and hardware.'' Kelley
Pet. at 1; see also McCloskey Pet. at 1 (seeking ``a minor
broadening of a previous exemption, namely `Computer programs
protected by dongles that prevent access due to malfunction or
damage and which are obsolete''); Yanoska Pet. at 1 (seeking
exemption to allow ``[e]limination of the PACE control on recording
software that was created and sold over 15 years ago (which is no
longer sold or supported by the creating company)'').
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific evidence that response codes will no longer be
provided to Ensoniq PARIS owners.
The applicability (or not) of 17 U.S.C. 117 to the
maintenance or repair of the hardware and software comprising Ensoniq
PARIS or the PACE protection system.
Whether any portions of the Ensoniq PARIS hardware or
software will remain functional without the ability to circumvent the
PACE access control.
Whether the proposed circumvention could impact others, if
any, who use the PACE protection system, including federal agencies and
state and local law enforcement personnel who apparently rely upon
services from Intelligent Devices, the current proprietor of the PACE
access control system.
G. Miscellaneous
1. Proposed Class 25: Software--Security Research
This proposed class would allow researchers to circumvent access
controls in relation to computer programs, databases, and devices for
purposes of good-faith testing, identifying, disclosing, and fixing of
malfunctions, security flaws, or vulnerabilities.
Two submissions--by Professor Matthew D. Green,\84\ and by a group
of academic security researchers comprising Professors Steven M.
Bellovin, Matt Blaze, Edward W. Felten, J. Alex Halderman, and Nadia
Heninger (``Security Researchers'') \85\--seek exemptions for
researchers performing good-faith security research. According to the
submissions, an exemption is needed to identify, disclose, and fix
malfunctions, security flaws, and/or vulnerabilities across a wide
range of systems and devices. Petitioners seek to circumvent TPMs in
medical devices; car components; supervisory control and data
acquisition (``SCADA'')
[[Page 73871]]
systems; and other critical infrastructure, such as the computer code
that controls nuclear power plants, smartgrids, and industrial control
systems; smartphones that operate critical applications, such as
pacemaker applications; internet-enabled consumer goods in the home;
and transit systems.\86\ According to petitioners, the exemptions
codified in subsection (f) of 17 U.S.C. 1201 for reverse engineering,
subsection (g) for encryption research, subsection (i) for protection
of personally identifying information, and subsection (j) for security
testing do not sufficiently capture the breadth of the research they
seek to facilitate, and suffer from ``ambiguities . . . and burdensome
requirements to qualify for those exemptions.'' \87\ As a result, the
petitioners say that they have ``chosen not to perform specific acts of
security research that they believe would have prevented harms to and
benefited [the] safety of human persons.'' \88\
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\84\ Professor Green's proposed regulatory language reads as
follows: ``Computer programs and software, a subcategory of literary
works, accessible on personal computers and personal devices and
protected by technological protection measures (`TPMs') that control
access to lawfully obtained works when circumvention is accomplished
for the purposes of good faith testing, investigating, or correcting
security flaws and vulnerabilities, commentary, criticism,
scholarship, or teaching.'' Green Pet. at 1.
\85\ Security Researchers' proposed regulatory language reads as
follows: ``Literary works, including computer programs and
databases, protected by access control mechanisms that potentially
expose the public to risk of harm due to malfunction, security flaws
or vulnerabilities when (a) circumvention is accomplished for the
purposes of good faith testing for, investigating, or correcting
such malfunction, security flaws or vulnerabilities in a
technological protection measures or the underlying work it
protects; OR (b) circumvention was part of the testing or
investigation into a malfunction, security flaw or vulnerability
that resulted in the public dissemination of security research when
(1) a copyright holder fails to comply with the standards set forth
in ISO 29147 and 30111; or (2) the finder of the malfunction,
security flaw or vulnerability reports the malfunction, security
flaw or vulnerability to the copyright holder by providing the
information set forth in Form A* in advance of or concurrently with
public dissemination of the security research.'' Security
Researchers Pet. at 1.
\86\ See Security Researchers Pet. at 2.
\87\ Green Pet. at 4; see also Security Researchers Pet. at 2.
\88\ Security Researchers Pet. at 3. The Office notes that prior
exemptions granted in 2006 and 2010 addressed circumvention for
investigation or security purposes for the more limited categories
of compact discs or video games accessible on personal computers.
See 37 CFR 201.40(b)(6) (2007) (compact discs); 37 CFR 201.40(b)(4)
(2011) (video games); 71 FR at 68477; 75 FR 43825, 43832 (July 27,
2010).
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific examples of the types of noninfringing uses that
are, or in the next three years, are likely to be adversely affected by
a prohibition on circumvention, including the security risks sought to
be avoided.
The specific TPMs sought to be circumvented in connection
with particular classes of works and the methods for circumventing
those access controls, including the environment (academic or
otherwise) in which the circumvention would be accomplished.
Specific examples of acts of security research that have
been foregone or delayed due to the current lack of the proposed
exemption.
Whether granting the exemption could have negative
repercussions with respect to the safety or security of the works that
are subject to research, for example, by making it easier for
wrongdoers to access sensitive applications or databases.
Any industry standards that the Office should consider in
evaluating this request, such as the ISO 29147 and ISO 30111 security
guidelines, including an explanation of how these standards may relate
to the proposed exemption.
2. Proposed Class 26: Software--3D Printers
This proposed class would allow circumvention of TPMs on firmware
or software in 3D printers to allow use of non-manufacturer-approved
feedstock in the printer.
Public Knowledge seeks an exemption to circumvent TPMs on computer
programs used in 3D printers to allow use of non-manufacturer-approved
feedstock in such printers.\89\
---------------------------------------------------------------------------
\89\ Public Knowledge ``seeks an exemption for users of 3D
printers that are protected by control technologies when
circumvention is accomplishe[d] solely for the purpose of using non-
manufacturer approved feedstock in the printer.'' Public Knowledge
3D Printer Pet. at 2.
---------------------------------------------------------------------------
The Office encourages commenters, in the course of detailing how
the proposed exemption meets the requirements of section 1201(a)(1), to
address--including through the submission of relevant evidence--the
following:
Specific examples of 3D printers that include the
complained-of access controls, including a description of the
applicable TPMs, how they operate, and methods of circumvention.
The extent to which there are available for purchase 3D
printers that do not include such access controls, and whether the
existence of such printers obviates the need for an exemption.
3. Proposed Class 27: Software--Networked Medical Devices
The proposed class would allow circumvention of TPMs protecting
computer programs in medical devices designed for attachment to or
implantation in patients and in their corresponding monitoring devices,
as well as the outputs generated through those programs. As proposed,
the exemption would be limited to cases where circumvention is at the
direction of a patient seeking access to information generated by his
or her own device, or at the direction of those conducting research
into the safety, security, and effectiveness of such devices. The
proposal would cover devices such as pacemakers, implantable
cardioverter defibrillators, insulin pumps, and continuous glucose
monitors.
This proposal, filed by a coalition of medical device patients and
researchers (``Medical Device Research Coalition''), seeks an exemption
to allow circumvention of TPMs in the firmware or software of medical
devices and their corresponding monitoring systems at patient direction
or for purposes of safety, security, or effectiveness research.\90\
According to the petition, ``[m]any medical device manufacturers use
measures to control access'' to medical device software, including
password systems and encryption of outputs.\91\ The Office encourages
commenters, in the course of detailing how the proposed exemption meets
the requirements of section 1201(a)(1), to address--including through
the submission of relevant evidence--the following:
---------------------------------------------------------------------------
\90\ The Medical Device Research Coalition's proposed regulatory
language reads as follows: ``Computer programs, in the form of
firmware or software, including the outputs generated by those
programs, that are contained within or generated by medical devices
and their corresponding monitoring systems, when such devices are
designed for attachment to or implantation in patients, and where
such circumvention is at the direction of a patient seeking access
to information generated by his or her own device or at the
direction of those conducting research into the safety, security,
and effectiveness of such devices.'' Medical Device Research
Coalition Pet. at 1-2.
\91\ Id. at 2.
---------------------------------------------------------------------------
Specific examples demonstrating the noninfringing uses and
adverse effects of the TPMs, including how patients seeking access to
information generated by their own devices, and/or those seeking to
conduct research into the safety, security, and effectiveness of such
devices, are prevented from engaging in lawful activities because of
the TPMs.
Whether the exemption should distinguish among different
users (researchers, patients, healthcare providers at the direction of
the device-user patient, etc.) and/or the proposed use (examining
output of devices, research into safety, security, and effectiveness of
devices, etc.).
Whether the outputs generated by the medical device
programs constitute copyright-protected materials.
Whether granting the exemption could have negative
repercussions with respect to the safety or security of the relevant
medical devices, for example, by making it easier for wrongdoers to
access such medical devices' software or outputs.
The relevance of the statutory exemptions for reverse
engineering in 17 U.S.C. 1201(f) and for encryption research in 17
U.S.C. 1201(g) to the proposed uses.
Whether a third party--rather than the owner of the
device--may lawfully offer or engage in the proposed circumvention
activities with respect to that device pursuant to an exemption granted
under 17 U.S.C. 1201(a)(1).
[[Page 73872]]
Dated: December 9, 2014.
Jacqueline C. Charlesworth,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2014-29237 Filed 12-11-14; 8:45 am]
BILLING CODE 1410-30-P