Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 65944-65964 [2015-27212]

Download as PDF 65944 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations (iv) Foreign relations or foreign activities of the United States, including confidential sources; (v) Scientific, technological, or economic matters relating to the national security; (vi) U.S. Government programs for safeguarding nuclear materials or facilities; (vii) Vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection services relating to the national security; or (viii) The development, production, or use of weapons of mass destruction. (b) [Reserved] Dated: October 22, 2015. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense. [FR Doc. 2015–27393 Filed 10–27–15; 8:45 am] BILLING CODE 5001–06–P LIBRARY OF CONGRESS Copyright Office I. Background 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: Final rule. AGENCY: In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (‘‘DMCA’’) that prohibits circumvention of technological measures that control access to copyrighted works, codified in section 1201(a)(1) of title 17 of the United States Code. As required under the statute, the Register of Copyrights, following a public proceeding, submitted a Recommendation concerning proposed exemptions to the Librarian of Congress. After careful consideration, the Librarian adopts final regulations based upon the Register’s Recommendation. DATES: Effective October 28, 2015. 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, Deputy General Counsel, by email at sdam@loc.gov or by telephone at 202– 707–8350; or Stephen Ruwe, Assistant General Counsel, by email at sruwe@loc.gov or by telephone at 202– 707–8350. SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to Lhorne on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 15:03 Oct 27, 2015 section 1201(a)(1) of title 17, United States Code, has determined in this sixth triennial rulemaking proceeding that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of certain classes of such works. This determination is based upon the Recommendation of the Register of Copyrights, which was transmitted to the Librarian on October 8, 2015.1 The below discussion summarizes the rulemaking proceeding and Register’s Recommendation, announces the Librarian’s determination, and publishes the regulatory text specifying the exempted classes of works. A more complete discussion of the rulemaking process, the evidentiary record, and the Register’s analysis can be found in the Register’s Recommendation, which is posted at www.copyright.gov/1201/. Jkt 238001 A. Statutory Requirements Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA, which added a new chapter 12 to title 17 of the U.S. Code, prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In enacting this aspect of the law, Congress observed that technological protection measures (‘‘TPMs’’) can ‘‘support new ways of disseminating copyrighted materials to users, and . . . safeguard the availability of legitimate uses of those materials by individuals.’’ 2 Section 1201(a)(1) provides in pertinent part that ‘‘[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].’’ Under the statute, to ‘‘circumvent a technological measure’’ means ‘‘to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.’’ 3 A technological measure that ‘‘effectively 1 Register of Copyrights, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights (Oct. 2015) (‘‘Register’s Recommendation’’). 2 Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, at 6 (Comm. Print 1998). 3 17 U.S.C. 1201(a)(3)(A). PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 controls access to a work’’ is one that ‘‘in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.’’ 4 Section 1201(a)(1), however, also includes what Congress characterized as a ‘‘fail-safe’’ mechanism,5 which requires the Librarian of Congress, following a rulemaking proceeding, to publish any class of copyrighted works as to which the Librarian has determined that noninfringing uses by persons who are users of a copyrighted work are, or are likely to be, adversely affected by the prohibition against circumvention in the succeeding threeyear period, thereby exempting that class from the prohibition for that period.6 The Librarian’s determination to grant an exemption is based upon the recommendation of the Register of Copyrights, who conducts the rulemaking proceeding.7 Congress directed the Register, in turn, to consult with the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (‘‘NTIA’’), in the course of formulating her recommendation.8 The primary responsibility of the Register and the Librarian in the rulemaking proceeding is to assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To do this, the Register develops a comprehensive administrative record using information submitted by interested members of the public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record. Under the statutory framework, the Librarian, and thus the Register, must consider ‘‘(i) the availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and 4 17 U.S.C. 1201(a)(3)(B). H.R. Rep. No. 105–551, pt. 2, at 36 (1998). 6 See 17 U.S.C. 1201(a)(1). 7 17 U.S.C. 1201(a)(1)(C). 8 Id. 5 See E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations (v) such other factors as the Librarian considers appropriate.’’ 9 As noted above, the Register must also consult with the Assistant Secretary who oversees NTIA, and report and comment on his views, in providing her Recommendation. Upon receipt of the Recommendation, the Librarian is responsible for promulgating the final rule setting forth any exempted classes of works. Significantly, exemptions adopted by rule under section 1201(a)(1) apply only to the conduct of circumventing a technological measure that controls access to a copyrighted work. Other parts of section 1201, by contrast, address the manufacture and provision of—or ‘‘trafficking’’ in—products and services designed for purposes of circumvention. Section 1201(a)(2) bars trafficking in products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file),10 while section 1201(b) bars trafficking in products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner in their works (for example, technology that prevents the work from being reproduced).11 The Librarian of Congress has no authority to adopt exemptions for the antitrafficking prohibitions contained in section 1201(a)(2) or (b).12 More broadly, activities conducted under the regulatory exemptions must still comply with other applicable laws, including non-copyright provisions. Thus, while an exemption may specifically reference other laws of particular concern, any activities conducted under an exemption must be otherwise lawful. Also significant is the fact that the statute contains certain permanent exemptions to permit specified uses. These include: Section 1201(d), which exempts certain activities of nonprofit libraries, archives, and educational institutions; section 1201(e), which exempts ‘‘lawfully authorized investigative, protective, information security, or intelligence activity’’ of a state or the federal government; section 1201(f), which exempts certain ‘‘reverse engineering’’ activities to facilitate interoperability; section 1201(g), which exempts certain types of research into encryption technologies; section 1201(h), which exempts certain activities to prevent the ‘‘access of minors to material on the Internet’’; section 1201(i), which exempts certain activities ‘‘solely for the purpose of preventing the collection or dissemination of personally identifying information’’; and section 1201(j), which exempts certain acts of ‘‘security testing’’ of computers and computer systems. B. The Unlocking Consumer Choice and Wireless Competition Act In 2014, Congress enacted the Unlocking Consumer Choice and Wireless Competition Act (‘‘Unlocking Act’’), effective as of August 1, 2014.13 The Unlocking Act did three things. First, it replaced the exemption adopted in the 2012 triennial proceeding to enable certain wireless telephone handsets (i.e., cellphones) to connect to wireless communication networks—a process commonly known as cellphone ‘‘unlocking’’—with a broader version of the exemption adopted by the Librarian in 2010. Second, the legislation provided that the circumvention permitted under the reinstated 2010 exemption, as well as any future exemptions to permit wireless telephone handsets or other wireless devices to connect to wireless telecommunications networks, may be initiated by the owner of the handset or device, by another person at the direction of the owner, or by a provider of commercial mobile radio or data services to enable such owner or a family member to connect to a wireless network when authorized by the network operator.14 This directive is permanent, and is now reflected in the relevant regulations.15 Third, the legislation directed the Librarian of Congress to consider as part of the current triennial proceeding whether to ‘‘extend’’ the cellphone unlocking exemption ‘‘to include any other category of wireless devices’’ based upon the recommendation of the Register, who in turn is to consult with the Assistant Secretary.16 Accordingly, as part of this rulemaking proceeding, 9 Id. Lhorne on DSK5TPTVN1PROD with RULES 10 17 U.S.C. 1201(a)(2). U.S.C. 1201(b). 12 See 17 U.S.C. 1201(a)(1)(E) (‘‘Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph.’’). 11 17 VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 13 Public Law 113–144, 128 Stat. 1751 (2014). Subsequently, the Librarian adopted regulatory amendments to reflect the new legislation. See Exemption to Prohibition on Circumvention of Copyright Protection Systems for Wireless Telephone Handsets, 79 FR 50552 (Aug. 25, 2014) (codified at 37 CFR 201.40(b)(3), (c)). 14 Unlocking Act sec. 2(a), (c). 15 See 79 FR at 50554; see also 37 CFR 201.40(c). 16 Unlocking Act sec. 2(b). PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 65945 the Copyright Office solicited and evaluated several proposed unlocking exemptions for devices other than cellphones, as addressed in Proposed Classes 12 through 15 below. C. Rulemaking Standards In adopting the DMCA, Congress imposed legal and evidentiary requirements for the section 1201 rulemaking proceeding, as discussed in greater detail in the Register’s Recommendation.17 Those who seek an exemption from the prohibition on circumvention bear the burden of establishing that the requirements for granting an exemption have been satisfied by a preponderance of the evidence. In addition, the basis for an exemption must be established de novo in each triennial proceeding. That said, however, where a proponent is seeking the readoption of an existing exemption, it may attempt to satisfy its burden by demonstrating that the conditions that led to the adoption of the prior exemption continue to exist today (or that new conditions exist to justify the exemption). Assuming the proponent succeeds in making such a demonstration, it is incumbent upon any opponent of that exemption to rebut such evidence by showing that the exemption is no longer justified. To establish a case for an exemption, proponents must show at a minimum (1) that uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses. In addition, the Librarian must also examine the statutory factors listed in section 1201(a)(1): (1) The availability for use of copyrighted works; (2) the availability for use of works for nonprofit archival, preservation, and educational purposes; (3) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (4) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (5) such other factors as the Librarian considers appropriate. In some cases, weighing these factors requires the consideration of the benefits that the technological measure brings with respect to the overall creation and dissemination of works in the marketplace, in addition to any negative impact. 17 See E:\FR\FM\28OCR1.SGM Register’s Recommendation at 13–18. 28OCR1 65946 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations Finally, when granting an exemption, section 1201(a)(1) specifies that the exemption adopted as part of this rulemaking must be defined based on ‘‘a particular class of works.’’ 18 Among other things, the determination of the appropriate scope of a ‘‘class of works’’ recommended for exemption may also take into account the adverse effects an exemption may have on the market for or value of copyrighted works. Accordingly, ‘‘it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption.’’ 19 II. History of the Sixth Triennial Proceeding As the Register explains in the Recommendation, the administrative process employed in the rulemaking was revised for this triennial proceeding. In particular, the Copyright Office implemented certain procedural changes to make the process more accessible and understandable to the public, allow greater opportunity for participants to coordinate their efforts, encourage participants to submit effective factual and legal support for their positions, and reduce administrative burdens on both the participants and the Office. Among other things, the procedural changes included providing commenters with recommended template forms to use when submitting comments, and requiring commenters to submit separate comments for each proposed class. On September 17, 2014, the Copyright Office published a Notice of Inquiry (‘‘NOI’’) in the Federal Register to initiate the sixth triennial rulemaking proceeding.20 The NOI invited interested parties to submit petitions for proposed exemptions that set forth the essential elements of the exemption. The Office received forty-four petitions for proposed exemptions in response to the NOI. Next, on December 12, 2014, the Office issued a Notice of Proposed Rulemaking (‘‘NPRM’’) that reviewed and grouped the proposed exemptions set forth in the petitions.21 In the NPRM, 18 17 U.S.C. 1201(a)(1)(B). of the Register of Copyrights in RM 2005–11, Rulemaking on Exemptions from Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies 19 (Nov. 17, 2006). 20 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 79 FR 55687 (Sept. 17, 2014) (‘‘NOI’’). 21 Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Lhorne on DSK5TPTVN1PROD with RULES 19 Recommendation VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 the Copyright Office concluded that three of the petitions sought exemptions that could not be granted as a matter of law, and declined to put those proposals forward for public comment.22 The Office grouped the remaining proposed exemptions into twenty-seven proposed classes of works. In some cases, overlapping proposals were merged into a single combined proposed class. In other cases, individual proposals that encompassed multiple proposed uses were subdivided into multiple classes to aid in the process of review. The Office then provided detailed guidance on the submission of comments, including a number of specific legal and factual areas of interest with respect to each proposed class. The Office received nearly 40,000 comments in response to the NPRM, the vast majority of which consisted of relatively short statements of support or opposition without substantial legal argument or supporting evidence. A number of the longer submissions included multimedia evidence to illustrate points made in the written comments. After receiving and studying the written comments, the Office held seven days of public hearings: In Los Angeles, at the UCLA School of Law, from May 19 to 21, 2015; and in Washington, DC, at the Library of Congress, from May 26 to 29, 2015. The Office heard testimony from sixty-three witnesses at the hearings, and received additional multimedia evidence. After the hearings, the Office issued a number of follow-up questions to participants, and received responses that have been made part of the administrative record. As observed by various commenting parties, certain of the proposed exemptions presented issues potentially of concern to the Department of Transportation (‘‘DOT’’), the Environmental Protection Agency (‘‘EPA’’), and the Food and Drug Administration (‘‘FDA’’), and perhaps other regulatory agencies as well. The Copyright Office therefore sent letters to DOT, EPA and FDA informing them of Technologies, 79 FR 73856, 73859 (Dec. 12, 2014) (‘‘NPRM’’). 22 NPRM, 79 FR at 73859. Each of these petitions sought to permit circumvention of any and all TPMs that constituted ‘‘digital rights management’’ with respect to unspecified types of copyrighted works for the purpose of engaging in unidentified personal and/or consumer uses. Id. The Office explained that these proposed exemptions ran afoul of the statutory requirement that ‘‘any exemptions adopted as part of this rulemaking must be defined based on ‘a particular class of works.’ ’’ Id. (quoting 17 U.S.C. 1201(a)(1)(B) (emphasis added)). The Office thus concluded that ‘‘the sweeping type of exemption proposed by these three petitions’’ could not be granted consistent with the standards of section 1201(a)(1). Id. PO 00000 Frm 00066 Fmt 4700 Sfmt 4700 the pendency of the rulemaking proceeding in case they wished to comment on the proposals. In response to these letters, the Office received responses from those agencies, and also from the California Air Resources Board (‘‘California ARB’’), which are also included in the record. Throughout this triennial proceeding, as required under section 1201(a)(1), the Register has consulted with NTIA. In addition to providing procedural and substantive input throughout the rulemaking process, NTIA was represented along with Copyright Office staff at the public hearings held in Los Angeles and Washington, DC NTIA formally communicated its views on each of the proposed exemptions in recommendations delivered to the Register on September 18, 2015. NTIA’s recommendations can be viewed at copyright.gov/1201/2015/2015_NTIA_ Letter.pdf. III. Summary of Register’s Recommendation A. Designated Classes Based upon the record in this proceeding, the Register of Copyrights recommends that the Librarian determine that the classes of works described below be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1): 1. Proposed Classes 1 to 7: Audiovisual Works—Educational and Derivative Uses 23 Proponents of Proposed Classes 1 through 7 share the desire to circumvent technological protection measures employed on DVDs, Blu-ray discs and/ or by various online streaming services to access motion pictures—a category under the Copyright Act that includes television programs and videos—in order to engage in noninfringing uses. Past rulemakings have granted exemptions relating to uses of motion picture excerpts for commentary or criticism by college and university faculty and staff and by kindergarten through twelfth-grade educators, as well as in noncommercial videos, documentary films, and nonfiction multimedia e-books offering film analysis. Past exemptions have been limited to circumvention of DVDs, online distribution services, and as a result of using screen-capture technology. 23 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 24–106. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations The petitions filed in this rulemaking sought to readopt and to some extent expand the previously granted exemptions, including to encompass Blu-ray discs (on the ground that a highdefinition format is required for certain uses), to access audiovisual works that may not be motion pictures (such as video games), to permit the use of more than ‘‘short portions’’ of motion picture excerpts, and to extend to all ‘‘fair uses’’ rather than limiting the uses to criticism or comment. Some proponents sought to expand filmmaking uses to include narrative (or fictional) film, in addition to documentaries. Some proposals were focused on expanding the category of potential users of an exemption, such as to uses by museums, libraries and nonprofits, or by students and faculty participating in massive online open courses (‘‘MOOCs’’). The Copyright Office grouped these proposals into seven classes. Proposed Class 1: 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. Class 1 was proposed by Professor Peter Decherney, the College Art Association, the International Communication Association, and the Society for Cinema and Media Studies (collectively, ‘‘Joint Educators’’) to allow, for example, film studies professors to circumvent DVDs in order to use motion picture clips in class lectures. A class covering such uses was adopted in the 2010 and 2012 rulemakings. Joint Educators asked that the exemption be expanded to include the ability to circumvent Blu-ray discs, to remove the limitation to ‘‘short portions’’ of motion picture excerpts, and to broaden the class to cover all ‘‘audiovisual works’’ for all ‘‘educational purposes.’’ Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 2: This proposed class would allow kindergarten through twelfthgrade educators and students to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for educational purposes. Petitions for Proposed Class 2 were submitted by Professor Renee Hobbs and the Library Copyright Alliance (‘‘LCA’’), to allow, for example, a high school teacher to circumvent DVDs of various adaptations of Shakespeare’s works in order to create a compilation of clips demonstrating the lasting influence of these works. Hobbs and LCA requested that the existing exemption for grades K–12 be expanded to include student uses rather than only uses by educators, to allow VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 circumvention of Blu-ray discs, to remove the limitation to ‘‘short portions’’ of works, and to broaden the class to cover all ‘‘audiovisual works’’ for all ‘‘educational purposes.’’ Proposed Class 3: This proposed class would allow students and faculty participating in massive online open courses (‘‘MOOCs’’) to circumvent access controls on lawfully made and acquired motion pictures and other audiovisual works for purposes of criticism and comment. Joint Educators proposed Class 3, essentially seeking to expand the exemption for college and university faculty and students in Class 1 to include MOOCs, or online distance education courses offered on a broad scale. The exemption would, for example, allow a professor preparing an online lecture about the evolution of Chinese society to circumvent access controls in order to incorporate video clips documenting Chinese history and geography. Joint Educators’ proposal included the ability to circumvent Bluray discs, to permit use of more than ‘‘short portions’’ of motion picture excerpts, and to allow use of all ‘‘audiovisual works’’ for all ‘‘educational purposes.’’ Joint Educators contended that the prohibition on circumvention of TPMs is inhibiting the introduction of certain types of courses, such as film studies, on MOOC platforms. Proposed Class 4: 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. Professor Hobbs proposed Class 4 to allow, for example, educators in a community center adult education program to circumvent access controls in order to create video clips for purposes of discussing the portrayal of African-American women in a popular television show. The proposal encompassed ‘‘audiovisual works’’ for all ‘‘educational uses,’’ as well as the ability to circumvent Blu-ray discs. Hobbs expressed concern that the prohibition on circumvention prevents participants in digital and media literacy programs in informal learning settings from engaging in projects similar to those conducted on college and university campuses. Proposed Class 5: This proposed class would allow circumvention of access controls on lawfully made and acquired motion pictures used in connection with multimedia e-book authorship. Class 5 was jointly proposed by Authors Alliance and Bobette Buster to PO 00000 Frm 00067 Fmt 4700 Sfmt 4700 65947 allow, for example, a sound editor and e-book author to circumvent DVDs or Blu-ray discs to incorporate brief film excerpts in an e-book entitled Listening to Movies. Proponents requested renewal of the previously granted exemption, and expansion of that exemption to encompass any genre of multimedia e-book (as opposed to uses only in nonfiction multimedia e-books offering film analysis), to allow circumvention of Blu-ray discs, to remove the limitation to ‘‘short portions’’ of motion picture excerpts, and to broaden the class to cover all ‘‘audiovisual works.’’ In general, proponents argued that the prohibition on circumvention hinders e-book authors’ ability to criticize and comment on audiovisual works, some of which may only be accessible through DVD, Blu-ray or digitally transmitted sources. Proposed Class 6: This proposed class would allow circumvention of access controls on lawfully made and acquired motion pictures for filmmaking purposes. Class 6 was proposed by the International Documentary Association, Film Independent, Kartemquin Educational Films, Inc., and National Alliance for Media Arts and Culture (collectively, ‘‘Joint Filmmakers’’) to allow, for example, filmmakers to circumvent access controls on material streamed online in order to incorporate excerpts of news footage into documentaries. The proposal sought readoption of the existing exemption for documentary filmmaking uses, and its expansion to include narrative (or fictional) films, to permit circumvention of Blu-ray discs, and to remove the limitation to short portions of works. Joint Filmmakers stressed that much material is only available on DVD, Bluray and digitally transmitted video, and that circumvention of Blu-ray discs is necessary because, among other things, distribution standards require films to incorporate clips of high-definition quality. Proposed Class 7: 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. Class 7 was proposed by Electronic Frontier Foundation (‘‘EFF’’) and the Organization for Transformative Works. Proponents sought to permit, for example, a fan of James Bond films to circumvent access controls on DVDs of these films in order to incorporate brief excerpts into a noncommercial video commenting on the portrayal of female characters in those films. The proposal E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES 65948 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations sought renewal of the existing exemption, and expansion of that exemption to Blu-ray discs and all ‘‘noninfringing’’ or ‘‘fair’’ uses. Proponents argued that the existing exemption has resulted in the creation of a wide variety of new, noninfringing works, and expansion of that exemption to Blu-ray discs is necessary because, among other things, there is a significant amount of material that can only be found in that format. For each exemption, proponents argued that the requested exemption would facilitate fair uses of the accessed works—for example, because of the educational nature of the uses, or because it would permit the creation of a new work of authorship providing commentary on the underlying work. Specifically, Joint Educators argued that teaching, criticism, and commentary are enumerated as favored uses under section 107 and therefore, that the proposed uses in Classes 1 and 3 for colleges, universities, and MOOCs were highly likely to be fair. For Class 2, Hobbs provided examples of educators using film clips as teaching tools in connection with media literacy, history, literature, and film theory, and of students using excerpts in connection with National History Day projects, arguing that these uses were fair. Hobbs also contended that out-of-classroom educational programs should be able to make the same uses in Class 4. Proponents of Class 5 argued that uses of excerpts of motion picture clips in multimedia e-books intended for educational purposes are likely to be fair, citing examples of actual or prospective uses of motion picture excerpts in multimedia e-books for purposes of film criticism or analysis. For Class 6, Joint Filmmakers stated that the proposed uses in both documentary and narrative films are noninfringing fair uses that provide criticism and commentary, education about, and reporting on news and current events— activities that Congress has explicitly identified as fair uses. Finally, Class 7 proponents asserted that the purposes and character of noncommercial videos are highly transformative, and in support, submitted scholarly analysis of remix videos and evidence relating to fan video remixes that purportedly criticize and recontextualize the underlying narrative works. For all of these audiovisual classes, the Office received no opposition to the renewal of the current exemptions; instead, opponents opposed expansion of those exemptions. The same parties opposed all seven classes—Joint Creators (representing the Motion Picture Association of America, the VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 Entertainment Software Association (‘‘ESA’’) and the Recording Industry Association of America), DVD Copy Control Association, and the Advanced Access Content System Licensing Administrator (‘‘AACS LA’’). Opponents voiced parallel concerns across most of these audiovisual classes. In general, they contended that there are viable alternatives to circumvention that are adequate for many of the proposed uses, including clip licensing, screen-capture technology, streaming platforms such as TV Everywhere, disc-to-digital services, and digital rights libraries like UltraViolet. With respect to proposals to expand the exemptions to include Bluray discs, AACS LA and Joint Creators argued that the authorized circumvention of DVDs or online material provides a ready alternative to obtain material of sufficiently high quality for all the proposed uses. Opponents also urged that any expansion of the existing exemptions would likely harm the market for DVDs, Blu-ray discs, and other licensed uses. Beyond these general points, opponents also made specific arguments concerning the individual proposed classes. In Class 1, opponents urged that alternatives to circumvention, including screen capture, were adequate for classroom uses outside film studies classes. In Class 2, opponents argued that the record lacks persuasive examples of K–12 student projects that require circumvention and that the record did not show a need to access material on Blu-ray discs. Opponents opposed granting any exemption for MOOCs in Class 3 arguing, among other things, that the uses are not likely to be noninfringing because the exemption would allow widespread distribution of works over the internet. With respect to museum, library or nonprofit educational programs in Class 4, opponents argued, among other things, that proponents had failed adequately to demonstrate specific adverse effects flowing from the prohibition on circumvention. In Class 5, opponents urged that no examples were presented to support expanding the exemption to fictional e-books or to circumvention of Blu-ray discs. In Class 6, opponents asserted that an exemption for fictional films would negatively impact the existing market for licensing of film clips. Finally, in Class 7, opponents argued that screen-capture software is an adequate alternative to proposed uses of Blu-ray material in noncommercial remix videos and that the existing regulatory language should be refined so as not to overlap with other classes addressing educational uses. PO 00000 Frm 00068 Fmt 4700 Sfmt 4700 NTIA recommended renewing the current exemptions for educational and derivative uses, and expanding those exemptions in several respects. As a general matter, NTIA proposed that all of the exemptions should encompass ‘‘motion pictures and similar audiovisual works’’ on DVDs and Bluray discs, or obtained via online distribution services. NTIA rejected proposals to encompass all ‘‘noninfringing’’ or ‘‘fair uses,’’ instead recommending a more tailored approach. In Class 1, NTIA recommended an exemption for educational uses by college and university faculty and students, without limiting it to film studies and other courses requiring close analysis of works, although it did not explain why elimination of that distinction was warranted. In Class 2, NTIA recommended an exemption for K–12 educators, and for students in grades 6– 12 engaging in video projects actively overseen by an instructor. In Class 3, NTIA recommended an exemption for MOOCs involving film and media analysis, but not for students enrolled in such MOOCs. In Class 4, NTIA recommended an exemption for instructors and students engaged in digital media and literacy programs in libraries, museums, and nonprofit organizations with an educational mission. In Classes 5 and 7, NTIA proposed renewing the exemptions for nonfiction or educational multimedia ebooks offering film analysis, and for noncommercial videos, respectively, and expanding them to include Blu-ray discs, as with the other classes. Finally, in Class 6, NTIA proposed an exemption both for documentary films and for ‘‘[n]arrative films portraying real events, where the prior work is used for its biographical or historically significant nature.’’ In general, the Register recommended granting exemptions for almost all of these classes; in each case, the Register concluded that the uses are likely to be fair, that alternatives to circumvention were inadequate, and that the statutory factors taken together weighed in favor of the exemption. In each of Classes 1 through 7, the Register recommended retaining the requirement in the current exemptions that only ‘‘short portions’’ of works be used for purposes of ‘‘criticism or comment.’’ The Register explained that broader exemptions— covering longer portions for purposes of all ‘‘fair’’ or ‘‘noninfringing’’ uses—were unsupported by the record. The Register also explained that the exemptions should provide reasonable guidance to the public in terms of what uses are E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations likely to be fair, while at the same time mitigating undue consequences for copyright owners. The Register also found the record to not support an exemption for ‘‘audiovisual works,’’ as opposed to the somewhat narrower category of ‘‘motion pictures,’’ because proponents had failed to demonstrate a need to circumvent non-motion-picture audiovisual works (such as video games) in any of the proposed classes. With respect to Class 1 in particular, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures by college and university faculty and students engaged in film studies classes or other courses requiring close analysis of film and media excerpts. The Register recommended an exemption to facilitate use of screen-capture technology for all types of courses, to address the possibility of circumvention when using this technology. The Register reasoned that this class (and Class 2) should continue to distinguish between purposes requiring close analysis of film and media excerpts and more general educational uses, on the ground that screen-capture technology is an adequate substitute for the latter uses. With respect to Class 2, the Register recommended granting an exemption limited to circumvention of DVDs and digital transmissions for educators in grades K–12, including accredited general educational development (‘‘GED’’) programs, in film studies or other courses requiring close analysis of film and media excerpts. The Register found, however, that proponents submitted no examples where Blu-ray quality or Blu-ray-unique content was required for uses in K–12 classrooms. The Register also recommended an exemption to facilitate use of screencapture technologies by educators in all types of courses. The Register found the evidentiary record of proposed uses by K–12 students to be insufficiently well developed to recommend an exemption for DVDs, digital transmissions, or Bluray discs because screen-capture software was likely to provide a ready alternative for those uses. Accordingly, the Register recommended a screencapture exemption to facilitate uses by K–12 students. With respect to Class 3, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures by faculty of MOOCs involving film studies or other courses requiring close analysis of film and media excerpts, under specified conditions borrowed from the TEACH Act, codified at 17 U.S.C. 110(2). The VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 Register explained that key elements of the TEACH Act—such as the requirements that uses be limited to nonprofit educational institutions and transmissions be limited to enrolled students—should be incorporated into the exemption to ensure that the exemption is appropriately limited. The Register further found that the record did not support an exemption for student uses. With respect to Class 4, the Register concluded that the record did not support an exemption permitting circumvention of DVDs, Blu-ray discs, or digital transmissions in connection with after-school or adult education media literacy programs (apart from GED programs). The Register found that the proposed uses in the record could be satisfied via screen capture, and thus recommended an exemption to facilitate uses of screen-capture software. With respect to Classes 5 to 7, the Register recommended granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital transmissions of motion pictures for use in nonfiction multimedia e-books offering film analysis, in documentary filmmaking, and in noncommercial videos. The Register also recommended an exemption to facilitate use of screencapture technologies for these uses. For the multimedia e-books exemption (Class 5), the Register recommended maintaining the limitation to e-books offering film analysis, finding that the record did not support an exemption for other uses. With respect to the filmmaking exemption (Class 6), the Register could not conclude, based on the record, that the use of motion picture clips in narrative films was, on balance, likely to be noninfringing, especially in light of the potential effects on existing licensing markets for motion picture excerpts. Finally, in considering the noncommercial video exemption (Class 7), the Register rejected proponents’ suggestion to expand the exemption to encompass ‘‘primarily noncommercial’’ videos, as well as opponents’ suggestion to narrow the exemption to certain specified categories of noncommercial videos, finding neither change to be necessary. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) For use in documentary filmmaking, PO 00000 Frm 00069 Fmt 4700 Sfmt 4700 65949 (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (ii) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity’s use is noncommercial), (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (iii) For use in nonfiction multimedia ebooks offering film analysis, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (iv) By college and university faculty and students, for educational purposes, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (v) By faculty of massive open online courses (MOOCs) offered by accredited E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES 65950 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), for educational purposes, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2), (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (vi) By kindergarten through twelfth-grade educators, including of accredited general educational development (GED) programs, for educational purposes, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other noncircumventing alternatives are unable to produce the required level of high-quality content; (vii) By kindergarten through twelfth-grade students, including those in accredited general educational development (GED) programs, for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted; and (viii) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted. 2. Proposed Class 9: Literary Works Distributed Electronically—Assistive Technologies 24 Proponents of Proposed Class 9 seek to allow circumvention of technological measures protecting literary works distributed in electronic form (including e-books, digital textbooks, and PDF articles) so that such works can be accessed by persons who are blind, visually impaired, or print disabled. The Librarian, upon the recommendation of the Register, granted an exemption in 2012 for these purposes. The American Foundation for the Blind, American Council for the Blind,, Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law, and LCA filed petitions seeking to have the Librarian renew the existing exemption. Based on these petitions, the Copyright Office proposed the following class: Proposed Class 9: 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. Proponents argued that reproducing copies in accessible formats is a noninfringing use, and that, while improvements have been made to make literary works more accessible since the last triennial rulemaking, there are still a substantial number of works that cannot be accessed using accessibility technologies such as text-to-speech programs. There was no opposition to renewing the 2012 exemption. Significantly, the Association of American Publishers, representing book publishers, filed supportive comments indicating that it had no objection to a renewal of the existing exemption, explaining that the market does not yet offer sufficient accessibility to literary works. NTIA supported renewal of the current exemption, finding that the record regarding the state of accessibility of literary works is not substantially different than it was three years ago. The Register recommended granting the exemption. According to the Register, the need to ensure that persons who are blind, visually impaired or 24 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 127–37. PO 00000 Frm 00070 Fmt 4700 Sfmt 4700 print disabled are not impeded from accessing books in electronic formats presents a quintessential case for an exemption. The Register determined that converting e-books into accessible formats is likely a noninfringing use both as a matter of fair use and under 17 U.S.C. 121, also known as the ‘‘Chafee Amendment,’’ which allows authorized entities to create accessible versions of works exclusively for use by persons who are blind, visually impaired, or print disabled. The Register also found that TPMs are likely to have an adverse effect on noninfringing activities, as many e-book titles and literary works in electronic format (such as electronic textbooks and PDF articles) are currently unavailable in accessible formats. The Register further concluded that all five statutory factors favored the exemption. Finally, like the existing exemption, the recommended exemption allows the intended beneficiaries of section 121 to benefit from the waiver on circumvention. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels, or (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121. 3. Proposed Classes 11 to 15: Computer Programs That Enable Devices To Connect to a Wireless Network That Offers Telecommunications and/or Information Services (’’Unlocking’’) 25 Proposed Classes 11 through 15 would allow circumvention of access controls on wireless devices such as cellphones and all-purpose tablet computers to allow them to connect to the network of a different mobile wireless carrier, a process commonly known as ‘‘unlocking.’’ Wireless carriers typically lock wireless devices to their networks when they have subsidized the cost of a device at the time of purchase; carriers then recoup that 25 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 138–71. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations subsidy through wireless service charges paid by the purchaser. The Register has recommended, and the Librarian has adopted, exemptions permitting unlocking of cellphones in three prior rulemakings. Based on the evidentiary record in the last triennial proceeding, the 2012 version of the exemption was limited to cellphones obtained on or before January 26, 2013. Congress enacted the Unlocking Act to reinstate the cellphone unlocking exemption that was adopted in 2010, which lacked such a limitation. In the Unlocking Act, Congress also instructed the Librarian to review any future proposal for a cellphone unlocking exemption according to the usual process in this triennial rulemaking, as well as to consider in this rulemaking whether to extend the cellphone unlocking exemption to other categories of wireless devices. As noted above, the Unlocking Act also defines, on a permanent basis, categories of persons and entities that can take advantage of any unlocking exemption. Consistent with Congress’s directive in the Unlocking Act, the Copyright Office invited proposals to continue an unlocking exemption for wireless telephone handsets and/or to extend the exemption to other categories of wireless devices. The petitions received generally asked for continuation of the current cellphone unlocking exemption, and expansion of that exemption to cover additional types of devices. The Office grouped the petitions into five distinct classes based on the type of device at issue, as described below: Proposed Class 11: 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 communication. Lhorne on DSK5TPTVN1PROD with RULES Class 11, covering cellphones, was proposed by Consumers Union, the Competitive Carriers Association (‘‘CCA’’), the Institute of Scrap Recycling Industries (‘‘ISRI’’), Pymatuning Communications (‘‘Pymatuning’’), and the Rural Wireless Association (‘‘RWA’’). Proposed Class 12: 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. Class 12, covering all-purpose tablets, was proposed by Consumers Union, CCA, ISRI, Pymatuning, and RWA. As reflected in the proposal, the petitions VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 were limited to ‘‘all-purpose’’ tablet computers—that is, tablet computers that can run a wide variety of programs—as opposed to devices dedicated to the consumption of particular types of content such as ebook readers. Proposed Class 13: 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. Class 13, covering mobile connectivity devices, was proposed CCA and RWA. Proposed Class 14: 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. Class 14, covering wearable wireless devices, was proposed by CCA and RWA. Proposed Class 15: This proposed class would allow the unlocking of all wireless ‘‘consumer machines,’’ including smart meters, appliances, and precision-guided commercial equipment. Class 15 was proposed by CCA, and encompassed a broad and diverse range of devices and equipment, including any ‘‘smart’’ device utilizing a data connection to connect to the internet or interact with other smart devices. CCA, however, failed to further define the kinds of ‘‘smart’’ devices the exemption would cover beyond those already encompassed by Classes 11 through 14, let alone the types of TPMs used by such devices, or the methods of circumvention. Indeed, it was not apparent from the record whether any such devices actually exist. For instance, while CCA suggested that smart power meters would be encompassed by the proposal, evidence at the public hearing (at which CCA did not participate) indicated that smart meters generally do not have mobile data (i.e., 3G/4G) connections, rendering the concept of ‘‘unlocking’’ irrelevant to that type of device. In general, proponents argued that unlocking was permitted under section 117 of the Copyright Act, which allows the owners of computer programs to make certain reproductions of or adaptations to those programs, and as a matter of fair use. They explained that the inability to unlock one’s wireless device leads to adverse effects by impeding consumers’ ability to choose PO 00000 Frm 00071 Fmt 4700 Sfmt 4700 65951 their preferred wireless carriers, harming the resale value of used devices, and harming the environment by encouraging disposal rather than reuse of devices. No party opposed Proposed Class 12 (all-purpose tablet computers) or Proposed Class 14 (wearable computing devices). Prepaid wireless carrier TracFone nominally filed comments in opposition to the cellphone unlocking exemption in Class 11, though at bottom it was not opposed to renewal of the exemption, so long as it was clear that the exemption did not permit illegitimate phone trafficking—a practice where subsidized prepaid cellphones are purchased, unlocked, and resold (often abroad) at a profit. The Alliance of Automobile Manufacturers (‘‘Auto Alliance’’) and General Motors LLC (‘‘GM’’) filed opposition comments in Class 13 solely to stress that any exemption should exclude ‘‘mobile’’ connectivity devices embedded in motor vehicles, and Class 13 proponents agreed that such a limitation would be appropriate. Auto Alliance opposed Class 15 on the ground that it is illdefined and could inadvertently sweep in cars and trucks. NTIA proposed adopting an exemption encompassing all used wireless devices, without enumerating the types of devices to which the exemption applies. At the same time, NTIA acknowledged that based on the record in the rulemaking, it would be appropriate to exclude one type of wireless device—vehicle-based hotspots—from the exemption. The Register recommended adopting an unlocking exemption covering wireless telephone handsets (i.e., cellphones), all-purpose tablet computers, mobile connectivity devices, and wearable wireless devices. According to the Register, the unlocking exemption is likely to facilitate noninfringing uses both under section 117 and as a matter of fair use. The Register further explained that, unlike the section 117 privilege, fair use is not limited to the owner of the computer program, and so there is no need to limit the exemption to the owner of the device software. The Register also found that, as to the devices encompassed by Classes 11 to 14, proponents had provided sufficient evidence of adverse effects flowing from the inability to unlock a device due to a TPM; in contrast, proponents of Class 15, encompassing a broad and undefined range of ‘‘consumer machines’’ and ‘‘smart’’ devices, failed to make a showing of actual adverse effects. In addition, the Register concluded that three of the five statutory factors tended E:\FR\FM\28OCR1.SGM 28OCR1 65952 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations to favor the proponents, while the other two were neutral. The recommended exemption is limited to ‘‘used’’ devices. A ‘‘used’’ device is defined as a device that has been lawfully acquired and previously activated on a wireless network. The recommended exemption permits charities and commercial enterprises (including bulk recyclers) to unlock used cellphones, while excluding illegitimate trafficking that seeks to profit from the subsidized phones sold by prepaid wireless carriers. Although some proponents called for elimination of the ‘‘used’’ requirement for cellphones and tablets—which in theory would permit unlocking of new, subsidized devices—the Register concluded that the record did not support extending the exemption in this respect as the evidence did not establish a practical ability to unlock subsidized devices that had never been connected to a carrier. Finally, the recommended exemption excludes devices embedded in motor vehicles from the exemption for mobile connectivity devices by including the condition that the devices be ‘‘portable.’’ Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: (i) Computer programs that enable the following types of wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, and the device is a used device: (A) Wireless telephone handsets (i.e., cellphones); (B) All-purpose tablet computers; (C) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and (D) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices. (ii) A device is considered ‘‘used’’ for purposes of this exemption when it has previously been lawfully acquired and activated on the wireless telecommunications network of a wireless carrier. Lhorne on DSK5TPTVN1PROD with RULES 4. Proposed Classes 16 and 17: Jailbreaking—Smartphones and AllPurpose Mobile Computing Devices 26 Proposed Classes 16 and 17 address an activity commonly known as ‘‘jailbreaking,’’ which is the process of gaining access to the operating system of a computing device, such as a smartphone or tablet, to install and 26 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 172–92. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 execute software that could not otherwise be installed or run on that device, or to remove pre-installed software that could not otherwise be uninstalled. The Register has twice before recommended, and the Librarian has twice adopted, an exemption permitting jailbreaking of smartphones. EFF filed a petition seeking a jailbreaking exemption for all ‘‘mobile computing devices,’’ including wireless telephone handsets that are capable of running a wide range of applications (i.e., ‘‘smartphones’’) and tablet computers (‘‘tablets’’). EFF explained that its requested exemption is not intended to extend to devices designed primarily for the consumption of a single type of media, such as dedicated e-book readers, or to desktop or laptop computers. Maneesh Pangasa filed a separate petition seeking an exemption for tablet computers. The Copyright Office divided these proposals into two proposed classes to ensure an adequate administrative record on which to make a recommendation. Based on these petitions, the Office included the following proposed exemptions in the NPRM: Proposed Class 16: 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 remove unwanted preinstalled software from the device. Proposed Class 17: 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 allpurpose 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. Relying on case law and prior determinations of the Register, proponents argued that jailbreaking of smartphones and all-purpose mobile computing devices constitutes fair use of the device software. Proponents also pointed to a series of benefits that have resulted from the existing smartphone jailbreaking exemption, such as the ability to install otherwise unsupported operating system upgrades and the rapid growth in the market for legitimate, nonmanufacturer-approved apps, and argued that similar benefits would result if the exemption included all-purpose mobile computing devices. The Business Software Alliance (‘‘BSA’’) opposed both classes. In PO 00000 Frm 00072 Fmt 4700 Sfmt 4700 neither case, however, did BSA dispute the noninfringing nature of jailbreaking. Instead, BSA argued that the existence of alternatives to jailbreaking, such as ‘‘developer editions’’ of devices that do not need to be jailbroken, obviate the need for an exemption. In addition, with respect to the exemption for all-purpose mobile computing devices in Class 17, BSA disputed EFF’s effort to distinguish between all-purpose mobile computing devices on the one hand, and desktops and laptops on the other, arguing that the distinction is not sufficiently clear. In response, EFF offered two further criteria to define these devices: First, that they be portable, in the sense that they are ‘‘designed to be carried or worn’’; and second, that they ‘‘come equipped with an operating system that is primarily designed for mobile use,’’ such as Android, iOS, Blackberry OS or Windows Phone. Commenters representing automobile manufacturers filed comments under Class 17 raising the concern that the class could arguably encompass computing systems that are embedded in ‘‘mobile’’ automobiles and other vehicles. EFF clarified, however, that Class 17 was not intended to include software running on vehicle electronics, but only portable devices designed to be carried or worn by a person. NTIA favored a jailbreaking exemption for all ‘‘mobile computing devices,’’ a category which (contrary to EFF’s proposal) would appear to include devices that are designed primarily for the consumption of a single type of media, including dedicated e-book readers, which are separately addressed in Proposed Class 18 below. Although NTIA asserted that the works and TPMs at issue are strikingly similar and in many cases identical, it cited no evidence to support that claim with respect to dedicated ebook readers, handheld video game consoles, or other dedicated media consumption devices. The Register recommended continuing the existing jailbreaking exemption for smartphones, and extending it to all-purpose mobile computing devices. As in previous rulemakings, the Register concluded that jailbreaking to facilitate interoperability is likely to constitute a noninfringing fair use, and that the prohibition on circumvention is having an adverse effect on this type of use. Further, the Register concluded that three of the statutory factors (availability for use of copyrighted works, the impact on criticism, comment, news reporting, teaching, scholarship, or research, and the effect of circumvention of technological measures on the market E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations for or value of the copyrighted works) favored an exemption, while the other two were not implicated by these classes. The Register also concluded, based on the overall record, that the category of ‘‘all-purpose mobile computing devices’’ in Class 17 has been meaningfully defined, but that certain refinements were appropriate to address concerns regarding its scope. The recommended exemption thus incorporates EFF’s suggestion to specify that the devices be portable, that they be designed to run a wide variety of applications, and that they come equipped with an operating system primarily designed for mobile use. The recommended exemption thus excludes vehicle-embedded systems, devices designed primarily for consumption of a specific type of media (such as e-book readers and handheld gaming devices), and computers confined to desktop or laptop operating systems, such as Windows 8 or Mac OS. If a hybrid device can act either as a laptop or a tablet, the user will need to investigate what type of operating system it contains in order to determine whether the exemption applies. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Lhorne on DSK5TPTVN1PROD with RULES Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this exemption, a ‘‘portable all-purpose mobile computing device’’ is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual. 5. Proposed Class 20: Jailbreaking— Smart TVs 27 In addition to their traditional functionality, many modern televisions (‘‘TVs’’) have built-in software features that can stream content over the internet, interact with other devices in the home, or run applications. These internet-enabled TVs are often referred to as ‘‘Smart TVs.’’ Smart TV firmware is often protected by TPMs that prevent owners of those TVs from installing third-party software on them. The 27 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 202–17. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 Software Freedom Conservancy (‘‘SFC’’) proposed an exemption to permit circumvention of access controls on firmware (i.e., the operating system) of such smart TVs to enable installation of third-party software. The Copyright Office included the following proposed exemption in the NPRM: Proposed Class 20: This proposed class would permit the jailbreaking of computerembedded 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. According to SFC, access to the firmware would allow various noninfringing uses, including improving accessibility features (such as the size of closed captioning), enabling or expanding the TV’s compatibility with peripheral hardware and external storage devices, and making changes to display features such as the aspect ratio. SFC argued that the majority of smart TV firmware incorporates the manufacturer’s own proprietary applications along with free, libre and open source software (‘‘FLOSS’’) applications produced by third parties. SFC argued that, under the relevant FLOSS licenses, smart TV owners are authorized to modify the FLOSS applications and to run them without restriction. SFC also argued that fair use permits reproduction and alteration of proprietary applications to the extent necessary to permit interoperability with lawfully acquired programs. Proposed Class 20 was opposed by Joint Creators and LG Electronics U.S.A. (‘‘LG’’), a manufacturer of smart TVs. Opponents argued that an exemption would not facilitate noninfringing uses, and was unnecessary because a laptop can be connected to TV sets to view the output of any applications and because LG smart TVs already provide all of the features that SFC claims can be added only by jailbreaking. In addition, Joint Creators raised concerns that jailbreaking would allow the installation of infringing software as well as software such as ‘‘Popcorn Time,’’ an application that facilitates access to and viewing of pirated movies. NTIA supported the proposed exemption, on the ground that it is not materially different than the exemptions that have been granted in the past for jailbreaking of smartphones. PO 00000 Frm 00073 Fmt 4700 Sfmt 4700 65953 The Register recommended granting the proposed exemption, explaining that circumvention of access controls on smart TV firmware is likely to enable noninfringing uses of that firmware. First, it appears to be undisputed that smart TV firmware incorporates FLOSS applications, and that modification of those applications would constitute a licensed, and therefore noninfringing, use. Second, with respect to non-FLOSS proprietary software included in the firmware, the Register concluded that modifications to that firmware to enable interoperability with third-party software are likely to constitute a fair use. The Register also found that the prohibition on circumvention is adversely affecting legitimate noninfringing uses of smart TV firmware, and that the proposed alternatives to circumvention, such as connecting a laptop computer to the TV, are inadequate, because they would not allow installation of software on the smart TV to improve its functioning as a TV, such as facilitating more prominent subtitles. The Register also concluded that no evidence was submitted to illustrate opponents’ claim that jailbreaking of smart TVs will make it easier to gain unauthorized access to copyrighted content, or that it would otherwise undermine smart TVs as a platform for the consumption of expressive works. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television. 6. Proposed Class 21: Vehicle Software—Diagnosis, Repair or Modification 28 Modern automobiles and agricultural vehicles and machinery are equipped with systems of interconnected computers that monitor and control a variety of vehicle functions. These computers are referred to as electronic control units, or ‘‘ECUs,’’ which are protected by TPMs. EFF requested an exemption to permit circumvention of TPMs protecting ECU computer programs for the purposes of diagnosis, repair and modification of vehicles. The Intellectual Property & Technology Law Clinic of the University of Southern California Gould School of Law (‘‘IPTC 28 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 218–49. E:\FR\FM\28OCR1.SGM 28OCR1 65954 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations U.S.C.’’) proposed two similar exemptions for agricultural machinery specifically. Based on these petitions, the Office included the following proposed exemption in the NPRM: Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 21: 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. Proponents explained that circumvention of TPMs protecting copyrighted computer programs in ECUs may be necessary to make noninfringing uses of those programs to diagnose and repair automobiles and agricultural equipment, and to make modifications, such as enhancing a vehicle’s suspension or installing a gear with a different radius. They assert that vehicle owners are entitled to use the computer programs in ECUs to diagnose, repair or modify vehicles as a matter of fair use, or under section 117. EFF argues that absent an exemption, vehicle owners must take their cars to authorized repair shops, or purchase expensive manufacturer-authorized tools, to diagnose and repair their vehicles. Similarly, IPTC U.S.C. explained that TPMs restricting access to computer programs that run agricultural vehicles and machinery place the livelihoods of farmers and other business owners at risk, because vehicle owners must sometimes wait significant periods of time before their disabled vehicles can be repaired by an authorized technician. The proposed exemption was opposed by the Association of Equipment Manufacturers, Association of Global Automakers (‘‘Global Automakers’’), Auto Alliance, Eaton Corporation, GM, John Deere, and Motor & Equipment Manufacturers Association (‘‘MEMA’’). In general, opponents argued that an exemption would not facilitate noninfringing uses, and was unnecessary in any event because vehicle owners have alternative options, such as manufacturer-authorized repair shops and tools. They also asserted that the proposal presented serious public health, safety and environmental concerns. For example, users might circumvent in order to avoid restrictions on vehicle emissions imposed by federal and state law. In light of the commenters’ observations, the Copyright Office VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 notified DOT and EPA of the pendency of the rulemaking. DOT and EPA, as well as California ARB, responded with varying degrees of concern about the potential impact of an exemption. EPA opposed any exemption, while DOT and California ARB expressed significant reservations. The agencies’ concerns were focused on potential adverse effects on safety and the environment. For example, EPA explained that vehicle modifications are often performed to increase engine power or boost fuel economy, but that these modifications increase vehicle emissions and thus violate the Clean Air Act. In contrast to these other agencies, NTIA fully supported adoption of the proposed exemption. NTIA believed that an exemption was necessary to allow consumers to continue to engage in the longstanding practice of working on their own vehicles, and that the noncopyright concerns raised by opponents and other agencies could be addressed by those agencies in the exercise of their respective regulatory authorities. NTIA acknowledged, however, that a delay in implementation—as recommended by the Register and discussed below— might nonetheless be appropriate to permit other agencies to consider and prepare for the new rule, and urged that any such delay be as short as practicable. Based on the record, the Register recommended granting an exemption. The Register concluded that reproducing and altering the computer programs on ECUs for purposes of facilitating diagnosis, repair and modification of vehicles may constitute a noninfringing activity as a matter of fair use and/or under the exception set forth in section 117 of the Copyright Act, which permits the owner of a copy of a computer program to make certain copies and adaptations of the program. The Register also concluded that owners of vehicles and agricultural machinery are adversely impacted as a result of TPMs that protect the copyrighted computer programs on the ECUs that control the functioning of their vehicles. The Register further found that while two of the statutory factors weighed in favor of the exemption (availability for use of copyrighted works and impact on criticism, comment, news reporting, teaching, scholarship or research), and two of the factors were neutral (availability for use for nonprofit archival, preservation and educational purposes and the effect on the market for or value of copyrighted works), the fifth factor—under which commenting parties and federal agencies raised serious safety and environmental PO 00000 Frm 00074 Fmt 4700 Sfmt 4700 concerns—tended to weigh against an exemption. Overall, the Register concluded that while from a copyright perspective proponents had made the case for an exemption, based on the record, the exemption needed to be carefully tailored to address a number of concerns. Accordingly, the recommended exemption excludes computer programs in ECUs that are chiefly designed to operate vehicle entertainment and telematics systems due to insufficient evidence demonstrating a need to access such ECUs, and out of concern that such circumvention might enable unauthorized access to creative or proprietary content. The exemption also excludes circumvention ‘‘on behalf of’’ vehicle owners, as a broader exception allowing third parties to engage in circumvention activities on behalf of others is in tension with the antitrafficking provisions of section 1201(a)(2) and (b). Moreover, by passing the Unlocking Act—which amended section 1201 to allow unlocking of cellphones and other devices to be carried out by third parties ‘‘at the direction of’’ device owners—Congress indicated its view that extending the reach of an exemption to cover thirdparty actors requires a legislative amendment. The exemption also expressly excludes acts of circumvention that would violate any other law, including regulations promulgated by DOT or EPA. Finally, in light of the significant concerns raised by DOT and EPA, the recommended exemption will become operative twelve months from the effective date of the new regulation to provide these and other potentially interested agencies an opportunity to consider and prepare for the lifting of the DMCA prohibition. Acknowledging the views of the NTIA, the Register determined that a twelvemonth delay was the shortest period that would reasonably permit other agencies to consider appropriate action. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations Transportation or the Environmental Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation. 7. Proposed Classes To Permit Research of Software Flaws, Proposed Class 25: Software—Security Research; Proposed Class 22: Vehicle Software—Security and Safety Research; Proposed Class 27A: Medical Device Software— Security and Safety Research 29 The Office received a number of petitions for proposed exemptions to permit circumvention of TPMs for purposes of conducting good-faith testing for and the identification, disclosure and correction of malfunctions, security flaws and vulnerabilities in computer programs. The proponents of these security exemptions observed as a general matter that computer programs are pervasive in modern machines and devices, including vehicles, home appliances and medical devices, and that independent security research is necessary to uncover flaws in those computer programs. The Copyright Office grouped the security-related petitions into three proposed classes. First, the Office received two submissions from academic researchers seeking an exemption to permit goodfaith research into malfunctions, security flaws or vulnerabilities in computer programs installed on all types of systems and devices. The NPRM described the proposed class as follows: Proposed Class 25: 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. Lhorne on DSK5TPTVN1PROD with RULES Second, EFF filed a petition seeking an exemption to allow the circumvention of TPMs on computer programs that are embedded in motorized land vehicles for purposes of researching the security or safety of that vehicle. The NPRM described the proposed class as follows: Proposed Class 22: 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. 29 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 250–320. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 Third, the Medical Device Research Coalition (‘‘MDRC’’), a group of patients and researchers, filed a petition seeking an exemption to allow the circumvention of TPMs on computer programs on implanted medical devices, such as pacemakers, implantable cardioverter defibrillators, insulin pumps, and continuous glucose monitors, and their corresponding personal monitoring systems. MDRC’s petition covered two proposed uses— allowing research into software flaws that adversely affect the safety, security and efficacy of medical devices, and allowing a patient to access the information generated by his or her own device. The Office originally categorized the petition into a single class. The NPRM thus described the class as follows: Proposed Class 27: This 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. Based on the record as it developed in the course of the proceeding, the Register came to the conclusion that Proposed Class 27 should be divided into Proposed Class 27A, concerning security research on medical devices, and Proposed Class 27B, concerning access to patient data generated by medical devices. Class 27A is addressed with the other security research classes, while 27B is separately discussed below. Proponents maintained that the security of software and the devices that execute software is of critical importance because security flaws pose potentially serious threats, including physical injury and death of individuals, property damage, and financial harm. Proponents argued that security research is noninfringing as a matter of fair use and, in the case of vehicle security research, under the exceptions set forth in section 117 as well. They further asserted that the permanent statutory exemptions to section 1201(a)(1)’s prohibition that are directed to reverse engineering (section 1201(f)), encryption research (section 1201(g)), and security testing (section 1201(j)) are inadequate for their PO 00000 Frm 00075 Fmt 4700 Sfmt 4700 65955 purposes, because these provisions do not provide sufficient assurance that the activities in which the researchers seek to engage will be considered exempt. The Office received comments in opposition to these proposed classes from a wide range of companies and organizations representing copyright owners. The general software security research exemption in Class 25 was opposed by AdvaMed, Auto Alliance, BSA, GM, Intellectual Property Owners Association (‘‘IPO’’), LifeScience Alley, Medical Device Innovation Safety and Security Consortium, and Software Information Industry Association. The vehicle software security research exemption in Class 22 was opposed by Global Automakers, Auto Alliance, GM, John Deere, and MEMA. The medical device software security exemption in Class 27A was opposed by AdvaMed, IPO, Jay Schulman, LifeScience Alley, and National Association of Manufacturers (‘‘NAM’’). In general, opponents argued that proponents had failed to establish that security research activities encompassed by the exemption are noninfringing, and that, in any event, an exemption was unnecessary both because of the permanent exemptions in sections 1201(f), 1201(g), and 1201(j), and because manufacturers frequently authorize independent security research. Opponents also argued that any exemption for software security research should also include an express disclosure requirement, so that the software developer or product manufacturer has sufficient time to correct any flaw before its existence becomes more widely known and thus more susceptible to exploitation by malicious actors. Relatedly, opponents asserted that the proposal presented serious public health and safety concerns. For example, opponents claimed that information obtained by engaging in security research could be used by bad actors to hack into highly regulated machines and devices, including medical devices and vehicles. In light of commenters’ observations, the Copyright Office notified DOT, EPA and FDA of the pendency of the rulemaking. All three agencies responded and expressed significant reservations. The agencies voiced concerns about the potential effects on public health and safety; for example, DOT expressed concern that independent security researchers may not fully appreciate the potential ramifications of their acts of circumvention on automobile safety or the logistical limitations affecting potential remedial actions. E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES 65956 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations By contrast, NTIA fully supported adoption of a broad exemption for all computer programs, regardless of the device on which they are run, so that good-faith security researchers can engage in socially beneficial work. NTIA believed that the concerns of other agencies could adequately be addressed by stating explicitly in the exemption that it does not obviate compliance with other applicable laws. NTIA nonetheless acknowledged the possibility that a delay in implementation—as recommended by the Register and discussed below—could be appropriate to permit other agencies to consider and prepare for the new rule. The Register found that while the Class 25 proposal to allow research on computer programs generally was very broad (and potentially swallowed the proposals in Class 22 and Class 27A), the record focused primarily on consumer-facing products rather than large-scale industrial or government systems such as power or transit systems. The record also included specific evidence concerning motor vehicles, implanted medical devices such as pacemakers and glucose monitors, and electronic voting machines. Based on this record, the Register recommended adopting an exemption to enable good-faith security research on computer programs within devices or machines primarily designed for use by individual consumers (including voting machines), motorized land vehicles, and implanted medical devices and their corresponding monitoring systems. At the same time, the Register concluded that the record did not support the open-ended exemption urged by Class 25 proponents, encompassing all computer programs on all systems and devices, including highly sensitive systems such as nuclear power plants and air traffic control systems, and that the exemption should be limited to the consumer-oriented uses that were the focus of proponents’ submissions. The Register concluded that goodfaith security research into computer programs used to operate such devices and machines is likely a noninfringing fair use of those programs or, in the case of vehicle software, may be a noninfringing use under section 117. The Register also concluded that the permanent exemptions in sections 1201(f), 1201(g), and 1201(j) are inadequate to accommodate the proposed research activities due to various limitations and conditions contained in those provisions. Further, with respect to computer programs used to operate the types of devices and machines encompassed by the VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 recommended exemption, the Register additionally found that legitimate security research has been hindered by TPMs that limit access to those programs. The Register also noted that different parts of the Administration appear to hold divergent views on issues surrounding security research and the wisdom of granting an exemption for this purpose, and that the exemption could cover any number of highly regulated products. Accordingly, to give other parts of the government sufficient opportunity to respond, the Register recommended that, as a general matter, the exemption should not go into effect until twelve months after the effective date of the new regulation (as noted above, the Register found that twelve months was the shortest period that would reasonably permit other agencies to respond). The Register, however, recommended immediate implementation of the exemption for voting machines, on the ground that there was no public safety issue or other proffered justification for delay of this aspect of the exemption. The Register also noted the specific concern expressed by other agencies that acts of security research must not put members of the public at risk. The recommended exemption thus provides that security research must be conducted in a controlled setting designed to avoid harm to individuals or the public. In the case of medical devices specifically, the recommended exemption incorporates FDA’s suggestion to exclude research on medical devices that are being used, or could be used, by patients. As explained above, a significant issue with respect to the security exemptions involves the proper disclosure of security research findings, as the interests of the manufacturer and the public may both be affected by the nature and timing of disclosure of software flaws. Indeed, Congress included disclosure to the system developer as one of the factors to be considered in determining a person’s eligibility for the security testing exemption in section 1201(j). Although the Register expressed support for responsible disclosure of security flaws, she acknowledged the difficulty of attempting to define disclosure standards in the context of this rulemaking, as opinions seem sharply divided on this point. Accordingly, rather than incorporating an express disclosure rule, the recommended exemption draws upon what the Register perceives to be the basic intent of section 1201(j) by specifying that the information derived from the research PO 00000 Frm 00076 Fmt 4700 Sfmt 4700 activity be used primarily to promote the security or safety of the devices containing the computer programs on which the research is conducted, or of those who use those devices. The Register noted that in the interest of adhering to Congress’s basic purpose in section 1201(j), where appropriate, the recommended exemption tracks Congress’s language rather than alternative formulations suggested by proponents, including by expressly excluding acts that violate any other law, such as the Computer Fraud and Abuse Act of 1986. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: (i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code; and provided, however, that, except as to voting machines, such circumvention is initiated no earlier than 12 months after the effective date of this regulation, and the device or machine is one of the following: (A) A device or machine primarily designed for use by individual consumers (including voting machines); (B) A motorized land vehicle; or (C) A medical device designed for whole or partial implantation in patients or a corresponding personal monitoring system, that is not and will not be used by patients or for patient care. (ii) For purposes of this exemption, ‘‘goodfaith security research’’ means accessing a computer program solely for purposes of good-faith testing, investigation and/or correction of a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement. 8. Proposed Class 23: Abandoned Software—Video Games Requiring Server Communication 30 Many modern video games—which may be played on a personal computer or a dedicated gaming console—require a network connection to a remote server operated by the game’s developer to enable core functionalities. Before some games can be played at all, including in 30 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 321–53. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations single-player mode, the game must connect to an ‘‘authentication server’’ to verify that the game is a legitimate copy. Other games require a connection to a ‘‘matchmaking server’’ to enable users to play the game with other people over the internet in multiplayer mode. In the case of a game that relies on an authentication server, the game may be rendered entirely unplayable if the server connection is lost. When a matchmaking server is taken offline, the game may still be playable, though with online multiplayer play disabled. EFF and Kendra Albert, a student at Harvard Law School, jointly filed a petition seeking an exemption to enable those who have lawfully acquired copies of video games to access and play those games when authentication or matchmaking servers have been permanently taken offline. As the record developed, it became evident that the proposal focused on two types of use: (1) People who wish to continue to play physical or downloaded copies of video games they have lawfully acquired (referred to in the Recommendation as ‘‘gamers’’); and (2) those who seek to preserve individual video games and make them available for research and study (referred to in the Recommendation as ‘‘preservationists’’). The Copyright Office set forth the following proposed exemption in the NPRM: Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 23: 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. Proponents of Class 23 argued that uses to enable continued gameplay or multiplayer play constitute fair use, but that the prohibition on circumvention prevents owners from restoring access to games they have lawfully acquired. They also stressed that the inability to restore access has adverse effects on efforts to preserve video games and make them available for research and study. The proposed class was opposed by ESA and Joint Creators. They argued that the proposed exemption was too broad, would not facilitate any noninfringing uses, and could adversely impact the market for video games. ESA expressed particular concern about the potential for piracy as a result of circumvention activities, explaining that VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 if the exemption were to permit circumvention of TPMs on video game consoles, those consoles could be used to play pirated video games. Opponents also urged that petitioners had failed to demonstrate cognizable adverse effects, arguing, for example, that the vast majority of games can continue to be played in single-player mode when server support has ended, and that there are other alternative means of playing games in multiplayer mode without a matchmaking server, including by using a local area network. ESA also argued that, at the point of sale, consumers receive ample notice that server support may be discontinued. NTIA supported adoption of the proposed exemption for continued gameplay and for preservation uses, both for single-player and multiplayer play. NTIA argued that gamers should be permitted to restore access to a work that they had originally been allowed to use. In addition, according to NTIA, consumers receive inconsistent notice at best that developers may discontinue support for multiplayer use, and LANenabled multiplayer play is an inadequate substitute to play over the internet. Based on a review of the evidentiary record, the Register recommended an exemption to allow continued gameplay and preservation activities when developer server support for a video game has ended, though one more circumscribed than that proposed. With respect to gamers, the Register concluded that the record supported granting an exemption for video games that require communication with an authentication server to allow gameplay when the requisite server is taken offline. The Register explained that the inability to circumvent the TPM would preclude all gameplay, a significant adverse effect, and that circumvention to restore access would qualify as a noninfringing fair use. At the same time, the Register determined that proponents had failed to provide persuasive support for an exemption for online multiplayer play, in large part because it is not clear on the current record how the provision of circumvention tools to multiple users to facilitate an alternative matchmaking service could be accomplished without running afoul of the anti-trafficking provision in section 1201(a)(2). The Register also confirmed that the exemption for gamers should not extend to jailbreaking of console software because such jailbreaking is strongly associated with video game piracy. With respect to preservation uses, looking to certain aspects of section 108 of the Copyright Act for guidance, the Register found that the record supported PO 00000 Frm 00077 Fmt 4700 Sfmt 4700 65957 an exemption for libraries and archives, as well as for museums, to allow circumvention of TPMs so that video games can be preserved in playable condition when authentication servers are discontinued. In accordance with section 108, such institutions must be open to the public and/or to unaffiliated researchers, and the activities at issue must not be for commercial purposes. As with gamers generally, the recommended exemption for preservationists does not extend to circumvention to enable online multiplayer play, which is an activity that would extend beyond the walls of the preserving institution. But because the risk of piracy is much lower in a preservationist setting than with respect to gamers at large, the Register recommended that preservationists have the ability to circumvent TPMs controlling access to video game console software when necessary to maintain a console game in playable form. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: (i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, solely for the purpose of: (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal gameplay on a personal computer or video game console; or (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives or museum. (ii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives or museum to engage in the preservation activities described in paragraph (i)(B). (iii) For purposes of the exemptions in paragraphs (i) and (ii), the following definitions shall apply: (A) ‘‘Complete games’’ means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server. (B) ‘‘Ceased to provide access’’ means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended E:\FR\FM\28OCR1.SGM 28OCR1 65958 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored. (C) ‘‘Local gameplay’’ means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility. (D) A library, archives or museum is considered ‘‘eligible’’ when the collections of the library, archives or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum. 9. Proposed Class 26: Software—3D Printers 31 3D printing—also known as ‘‘additive’’ manufacturing—is a technology that translates digital files into physical objects by adding successive layers of material. Some 3D printer manufacturers use TPMs to limit the types of material—or ‘‘feedstock’’— that can be used in their 3D printers to manufacturer-approved feedstock. Proponent Public Knowledge sought an exemption to permit the circumvention of access controls on computer programs on 3D printers with chip-based verification systems to enable the use of non-manufacturerapproved feedstock in such printers. The requested exemption would encompass both the modifications necessary to make a 3D printer accept alternative feedstock, and potentially further modifications to allow the use of feedstock consisting of material that is different from what a 3D printer has been designed to use (e.g., metal instead of plastic). The Copyright Office set forth the following proposed exemption in the NPRM: Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 26: 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. According to Public Knowledge, nonmanufacturer-approved feedstock is often much less expensive than that provided by the manufacturer. In addition, use of feedstock composed of a different material may require modification of the printer’s operating system software, for example, to change preset variables such as the rate at which the heated feedstock is extruded to create the object or the temperature of the extrusion nozzle. According to Public Knowledge, the reproductions and adaptations necessary to engage in 31 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 356–77. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 these uses are noninfringing under either the fair use doctrine or section 117. Public Knowledge asserts that absent an exemption, 3D printer owners will be forced to pay more for feedstock, and innovation in the 3D printing space will be adversely affected. This proposed class was opposed by Stratasys, Inc. (‘‘Stratasys’’), a 3D printer manufacturer. Among other things, Stratasys contended that the proposed uses do not qualify as noninfringing under section 117 because 3D printer owners license rather than own the software that is installed on the 3D printer. Stratasys also argued that proponents had failed adequately to demonstrate cognizable adverse effects. Stratasys explained that 3D printers are used to produce medical implants, aerospace parts, and other goods that are subject to safety or regulatory guidelines, and expressed concern that an exemption could permit use of inferior materials in such applications. Notably, this concern was reinforced by FDA, which, in a letter to the Office, worried that an exemption for this class might create unintended public health and safety risks in relation to medical devices. Stratasys also expressed the concern that an exemption could be used to access proprietary design software, design files, or data. NTIA favored granting the proposed exemption, on the ground that it would benefit consumers and fuel innovation by reducing costs of feedstock and by allowing the use of new types of feedstock. Although NTIA acknowledged concerns that 3D-printed parts might use inferior materials, it concluded that the exemption should not attempt to address concerns about quality control. The Register recommended granting an exemption for 3D printers with chipbased verification systems, explaining that the proposed uses of operating system software to permit the use of alternative feedstock are likely noninfringing as a matter of fair use or under section 117, and that the prohibition on circumvention appears to be adversely affecting the proposed uses. At the same time, the Register observed that proponents’ proposal— and the evidence offered in support— was focused largely on nonindustrial uses of printers rather than the sorts of uses that could present the types of safety and regulatory concerns highlighted by Stratasys and FDA. In light of the record, and to address the safety and regulatory issues, the recommended exemption excludes circumvention of TPMs on 3D printers that are used to print objects that are subject to legal or regulatory oversight. PO 00000 Frm 00078 Fmt 4700 Sfmt 4700 The recommended exemption also excludes circumvention for the purpose of accessing design software, design files or proprietary data. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Computer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data; provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful. 10. Proposed Class 27B: Networked Medical Devices—Patient Data 32 Many modern implanted medical devices, such as pacemakers, implantable cardioverter defibrillators, insulin pumps and continuous glucose monitors, measure and record data about physiological developments taking place within the body, and communicate that data wirelessly to a corresponding personal monitoring system. Some personal monitoring systems, in turn, transmit data to a hospital or monitoring company, and ultimately to the patient’s physician. Increasingly, these transmissions of data are protected by TPMs, including encryption schemes. MDRC requested an exemption that would allow a patient, or persons acting on behalf of the patient, to circumvent TPMs on these transmissions so that the patient is able to access the data generated by his or her own medical device and any corresponding personal monitoring system, without the need to visit a hospital or doctor’s office. As explained above, MDRC’s petition also encompassed security research into medical device software. The Office accordingly set forth the following class in the NPRM: Proposed Class 27: 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 32 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 378–403. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations Lhorne on DSK5TPTVN1PROD with RULES 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. As also noted above, the Register concluded that Proposed Class 27 should be divided into Proposed Class 27A, concerning security research, and Proposed Class 27B, concerning patient data, to allow the two types of uses to be separately analyzed. Class 27A is addressed with the other security research-related classes above. A discussion of Class 27B follows. MDRC explained that an exemption to circumvent TPMs protecting medical device data would give patients realtime access to their own health data, allowing them, for example, to immediately detect major health risks or facilitate highly personalized treatment. As framed by MDRC, the exemption would provide access only to TPMprotected data outputs of medical devices, not to computer programs contained within medical devices or their corresponding monitoring systems. Although MDRC explained that such data is uncopyrightable to the extent it merely consists of physiological facts, such as a patient’s blood glucose level, it expressed concern that the data outputs of some devices may constitute copyrightable compilations. MDRC asserted that the proposed use of such compilations would be a fair use, and urged the Office to adopt an exemption covering such circumstances. MDRC explained that the prohibition on circumvention adversely affects patients’ ability to monitor their own health in real time, and that those adverse effects are likely to increase because FDA has encouraged manufacturers to impose TPMs on data outputs. Responding to concerns about the impact of such an exemption on the battery life of implanted devices, MDRC explained that the exemption could be limited to passive monitoring of data that is already being transmitted by the medical device or monitoring system. The Office received comments in opposition to the proposed exemption from AdvaMed, IPO, LifeScience Alley, and NAM. AdvaMed agreed with MDRC that in certain circumstances, the selection and arrangement of data generated by a medical device might be copyrightable as a compilation. Opponents, however, provided little argument to counter MDRC’s claim that patient access to such medical data constitutes a noninfringing fair use. Indeed, they conceded that patients have an ‘‘inherent right’’ to access their VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 own medical data, but argued that this right is satisfied by obtaining data via authorized means, such as through a patient’s health care provider. Opponents also relied heavily on the claim that the exemption would create health and safety concerns. For example, opponents contended that requesting data from implanted devices at an abnormally high rate could reduce the battery life of such devices. Opponents suggested that the Copyright Office allow an opportunity for FDA to provide input on the proposed exemption. In light of opponents’ comments, the Office advised FDA of the pendency of this proceeding. In a responsive letter to the Office, FDA expressed concern about facilitating access to data that includes patient health information or personally identifiable information, noting that the use of such data is subject to government regulation. FDA recommended that any exemption indicate that it was not intended to override the regulations of other federal agencies. NTIA supported the proposed exemption, explaining among other things that the exemption would allow patients to see and react to data collected by their devices in real time. NTIA also concluded that the exemption is unlikely to adversely affect the operation of the medical device itself, based on MDRC’s assertion that data would be passively intercepted as it is wirelessly transmitted from the device or monitoring system. The Register recommended granting the proposed exemption. The Register observed that in many cases, data outputs generated by devices would likely be uncopyrightable, and that in such cases, section 1201(a)(1)—which is limited to works protected under title 17—would not apply. The Register noted, however, that some data outputs could qualify for protection as literary works if they reflect a sufficiently original selection and presentation of data, and that opponents themselves agreed that such outputs could be subject to copyright. Accordingly, the Register concluded that an exemption would be appropriate to enable patients’ access to their own medical data as embodied in protectable data compilations generated by implanted medical devices and corresponding personal monitoring systems. The Register concluded that accessing one’s own medical data is likely to be a fair and noninfringing use, and that TPMs on that data are likely to have an adverse impact on such access, especially as TPMs become more prevalent in response to FDA guidance. PO 00000 Frm 00079 Fmt 4700 Sfmt 4700 65959 In addition, the Register concluded that the statutory factors favor an exemption. In light of concerns about the effect of circumvention on the battery life of implanted medical devices, the Register recommended that the exemption reflect the approach suggested by MDRC, so it is limited to passively accessing data that is already being generated or transmitted by the device. Further, as suggested by FDA, the recommended exemption expressly provides that any actions taken under the exemption must be compliant with all applicable laws and regulations. The recommended exemption does not permit circumvention ‘‘at the direction of a patient,’’ as a broader exception allowing third parties to engage in circumvention activities on behalf of others could implicate the antitrafficking provisions of section 1201(a)(2) and (b). Unlike the recommended exemptions for security research and vehicle diagnosis, repair and modification, the Register recommended that the exemption for access to patient data be effective without delay because the passive monitoring of data transmissions did not appear to present any immediate safety or health concerns. Accordingly, based on the Register’s recommendation, the Librarian adopts the following exemption: Literary works consisting of compilations of data generated by medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system. B. Classes Considered but Not Recommended Based upon the record in this proceeding, the Register of Copyrights recommends that the Librarian determine that the following classes of works shall not be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1): E:\FR\FM\28OCR1.SGM 28OCR1 65960 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations reaffirmed judicial reluctance to embrace a general space-shifting privilege. At the same time, the Register recognized the consumer appeal of the proposals, and marketplace efforts to meet consumer demand for accessing movies and books in a wide variety of formats. According to the Register, the policy judgments surrounding the creation of a novel exception for spaceor format-shifting of copyrighted works are complex and thus best left to Congress or the courts. For both classes, proponents argued that space- and format-shifting for personal, noncommercial uses are fair uses. In the past four rulemakings, the Register has declined to recommend, and the Librarian has declined to adopt, an exemption for such uses because the proponents had failed to establish a legal or factual record sufficient to establish that the space- or formatshifting of audiovisual works, e-books, and other copyrighted works constitutes a noninfringing use. In this rulemaking, proponents argued that reconsideration of that position was warranted in light of a recent district court decision, Fox Broadcasting Co. v. Dish Network LLC,34 as well as certain statements from legislative history of certain aspects of the Copyright Act, including a discussion of how the creation of a limited copyright in sound recordings might impact home audio recording. Opponents urged that noncommercial space- and format-shifting are not established fair uses under the law. They further argued that, in any event, an exemption is unwarranted in light of the continued growth of licensed digital distribution services that provide meaningful alternatives to circumvention, including digital rights locker services such as UltraViolet and Disney Movies Anywhere and disc-todigital services such as VUDU and Flixter that allow consumers to convert previously purchased DVDs or Blu-ray discs into high-quality digital files. According to opponents, an exemption that allowed broad-based space- or format-shifting would undermine not only the existing markets for DVDs and Blu-ray discs but also these emerging online distribution models. NTIA, as it has in the past, supported what it termed a ‘‘narrowed version’’ of an exemption to allow circumvention when the work is not accompanied by an additional copy of the work in an alternate digital format. In NTIA’s view, the exemption is an issue of consumer protection, although NTIA acknowledged the broader debate about the merits and legality of noncommercial space-shifting. The Register recommended against the adoption of a proposed exemption, on the ground that the law of fair use, as it stands today, does not sanction broad-based space-shifting or formatshifting. The Register rejected proponents’ attempt to rely on the Dish Network case, explaining that the uses at issue there were much more circumscribed than the uses proposed for this exemption. In particular, the service at issue in Dish Network included many safeguards to prevent unfettered use of the relevant content, including limitations on the length of time content would be available on the device to which a work is transferred. Accordingly, the Register concluded that the case was both factually and legally distinguishable. On the other hand, the recent case of Fox News Network, LLC v. TVEyes Inc.,35 33 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Recommendation at 107–26. 34 No. CV 12–4529 DMG (SHx), 2015 WL 1137593, at *30–31 (C.D. Cal. Jan. 20, 2015). 35 No. 13 Civ. 5315 (AKH), 2015 WL 5025274 (S.D.N.Y. Aug. 25, 2015). 36 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 193–94. 1. Proposed Classes 8 and 10: Audiovisual Works and Literary Works Distributed Electronically—SpaceShifting and Format-Shifting 33 Proposed Classes 8 and 10 would have permitted circumvention of technological measures protecting motion pictures, e-books, and other audiovisual or literary works to allow users to view the materials on alternate devices for personal use or to create back-up copies. Broadly speaking, this activity is referred to as ‘‘space-shifting’’ and, in some cases, ‘‘format-shifting.’’ Public Knowledge requested an exemption to engage broadly in noncommercial space-shifting of motion pictures distributed on DVDs, Blu-ray discs, and downloaded files. Alpheus Madsen requested an exemption to allow circumvention of access controls on DVDs specifically in order to play the DVDs on the Linux operating system. These overlapping exemptions were combined into the following class: Proposed Class 8: This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the purpose of noncommercial space-shifting or formatshifting. 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. Christopher Meadows, in turn, proposed an exemption to engage in noncommercial space- or format-shifting of e-books, to allow consumers to view TPM-protected e-books on alternate viewing platforms and to create back-up copies. The proposed exemption was described as follows: Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 10: 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 [as] e-books. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 PO 00000 Frm 00080 Fmt 4700 Sfmt 4700 2. Proposed Class 18: Jailbreaking— Dedicated E-Book Readers 36 This class would have allowed circumvention of technological measures protecting dedicated e-book readers, such as Amazon’s Kindle Paperwhite, to run lawfully acquired third-party applications or software on such devices. Maneesh Pangasa filed a petition seeking this exemption, and the NPRM described the class as follows: Proposed Class 18: This proposed class would permit the jailbreaking of dedicated ebook readers to allow those devices to run lawfully acquired software that is otherwise prevented from running. Pangasa, however, failed to submit further written comments or evidentiary material in support of the petition and did not participate in the public hearings. The written comments that were received in connection with this class were abbreviated and did not offer specific factual information or legal argument in support of the exemption. At the public hearing, proponent Jay Freeman briefly mentioned that people have jailbroken e-book readers to install screen savers or achieve other functionality, but no further evidence was presented in relation to this class. There were no opposition comments filed. Although, as part of its discussion of the jailbreaking exemptions for smartphones and all-purpose mobile computing devices, NTIA expressed support for a jailbreaking exemption for dedicated e-book readers, NTIA did not point to anything specific in the record to support the requested exemption. In light of the insufficiency of factual or legal support for the proposed exemption, the Register declined to recommend it. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations 3. Proposed Class 19: Jailbreaking— Video Game Consoles 37 Maneesh Pangasa filed a petition proposing an exemption to permit jailbreaking of home video game consoles for an assortment of asserted noninfringing uses, including installing alternative operating systems. The Librarian rejected a similar exemption in 2012 because of substantial concerns about video game piracy. The Copyright Office set forth the following proposal in the NPRM: Lhorne on DSK5TPTVN1PROD with RULES Proposed Class 19: 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. NTIA concluded that the record did not support a broader exemption, as the record is ‘‘significantly less robust and detailed than it was in the last rulemaking.’’ The Register concluded that the record in this rulemaking did not provide a basis for departing from her 2012 recommendation that an exemption for video game console jailbreaking should be denied. According to the Register, the record was not materially different from that considered in 2012, and included evidence demonstrating that jailbreaking of video game consoles continues to be closely associated with video game piracy, thus undermining the value of console software as a secure distribution platform. The Register also concluded that the need to engage in console repair did not provide a basis for an exemption in light of the availability of authorized repair services and the ability of proponents and others to perform repairs without the need to circumvent. Pangasa failed to file supporting comments or participate in the public hearings, and the brief written comments filed by other parties provided scant support for the exemption. The limited amount of factual support offered in written comments—concerning academic research projects and ‘‘homebrew’’ video games—largely mirrored factual claims that were not persuasive in the 2012 proceeding. At the public hearing, the representative of commenting party iFixit provided some additional information regarding certain types of video game console repairs for which jailbreaking might be useful. At the same time, however, he acknowledged that the referenced repairs could be undertaken without circumvention. Class 19 was opposed by ESA and Joint Creators. As in 2012, opponents provided substantial evidence that console jailbreaking is closely tied to video game piracy. In response to iFixit’s concerns about console repair, ESA observed that all major console manufacturers offer repair services for consoles still under warranty at no charge, and for out-of-warranty consoles for prices ranging from $99 to $149. iFixit agreed with this assessment. NTIA supported an exemption limited to repair of malfunctioning hardware for systems that are obsolete or no longer covered by manufacturer warranty, on the ground that to use an authorized repair service, the owner must send the console to the manufacturer and pay a ‘‘substantial’’ fee. At the same time, Proposed Class 24: 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. 37 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 195–201. 38 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Recommendation at 354–55. VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 4. Proposed Class 24: Abandoned Software—Music Recording Software 38 This proposed exemption would have allowed circumvention of a dongle-like access control that is allegedly no longer supported by the developer or copyright owner and protects a specific type of music recording software, Ensoniq PARIS. Three individuals proposed this exemption, Richard Kelley, James McCloskey, and Michael Yanoska, and the Copyright Office set forth the following proposal in the NPRM: No evidence or argument to support this exemption was submitted after the initial petition phase of the proceeding. The class was opposed by Joint Creators, who raised concerns about the lack of supporting evidence. In light of the incomplete record, NTIA and the Register declined to recommend granting the exemption. C. Conclusion Having considered the evidence in the record, the contentions of the commenting parties, and the statutory objectives, the Register of Copyrights has recommended that the Librarian of Congress publish certain classes of PO 00000 Frm 00081 Fmt 4700 Sfmt 4700 65961 works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply to persons who engage in noninfringing uses of those particular classes of works. Dated: October 20, 2015. Maria A. Pallante, Register of Copyrights and Director of the U.S. Copyright Office. Determination of the Librarian of Congress Having duly considered and accepted the Recommendation of the Register of Copyrights, which Recommendation is hereby incorporated by reference, the Librarian of Congress, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of copyrighted works that shall for a threeyear period be subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A). List of Subjects in 37 CFR Part 201 Copyright, Exemptions to prohibition against circumvention. Final Regulations For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702 2. Section 201.40 is amended by revising paragraph (b) and removing paragraph (d). The revision reads as follows: ■ § 201.40 Exemption to prohibition against circumvention. * * * * * (b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works: (1) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the motion E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES 65962 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations pictures for the purpose of criticism or comment in the following instances: (i) For use in documentary filmmaking, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (ii) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity’s use is noncommercial), (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (iii) For use in nonfiction multimedia e-books offering film analysis, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) Where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (iv) By college and university faculty and students, for educational purposes, VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (v) By faculty of massive open online courses (MOOCs) offered by accredited nonprofit educational institutions to officially enrolled students through online platforms (which platforms themselves may be operated for profit), for educational purposes, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students and relevant staff members, and applies technological measures that reasonably prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2), (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Control System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (vi) By kindergarten through twelfthgrade educators, including of accredited PO 00000 Frm 00082 Fmt 4700 Sfmt 4700 general educational development (GED) programs, for educational purposes, (A) Where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, or (B) In film studies or other courses requiring close analysis of film and media excerpts where the motion picture is lawfully made and acquired on a DVD protected by the Content Scramble System, or via a digital transmission protected by a technological measure, and where the person engaging in circumvention reasonably believes that screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content; (vii) By kindergarten through twelfthgrade students, including those in accredited general educational development (GED) programs, for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted; and (viii) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities for educational purposes, where the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted. (2) Literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies, (i) When a copy of such a work is lawfully obtained by a blind or other person with a disability, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the price of the mainstream copy of the work as made available to the general public through customary channels, or (ii) When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121. (3)(i) Computer programs that enable the following types of wireless devices E:\FR\FM\28OCR1.SGM 28OCR1 Lhorne on DSK5TPTVN1PROD with RULES Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network, and the device is a used device: (A) Wireless telephone handsets (i.e., cellphones); (B) All-purpose tablet computers; (C) Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and (D) Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices. (ii) A device is considered ‘‘used’’ for purposes of this exemption when it has previously been lawfully acquired and activated on the wireless telecommunications network of a wireless carrier. (4) Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this exemption, a ‘‘portable all-purpose mobile computing device’’ is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual. (5) Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television. (6) Computer programs that are contained in and control the functioning of a motorized land vehicle such as a personal automobile, commercial motor vehicle or mechanized agricultural vehicle, except for computer programs primarily designed for the control of telematics or entertainment systems for such vehicle, when circumvention is a necessary step undertaken by the authorized owner of the vehicle to allow the diagnosis, repair or lawful modification of a vehicle function; and where such circumvention does not constitute a violation of applicable law, including without limitation regulations promulgated by the Department of Transportation or the Environmental VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 Protection Agency; and provided, however, that such circumvention is initiated no earlier than 12 months after the effective date of this regulation. (7)(i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates solely for the purpose of good-faith security research and does not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code; and provided, however, that, except as to voting machines, such circumvention is initiated no earlier than 12 months after the effective date of this regulation, and the device or machine is one of the following: (A) A device or machine primarily designed for use by individual consumers (including voting machines); (B) A motorized land vehicle; or (C) A medical device designed for whole or partial implantation in patients or a corresponding personal monitoring system, that is not and will not be used by patients or for patient care. (ii) For purposes of this exemption, ‘‘good-faith security research’’ means accessing a computer program solely for purposes of good-faith testing, investigation and/or correction of a security flaw or vulnerability, where such activity is carried out in a controlled environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement. (8)(i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable local gameplay, solely for the purpose of: (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal gameplay on a personal computer or video game console; or (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal PO 00000 Frm 00083 Fmt 4700 Sfmt 4700 65963 computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives or museum. (ii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives or museum to engage in the preservation activities described in paragraph (i)(B). (iii) For purposes of the exemptions in paragraphs (i) and (ii), the following definitions shall apply: (A) ‘‘Complete games’’ means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server. (B) ‘‘Ceased to provide access’’ means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored. (C) ‘‘Local gameplay’’ means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility. (D) A library, archives or museum is considered ‘‘eligible’’ when the collections of the library, archives or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives or museum. (9) Computer programs that operate 3D printers that employ microchipreliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files or proprietary data; provided, however, that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful. (10) Literary works consisting of compilations of data generated by E:\FR\FM\28OCR1.SGM 28OCR1 65964 Federal Register / Vol. 80, No. 208 / Wednesday, October 28, 2015 / Rules and Regulations medical devices that are wholly or partially implanted in the body or by their corresponding personal monitoring systems, where such circumvention is undertaken by a patient for the sole purpose of lawfully accessing the data generated by his or her own device or monitoring system and does not constitute a violation of applicable law, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or regulations of the Food and Drug Administration, and is accomplished through the passive monitoring of wireless transmissions that are already being produced by such device or monitoring system. * * * * * Dated: October 20, 2015. David S. Mao, Acting Librarian of Congress. [FR Doc. 2015–27212 Filed 10–27–15; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA–HQ–OPP–2014–0591; FRL–9934–14] Methoxyfenozide; Pesticide Tolerances Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: This regulation establishes tolerances for residues of methoxyfenozide in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR–4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). DATES: This regulation is effective October 28, 2015. Objections and requests for hearings must be received on or before December 28, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION). ADDRESSES: The docket for this action, identified by docket identification (ID) number EPA–HQ–OPP–2014–0591, is available at https://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460–0001. The Public Reading Room Lhorne on DSK5TPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 15:03 Oct 27, 2015 Jkt 238001 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 OPP Docket is (703) 305–5805. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/dockets. FOR FURTHER INFORMATION CONTACT: Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; email address: RDFRNotices@epa.gov. SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me? You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include: • Crop production (NAICS code 111). • Animal production (NAICS code 112). • Food manufacturing (NAICS code 311). • Pesticide manufacturing (NAICS code 32532). B. How can I get electronic access to other related information? You may access a frequently updated electronic version of EPA’s tolerance regulations at 40 CFR part 180 through the Government Printing Office’s e-CFR site at https://www.ecfr.gov/cgi-bin/textidx?&c=ecfr&tpl=/ecfrbrowse/Title40/ 40tab_02.tpl. C. How can I file an objection or hearing request? Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA–HQ– OPP–2014–0591 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 28, 2015. Addresses for PO 00000 Frm 00084 Fmt 4700 Sfmt 4700 mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b). In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA–HQ–OPP– 2014–0591, by one of the following methods: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. • Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/ DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https:// www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https:// www.epa.gov/dockets. II. Summary of Petitioned-For Tolerance In the Federal Register of March 4, 2015 (80 FR 11611) (FRL–9922–68), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 4E8298) by IR–4, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide methoxyfenozide, (3-methoxy-2methylbenzoic acid 2-(3,5dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide), under paragraph (a) in or on: Chive, fresh leaves at 30.0 parts per million (ppm); fruit, stone, group 12–12, except plum, prune, fresh at 3.0 ppm; and nut, tree, group 14–12 at 0.10 ppm. The petition also proposed the following tolerances under paragraph (a) be removed upon approval of the proposed tolerances listed above: Fruit, stone, group 12, except plum, prune, fresh at 3.0 ppm; nut, tree, group 14 at 0.10 ppm; pistachio at 0.10 ppm; and in paragraph (d), chive at 4.5 ppm be removed. The petition additionally E:\FR\FM\28OCR1.SGM 28OCR1

Agencies

Library of Congress

[Federal Register Volume 80, Number 208 (Wednesday, October 28, 2015)]
[Rules and Regulations]
[Pages 65944-65964]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-27212]


=======================================================================
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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: Final rule.

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SUMMARY: In this final rule, the Librarian of Congress adopts 
exemptions to the provision of the Digital Millennium Copyright Act 
(``DMCA'') that prohibits circumvention of technological measures that 
control access to copyrighted works, codified in section 1201(a)(1) of 
title 17 of the United States Code. As required under the statute, the 
Register of Copyrights, following a public proceeding, submitted a 
Recommendation concerning proposed exemptions to the Librarian of 
Congress. After careful consideration, the Librarian adopts final 
regulations based upon the Register's Recommendation.

DATES: Effective October 28, 2015.

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, 
Deputy General Counsel, by email at sdam@loc.gov or by telephone at 
202-707-8350; or Stephen Ruwe, Assistant General Counsel, by email at 
sruwe@loc.gov or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to 
section 1201(a)(1) of title 17, United States Code, has determined in 
this sixth triennial rulemaking proceeding that the prohibition against 
circumvention of technological measures that effectively control access 
to copyrighted works shall not apply to persons who engage in 
noninfringing uses of certain classes of such works. This determination 
is based upon the Recommendation of the Register of Copyrights, which 
was transmitted to the Librarian on October 8, 2015.\1\
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    \1\ Register of Copyrights, Section 1201 Rulemaking: Sixth 
Triennial Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights (Oct. 
2015) (``Register's Recommendation'').
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    The below discussion summarizes the rulemaking proceeding and 
Register's Recommendation, announces the Librarian's determination, and 
publishes the regulatory text specifying the exempted classes of works. 
A more complete discussion of the rulemaking process, the evidentiary 
record, and the Register's analysis can be found in the Register's 
Recommendation, which is posted at www.copyright.gov/1201/.

I. Background

A. Statutory Requirements

    Congress enacted the DMCA in 1998 to implement certain provisions 
of the WIPO Copyright and WIPO Performances and Phonograms Treaties. 
Among other things, title I of the DMCA, which added a new chapter 12 
to title 17 of the U.S. Code, prohibits circumvention of technological 
measures employed by or on behalf of copyright owners to protect access 
to their works. In enacting this aspect of the law, Congress observed 
that technological protection measures (``TPMs'') can ``support new 
ways of disseminating copyrighted materials to users, and . . . 
safeguard the availability of legitimate uses of those materials by 
individuals.'' \2\
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    \2\ Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-
Section Analysis of H.R. 2281 as Passed by the United States House 
of Representatives on August 4, 1998, at 6 (Comm. Print 1998).
---------------------------------------------------------------------------

    Section 1201(a)(1) provides in pertinent part that ``[n]o person 
shall circumvent a technological measure that effectively controls 
access to a work protected under [title 17].'' Under the statute, to 
``circumvent a technological measure'' means ``to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner.'' \3\ A technological measure 
that ``effectively controls access to a work'' is one that ``in the 
ordinary course of its operation, requires the application of 
information, or a process or a treatment, with the authority of the 
copyright owner, to gain access to the work.'' \4\
---------------------------------------------------------------------------

    \3\ 17 U.S.C. 1201(a)(3)(A).
    \4\ 17 U.S.C. 1201(a)(3)(B).
---------------------------------------------------------------------------

    Section 1201(a)(1), however, also includes what Congress 
characterized as a ``fail-safe'' mechanism,\5\ which requires the 
Librarian of Congress, following a rulemaking proceeding, to publish 
any class of copyrighted works as to which the Librarian has determined 
that noninfringing uses by persons who are users of a copyrighted work 
are, or are likely to be, adversely affected by the prohibition against 
circumvention in the succeeding three-year period, thereby exempting 
that class from the prohibition for that period.\6\ The Librarian's 
determination to grant an exemption is based upon the recommendation of 
the Register of Copyrights, who conducts the rulemaking proceeding.\7\ 
Congress directed the Register, in turn, to consult with the Assistant 
Secretary for Communications and Information of the Department of 
Commerce, who oversees the National Telecommunications and Information 
Administration (``NTIA''), in the course of formulating her 
recommendation.\8\
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    \5\ See H.R. Rep. No. 105-551, pt. 2, at 36 (1998).
    \6\ See 17 U.S.C. 1201(a)(1).
    \7\ 17 U.S.C. 1201(a)(1)(C).
    \8\ Id.
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    The primary responsibility of the Register and the Librarian in the 
rulemaking proceeding is to assess whether the implementation of access 
controls impairs the ability of individuals to make noninfringing uses 
of copyrighted works within the meaning of section 1201(a)(1). To do 
this, the Register develops a comprehensive administrative record using 
information submitted by interested members of the public, and makes 
recommendations to the Librarian concerning whether exemptions are 
warranted based on that record.
    Under the statutory framework, the Librarian, and thus the 
Register, must consider ``(i) the availability for use of copyrighted 
works; (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; (iii) the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; (iv) the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and

[[Page 65945]]

(v) such other factors as the Librarian considers appropriate.'' \9\ As 
noted above, the Register must also consult with the Assistant 
Secretary who oversees NTIA, and report and comment on his views, in 
providing her Recommendation. Upon receipt of the Recommendation, the 
Librarian is responsible for promulgating the final rule setting forth 
any exempted classes of works.
---------------------------------------------------------------------------

    \9\ Id.
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    Significantly, exemptions adopted by rule under section 1201(a)(1) 
apply only to the conduct of circumventing a technological measure that 
controls access to a copyrighted work. Other parts of section 1201, by 
contrast, address the manufacture and provision of--or ``trafficking'' 
in--products and services designed for purposes of circumvention. 
Section 1201(a)(2) bars trafficking in products and services that are 
used to circumvent technological measures that control access to 
copyrighted works (for example, a password needed to open a media 
file),\10\ while section 1201(b) bars trafficking in products and 
services used to circumvent technological measures that protect the 
exclusive rights of the copyright owner in their works (for example, 
technology that prevents the work from being reproduced).\11\ The 
Librarian of Congress has no authority to adopt exemptions for the 
anti-trafficking prohibitions contained in section 1201(a)(2) or 
(b).\12\
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    \10\ 17 U.S.C. 1201(a)(2).
    \11\ 17 U.S.C. 1201(b).
    \12\ See 17 U.S.C. 1201(a)(1)(E) (``Neither the exception under 
subparagraph (B) from the applicability of the prohibition contained 
in subparagraph (A), nor any determination made in a rulemaking 
conducted under subparagraph (C), may be used as a defense in any 
action to enforce any provision of this title other than this 
paragraph.'').
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    More broadly, activities conducted under the regulatory exemptions 
must still comply with other applicable laws, including non-copyright 
provisions. Thus, while an exemption may specifically reference other 
laws of particular concern, any activities conducted under an exemption 
must be otherwise lawful.
    Also significant is the fact that the statute contains certain 
permanent exemptions to permit specified uses. These include: Section 
1201(d), which exempts certain activities of nonprofit libraries, 
archives, and educational institutions; section 1201(e), which exempts 
``lawfully authorized investigative, protective, information security, 
or intelligence activity'' of a state or the federal government; 
section 1201(f), which exempts certain ``reverse engineering'' 
activities to facilitate interoperability; section 1201(g), which 
exempts certain types of research into encryption technologies; section 
1201(h), which exempts certain activities to prevent the ``access of 
minors to material on the Internet''; section 1201(i), which exempts 
certain activities ``solely for the purpose of preventing the 
collection or dissemination of personally identifying information''; 
and section 1201(j), which exempts certain acts of ``security testing'' 
of computers and computer systems.

B. The Unlocking Consumer Choice and Wireless Competition Act

    In 2014, Congress enacted the Unlocking Consumer Choice and 
Wireless Competition Act (``Unlocking Act''), effective as of August 1, 
2014.\13\ The Unlocking Act did three things. First, it replaced the 
exemption adopted in the 2012 triennial proceeding to enable certain 
wireless telephone handsets (i.e., cellphones) to connect to wireless 
communication networks--a process commonly known as cellphone 
``unlocking''--with a broader version of the exemption adopted by the 
Librarian in 2010. Second, the legislation provided that the 
circumvention permitted under the reinstated 2010 exemption, as well as 
any future exemptions to permit wireless telephone handsets or other 
wireless devices to connect to wireless telecommunications networks, 
may be initiated by the owner of the handset or device, by another 
person at the direction of the owner, or by a provider of commercial 
mobile radio or data services to enable such owner or a family member 
to connect to a wireless network when authorized by the network 
operator.\14\ This directive is permanent, and is now reflected in the 
relevant regulations.\15\ Third, the legislation directed the Librarian 
of Congress to consider as part of the current triennial proceeding 
whether to ``extend'' the cellphone unlocking exemption ``to include 
any other category of wireless devices'' based upon the recommendation 
of the Register, who in turn is to consult with the Assistant 
Secretary.\16\ Accordingly, as part of this rulemaking proceeding, the 
Copyright Office solicited and evaluated several proposed unlocking 
exemptions for devices other than cellphones, as addressed in Proposed 
Classes 12 through 15 below.
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    \13\ Public Law 113-144, 128 Stat. 1751 (2014). Subsequently, 
the Librarian adopted regulatory amendments to reflect the new 
legislation. See Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Wireless Telephone Handsets, 79 FR 
50552 (Aug. 25, 2014) (codified at 37 CFR 201.40(b)(3), (c)).
    \14\ Unlocking Act sec. 2(a), (c).
    \15\ See 79 FR at 50554; see also 37 CFR 201.40(c).
    \16\ Unlocking Act sec. 2(b).
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C. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary 
requirements for the section 1201 rulemaking proceeding, as discussed 
in greater detail in the Register's Recommendation.\17\ Those who seek 
an exemption from the prohibition on circumvention bear the burden of 
establishing that the requirements for granting an exemption have been 
satisfied by a preponderance of the evidence. In addition, the basis 
for an exemption must be established de novo in each triennial 
proceeding. That said, however, where a proponent is seeking the 
readoption of an existing exemption, it may attempt to satisfy its 
burden by demonstrating that the conditions that led to the adoption of 
the prior exemption continue to exist today (or that new conditions 
exist to justify the exemption). Assuming the proponent succeeds in 
making such a demonstration, it is incumbent upon any opponent of that 
exemption to rebut such evidence by showing that the exemption is no 
longer justified.
---------------------------------------------------------------------------

    \17\ See Register's Recommendation at 13-18.
---------------------------------------------------------------------------

    To establish a case for an exemption, proponents must show at a 
minimum (1) that uses affected by the prohibition on circumvention are 
or are likely to be noninfringing; and (2) that as a result of a 
technological measure controlling access to a copyrighted work, the 
prohibition is causing, or in the next three years is likely to cause, 
an adverse impact on those uses. In addition, the Librarian must also 
examine the statutory factors listed in section 1201(a)(1): (1) The 
availability for use of copyrighted works; (2) the availability for use 
of works for nonprofit archival, preservation, and educational 
purposes; (3) the impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research; (4) the 
effect of circumvention of technological measures on the market for or 
value of copyrighted works; and (5) such other factors as the Librarian 
considers appropriate. In some cases, weighing these factors requires 
the consideration of the benefits that the technological measure brings 
with respect to the overall creation and dissemination of works in the 
marketplace, in addition to any negative impact.

[[Page 65946]]

    Finally, when granting an exemption, section 1201(a)(1) specifies 
that the exemption adopted as part of this rulemaking must be defined 
based on ``a particular class of works.'' \18\ Among other things, the 
determination of the appropriate scope of a ``class of works'' 
recommended for exemption may also take into account the adverse 
effects an exemption may have on the market for or value of copyrighted 
works. Accordingly, ``it can be appropriate to refine a class by 
reference to the use or user in order to remedy the adverse effect of 
the prohibition and to limit the adverse consequences of an 
exemption.'' \19\
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    \18\ 17 U.S.C. 1201(a)(1)(B).
    \19\ Recommendation of the Register of Copyrights in RM 2005-11, 
Rulemaking on Exemptions from Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies 19 
(Nov. 17, 2006).
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II. History of the Sixth Triennial Proceeding

    As the Register explains in the Recommendation, the administrative 
process employed in the rulemaking was revised for this triennial 
proceeding. In particular, the Copyright Office implemented certain 
procedural changes to make the process more accessible and 
understandable to the public, allow greater opportunity for 
participants to coordinate their efforts, encourage participants to 
submit effective factual and legal support for their positions, and 
reduce administrative burdens on both the participants and the Office. 
Among other things, the procedural changes included providing 
commenters with recommended template forms to use when submitting 
comments, and requiring commenters to submit separate comments for each 
proposed class.
    On September 17, 2014, the Copyright Office published a Notice of 
Inquiry (``NOI'') in the Federal Register to initiate the sixth 
triennial rulemaking proceeding.\20\ The NOI invited interested parties 
to submit petitions for proposed exemptions that set forth the 
essential elements of the exemption. The Office received forty-four 
petitions for proposed exemptions in response to the NOI.
---------------------------------------------------------------------------

    \20\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 79 FR 55687 
(Sept. 17, 2014) (``NOI'').
---------------------------------------------------------------------------

    Next, on December 12, 2014, the Office issued a Notice of Proposed 
Rulemaking (``NPRM'') that reviewed and grouped the proposed exemptions 
set forth in the petitions.\21\ In the NPRM, the Copyright Office 
concluded that three of the petitions sought exemptions that could not 
be granted as a matter of law, and declined to put those proposals 
forward for public comment.\22\ The Office grouped the remaining 
proposed exemptions into twenty-seven proposed classes of works. In 
some cases, overlapping proposals were merged into a single combined 
proposed class. In other cases, individual proposals that encompassed 
multiple proposed uses were subdivided into multiple classes to aid in 
the process of review. The Office then provided detailed guidance on 
the submission of comments, including a number of specific legal and 
factual areas of interest with respect to each proposed class.
---------------------------------------------------------------------------

    \21\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 79 FR 73856, 
73859 (Dec. 12, 2014) (``NPRM'').
    \22\ NPRM, 79 FR at 73859. Each of these petitions sought to 
permit circumvention of any and all TPMs that constituted ``digital 
rights management'' with respect to unspecified types of copyrighted 
works for the purpose of engaging in unidentified personal and/or 
consumer uses. Id. The Office explained that these proposed 
exemptions ran afoul of the statutory requirement that ``any 
exemptions adopted as part of this rulemaking must be defined based 
on `a particular class of works.' '' Id. (quoting 17 U.S.C. 
1201(a)(1)(B) (emphasis added)). The Office thus concluded that 
``the sweeping type of exemption proposed by these three petitions'' 
could not be granted consistent with the standards of section 
1201(a)(1). Id.
---------------------------------------------------------------------------

    The Office received nearly 40,000 comments in response to the NPRM, 
the vast majority of which consisted of relatively short statements of 
support or opposition without substantial legal argument or supporting 
evidence. A number of the longer submissions included multimedia 
evidence to illustrate points made in the written comments.
    After receiving and studying the written comments, the Office held 
seven days of public hearings: In Los Angeles, at the UCLA School of 
Law, from May 19 to 21, 2015; and in Washington, DC, at the Library of 
Congress, from May 26 to 29, 2015. The Office heard testimony from 
sixty-three witnesses at the hearings, and received additional 
multimedia evidence. After the hearings, the Office issued a number of 
follow-up questions to participants, and received responses that have 
been made part of the administrative record.
    As observed by various commenting parties, certain of the proposed 
exemptions presented issues potentially of concern to the Department of 
Transportation (``DOT''), the Environmental Protection Agency 
(``EPA''), and the Food and Drug Administration (``FDA''), and perhaps 
other regulatory agencies as well. The Copyright Office therefore sent 
letters to DOT, EPA and FDA informing them of the pendency of the 
rulemaking proceeding in case they wished to comment on the proposals. 
In response to these letters, the Office received responses from those 
agencies, and also from the California Air Resources Board 
(``California ARB''), which are also included in the record.
    Throughout this triennial proceeding, as required under section 
1201(a)(1), the Register has consulted with NTIA. In addition to 
providing procedural and substantive input throughout the rulemaking 
process, NTIA was represented along with Copyright Office staff at the 
public hearings held in Los Angeles and Washington, DC NTIA formally 
communicated its views on each of the proposed exemptions in 
recommendations delivered to the Register on September 18, 2015. NTIA's 
recommendations can be viewed at copyright.gov/1201/2015/2015_NTIA_Letter.pdf.

III. Summary of Register's Recommendation

A. Designated Classes

    Based upon the record in this proceeding, the Register of 
Copyrights recommends that the Librarian determine that the classes of 
works described below be exempt from the prohibition against 
circumvention of technological measures set forth in section 
1201(a)(1):
1. Proposed Classes 1 to 7: Audiovisual Works--Educational and 
Derivative Uses \23\
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    \23\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 24-106.
---------------------------------------------------------------------------

    Proponents of Proposed Classes 1 through 7 share the desire to 
circumvent technological protection measures employed on DVDs, Blu-ray 
discs and/or by various online streaming services to access motion 
pictures--a category under the Copyright Act that includes television 
programs and videos--in order to engage in noninfringing uses. Past 
rulemakings have granted exemptions relating to uses of motion picture 
excerpts for commentary or criticism by college and university faculty 
and staff and by kindergarten through twelfth-grade educators, as well 
as in noncommercial videos, documentary films, and nonfiction 
multimedia e-books offering film analysis. Past exemptions have been 
limited to circumvention of DVDs, online distribution services, and as 
a result of using screen-capture technology.

[[Page 65947]]

    The petitions filed in this rulemaking sought to readopt and to 
some extent expand the previously granted exemptions, including to 
encompass Blu-ray discs (on the ground that a high-definition format is 
required for certain uses), to access audiovisual works that may not be 
motion pictures (such as video games), to permit the use of more than 
``short portions'' of motion picture excerpts, and to extend to all 
``fair uses'' rather than limiting the uses to criticism or comment. 
Some proponents sought to expand filmmaking uses to include narrative 
(or fictional) film, in addition to documentaries. Some proposals were 
focused on expanding the category of potential users of an exemption, 
such as to uses by museums, libraries and nonprofits, or by students 
and faculty participating in massive online open courses (``MOOCs''). 
The Copyright Office grouped these proposals into seven classes.

    Proposed Class 1: 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.

    Class 1 was proposed by Professor Peter Decherney, the College Art 
Association, the International Communication Association, and the 
Society for Cinema and Media Studies (collectively, ``Joint 
Educators'') to allow, for example, film studies professors to 
circumvent DVDs in order to use motion picture clips in class lectures. 
A class covering such uses was adopted in the 2010 and 2012 
rulemakings. Joint Educators asked that the exemption be expanded to 
include the ability to circumvent Blu-ray discs, to remove the 
limitation to ``short portions'' of motion picture excerpts, and to 
broaden the class to cover all ``audiovisual works'' for all 
``educational purposes.''

    Proposed Class 2: 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.

    Petitions for Proposed Class 2 were submitted by Professor Renee 
Hobbs and the Library Copyright Alliance (``LCA''), to allow, for 
example, a high school teacher to circumvent DVDs of various 
adaptations of Shakespeare's works in order to create a compilation of 
clips demonstrating the lasting influence of these works. Hobbs and LCA 
requested that the existing exemption for grades K-12 be expanded to 
include student uses rather than only uses by educators, to allow 
circumvention of Blu-ray discs, to remove the limitation to ``short 
portions'' of works, and to broaden the class to cover all 
``audiovisual works'' for all ``educational purposes.''

    Proposed Class 3: This proposed class would allow students and 
faculty participating in massive online open courses (``MOOCs'') to 
circumvent access controls on lawfully made and acquired motion 
pictures and other audiovisual works for purposes of criticism and 
comment.

    Joint Educators proposed Class 3, essentially seeking to expand the 
exemption for college and university faculty and students in Class 1 to 
include MOOCs, or online distance education courses offered on a broad 
scale. The exemption would, for example, allow a professor preparing an 
online lecture about the evolution of Chinese society to circumvent 
access controls in order to incorporate video clips documenting Chinese 
history and geography. Joint Educators' proposal included the ability 
to circumvent Blu-ray discs, to permit use of more than ``short 
portions'' of motion picture excerpts, and to allow use of all 
``audiovisual works'' for all ``educational purposes.'' Joint Educators 
contended that the prohibition on circumvention of TPMs is inhibiting 
the introduction of certain types of courses, such as film studies, on 
MOOC platforms.

    Proposed Class 4: 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.

    Professor Hobbs proposed Class 4 to allow, for example, educators 
in a community center adult education program to circumvent access 
controls in order to create video clips for purposes of discussing the 
portrayal of African-American women in a popular television show. The 
proposal encompassed ``audiovisual works'' for all ``educational 
uses,'' as well as the ability to circumvent Blu-ray discs. Hobbs 
expressed concern that the prohibition on circumvention prevents 
participants in digital and media literacy programs in informal 
learning settings from engaging in projects similar to those conducted 
on college and university campuses.

    Proposed Class 5: This proposed class would allow circumvention 
of access controls on lawfully made and acquired motion pictures 
used in connection with multimedia e-book authorship.

    Class 5 was jointly proposed by Authors Alliance and Bobette Buster 
to allow, for example, a sound editor and e-book author to circumvent 
DVDs or Blu-ray discs to incorporate brief film excerpts in an e-book 
entitled Listening to Movies. Proponents requested renewal of the 
previously granted exemption, and expansion of that exemption to 
encompass any genre of multimedia e-book (as opposed to uses only in 
nonfiction multimedia e-books offering film analysis), to allow 
circumvention of Blu-ray discs, to remove the limitation to ``short 
portions'' of motion picture excerpts, and to broaden the class to 
cover all ``audiovisual works.'' In general, proponents argued that the 
prohibition on circumvention hinders e-book authors' ability to 
criticize and comment on audiovisual works, some of which may only be 
accessible through DVD, Blu-ray or digitally transmitted sources.

    Proposed Class 6: This proposed class would allow circumvention 
of access controls on lawfully made and acquired motion pictures for 
filmmaking purposes.

    Class 6 was proposed by the International Documentary Association, 
Film Independent, Kartemquin Educational Films, Inc., and National 
Alliance for Media Arts and Culture (collectively, ``Joint 
Filmmakers'') to allow, for example, filmmakers to circumvent access 
controls on material streamed online in order to incorporate excerpts 
of news footage into documentaries. The proposal sought readoption of 
the existing exemption for documentary filmmaking uses, and its 
expansion to include narrative (or fictional) films, to permit 
circumvention of Blu-ray discs, and to remove the limitation to short 
portions of works. Joint Filmmakers stressed that much material is only 
available on DVD, Blu-ray and digitally transmitted video, and that 
circumvention of Blu-ray discs is necessary because, among other 
things, distribution standards require films to incorporate clips of 
high-definition quality.

    Proposed Class 7: 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.

    Class 7 was proposed by Electronic Frontier Foundation (``EFF'') 
and the Organization for Transformative Works. Proponents sought to 
permit, for example, a fan of James Bond films to circumvent access 
controls on DVDs of these films in order to incorporate brief excerpts 
into a noncommercial video commenting on the portrayal of female 
characters in those films. The proposal

[[Page 65948]]

sought renewal of the existing exemption, and expansion of that 
exemption to Blu-ray discs and all ``noninfringing'' or ``fair'' uses. 
Proponents argued that the existing exemption has resulted in the 
creation of a wide variety of new, noninfringing works, and expansion 
of that exemption to Blu-ray discs is necessary because, among other 
things, there is a significant amount of material that can only be 
found in that format.
    For each exemption, proponents argued that the requested exemption 
would facilitate fair uses of the accessed works--for example, because 
of the educational nature of the uses, or because it would permit the 
creation of a new work of authorship providing commentary on the 
underlying work. Specifically, Joint Educators argued that teaching, 
criticism, and commentary are enumerated as favored uses under section 
107 and therefore, that the proposed uses in Classes 1 and 3 for 
colleges, universities, and MOOCs were highly likely to be fair. For 
Class 2, Hobbs provided examples of educators using film clips as 
teaching tools in connection with media literacy, history, literature, 
and film theory, and of students using excerpts in connection with 
National History Day projects, arguing that these uses were fair. Hobbs 
also contended that out-of-classroom educational programs should be 
able to make the same uses in Class 4. Proponents of Class 5 argued 
that uses of excerpts of motion picture clips in multimedia e-books 
intended for educational purposes are likely to be fair, citing 
examples of actual or prospective uses of motion picture excerpts in 
multimedia e-books for purposes of film criticism or analysis. For 
Class 6, Joint Filmmakers stated that the proposed uses in both 
documentary and narrative films are noninfringing fair uses that 
provide criticism and commentary, education about, and reporting on 
news and current events--activities that Congress has explicitly 
identified as fair uses. Finally, Class 7 proponents asserted that the 
purposes and character of noncommercial videos are highly 
transformative, and in support, submitted scholarly analysis of remix 
videos and evidence relating to fan video remixes that purportedly 
criticize and recontextualize the underlying narrative works.
    For all of these audiovisual classes, the Office received no 
opposition to the renewal of the current exemptions; instead, opponents 
opposed expansion of those exemptions. The same parties opposed all 
seven classes--Joint Creators (representing the Motion Picture 
Association of America, the Entertainment Software Association 
(``ESA'') and the Recording Industry Association of America), DVD Copy 
Control Association, and the Advanced Access Content System Licensing 
Administrator (``AACS LA''). Opponents voiced parallel concerns across 
most of these audiovisual classes. In general, they contended that 
there are viable alternatives to circumvention that are adequate for 
many of the proposed uses, including clip licensing, screen-capture 
technology, streaming platforms such as TV Everywhere, disc-to-digital 
services, and digital rights libraries like UltraViolet. With respect 
to proposals to expand the exemptions to include Blu-ray discs, AACS LA 
and Joint Creators argued that the authorized circumvention of DVDs or 
online material provides a ready alternative to obtain material of 
sufficiently high quality for all the proposed uses. Opponents also 
urged that any expansion of the existing exemptions would likely harm 
the market for DVDs, Blu-ray discs, and other licensed uses.
    Beyond these general points, opponents also made specific arguments 
concerning the individual proposed classes. In Class 1, opponents urged 
that alternatives to circumvention, including screen capture, were 
adequate for classroom uses outside film studies classes. In Class 2, 
opponents argued that the record lacks persuasive examples of K-12 
student projects that require circumvention and that the record did not 
show a need to access material on Blu-ray discs. Opponents opposed 
granting any exemption for MOOCs in Class 3 arguing, among other 
things, that the uses are not likely to be noninfringing because the 
exemption would allow widespread distribution of works over the 
internet. With respect to museum, library or nonprofit educational 
programs in Class 4, opponents argued, among other things, that 
proponents had failed adequately to demonstrate specific adverse 
effects flowing from the prohibition on circumvention. In Class 5, 
opponents urged that no examples were presented to support expanding 
the exemption to fictional e-books or to circumvention of Blu-ray 
discs. In Class 6, opponents asserted that an exemption for fictional 
films would negatively impact the existing market for licensing of film 
clips. Finally, in Class 7, opponents argued that screen-capture 
software is an adequate alternative to proposed uses of Blu-ray 
material in noncommercial remix videos and that the existing regulatory 
language should be refined so as not to overlap with other classes 
addressing educational uses.
    NTIA recommended renewing the current exemptions for educational 
and derivative uses, and expanding those exemptions in several 
respects. As a general matter, NTIA proposed that all of the exemptions 
should encompass ``motion pictures and similar audiovisual works'' on 
DVDs and Blu-ray discs, or obtained via online distribution services. 
NTIA rejected proposals to encompass all ``noninfringing'' or ``fair 
uses,'' instead recommending a more tailored approach. In Class 1, NTIA 
recommended an exemption for educational uses by college and university 
faculty and students, without limiting it to film studies and other 
courses requiring close analysis of works, although it did not explain 
why elimination of that distinction was warranted. In Class 2, NTIA 
recommended an exemption for K-12 educators, and for students in grades 
6-12 engaging in video projects actively overseen by an instructor. In 
Class 3, NTIA recommended an exemption for MOOCs involving film and 
media analysis, but not for students enrolled in such MOOCs. In Class 
4, NTIA recommended an exemption for instructors and students engaged 
in digital media and literacy programs in libraries, museums, and 
nonprofit organizations with an educational mission. In Classes 5 and 
7, NTIA proposed renewing the exemptions for nonfiction or educational 
multimedia e-books offering film analysis, and for noncommercial 
videos, respectively, and expanding them to include Blu-ray discs, as 
with the other classes. Finally, in Class 6, NTIA proposed an exemption 
both for documentary films and for ``[n]arrative films portraying real 
events, where the prior work is used for its biographical or 
historically significant nature.''
    In general, the Register recommended granting exemptions for almost 
all of these classes; in each case, the Register concluded that the 
uses are likely to be fair, that alternatives to circumvention were 
inadequate, and that the statutory factors taken together weighed in 
favor of the exemption. In each of Classes 1 through 7, the Register 
recommended retaining the requirement in the current exemptions that 
only ``short portions'' of works be used for purposes of ``criticism or 
comment.'' The Register explained that broader exemptions--covering 
longer portions for purposes of all ``fair'' or ``noninfringing'' 
uses--were unsupported by the record. The Register also explained that 
the exemptions should provide reasonable guidance to the public in 
terms of what uses are

[[Page 65949]]

likely to be fair, while at the same time mitigating undue consequences 
for copyright owners. The Register also found the record to not support 
an exemption for ``audiovisual works,'' as opposed to the somewhat 
narrower category of ``motion pictures,'' because proponents had failed 
to demonstrate a need to circumvent non-motion-picture audiovisual 
works (such as video games) in any of the proposed classes.
    With respect to Class 1 in particular, the Register recommended 
granting an exemption for circumvention of TPMs on DVDs, Blu-ray discs, 
and digital transmissions of motion pictures by college and university 
faculty and students engaged in film studies classes or other courses 
requiring close analysis of film and media excerpts. The Register 
recommended an exemption to facilitate use of screen-capture technology 
for all types of courses, to address the possibility of circumvention 
when using this technology. The Register reasoned that this class (and 
Class 2) should continue to distinguish between purposes requiring 
close analysis of film and media excerpts and more general educational 
uses, on the ground that screen-capture technology is an adequate 
substitute for the latter uses.
    With respect to Class 2, the Register recommended granting an 
exemption limited to circumvention of DVDs and digital transmissions 
for educators in grades K-12, including accredited general educational 
development (``GED'') programs, in film studies or other courses 
requiring close analysis of film and media excerpts. The Register 
found, however, that proponents submitted no examples where Blu-ray 
quality or Blu-ray-unique content was required for uses in K-12 
classrooms. The Register also recommended an exemption to facilitate 
use of screen-capture technologies by educators in all types of 
courses. The Register found the evidentiary record of proposed uses by 
K-12 students to be insufficiently well developed to recommend an 
exemption for DVDs, digital transmissions, or Blu-ray discs because 
screen-capture software was likely to provide a ready alternative for 
those uses. Accordingly, the Register recommended a screen-capture 
exemption to facilitate uses by K-12 students.
    With respect to Class 3, the Register recommended granting an 
exemption for circumvention of TPMs on DVDs, Blu-ray discs, and digital 
transmissions of motion pictures by faculty of MOOCs involving film 
studies or other courses requiring close analysis of film and media 
excerpts, under specified conditions borrowed from the TEACH Act, 
codified at 17 U.S.C. 110(2). The Register explained that key elements 
of the TEACH Act--such as the requirements that uses be limited to 
nonprofit educational institutions and transmissions be limited to 
enrolled students--should be incorporated into the exemption to ensure 
that the exemption is appropriately limited. The Register further found 
that the record did not support an exemption for student uses.
    With respect to Class 4, the Register concluded that the record did 
not support an exemption permitting circumvention of DVDs, Blu-ray 
discs, or digital transmissions in connection with after-school or 
adult education media literacy programs (apart from GED programs). The 
Register found that the proposed uses in the record could be satisfied 
via screen capture, and thus recommended an exemption to facilitate 
uses of screen-capture software.
    With respect to Classes 5 to 7, the Register recommended granting 
an exemption for circumvention of TPMs on DVDs, Blu-ray discs, and 
digital transmissions of motion pictures for use in nonfiction 
multimedia e-books offering film analysis, in documentary filmmaking, 
and in noncommercial videos. The Register also recommended an exemption 
to facilitate use of screen-capture technologies for these uses. For 
the multimedia e-books exemption (Class 5), the Register recommended 
maintaining the limitation to e-books offering film analysis, finding 
that the record did not support an exemption for other uses. With 
respect to the filmmaking exemption (Class 6), the Register could not 
conclude, based on the record, that the use of motion picture clips in 
narrative films was, on balance, likely to be noninfringing, especially 
in light of the potential effects on existing licensing markets for 
motion picture excerpts. Finally, in considering the noncommercial 
video exemption (Class 7), the Register rejected proponents' suggestion 
to expand the exemption to encompass ``primarily noncommercial'' 
videos, as well as opponents' suggestion to narrow the exemption to 
certain specified categories of noncommercial videos, finding neither 
change to be necessary.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where circumvention is undertaken solely 
in order to make use of short portions of the motion pictures for 
the purpose of criticism or comment in the following instances:
    (i) For use in documentary filmmaking,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a 
DVD protected by the Content Scramble System, on a Blu-ray disc 
protected by the Advanced Access Control System, or via a digital 
transmission protected by a technological measure, and where the 
person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable 
to produce the required level of high-quality content;
    (ii) For use in noncommercial videos (including videos produced 
for a paid commission if the commissioning entity's use is 
noncommercial),
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a 
DVD protected by the Content Scramble System, on a Blu-ray disc 
protected by the Advanced Access Control System, or via a digital 
transmission protected by a technological measure, and where the 
person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable 
to produce the required level of high-quality content;
    (iii) For use in nonfiction multimedia e-books offering film 
analysis,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a 
DVD protected by the Content Scramble System, on a Blu-ray disc 
protected by the Advanced Access Control System, or via a digital 
transmission protected by a technological measure, and where the 
person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable 
to produce the required level of high-quality content;
    (iv) By college and university faculty and students, for 
educational purposes,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made 
and acquired on a DVD protected by the Content Scramble System, on a 
Blu-ray disc protected by the Advanced Access Control System, or via 
a digital transmission protected by a technological measure, and 
where the person engaging in circumvention reasonably believes that 
screen-capture software or other non-circumventing alternatives are 
unable to produce the required level of high-quality content;
    (v) By faculty of massive open online courses (MOOCs) offered by 
accredited

[[Page 65950]]

nonprofit educational institutions to officially enrolled students 
through online platforms (which platforms themselves may be operated 
for profit), for educational purposes, where the MOOC provider 
through the online platform limits transmissions to the extent 
technologically feasible to such officially enrolled students, 
institutes copyright policies and provides copyright informational 
materials to faculty, students and relevant staff members, and 
applies technological measures that reasonably prevent unauthorized 
further dissemination of a work in accessible form to others or 
retention of the work for longer than the course session by 
recipients of a transmission through the platform, as contemplated 
by 17 U.S.C. 110(2),
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made 
and acquired on a DVD protected by the Content Scramble System, on a 
Blu-ray disc protected by the Advanced Access Control System, or via 
a digital transmission protected by a technological measure, and 
where the person engaging in circumvention reasonably believes that 
screen-capture software or other non-circumventing alternatives are 
unable to produce the required level of high-quality content;
    (vi) By kindergarten through twelfth-grade educators, including 
of accredited general educational development (GED) programs, for 
educational purposes,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made 
and acquired on a DVD protected by the Content Scramble System, or 
via a digital transmission protected by a technological measure, and 
where the person engaging in circumvention reasonably believes that 
screen-capture software or other non-circumventing alternatives are 
unable to produce the required level of high-quality content;
    (vii) By kindergarten through twelfth-grade students, including 
those in accredited general educational development (GED) programs, 
for educational purposes, where the circumvention is undertaken 
using screen-capture technology that appears to be offered to the 
public as enabling the reproduction of motion pictures after content 
has been lawfully acquired and decrypted; and
    (viii) By educators and participants in nonprofit digital and 
media literacy programs offered by libraries, museums and other 
nonprofit entities with an educational mission, in the course of 
face-to-face instructional activities for educational purposes, 
where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted.
2. Proposed Class 9: Literary Works Distributed Electronically--
Assistive Technologies \24\
---------------------------------------------------------------------------

    \24\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 127-37.
---------------------------------------------------------------------------

    Proponents of Proposed Class 9 seek to allow circumvention of 
technological measures protecting literary works distributed in 
electronic form (including e-books, digital textbooks, and PDF 
articles) so that such works can be accessed by persons who are blind, 
visually impaired, or print disabled. The Librarian, upon the 
recommendation of the Register, granted an exemption in 2012 for these 
purposes.
    The American Foundation for the Blind, American Council for the 
Blind,, Samuelson-Glushko Technology Law & Policy Clinic at Colorado 
Law, and LCA filed petitions seeking to have the Librarian renew the 
existing exemption.
    Based on these petitions, the Copyright Office proposed the 
following class:

    Proposed Class 9: 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.

    Proponents argued that reproducing copies in accessible formats is 
a noninfringing use, and that, while improvements have been made to 
make literary works more accessible since the last triennial 
rulemaking, there are still a substantial number of works that cannot 
be accessed using accessibility technologies such as text-to-speech 
programs.
    There was no opposition to renewing the 2012 exemption. 
Significantly, the Association of American Publishers, representing 
book publishers, filed supportive comments indicating that it had no 
objection to a renewal of the existing exemption, explaining that the 
market does not yet offer sufficient accessibility to literary works.
    NTIA supported renewal of the current exemption, finding that the 
record regarding the state of accessibility of literary works is not 
substantially different than it was three years ago.
    The Register recommended granting the exemption. According to the 
Register, the need to ensure that persons who are blind, visually 
impaired or print disabled are not impeded from accessing books in 
electronic formats presents a quintessential case for an exemption. The 
Register determined that converting e-books into accessible formats is 
likely a noninfringing use both as a matter of fair use and under 17 
U.S.C. 121, also known as the ``Chafee Amendment,'' which allows 
authorized entities to create accessible versions of works exclusively 
for use by persons who are blind, visually impaired, or print disabled. 
The Register also found that TPMs are likely to have an adverse effect 
on noninfringing activities, as many e-book titles and literary works 
in electronic format (such as electronic textbooks and PDF articles) 
are currently unavailable in accessible formats. The Register further 
concluded that all five statutory factors favored the exemption. 
Finally, like the existing exemption, the recommended exemption allows 
the intended beneficiaries of section 121 to benefit from the waiver on 
circumvention.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Literary works, distributed electronically, that are protected 
by technological measures that either prevent the enabling of read-
aloud functionality or interfere with screen readers or other 
applications or assistive technologies,
    (i) When a copy of such a work is lawfully obtained by a blind 
or other person with a disability, as such a person is defined in 17 
U.S.C. 121; provided, however, that the rights owner is remunerated, 
as appropriate, for the price of the mainstream copy of the work as 
made available to the general public through customary channels, or
    (ii) When such work is a nondramatic literary work, lawfully 
obtained and used by an authorized entity pursuant to 17 U.S.C. 121.

3. Proposed Classes 11 to 15: Computer Programs That Enable Devices To 
Connect to a Wireless Network That Offers Telecommunications and/or 
Information Services (''Unlocking'') \25\
---------------------------------------------------------------------------

    \25\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 138-71.
---------------------------------------------------------------------------

    Proposed Classes 11 through 15 would allow circumvention of access 
controls on wireless devices such as cellphones and all-purpose tablet 
computers to allow them to connect to the network of a different mobile 
wireless carrier, a process commonly known as ``unlocking.'' Wireless 
carriers typically lock wireless devices to their networks when they 
have subsidized the cost of a device at the time of purchase; carriers 
then recoup that

[[Page 65951]]

subsidy through wireless service charges paid by the purchaser.
    The Register has recommended, and the Librarian has adopted, 
exemptions permitting unlocking of cellphones in three prior 
rulemakings. Based on the evidentiary record in the last triennial 
proceeding, the 2012 version of the exemption was limited to cellphones 
obtained on or before January 26, 2013. Congress enacted the Unlocking 
Act to reinstate the cellphone unlocking exemption that was adopted in 
2010, which lacked such a limitation. In the Unlocking Act, Congress 
also instructed the Librarian to review any future proposal for a 
cellphone unlocking exemption according to the usual process in this 
triennial rulemaking, as well as to consider in this rulemaking whether 
to extend the cellphone unlocking exemption to other categories of 
wireless devices. As noted above, the Unlocking Act also defines, on a 
permanent basis, categories of persons and entities that can take 
advantage of any unlocking exemption.
    Consistent with Congress's directive in the Unlocking Act, the 
Copyright Office invited proposals to continue an unlocking exemption 
for wireless telephone handsets and/or to extend the exemption to other 
categories of wireless devices. The petitions received generally asked 
for continuation of the current cellphone unlocking exemption, and 
expansion of that exemption to cover additional types of devices.
    The Office grouped the petitions into five distinct classes based 
on the type of device at issue, as described below:

    Proposed Class 11: 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 
communication.

    Class 11, covering cellphones, was proposed by Consumers Union, the 
Competitive Carriers Association (``CCA''), the Institute of Scrap 
Recycling Industries (``ISRI''), Pymatuning Communications 
(``Pymatuning''), and the Rural Wireless Association (``RWA'').

    Proposed Class 12: 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.

    Class 12, covering all-purpose tablets, was proposed by Consumers 
Union, CCA, ISRI, Pymatuning, and RWA. As reflected in the proposal, 
the petitions were limited to ``all-purpose'' tablet computers--that 
is, tablet computers that can run a wide variety of programs--as 
opposed to devices dedicated to the consumption of particular types of 
content such as e-book readers.

    Proposed Class 13: 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.

    Class 13, covering mobile connectivity devices, was proposed CCA 
and RWA.

    Proposed Class 14: 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.

    Class 14, covering wearable wireless devices, was proposed by CCA 
and RWA.

    Proposed Class 15: This proposed class would allow the unlocking 
of all wireless ``consumer machines,'' including smart meters, 
appliances, and precision-guided commercial equipment.

    Class 15 was proposed by CCA, and encompassed a broad and diverse 
range of devices and equipment, including any ``smart'' device 
utilizing a data connection to connect to the internet or interact with 
other smart devices. CCA, however, failed to further define the kinds 
of ``smart'' devices the exemption would cover beyond those already 
encompassed by Classes 11 through 14, let alone the types of TPMs used 
by such devices, or the methods of circumvention. Indeed, it was not 
apparent from the record whether any such devices actually exist. For 
instance, while CCA suggested that smart power meters would be 
encompassed by the proposal, evidence at the public hearing (at which 
CCA did not participate) indicated that smart meters generally do not 
have mobile data (i.e., 3G/4G) connections, rendering the concept of 
``unlocking'' irrelevant to that type of device.
    In general, proponents argued that unlocking was permitted under 
section 117 of the Copyright Act, which allows the owners of computer 
programs to make certain reproductions of or adaptations to those 
programs, and as a matter of fair use. They explained that the 
inability to unlock one's wireless device leads to adverse effects by 
impeding consumers' ability to choose their preferred wireless 
carriers, harming the resale value of used devices, and harming the 
environment by encouraging disposal rather than reuse of devices.
    No party opposed Proposed Class 12 (all-purpose tablet computers) 
or Proposed Class 14 (wearable computing devices). Prepaid wireless 
carrier TracFone nominally filed comments in opposition to the 
cellphone unlocking exemption in Class 11, though at bottom it was not 
opposed to renewal of the exemption, so long as it was clear that the 
exemption did not permit illegitimate phone trafficking--a practice 
where subsidized prepaid cellphones are purchased, unlocked, and resold 
(often abroad) at a profit. The Alliance of Automobile Manufacturers 
(``Auto Alliance'') and General Motors LLC (``GM'') filed opposition 
comments in Class 13 solely to stress that any exemption should exclude 
``mobile'' connectivity devices embedded in motor vehicles, and Class 
13 proponents agreed that such a limitation would be appropriate. Auto 
Alliance opposed Class 15 on the ground that it is ill-defined and 
could inadvertently sweep in cars and trucks.
    NTIA proposed adopting an exemption encompassing all used wireless 
devices, without enumerating the types of devices to which the 
exemption applies. At the same time, NTIA acknowledged that based on 
the record in the rulemaking, it would be appropriate to exclude one 
type of wireless device--vehicle-based hotspots--from the exemption.
    The Register recommended adopting an unlocking exemption covering 
wireless telephone handsets (i.e., cellphones), all-purpose tablet 
computers, mobile connectivity devices, and wearable wireless devices. 
According to the Register, the unlocking exemption is likely to 
facilitate noninfringing uses both under section 117 and as a matter of 
fair use. The Register further explained that, unlike the section 117 
privilege, fair use is not limited to the owner of the computer 
program, and so there is no need to limit the exemption to the owner of 
the device software. The Register also found that, as to the devices 
encompassed by Classes 11 to 14, proponents had provided sufficient 
evidence of adverse effects flowing from the inability to unlock a 
device due to a TPM; in contrast, proponents of Class 15, encompassing 
a broad and undefined range of ``consumer machines'' and ``smart'' 
devices, failed to make a showing of actual adverse effects. In 
addition, the Register concluded that three of the five statutory 
factors tended

[[Page 65952]]

to favor the proponents, while the other two were neutral.
    The recommended exemption is limited to ``used'' devices. A 
``used'' device is defined as a device that has been lawfully acquired 
and previously activated on a wireless network. The recommended 
exemption permits charities and commercial enterprises (including bulk 
recyclers) to unlock used cellphones, while excluding illegitimate 
trafficking that seeks to profit from the subsidized phones sold by 
prepaid wireless carriers. Although some proponents called for 
elimination of the ``used'' requirement for cellphones and tablets--
which in theory would permit unlocking of new, subsidized devices--the 
Register concluded that the record did not support extending the 
exemption in this respect as the evidence did not establish a practical 
ability to unlock subsidized devices that had never been connected to a 
carrier. Finally, the recommended exemption excludes devices embedded 
in motor vehicles from the exemption for mobile connectivity devices by 
including the condition that the devices be ``portable.''
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    (i) Computer programs that enable the following types of 
wireless devices to connect to a wireless telecommunications 
network, when circumvention is undertaken solely in order to connect 
to a wireless telecommunications network and such connection is 
authorized by the operator of such network, and the device is a used 
device:
    (A) Wireless telephone handsets (i.e., cellphones);
    (B) All-purpose tablet computers;
    (C) Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; 
and
    (D) Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.
    (ii) A device is considered ``used'' for purposes of this 
exemption when it has previously been lawfully acquired and 
activated on the wireless telecommunications network of a wireless 
carrier.
4. Proposed Classes 16 and 17: Jailbreaking--Smartphones and All-
Purpose Mobile Computing Devices \26\
---------------------------------------------------------------------------

    \26\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 172-92.
---------------------------------------------------------------------------

    Proposed Classes 16 and 17 address an activity commonly known as 
``jailbreaking,'' which is the process of gaining access to the 
operating system of a computing device, such as a smartphone or tablet, 
to install and execute software that could not otherwise be installed 
or run on that device, or to remove pre-installed software that could 
not otherwise be uninstalled. The Register has twice before 
recommended, and the Librarian has twice adopted, an exemption 
permitting jailbreaking of smartphones.
    EFF filed a petition seeking a jailbreaking exemption for all 
``mobile computing devices,'' including wireless telephone handsets 
that are capable of running a wide range of applications (i.e., 
``smartphones'') and tablet computers (``tablets''). EFF explained that 
its requested exemption is not intended to extend to devices designed 
primarily for the consumption of a single type of media, such as 
dedicated e-book readers, or to desktop or laptop computers. Maneesh 
Pangasa filed a separate petition seeking an exemption for tablet 
computers. The Copyright Office divided these proposals into two 
proposed classes to ensure an adequate administrative record on which 
to make a recommendation. Based on these petitions, the Office included 
the following proposed exemptions in the NPRM:

    Proposed Class 16: 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 remove unwanted preinstalled software from the 
device.
    Proposed Class 17: 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.

    Relying on case law and prior determinations of the Register, 
proponents argued that jailbreaking of smartphones and all-purpose 
mobile computing devices constitutes fair use of the device software. 
Proponents also pointed to a series of benefits that have resulted from 
the existing smartphone jailbreaking exemption, such as the ability to 
install otherwise unsupported operating system upgrades and the rapid 
growth in the market for legitimate, non-manufacturer-approved apps, 
and argued that similar benefits would result if the exemption included 
all-purpose mobile computing devices.
    The Business Software Alliance (``BSA'') opposed both classes. In 
neither case, however, did BSA dispute the noninfringing nature of 
jailbreaking. Instead, BSA argued that the existence of alternatives to 
jailbreaking, such as ``developer editions'' of devices that do not 
need to be jailbroken, obviate the need for an exemption. In addition, 
with respect to the exemption for all-purpose mobile computing devices 
in Class 17, BSA disputed EFF's effort to distinguish between all-
purpose mobile computing devices on the one hand, and desktops and 
laptops on the other, arguing that the distinction is not sufficiently 
clear. In response, EFF offered two further criteria to define these 
devices: First, that they be portable, in the sense that they are 
``designed to be carried or worn''; and second, that they ``come 
equipped with an operating system that is primarily designed for mobile 
use,'' such as Android, iOS, Blackberry OS or Windows Phone.
    Commenters representing automobile manufacturers filed comments 
under Class 17 raising the concern that the class could arguably 
encompass computing systems that are embedded in ``mobile'' automobiles 
and other vehicles. EFF clarified, however, that Class 17 was not 
intended to include software running on vehicle electronics, but only 
portable devices designed to be carried or worn by a person.
    NTIA favored a jailbreaking exemption for all ``mobile computing 
devices,'' a category which (contrary to EFF's proposal) would appear 
to include devices that are designed primarily for the consumption of a 
single type of media, including dedicated e-book readers, which are 
separately addressed in Proposed Class 18 below. Although NTIA asserted 
that the works and TPMs at issue are strikingly similar and in many 
cases identical, it cited no evidence to support that claim with 
respect to dedicated e-book readers, handheld video game consoles, or 
other dedicated media consumption devices.
    The Register recommended continuing the existing jailbreaking 
exemption for smartphones, and extending it to all-purpose mobile 
computing devices. As in previous rulemakings, the Register concluded 
that jailbreaking to facilitate interoperability is likely to 
constitute a noninfringing fair use, and that the prohibition on 
circumvention is having an adverse effect on this type of use. Further, 
the Register concluded that three of the statutory factors 
(availability for use of copyrighted works, the impact on criticism, 
comment, news reporting, teaching, scholarship, or research, and the 
effect of circumvention of technological measures on the market

[[Page 65953]]

for or value of the copyrighted works) favored an exemption, while the 
other two were not implicated by these classes.
    The Register also concluded, based on the overall record, that the 
category of ``all-purpose mobile computing devices'' in Class 17 has 
been meaningfully defined, but that certain refinements were 
appropriate to address concerns regarding its scope. The recommended 
exemption thus incorporates EFF's suggestion to specify that the 
devices be portable, that they be designed to run a wide variety of 
applications, and that they come equipped with an operating system 
primarily designed for mobile use. The recommended exemption thus 
excludes vehicle-embedded systems, devices designed primarily for 
consumption of a specific type of media (such as e-book readers and 
handheld gaming devices), and computers confined to desktop or laptop 
operating systems, such as Windows 8 or Mac OS. If a hybrid device can 
act either as a laptop or a tablet, the user will need to investigate 
what type of operating system it contains in order to determine whether 
the exemption applies.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained 
software applications, where circumvention is accomplished for the 
sole purpose of enabling interoperability of such applications with 
computer programs on the smartphone or device, or to permit removal 
of software from the smartphone or device. For purposes of this 
exemption, a ``portable all-purpose mobile computing device'' is a 
device that is primarily designed to run a wide variety of programs 
rather than for consumption of a particular type of media content, 
is equipped with an operating system primarily designed for mobile 
use, and is intended to be carried or worn by an individual.
5. Proposed Class 20: Jailbreaking--Smart TVs \27\
---------------------------------------------------------------------------

    \27\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 202-17.
---------------------------------------------------------------------------

    In addition to their traditional functionality, many modern 
televisions (``TVs'') have built-in software features that can stream 
content over the internet, interact with other devices in the home, or 
run applications. These internet-enabled TVs are often referred to as 
``Smart TVs.'' Smart TV firmware is often protected by TPMs that 
prevent owners of those TVs from installing third-party software on 
them. The Software Freedom Conservancy (``SFC'') proposed an exemption 
to permit circumvention of access controls on firmware (i.e., the 
operating system) of such smart TVs to enable installation of third-
party software.
    The Copyright Office included the following proposed exemption in 
the NPRM:

    Proposed Class 20: 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.

    According to SFC, access to the firmware would allow various 
noninfringing uses, including improving accessibility features (such as 
the size of closed captioning), enabling or expanding the TV's 
compatibility with peripheral hardware and external storage devices, 
and making changes to display features such as the aspect ratio. SFC 
argued that the majority of smart TV firmware incorporates the 
manufacturer's own proprietary applications along with free, libre and 
open source software (``FLOSS'') applications produced by third 
parties. SFC argued that, under the relevant FLOSS licenses, smart TV 
owners are authorized to modify the FLOSS applications and to run them 
without restriction. SFC also argued that fair use permits reproduction 
and alteration of proprietary applications to the extent necessary to 
permit interoperability with lawfully acquired programs.
    Proposed Class 20 was opposed by Joint Creators and LG Electronics 
U.S.A. (``LG''), a manufacturer of smart TVs. Opponents argued that an 
exemption would not facilitate noninfringing uses, and was unnecessary 
because a laptop can be connected to TV sets to view the output of any 
applications and because LG smart TVs already provide all of the 
features that SFC claims can be added only by jailbreaking. In 
addition, Joint Creators raised concerns that jailbreaking would allow 
the installation of infringing software as well as software such as 
``Popcorn Time,'' an application that facilitates access to and viewing 
of pirated movies.
    NTIA supported the proposed exemption, on the ground that it is not 
materially different than the exemptions that have been granted in the 
past for jailbreaking of smartphones.
    The Register recommended granting the proposed exemption, 
explaining that circumvention of access controls on smart TV firmware 
is likely to enable noninfringing uses of that firmware. First, it 
appears to be undisputed that smart TV firmware incorporates FLOSS 
applications, and that modification of those applications would 
constitute a licensed, and therefore noninfringing, use. Second, with 
respect to non-FLOSS proprietary software included in the firmware, the 
Register concluded that modifications to that firmware to enable 
interoperability with third-party software are likely to constitute a 
fair use. The Register also found that the prohibition on circumvention 
is adversely affecting legitimate noninfringing uses of smart TV 
firmware, and that the proposed alternatives to circumvention, such as 
connecting a laptop computer to the TV, are inadequate, because they 
would not allow installation of software on the smart TV to improve its 
functioning as a TV, such as facilitating more prominent subtitles. The 
Register also concluded that no evidence was submitted to illustrate 
opponents' claim that jailbreaking of smart TVs will make it easier to 
gain unauthorized access to copyrighted content, or that it would 
otherwise undermine smart TVs as a platform for the consumption of 
expressive works.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Computer programs that enable smart televisions to execute 
lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of 
such applications with computer programs on the smart television.
6. Proposed Class 21: Vehicle Software--Diagnosis, Repair or 
Modification \28\
---------------------------------------------------------------------------

    \28\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 218-49.
---------------------------------------------------------------------------

    Modern automobiles and agricultural vehicles and machinery are 
equipped with systems of interconnected computers that monitor and 
control a variety of vehicle functions. These computers are referred to 
as electronic control units, or ``ECUs,'' which are protected by TPMs. 
EFF requested an exemption to permit circumvention of TPMs protecting 
ECU computer programs for the purposes of diagnosis, repair and 
modification of vehicles. The Intellectual Property & Technology Law 
Clinic of the University of Southern California Gould School of Law 
(``IPTC

[[Page 65954]]

U.S.C.'') proposed two similar exemptions for agricultural machinery 
specifically.
    Based on these petitions, the Office included the following 
proposed exemption in the NPRM:

    Proposed Class 21: 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.

    Proponents explained that circumvention of TPMs protecting 
copyrighted computer programs in ECUs may be necessary to make 
noninfringing uses of those programs to diagnose and repair automobiles 
and agricultural equipment, and to make modifications, such as 
enhancing a vehicle's suspension or installing a gear with a different 
radius. They assert that vehicle owners are entitled to use the 
computer programs in ECUs to diagnose, repair or modify vehicles as a 
matter of fair use, or under section 117. EFF argues that absent an 
exemption, vehicle owners must take their cars to authorized repair 
shops, or purchase expensive manufacturer-authorized tools, to diagnose 
and repair their vehicles. Similarly, IPTC U.S.C. explained that TPMs 
restricting access to computer programs that run agricultural vehicles 
and machinery place the livelihoods of farmers and other business 
owners at risk, because vehicle owners must sometimes wait significant 
periods of time before their disabled vehicles can be repaired by an 
authorized technician.
    The proposed exemption was opposed by the Association of Equipment 
Manufacturers, Association of Global Automakers (``Global 
Automakers''), Auto Alliance, Eaton Corporation, GM, John Deere, and 
Motor & Equipment Manufacturers Association (``MEMA''). In general, 
opponents argued that an exemption would not facilitate noninfringing 
uses, and was unnecessary in any event because vehicle owners have 
alternative options, such as manufacturer-authorized repair shops and 
tools. They also asserted that the proposal presented serious public 
health, safety and environmental concerns. For example, users might 
circumvent in order to avoid restrictions on vehicle emissions imposed 
by federal and state law.
    In light of the commenters' observations, the Copyright Office 
notified DOT and EPA of the pendency of the rulemaking. DOT and EPA, as 
well as California ARB, responded with varying degrees of concern about 
the potential impact of an exemption. EPA opposed any exemption, while 
DOT and California ARB expressed significant reservations. The 
agencies' concerns were focused on potential adverse effects on safety 
and the environment. For example, EPA explained that vehicle 
modifications are often performed to increase engine power or boost 
fuel economy, but that these modifications increase vehicle emissions 
and thus violate the Clean Air Act.
    In contrast to these other agencies, NTIA fully supported adoption 
of the proposed exemption. NTIA believed that an exemption was 
necessary to allow consumers to continue to engage in the longstanding 
practice of working on their own vehicles, and that the non-copyright 
concerns raised by opponents and other agencies could be addressed by 
those agencies in the exercise of their respective regulatory 
authorities. NTIA acknowledged, however, that a delay in 
implementation--as recommended by the Register and discussed below--
might nonetheless be appropriate to permit other agencies to consider 
and prepare for the new rule, and urged that any such delay be as short 
as practicable.
    Based on the record, the Register recommended granting an 
exemption. The Register concluded that reproducing and altering the 
computer programs on ECUs for purposes of facilitating diagnosis, 
repair and modification of vehicles may constitute a noninfringing 
activity as a matter of fair use and/or under the exception set forth 
in section 117 of the Copyright Act, which permits the owner of a copy 
of a computer program to make certain copies and adaptations of the 
program. The Register also concluded that owners of vehicles and 
agricultural machinery are adversely impacted as a result of TPMs that 
protect the copyrighted computer programs on the ECUs that control the 
functioning of their vehicles. The Register further found that while 
two of the statutory factors weighed in favor of the exemption 
(availability for use of copyrighted works and impact on criticism, 
comment, news reporting, teaching, scholarship or research), and two of 
the factors were neutral (availability for use for nonprofit archival, 
preservation and educational purposes and the effect on the market for 
or value of copyrighted works), the fifth factor--under which 
commenting parties and federal agencies raised serious safety and 
environmental concerns--tended to weigh against an exemption.
    Overall, the Register concluded that while from a copyright 
perspective proponents had made the case for an exemption, based on the 
record, the exemption needed to be carefully tailored to address a 
number of concerns. Accordingly, the recommended exemption excludes 
computer programs in ECUs that are chiefly designed to operate vehicle 
entertainment and telematics systems due to insufficient evidence 
demonstrating a need to access such ECUs, and out of concern that such 
circumvention might enable unauthorized access to creative or 
proprietary content. The exemption also excludes circumvention ``on 
behalf of'' vehicle owners, as a broader exception allowing third 
parties to engage in circumvention activities on behalf of others is in 
tension with the anti-trafficking provisions of section 1201(a)(2) and 
(b). Moreover, by passing the Unlocking Act--which amended section 1201 
to allow unlocking of cellphones and other devices to be carried out by 
third parties ``at the direction of'' device owners--Congress indicated 
its view that extending the reach of an exemption to cover third-party 
actors requires a legislative amendment. The exemption also expressly 
excludes acts of circumvention that would violate any other law, 
including regulations promulgated by DOT or EPA. Finally, in light of 
the significant concerns raised by DOT and EPA, the recommended 
exemption will become operative twelve months from the effective date 
of the new regulation to provide these and other potentially interested 
agencies an opportunity to consider and prepare for the lifting of the 
DMCA prohibition. Acknowledging the views of the NTIA, the Register 
determined that a twelve-month delay was the shortest period that would 
reasonably permit other agencies to consider appropriate action.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Computer programs that are contained in and control the 
functioning of a motorized land vehicle such as a personal 
automobile, commercial motor vehicle or mechanized agricultural 
vehicle, except for computer programs primarily designed for the 
control of telematics or entertainment systems for such vehicle, 
when circumvention is a necessary step undertaken by the authorized 
owner of the vehicle to allow the diagnosis, repair or lawful 
modification of a vehicle function; and where such circumvention 
does not constitute a violation of applicable law, including without 
limitation regulations promulgated by the Department of

[[Page 65955]]

Transportation or the Environmental Protection Agency; and provided, 
however, that such circumvention is initiated no earlier than 12 
months after the effective date of this regulation.
7. Proposed Classes To Permit Research of Software Flaws, Proposed 
Class 25: Software--Security Research; Proposed Class 22: Vehicle 
Software--Security and Safety Research; Proposed Class 27A: Medical 
Device Software--Security and Safety Research \29\
---------------------------------------------------------------------------

    \29\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 250-320.
---------------------------------------------------------------------------

    The Office received a number of petitions for proposed exemptions 
to permit circumvention of TPMs for purposes of conducting good-faith 
testing for and the identification, disclosure and correction of 
malfunctions, security flaws and vulnerabilities in computer programs. 
The proponents of these security exemptions observed as a general 
matter that computer programs are pervasive in modern machines and 
devices, including vehicles, home appliances and medical devices, and 
that independent security research is necessary to uncover flaws in 
those computer programs. The Copyright Office grouped the security-
related petitions into three proposed classes. First, the Office 
received two submissions from academic researchers seeking an exemption 
to permit good-faith research into malfunctions, security flaws or 
vulnerabilities in computer programs installed on all types of systems 
and devices. The NPRM described the proposed class as follows:

    Proposed Class 25: 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.

    Second, EFF filed a petition seeking an exemption to allow the 
circumvention of TPMs on computer programs that are embedded in 
motorized land vehicles for purposes of researching the security or 
safety of that vehicle. The NPRM described the proposed class as 
follows:

    Proposed Class 22: 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.

    Third, the Medical Device Research Coalition (``MDRC''), a group of 
patients and researchers, filed a petition seeking an exemption to 
allow the circumvention of TPMs on computer programs on implanted 
medical devices, such as pacemakers, implantable cardioverter 
defibrillators, insulin pumps, and continuous glucose monitors, and 
their corresponding personal monitoring systems. MDRC's petition 
covered two proposed uses--allowing research into software flaws that 
adversely affect the safety, security and efficacy of medical devices, 
and allowing a patient to access the information generated by his or 
her own device. The Office originally categorized the petition into a 
single class. The NPRM thus described the class as follows:

    Proposed Class 27: This 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.

    Based on the record as it developed in the course of the 
proceeding, the Register came to the conclusion that Proposed Class 27 
should be divided into Proposed Class 27A, concerning security research 
on medical devices, and Proposed Class 27B, concerning access to 
patient data generated by medical devices. Class 27A is addressed with 
the other security research classes, while 27B is separately discussed 
below.
    Proponents maintained that the security of software and the devices 
that execute software is of critical importance because security flaws 
pose potentially serious threats, including physical injury and death 
of individuals, property damage, and financial harm. Proponents argued 
that security research is noninfringing as a matter of fair use and, in 
the case of vehicle security research, under the exceptions set forth 
in section 117 as well. They further asserted that the permanent 
statutory exemptions to section 1201(a)(1)'s prohibition that are 
directed to reverse engineering (section 1201(f)), encryption research 
(section 1201(g)), and security testing (section 1201(j)) are 
inadequate for their purposes, because these provisions do not provide 
sufficient assurance that the activities in which the researchers seek 
to engage will be considered exempt.
    The Office received comments in opposition to these proposed 
classes from a wide range of companies and organizations representing 
copyright owners. The general software security research exemption in 
Class 25 was opposed by AdvaMed, Auto Alliance, BSA, GM, Intellectual 
Property Owners Association (``IPO''), LifeScience Alley, Medical 
Device Innovation Safety and Security Consortium, and Software 
Information Industry Association. The vehicle software security 
research exemption in Class 22 was opposed by Global Automakers, Auto 
Alliance, GM, John Deere, and MEMA. The medical device software 
security exemption in Class 27A was opposed by AdvaMed, IPO, Jay 
Schulman, LifeScience Alley, and National Association of Manufacturers 
(``NAM''). In general, opponents argued that proponents had failed to 
establish that security research activities encompassed by the 
exemption are noninfringing, and that, in any event, an exemption was 
unnecessary both because of the permanent exemptions in sections 
1201(f), 1201(g), and 1201(j), and because manufacturers frequently 
authorize independent security research. Opponents also argued that any 
exemption for software security research should also include an express 
disclosure requirement, so that the software developer or product 
manufacturer has sufficient time to correct any flaw before its 
existence becomes more widely known and thus more susceptible to 
exploitation by malicious actors. Relatedly, opponents asserted that 
the proposal presented serious public health and safety concerns. For 
example, opponents claimed that information obtained by engaging in 
security research could be used by bad actors to hack into highly 
regulated machines and devices, including medical devices and vehicles.
    In light of commenters' observations, the Copyright Office notified 
DOT, EPA and FDA of the pendency of the rulemaking. All three agencies 
responded and expressed significant reservations. The agencies voiced 
concerns about the potential effects on public health and safety; for 
example, DOT expressed concern that independent security researchers 
may not fully appreciate the potential ramifications of their acts of 
circumvention on automobile safety or the logistical limitations 
affecting potential remedial actions.

[[Page 65956]]

    By contrast, NTIA fully supported adoption of a broad exemption for 
all computer programs, regardless of the device on which they are run, 
so that good-faith security researchers can engage in socially 
beneficial work. NTIA believed that the concerns of other agencies 
could adequately be addressed by stating explicitly in the exemption 
that it does not obviate compliance with other applicable laws. NTIA 
nonetheless acknowledged the possibility that a delay in 
implementation--as recommended by the Register and discussed below--
could be appropriate to permit other agencies to consider and prepare 
for the new rule.
    The Register found that while the Class 25 proposal to allow 
research on computer programs generally was very broad (and potentially 
swallowed the proposals in Class 22 and Class 27A), the record focused 
primarily on consumer-facing products rather than large-scale 
industrial or government systems such as power or transit systems. The 
record also included specific evidence concerning motor vehicles, 
implanted medical devices such as pacemakers and glucose monitors, and 
electronic voting machines.
    Based on this record, the Register recommended adopting an 
exemption to enable good-faith security research on computer programs 
within devices or machines primarily designed for use by individual 
consumers (including voting machines), motorized land vehicles, and 
implanted medical devices and their corresponding monitoring systems. 
At the same time, the Register concluded that the record did not 
support the open-ended exemption urged by Class 25 proponents, 
encompassing all computer programs on all systems and devices, 
including highly sensitive systems such as nuclear power plants and air 
traffic control systems, and that the exemption should be limited to 
the consumer-oriented uses that were the focus of proponents' 
submissions.
    The Register concluded that good-faith security research into 
computer programs used to operate such devices and machines is likely a 
noninfringing fair use of those programs or, in the case of vehicle 
software, may be a noninfringing use under section 117. The Register 
also concluded that the permanent exemptions in sections 1201(f), 
1201(g), and 1201(j) are inadequate to accommodate the proposed 
research activities due to various limitations and conditions contained 
in those provisions. Further, with respect to computer programs used to 
operate the types of devices and machines encompassed by the 
recommended exemption, the Register additionally found that legitimate 
security research has been hindered by TPMs that limit access to those 
programs.
    The Register also noted that different parts of the Administration 
appear to hold divergent views on issues surrounding security research 
and the wisdom of granting an exemption for this purpose, and that the 
exemption could cover any number of highly regulated products. 
Accordingly, to give other parts of the government sufficient 
opportunity to respond, the Register recommended that, as a general 
matter, the exemption should not go into effect until twelve months 
after the effective date of the new regulation (as noted above, the 
Register found that twelve months was the shortest period that would 
reasonably permit other agencies to respond). The Register, however, 
recommended immediate implementation of the exemption for voting 
machines, on the ground that there was no public safety issue or other 
proffered justification for delay of this aspect of the exemption.
    The Register also noted the specific concern expressed by other 
agencies that acts of security research must not put members of the 
public at risk. The recommended exemption thus provides that security 
research must be conducted in a controlled setting designed to avoid 
harm to individuals or the public. In the case of medical devices 
specifically, the recommended exemption incorporates FDA's suggestion 
to exclude research on medical devices that are being used, or could be 
used, by patients.
    As explained above, a significant issue with respect to the 
security exemptions involves the proper disclosure of security research 
findings, as the interests of the manufacturer and the public may both 
be affected by the nature and timing of disclosure of software flaws. 
Indeed, Congress included disclosure to the system developer as one of 
the factors to be considered in determining a person's eligibility for 
the security testing exemption in section 1201(j). Although the 
Register expressed support for responsible disclosure of security 
flaws, she acknowledged the difficulty of attempting to define 
disclosure standards in the context of this rulemaking, as opinions 
seem sharply divided on this point. Accordingly, rather than 
incorporating an express disclosure rule, the recommended exemption 
draws upon what the Register perceives to be the basic intent of 
section 1201(j) by specifying that the information derived from the 
research activity be used primarily to promote the security or safety 
of the devices containing the computer programs on which the research 
is conducted, or of those who use those devices.
    The Register noted that in the interest of adhering to Congress's 
basic purpose in section 1201(j), where appropriate, the recommended 
exemption tracks Congress's language rather than alternative 
formulations suggested by proponents, including by expressly excluding 
acts that violate any other law, such as the Computer Fraud and Abuse 
Act of 1986.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    (i) Computer programs, where the circumvention is undertaken on 
a lawfully acquired device or machine on which the computer program 
operates solely for the purpose of good-faith security research and 
does not violate any applicable law, including without limitation 
the Computer Fraud and Abuse Act of 1986, as amended and codified in 
title 18, United States Code; and provided, however, that, except as 
to voting machines, such circumvention is initiated no earlier than 
12 months after the effective date of this regulation, and the 
device or machine is one of the following:
    (A) A device or machine primarily designed for use by individual 
consumers (including voting machines);
    (B) A motorized land vehicle; or
    (C) A medical device designed for whole or partial implantation 
in patients or a corresponding personal monitoring system, that is 
not and will not be used by patients or for patient care.
    (ii) For purposes of this exemption, ``good-faith security 
research'' means accessing a computer program solely for purposes of 
good-faith testing, investigation and/or correction of a security 
flaw or vulnerability, where such activity is carried out in a 
controlled environment designed to avoid any harm to individuals or 
the public, and where the information derived from the activity is 
used primarily to promote the security or safety of the class of 
devices or machines on which the computer program operates, or those 
who use such devices or machines, and is not used or maintained in a 
manner that facilitates copyright infringement.
8. Proposed Class 23: Abandoned Software--Video Games Requiring Server 
Communication \30\
---------------------------------------------------------------------------

    \30\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 321-53.
---------------------------------------------------------------------------

    Many modern video games--which may be played on a personal computer 
or a dedicated gaming console--require a network connection to a remote 
server operated by the game's developer to enable core functionalities. 
Before some games can be played at all, including in

[[Page 65957]]

single-player mode, the game must connect to an ``authentication 
server'' to verify that the game is a legitimate copy. Other games 
require a connection to a ``matchmaking server'' to enable users to 
play the game with other people over the internet in multiplayer mode. 
In the case of a game that relies on an authentication server, the game 
may be rendered entirely unplayable if the server connection is lost. 
When a matchmaking server is taken offline, the game may still be 
playable, though with online multiplayer play disabled.
    EFF and Kendra Albert, a student at Harvard Law School, jointly 
filed a petition seeking an exemption to enable those who have lawfully 
acquired copies of video games to access and play those games when 
authentication or matchmaking servers have been permanently taken 
offline. As the record developed, it became evident that the proposal 
focused on two types of use: (1) People who wish to continue to play 
physical or downloaded copies of video games they have lawfully 
acquired (referred to in the Recommendation as ``gamers''); and (2) 
those who seek to preserve individual video games and make them 
available for research and study (referred to in the Recommendation as 
``preservationists'').
    The Copyright Office set forth the following proposed exemption in 
the NPRM:

    Proposed Class 23: 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.

    Proponents of Class 23 argued that uses to enable continued 
gameplay or multiplayer play constitute fair use, but that the 
prohibition on circumvention prevents owners from restoring access to 
games they have lawfully acquired. They also stressed that the 
inability to restore access has adverse effects on efforts to preserve 
video games and make them available for research and study.
    The proposed class was opposed by ESA and Joint Creators. They 
argued that the proposed exemption was too broad, would not facilitate 
any noninfringing uses, and could adversely impact the market for video 
games. ESA expressed particular concern about the potential for piracy 
as a result of circumvention activities, explaining that if the 
exemption were to permit circumvention of TPMs on video game consoles, 
those consoles could be used to play pirated video games. Opponents 
also urged that petitioners had failed to demonstrate cognizable 
adverse effects, arguing, for example, that the vast majority of games 
can continue to be played in single-player mode when server support has 
ended, and that there are other alternative means of playing games in 
multiplayer mode without a matchmaking server, including by using a 
local area network. ESA also argued that, at the point of sale, 
consumers receive ample notice that server support may be discontinued.
    NTIA supported adoption of the proposed exemption for continued 
gameplay and for preservation uses, both for single-player and 
multiplayer play. NTIA argued that gamers should be permitted to 
restore access to a work that they had originally been allowed to use. 
In addition, according to NTIA, consumers receive inconsistent notice 
at best that developers may discontinue support for multiplayer use, 
and LAN-enabled multiplayer play is an inadequate substitute to play 
over the internet.
    Based on a review of the evidentiary record, the Register 
recommended an exemption to allow continued gameplay and preservation 
activities when developer server support for a video game has ended, 
though one more circumscribed than that proposed. With respect to 
gamers, the Register concluded that the record supported granting an 
exemption for video games that require communication with an 
authentication server to allow gameplay when the requisite server is 
taken offline. The Register explained that the inability to circumvent 
the TPM would preclude all gameplay, a significant adverse effect, and 
that circumvention to restore access would qualify as a noninfringing 
fair use. At the same time, the Register determined that proponents had 
failed to provide persuasive support for an exemption for online 
multiplayer play, in large part because it is not clear on the current 
record how the provision of circumvention tools to multiple users to 
facilitate an alternative matchmaking service could be accomplished 
without running afoul of the anti-trafficking provision in section 
1201(a)(2). The Register also confirmed that the exemption for gamers 
should not extend to jailbreaking of console software because such 
jailbreaking is strongly associated with video game piracy.
    With respect to preservation uses, looking to certain aspects of 
section 108 of the Copyright Act for guidance, the Register found that 
the record supported an exemption for libraries and archives, as well 
as for museums, to allow circumvention of TPMs so that video games can 
be preserved in playable condition when authentication servers are 
discontinued. In accordance with section 108, such institutions must be 
open to the public and/or to unaffiliated researchers, and the 
activities at issue must not be for commercial purposes. As with gamers 
generally, the recommended exemption for preservationists does not 
extend to circumvention to enable online multiplayer play, which is an 
activity that would extend beyond the walls of the preserving 
institution. But because the risk of piracy is much lower in a 
preservationist setting than with respect to gamers at large, the 
Register recommended that preservationists have the ability to 
circumvent TPMs controlling access to video game console software when 
necessary to maintain a console game in playable form.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    (i) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, when the copyright owner or its authorized 
representative has ceased to provide access to an external computer 
server necessary to facilitate an authentication process to enable 
local gameplay, solely for the purpose of:
    (A) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game 
for personal gameplay on a personal computer or video game console; 
or
    (B) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game 
on a personal computer or video game console when necessary to allow 
preservation of the game in a playable form by an eligible library, 
archives or museum, where such activities are carried out without 
any purpose of direct or indirect commercial advantage and the video 
game is not distributed or made available outside of the physical 
premises of the eligible library, archives or museum.
    (ii) Computer programs used to operate video game consoles 
solely to the extent necessary for an eligible library, archives or 
museum to engage in the preservation activities described in 
paragraph (i)(B).
    (iii) For purposes of the exemptions in paragraphs (i) and (ii), 
the following definitions shall apply:
    (A) ``Complete games'' means video games that can be played by 
users without accessing or reproducing copyrightable content stored 
or previously stored on an external computer server.
    (B) ``Ceased to provide access'' means that the copyright owner 
or its authorized representative has either issued an affirmative 
statement indicating that external server support for the video game 
has ended

[[Page 65958]]

and such support is in fact no longer available or, alternatively, 
server support has been discontinued for a period of at least six 
months; provided, however, that server support has not since been 
restored.
    (C) ``Local gameplay'' means gameplay conducted on a personal 
computer or video game console, or locally connected personal 
computers or consoles, and not through an online service or 
facility.
    (D) A library, archives or museum is considered ``eligible'' 
when the collections of the library, archives or museum are open to 
the public and/or are routinely made available to researchers who 
are not affiliated with the library, archives or museum.
9. Proposed Class 26: Software--3D Printers \31\
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    \31\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 356-77.
---------------------------------------------------------------------------

    3D printing--also known as ``additive'' manufacturing--is a 
technology that translates digital files into physical objects by 
adding successive layers of material. Some 3D printer manufacturers use 
TPMs to limit the types of material--or ``feedstock''--that can be used 
in their 3D printers to manufacturer-approved feedstock.
    Proponent Public Knowledge sought an exemption to permit the 
circumvention of access controls on computer programs on 3D printers 
with chip-based verification systems to enable the use of non-
manufacturer-approved feedstock in such printers. The requested 
exemption would encompass both the modifications necessary to make a 3D 
printer accept alternative feedstock, and potentially further 
modifications to allow the use of feedstock consisting of material that 
is different from what a 3D printer has been designed to use (e.g., 
metal instead of plastic).
    The Copyright Office set forth the following proposed exemption in 
the NPRM:

    Proposed Class 26: 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.

    According to Public Knowledge, non-manufacturer-approved feedstock 
is often much less expensive than that provided by the manufacturer. In 
addition, use of feedstock composed of a different material may require 
modification of the printer's operating system software, for example, 
to change preset variables such as the rate at which the heated 
feedstock is extruded to create the object or the temperature of the 
extrusion nozzle. According to Public Knowledge, the reproductions and 
adaptations necessary to engage in these uses are noninfringing under 
either the fair use doctrine or section 117. Public Knowledge asserts 
that absent an exemption, 3D printer owners will be forced to pay more 
for feedstock, and innovation in the 3D printing space will be 
adversely affected.
    This proposed class was opposed by Stratasys, Inc. (``Stratasys''), 
a 3D printer manufacturer. Among other things, Stratasys contended that 
the proposed uses do not qualify as noninfringing under section 117 
because 3D printer owners license rather than own the software that is 
installed on the 3D printer. Stratasys also argued that proponents had 
failed adequately to demonstrate cognizable adverse effects. Stratasys 
explained that 3D printers are used to produce medical implants, 
aerospace parts, and other goods that are subject to safety or 
regulatory guidelines, and expressed concern that an exemption could 
permit use of inferior materials in such applications. Notably, this 
concern was reinforced by FDA, which, in a letter to the Office, 
worried that an exemption for this class might create unintended public 
health and safety risks in relation to medical devices. Stratasys also 
expressed the concern that an exemption could be used to access 
proprietary design software, design files, or data.
    NTIA favored granting the proposed exemption, on the ground that it 
would benefit consumers and fuel innovation by reducing costs of 
feedstock and by allowing the use of new types of feedstock. Although 
NTIA acknowledged concerns that 3D-printed parts might use inferior 
materials, it concluded that the exemption should not attempt to 
address concerns about quality control.
    The Register recommended granting an exemption for 3D printers with 
chip-based verification systems, explaining that the proposed uses of 
operating system software to permit the use of alternative feedstock 
are likely noninfringing as a matter of fair use or under section 117, 
and that the prohibition on circumvention appears to be adversely 
affecting the proposed uses. At the same time, the Register observed 
that proponents' proposal--and the evidence offered in support--was 
focused largely on nonindustrial uses of printers rather than the sorts 
of uses that could present the types of safety and regulatory concerns 
highlighted by Stratasys and FDA. In light of the record, and to 
address the safety and regulatory issues, the recommended exemption 
excludes circumvention of TPMs on 3D printers that are used to print 
objects that are subject to legal or regulatory oversight. The 
recommended exemption also excludes circumvention for the purpose of 
accessing design software, design files or proprietary data.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Computer programs that operate 3D printers that employ 
microchip-reliant technological measures to limit the use of 
feedstock, when circumvention is accomplished solely for the purpose 
of using alternative feedstock and not for the purpose of accessing 
design software, design files or proprietary data; provided, 
however, that the exemption shall not extend to any computer program 
on a 3D printer that produces goods or materials for use in commerce 
the physical production of which is subject to legal or regulatory 
oversight or a related certification process, or where the 
circumvention is otherwise unlawful.
10. Proposed Class 27B: Networked Medical Devices--Patient Data \32\
---------------------------------------------------------------------------

    \32\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 378-403.
---------------------------------------------------------------------------

    Many modern implanted medical devices, such as pacemakers, 
implantable cardioverter defibrillators, insulin pumps and continuous 
glucose monitors, measure and record data about physiological 
developments taking place within the body, and communicate that data 
wirelessly to a corresponding personal monitoring system. Some personal 
monitoring systems, in turn, transmit data to a hospital or monitoring 
company, and ultimately to the patient's physician. Increasingly, these 
transmissions of data are protected by TPMs, including encryption 
schemes. MDRC requested an exemption that would allow a patient, or 
persons acting on behalf of the patient, to circumvent TPMs on these 
transmissions so that the patient is able to access the data generated 
by his or her own medical device and any corresponding personal 
monitoring system, without the need to visit a hospital or doctor's 
office.
    As explained above, MDRC's petition also encompassed security 
research into medical device software. The Office accordingly set forth 
the following class in the NPRM:

    Proposed Class 27: 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

[[Page 65959]]

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.

    As also noted above, the Register concluded that Proposed Class 27 
should be divided into Proposed Class 27A, concerning security 
research, and Proposed Class 27B, concerning patient data, to allow the 
two types of uses to be separately analyzed. Class 27A is addressed 
with the other security research-related classes above. A discussion of 
Class 27B follows.
    MDRC explained that an exemption to circumvent TPMs protecting 
medical device data would give patients real-time access to their own 
health data, allowing them, for example, to immediately detect major 
health risks or facilitate highly personalized treatment. As framed by 
MDRC, the exemption would provide access only to TPM-protected data 
outputs of medical devices, not to computer programs contained within 
medical devices or their corresponding monitoring systems. Although 
MDRC explained that such data is uncopyrightable to the extent it 
merely consists of physiological facts, such as a patient's blood 
glucose level, it expressed concern that the data outputs of some 
devices may constitute copyrightable compilations. MDRC asserted that 
the proposed use of such compilations would be a fair use, and urged 
the Office to adopt an exemption covering such circumstances. MDRC 
explained that the prohibition on circumvention adversely affects 
patients' ability to monitor their own health in real time, and that 
those adverse effects are likely to increase because FDA has encouraged 
manufacturers to impose TPMs on data outputs. Responding to concerns 
about the impact of such an exemption on the battery life of implanted 
devices, MDRC explained that the exemption could be limited to passive 
monitoring of data that is already being transmitted by the medical 
device or monitoring system.
    The Office received comments in opposition to the proposed 
exemption from AdvaMed, IPO, LifeScience Alley, and NAM. AdvaMed agreed 
with MDRC that in certain circumstances, the selection and arrangement 
of data generated by a medical device might be copyrightable as a 
compilation. Opponents, however, provided little argument to counter 
MDRC's claim that patient access to such medical data constitutes a 
noninfringing fair use. Indeed, they conceded that patients have an 
``inherent right'' to access their own medical data, but argued that 
this right is satisfied by obtaining data via authorized means, such as 
through a patient's health care provider. Opponents also relied heavily 
on the claim that the exemption would create health and safety 
concerns. For example, opponents contended that requesting data from 
implanted devices at an abnormally high rate could reduce the battery 
life of such devices. Opponents suggested that the Copyright Office 
allow an opportunity for FDA to provide input on the proposed 
exemption.
    In light of opponents' comments, the Office advised FDA of the 
pendency of this proceeding. In a responsive letter to the Office, FDA 
expressed concern about facilitating access to data that includes 
patient health information or personally identifiable information, 
noting that the use of such data is subject to government regulation. 
FDA recommended that any exemption indicate that it was not intended to 
override the regulations of other federal agencies.
    NTIA supported the proposed exemption, explaining among other 
things that the exemption would allow patients to see and react to data 
collected by their devices in real time. NTIA also concluded that the 
exemption is unlikely to adversely affect the operation of the medical 
device itself, based on MDRC's assertion that data would be passively 
intercepted as it is wirelessly transmitted from the device or 
monitoring system.
    The Register recommended granting the proposed exemption. The 
Register observed that in many cases, data outputs generated by devices 
would likely be uncopyrightable, and that in such cases, section 
1201(a)(1)--which is limited to works protected under title 17--would 
not apply. The Register noted, however, that some data outputs could 
qualify for protection as literary works if they reflect a sufficiently 
original selection and presentation of data, and that opponents 
themselves agreed that such outputs could be subject to copyright. 
Accordingly, the Register concluded that an exemption would be 
appropriate to enable patients' access to their own medical data as 
embodied in protectable data compilations generated by implanted 
medical devices and corresponding personal monitoring systems. The 
Register concluded that accessing one's own medical data is likely to 
be a fair and noninfringing use, and that TPMs on that data are likely 
to have an adverse impact on such access, especially as TPMs become 
more prevalent in response to FDA guidance. In addition, the Register 
concluded that the statutory factors favor an exemption.
    In light of concerns about the effect of circumvention on the 
battery life of implanted medical devices, the Register recommended 
that the exemption reflect the approach suggested by MDRC, so it is 
limited to passively accessing data that is already being generated or 
transmitted by the device. Further, as suggested by FDA, the 
recommended exemption expressly provides that any actions taken under 
the exemption must be compliant with all applicable laws and 
regulations. The recommended exemption does not permit circumvention 
``at the direction of a patient,'' as a broader exception allowing 
third parties to engage in circumvention activities on behalf of others 
could implicate the anti-trafficking provisions of section 1201(a)(2) 
and (b). Unlike the recommended exemptions for security research and 
vehicle diagnosis, repair and modification, the Register recommended 
that the exemption for access to patient data be effective without 
delay because the passive monitoring of data transmissions did not 
appear to present any immediate safety or health concerns.
    Accordingly, based on the Register's recommendation, the Librarian 
adopts the following exemption:

    Literary works consisting of compilations of data generated by 
medical devices that are wholly or partially implanted in the body 
or by their corresponding personal monitoring systems, where such 
circumvention is undertaken by a patient for the sole purpose of 
lawfully accessing the data generated by his or her own device or 
monitoring system and does not constitute a violation of applicable 
law, including without limitation the Health Insurance Portability 
and Accountability Act of 1996, the Computer Fraud and Abuse Act of 
1986 or regulations of the Food and Drug Administration, and is 
accomplished through the passive monitoring of wireless 
transmissions that are already being produced by such device or 
monitoring system.

B. Classes Considered but Not Recommended

    Based upon the record in this proceeding, the Register of 
Copyrights recommends that the Librarian determine that the following 
classes of works shall not be exempt from the prohibition against 
circumvention of technological measures set forth in section 
1201(a)(1):

[[Page 65960]]

1. Proposed Classes 8 and 10: Audiovisual Works and Literary Works 
Distributed Electronically--Space-Shifting and Format-Shifting \33\
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    \33\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 107-26.
---------------------------------------------------------------------------

    Proposed Classes 8 and 10 would have permitted circumvention of 
technological measures protecting motion pictures, e-books, and other 
audiovisual or literary works to allow users to view the materials on 
alternate devices for personal use or to create back-up copies. Broadly 
speaking, this activity is referred to as ``space-shifting'' and, in 
some cases, ``format-shifting.''
    Public Knowledge requested an exemption to engage broadly in 
noncommercial space-shifting of motion pictures distributed on DVDs, 
Blu-ray discs, and downloaded files. Alpheus Madsen requested an 
exemption to allow circumvention of access controls on DVDs 
specifically in order to play the DVDs on the Linux operating system. 
These overlapping exemptions were combined into the following class:

    Proposed Class 8: 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.

    Christopher Meadows, in turn, proposed an exemption to engage in 
noncommercial space- or format-shifting of e-books, to allow consumers 
to view TPM-protected e-books on alternate viewing platforms and to 
create back-up copies. The proposed exemption was described as follows:

    Proposed Class 10: 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 [as] e-books.

    For both classes, proponents argued that space- and format-shifting 
for personal, noncommercial uses are fair uses. In the past four 
rulemakings, the Register has declined to recommend, and the Librarian 
has declined to adopt, an exemption for such uses because the 
proponents had failed to establish a legal or factual record sufficient 
to establish that the space- or format-shifting of audiovisual works, 
e-books, and other copyrighted works constitutes a noninfringing use. 
In this rulemaking, proponents argued that reconsideration of that 
position was warranted in light of a recent district court decision, 
Fox Broadcasting Co. v. Dish Network LLC,\34\ as well as certain 
statements from legislative history of certain aspects of the Copyright 
Act, including a discussion of how the creation of a limited copyright 
in sound recordings might impact home audio recording.
---------------------------------------------------------------------------

    \34\ No. CV 12-4529 DMG (SHx), 2015 WL 1137593, at *30-31 (C.D. 
Cal. Jan. 20, 2015).
---------------------------------------------------------------------------

    Opponents urged that noncommercial space- and format-shifting are 
not established fair uses under the law. They further argued that, in 
any event, an exemption is unwarranted in light of the continued growth 
of licensed digital distribution services that provide meaningful 
alternatives to circumvention, including digital rights locker services 
such as UltraViolet and Disney Movies Anywhere and disc-to-digital 
services such as VUDU and Flixter that allow consumers to convert 
previously purchased DVDs or Blu-ray discs into high-quality digital 
files. According to opponents, an exemption that allowed broad-based 
space- or format-shifting would undermine not only the existing markets 
for DVDs and Blu-ray discs but also these emerging online distribution 
models.
    NTIA, as it has in the past, supported what it termed a ``narrowed 
version'' of an exemption to allow circumvention when the work is not 
accompanied by an additional copy of the work in an alternate digital 
format. In NTIA's view, the exemption is an issue of consumer 
protection, although NTIA acknowledged the broader debate about the 
merits and legality of noncommercial space-shifting.
    The Register recommended against the adoption of a proposed 
exemption, on the ground that the law of fair use, as it stands today, 
does not sanction broad-based space-shifting or format-shifting. The 
Register rejected proponents' attempt to rely on the Dish Network case, 
explaining that the uses at issue there were much more circumscribed 
than the uses proposed for this exemption. In particular, the service 
at issue in Dish Network included many safeguards to prevent unfettered 
use of the relevant content, including limitations on the length of 
time content would be available on the device to which a work is 
transferred. Accordingly, the Register concluded that the case was both 
factually and legally distinguishable. On the other hand, the recent 
case of Fox News Network, LLC v. TVEyes Inc.,\35\ reaffirmed judicial 
reluctance to embrace a general space-shifting privilege.
---------------------------------------------------------------------------

    \35\ No. 13 Civ. 5315 (AKH), 2015 WL 5025274 (S.D.N.Y. Aug. 25, 
2015).
---------------------------------------------------------------------------

    At the same time, the Register recognized the consumer appeal of 
the proposals, and marketplace efforts to meet consumer demand for 
accessing movies and books in a wide variety of formats. According to 
the Register, the policy judgments surrounding the creation of a novel 
exception for space- or format-shifting of copyrighted works are 
complex and thus best left to Congress or the courts.
2. Proposed Class 18: Jailbreaking--Dedicated E-Book Readers \36\
---------------------------------------------------------------------------

    \36\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 193-94.
---------------------------------------------------------------------------

    This class would have allowed circumvention of technological 
measures protecting dedicated e-book readers, such as Amazon's Kindle 
Paperwhite, to run lawfully acquired third-party applications or 
software on such devices. Maneesh Pangasa filed a petition seeking this 
exemption, and the NPRM described the class as follows:

    Proposed Class 18: 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.

    Pangasa, however, failed to submit further written comments or 
evidentiary material in support of the petition and did not participate 
in the public hearings. The written comments that were received in 
connection with this class were abbreviated and did not offer specific 
factual information or legal argument in support of the exemption. At 
the public hearing, proponent Jay Freeman briefly mentioned that people 
have jailbroken e-book readers to install screen savers or achieve 
other functionality, but no further evidence was presented in relation 
to this class. There were no opposition comments filed.
    Although, as part of its discussion of the jailbreaking exemptions 
for smartphones and all-purpose mobile computing devices, NTIA 
expressed support for a jailbreaking exemption for dedicated e-book 
readers, NTIA did not point to anything specific in the record to 
support the requested exemption.
    In light of the insufficiency of factual or legal support for the 
proposed exemption, the Register declined to recommend it.

[[Page 65961]]

3. Proposed Class 19: Jailbreaking--Video Game Consoles \37\
---------------------------------------------------------------------------

    \37\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 195-201.
---------------------------------------------------------------------------

    Maneesh Pangasa filed a petition proposing an exemption to permit 
jailbreaking of home video game consoles for an assortment of asserted 
noninfringing uses, including installing alternative operating systems. 
The Librarian rejected a similar exemption in 2012 because of 
substantial concerns about video game piracy. The Copyright Office set 
forth the following proposal in the NPRM:

    Proposed Class 19: 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.

    Pangasa failed to file supporting comments or participate in the 
public hearings, and the brief written comments filed by other parties 
provided scant support for the exemption. The limited amount of factual 
support offered in written comments--concerning academic research 
projects and ``homebrew'' video games--largely mirrored factual claims 
that were not persuasive in the 2012 proceeding. At the public hearing, 
the representative of commenting party iFixit provided some additional 
information regarding certain types of video game console repairs for 
which jailbreaking might be useful. At the same time, however, he 
acknowledged that the referenced repairs could be undertaken without 
circumvention.
    Class 19 was opposed by ESA and Joint Creators. As in 2012, 
opponents provided substantial evidence that console jailbreaking is 
closely tied to video game piracy. In response to iFixit's concerns 
about console repair, ESA observed that all major console manufacturers 
offer repair services for consoles still under warranty at no charge, 
and for out-of-warranty consoles for prices ranging from $99 to $149. 
iFixit agreed with this assessment.
    NTIA supported an exemption limited to repair of malfunctioning 
hardware for systems that are obsolete or no longer covered by 
manufacturer warranty, on the ground that to use an authorized repair 
service, the owner must send the console to the manufacturer and pay a 
``substantial'' fee. At the same time, NTIA concluded that the record 
did not support a broader exemption, as the record is ``significantly 
less robust and detailed than it was in the last rulemaking.''
    The Register concluded that the record in this rulemaking did not 
provide a basis for departing from her 2012 recommendation that an 
exemption for video game console jailbreaking should be denied. 
According to the Register, the record was not materially different from 
that considered in 2012, and included evidence demonstrating that 
jailbreaking of video game consoles continues to be closely associated 
with video game piracy, thus undermining the value of console software 
as a secure distribution platform. The Register also concluded that the 
need to engage in console repair did not provide a basis for an 
exemption in light of the availability of authorized repair services 
and the ability of proponents and others to perform repairs without the 
need to circumvent.
4. Proposed Class 24: Abandoned Software--Music Recording Software \38\
---------------------------------------------------------------------------

    \38\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Recommendation at 354-55.
---------------------------------------------------------------------------

    This proposed exemption would have allowed circumvention of a 
dongle-like access control that is allegedly no longer supported by the 
developer or copyright owner and protects a specific type of music 
recording software, Ensoniq PARIS. Three individuals proposed this 
exemption, Richard Kelley, James McCloskey, and Michael Yanoska, and 
the Copyright Office set forth the following proposal in the NPRM:

    Proposed Class 24: 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.

    No evidence or argument to support this exemption was submitted 
after the initial petition phase of the proceeding. The class was 
opposed by Joint Creators, who raised concerns about the lack of 
supporting evidence.
    In light of the incomplete record, NTIA and the Register declined 
to recommend granting the exemption.

C. Conclusion

    Having considered the evidence in the record, the contentions of 
the commenting parties, and the statutory objectives, the Register of 
Copyrights has recommended that the Librarian of Congress publish 
certain classes of works, as designated above, so that the prohibition 
against circumvention of technological measures that effectively 
control access to copyrighted works shall not apply to persons who 
engage in noninfringing uses of those particular classes of works.

    Dated: October 20, 2015.
Maria A. Pallante,
Register of Copyrights and Director of the U.S. Copyright Office.

Determination of the Librarian of Congress

    Having duly considered and accepted the Recommendation of the 
Register of Copyrights, which Recommendation is hereby incorporated by 
reference, the Librarian of Congress, pursuant to 17 U.S.C. 
1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of 
copyrighted works that shall for a three-year period be subject to the 
exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition 
against circumvention of technological measures that effectively 
control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A).

List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

Final Regulations

    For the reasons set forth in the preamble, 37 CFR part 201 is 
amended as follows:

PART 201--GENERAL PROVISIONS

0
1. The authority citation for part 201 continues to read as follows:

    Authority: 17 U.S.C. 702


0
2. Section 201.40 is amended by revising paragraph (b) and removing 
paragraph (d).
    The revision reads as follows:


Sec.  201.40  Exemption to prohibition against circumvention.

* * * * *
    (b) Classes of copyrighted works. Pursuant to the authority set 
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation 
of the Register of Copyrights, the Librarian has determined that the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A) shall not apply to persons who engage in noninfringing 
uses of the following classes of copyrighted works:
    (1) Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where circumvention is undertaken solely in 
order to make use of short portions of the motion

[[Page 65962]]

pictures for the purpose of criticism or comment in the following 
instances:
    (i) For use in documentary filmmaking,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a DVD 
protected by the Content Scramble System, on a Blu-ray disc protected 
by the Advanced Access Control System, or via a digital transmission 
protected by a technological measure, and where the person engaging in 
circumvention reasonably believes that screen-capture software or other 
non-circumventing alternatives are unable to produce the required level 
of high-quality content;
    (ii) For use in noncommercial videos (including videos produced for 
a paid commission if the commissioning entity's use is noncommercial),
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a DVD 
protected by the Content Scramble System, on a Blu-ray disc protected 
by the Advanced Access Control System, or via a digital transmission 
protected by a technological measure, and where the person engaging in 
circumvention reasonably believes that screen-capture software or other 
non-circumventing alternatives are unable to produce the required level 
of high-quality content;
    (iii) For use in nonfiction multimedia e-books offering film 
analysis,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) Where the motion picture is lawfully made and acquired on a DVD 
protected by the Content Scramble System, on a Blu-ray disc protected 
by the Advanced Access Control System, or via a digital transmission 
protected by a technological measure, and where the person engaging in 
circumvention reasonably believes that screen-capture software or other 
non-circumventing alternatives are unable to produce the required level 
of high-quality content;
    (iv) By college and university faculty and students, for 
educational purposes,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made and 
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Control System, or via a 
digital transmission protected by a technological measure, and where 
the person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable to 
produce the required level of high-quality content;
    (v) By faculty of massive open online courses (MOOCs) offered by 
accredited nonprofit educational institutions to officially enrolled 
students through online platforms (which platforms themselves may be 
operated for profit), for educational purposes, where the MOOC provider 
through the online platform limits transmissions to the extent 
technologically feasible to such officially enrolled students, 
institutes copyright policies and provides copyright informational 
materials to faculty, students and relevant staff members, and applies 
technological measures that reasonably prevent unauthorized further 
dissemination of a work in accessible form to others or retention of 
the work for longer than the course session by recipients of a 
transmission through the platform, as contemplated by 17 U.S.C. 110(2),
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made and 
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Control System, or via a 
digital transmission protected by a technological measure, and where 
the person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable to 
produce the required level of high-quality content;
    (vi) By kindergarten through twelfth-grade educators, including of 
accredited general educational development (GED) programs, for 
educational purposes,
    (A) Where the circumvention is undertaken using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted, or
    (B) In film studies or other courses requiring close analysis of 
film and media excerpts where the motion picture is lawfully made and 
acquired on a DVD protected by the Content Scramble System, or via a 
digital transmission protected by a technological measure, and where 
the person engaging in circumvention reasonably believes that screen-
capture software or other non-circumventing alternatives are unable to 
produce the required level of high-quality content;
    (vii) By kindergarten through twelfth-grade students, including 
those in accredited general educational development (GED) programs, for 
educational purposes, where the circumvention is undertaken using 
screen-capture technology that appears to be offered to the public as 
enabling the reproduction of motion pictures after content has been 
lawfully acquired and decrypted; and
    (viii) By educators and participants in nonprofit digital and media 
literacy programs offered by libraries, museums and other nonprofit 
entities with an educational mission, in the course of face-to-face 
instructional activities for educational purposes, where the 
circumvention is undertaken using screen-capture technology that 
appears to be offered to the public as enabling the reproduction of 
motion pictures after content has been lawfully acquired and decrypted.
    (2) Literary works, distributed electronically, that are protected 
by technological measures that either prevent the enabling of read-
aloud functionality or interfere with screen readers or other 
applications or assistive technologies,
    (i) When a copy of such a work is lawfully obtained by a blind or 
other person with a disability, as such a person is defined in 17 
U.S.C. 121; provided, however, that the rights owner is remunerated, as 
appropriate, for the price of the mainstream copy of the work as made 
available to the general public through customary channels, or
    (ii) When such work is a nondramatic literary work, lawfully 
obtained and used by an authorized entity pursuant to 17 U.S.C. 121.
    (3)(i) Computer programs that enable the following types of 
wireless devices

[[Page 65963]]

to connect to a wireless telecommunications network, when circumvention 
is undertaken solely in order to connect to a wireless 
telecommunications network and such connection is authorized by the 
operator of such network, and the device is a used device:
    (A) Wireless telephone handsets (i.e., cellphones);
    (B) All-purpose tablet computers;
    (C) Portable mobile connectivity devices, such as mobile hotspots, 
removable wireless broadband modems, and similar devices; and
    (D) Wearable wireless devices designed to be worn on the body, such 
as smartwatches or fitness devices.
    (ii) A device is considered ``used'' for purposes of this exemption 
when it has previously been lawfully acquired and activated on the 
wireless telecommunications network of a wireless carrier.
    (4) Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained software 
applications, where circumvention is accomplished for the sole purpose 
of enabling interoperability of such applications with computer 
programs on the smartphone or device, or to permit removal of software 
from the smartphone or device. For purposes of this exemption, a 
``portable all-purpose mobile computing device'' is a device that is 
primarily designed to run a wide variety of programs rather than for 
consumption of a particular type of media content, is equipped with an 
operating system primarily designed for mobile use, and is intended to 
be carried or worn by an individual.
    (5) Computer programs that enable smart televisions to execute 
lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the smart television.
    (6) Computer programs that are contained in and control the 
functioning of a motorized land vehicle such as a personal automobile, 
commercial motor vehicle or mechanized agricultural vehicle, except for 
computer programs primarily designed for the control of telematics or 
entertainment systems for such vehicle, when circumvention is a 
necessary step undertaken by the authorized owner of the vehicle to 
allow the diagnosis, repair or lawful modification of a vehicle 
function; and where such circumvention does not constitute a violation 
of applicable law, including without limitation regulations promulgated 
by the Department of Transportation or the Environmental Protection 
Agency; and provided, however, that such circumvention is initiated no 
earlier than 12 months after the effective date of this regulation.
    (7)(i) Computer programs, where the circumvention is undertaken on 
a lawfully acquired device or machine on which the computer program 
operates solely for the purpose of good-faith security research and 
does not violate any applicable law, including without limitation the 
Computer Fraud and Abuse Act of 1986, as amended and codified in title 
18, United States Code; and provided, however, that, except as to 
voting machines, such circumvention is initiated no earlier than 12 
months after the effective date of this regulation, and the device or 
machine is one of the following:
    (A) A device or machine primarily designed for use by individual 
consumers (including voting machines);
    (B) A motorized land vehicle; or
    (C) A medical device designed for whole or partial implantation in 
patients or a corresponding personal monitoring system, that is not and 
will not be used by patients or for patient care.
    (ii) For purposes of this exemption, ``good-faith security 
research'' means accessing a computer program solely for purposes of 
good-faith testing, investigation and/or correction of a security flaw 
or vulnerability, where such activity is carried out in a controlled 
environment designed to avoid any harm to individuals or the public, 
and where the information derived from the activity is used primarily 
to promote the security or safety of the class of devices or machines 
on which the computer program operates, or those who use such devices 
or machines, and is not used or maintained in a manner that facilitates 
copyright infringement.
    (8)(i) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, when the copyright owner or its authorized 
representative has ceased to provide access to an external computer 
server necessary to facilitate an authentication process to enable 
local gameplay, solely for the purpose of:
    (A) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game for 
personal gameplay on a personal computer or video game console; or
    (B) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game on a 
personal computer or video game console when necessary to allow 
preservation of the game in a playable form by an eligible library, 
archives or museum, where such activities are carried out without any 
purpose of direct or indirect commercial advantage and the video game 
is not distributed or made available outside of the physical premises 
of the eligible library, archives or museum.
    (ii) Computer programs used to operate video game consoles solely 
to the extent necessary for an eligible library, archives or museum to 
engage in the preservation activities described in paragraph (i)(B).
    (iii) For purposes of the exemptions in paragraphs (i) and (ii), 
the following definitions shall apply:
    (A) ``Complete games'' means video games that can be played by 
users without accessing or reproducing copyrightable content stored or 
previously stored on an external computer server.
    (B) ``Ceased to provide access'' means that the copyright owner or 
its authorized representative has either issued an affirmative 
statement indicating that external server support for the video game 
has ended and such support is in fact no longer available or, 
alternatively, server support has been discontinued for a period of at 
least six months; provided, however, that server support has not since 
been restored.
    (C) ``Local gameplay'' means gameplay conducted on a personal 
computer or video game console, or locally connected personal computers 
or consoles, and not through an online service or facility.
    (D) A library, archives or museum is considered ``eligible'' when 
the collections of the library, archives or museum are open to the 
public and/or are routinely made available to researchers who are not 
affiliated with the library, archives or museum.
    (9) Computer programs that operate 3D printers that employ 
microchip-reliant technological measures to limit the use of feedstock, 
when circumvention is accomplished solely for the purpose of using 
alternative feedstock and not for the purpose of accessing design 
software, design files or proprietary data; provided, however, that the 
exemption shall not extend to any computer program on a 3D printer that 
produces goods or materials for use in commerce the physical production 
of which is subject to legal or regulatory oversight or a related 
certification process, or where the circumvention is otherwise 
unlawful.
    (10) Literary works consisting of compilations of data generated by

[[Page 65964]]

medical devices that are wholly or partially implanted in the body or 
by their corresponding personal monitoring systems, where such 
circumvention is undertaken by a patient for the sole purpose of 
lawfully accessing the data generated by his or her own device or 
monitoring system and does not constitute a violation of applicable 
law, including without limitation the Health Insurance Portability and 
Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986 or 
regulations of the Food and Drug Administration, and is accomplished 
through the passive monitoring of wireless transmissions that are 
already being produced by such device or monitoring system.
* * * * *

    Dated: October 20, 2015.
David S. Mao,
Acting Librarian of Congress.
[FR Doc. 2015-27212 Filed 10-27-15; 8:45 am]
 BILLING CODE 1410-30-P

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