Software-Enabled Consumer Products Study: Notice and Request for Public Comment, 77668-77672 [2015-31411]

Download as PDF 77668 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points: —Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; —Evaluate the accuracy of the agency’s estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; —Enhance the quality, utility, and clarity of the information to be collected; and —Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses. asabaliauskas on DSK5VPTVN1PROD with NOTICES SUPPLEMENTARY INFORMATION: Overview of This Information Collection (1) Type of Information Collection: Revision to Currently Approved Collection. (2) Title of the Form/Collection: Annual Progress Report for STOP Violence Against Women Formula Grant Program. (3) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: Form Number: 1122–0003. U.S. Department of Justice, Office on Violence Against Women. (4) Affected public who will be asked or required to respond, as well as a brief abstract: The affected public includes the 56 STOP state administrators (from 50 states, the District of Columbia and five territories and commonwealths (Guam, Puerto Rico, American Samoa, Virgin Islands, Northern Mariana Islands)) and their subgrantees. The STOP Violence Against Women Formula Grants Program was authorized through the Violence Against Women Act of 1994 (VAWA) and reauthorized and amended in 2000, 2005, and 2013. Its purpose is to promote a coordinated, multi-disciplinary approach to improving the criminal justice system’s response to violence against women. The STOP Formula Grants Program envisions a partnership among law enforcement, prosecution, courts, and victim advocacy organizations to enhance victim safety and hold VerDate Sep<11>2014 17:08 Dec 14, 2015 Jkt 238001 offenders accountable for their crimes of violence against women. OVW administers the STOP Formula Grants Program. The grant funds must be distributed by STOP state administrators to subgrantees according to a statutory formula (as amended). (5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond/reply: It is estimated that it will take the 56 respondents (STOP administrators) approximately one hour to complete an annual progress report. It is estimated that it will take approximately one hour for roughly 2500 subgrantees 1 to complete the relevant portion of the annual progress report. The Annual Progress Report for the STOP Formula Grants Program is divided into sections that pertain to the different types of activities that subgrantees may engage in and the different types of subgrantees that receive funds, i.e. law enforcement agencies, prosecutors’ offices, courts, victim services agencies, etc. (6) An estimate of the total public burden (in hours) associated with the collection: The total annual hour burden to complete the annual progress report is 2,556 hours. If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., Room 3E.405B, Washington, DC 20530. Dated: December 9, 2015. Jerri Murray, Department Clearance Officer for PRA, U.S. Department of Justice. [FR Doc. 2015–31468 Filed 12–14–15; 8:45 am] BILLING CODE 4410–FX–P LIBRARY OF CONGRESS U.S. Copyright Office [Docket No. 2015–6] Software-Enabled Consumer Products Study: Notice and Request for Public Comment U.S. Copyright Office, Library of Congress. ACTION: Notice of inquiry. AGENCY: The U.S. Copyright Office is undertaking a study at the request of Congress to review the role of copyright SUMMARY: 1 Each year the number of STOP subgrantees changes. The number 2,500 is based on the number of reports that OVW has received in the past from STOP subgrantees. PO 00000 Frm 00069 Fmt 4703 Sfmt 4703 law with respect to software-enabled consumer products. The topics of public inquiry include whether the application of copyright law to software in everyday products enables or frustrates innovation and creativity in the design, distribution and legitimate uses of new products and innovative services. The Office also is seeking information as to whether legitimate interests or business models for copyright owners and users could be improved or undermined by changes to the copyright law in this area. This is a highly specific study not intended to examine or address more general questions about software and copyright protection. DATES: Written comments must be received no later than February 16, 2016 at 11:59 p.m. Eastern Time. Written reply comments must be received no later than March 18, 2016 at 11:59 p.m. Eastern Time. The Office will be announcing one or more public meetings, to take place after written comments are received, by separate notice in the future. ADDRESSES: All comments must be submitted electronically. Specific instructions for submitting comments will be posted on the Copyright Office Web site at http://www.copyright.gov/ policy/software on or before February 1, 2016. To meet accessibility standards, all comments must be provided in a single file not to exceed six megabytes (MB) in one of the following formats: Portable Document File (PDF) format containing searchable, accessible text (not an image); Microsoft Word; WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a scanned document). Both the web form and face of the uploaded comments must include the name of the submitter and any organization the submitter represents. The Office will post all comments publicly in the form that they are received. If electronic submission of comments is not feasible, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, Deputy General Counsel, sdam@loc.gov; Catherine Rowland, Senior Advisor to the Register of Copyrights, crowland@loc.gov; or Erik Bertin, Deputy Director of Registration Policy and Practice, ebertin@loc.gov. Each can be reached by telephone at (202) 707–8350. SUPPLEMENTARY INFORMATION: Copyrighted software can be found in a wide range of everyday consumer products—from cars, to refrigerators, to cellphones, to thermostats, and more. Consumers have benefited greatly from this development: Software brings new E:\FR\FM\15DEN1.SGM 15DEN1 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices qualities to ordinary products, making them safer, more efficient, and easier to use. At the same time, software’s ubiquity raises significant policy issues across a broad range of subjects, including privacy, cybersecurity, and intellectual property rights. These include questions about the impact of existing copyright law on innovation and consumer uses of everyday products and innovative services that rely on such products. In light of these concerns, Senators Charles E. Grassley and Patrick Leahy (the Chairman and Ranking Member, respectively, of the Senate Committee on the Judiciary) have asked the U.S. Copyright Office to ‘‘undertake a comprehensive review of the role of copyright in the complex set of relationships at the heart’’ of the issues raised by the spread of software in everyday products.1 The Senators called on the Office to seek public input from ‘‘interested industry stakeholders, consumer advocacy groups, and relevant federal agencies,’’ and make appropriate recommendations for legislative or other changes.2 The report must be completed no later than December 15, 2016.3 This study is not the proper forum for issues arising under section 1201 of the Copyright Act, which addresses the circumvention of technological protection measures on copyrighted works. Earlier this year, the Register of Copyrights testified that certain aspects of the section 1201 anticircumvention provisions of the Digital Millennium Copyright Act (‘‘DMCA’’) were unanticipated when enacted almost twenty years ago, and would benefit from further review. These issues include, for example, the application of anticircumvention rules to everyday products, as well as their impact on encryption research and security testing. If you wish to submit comments about section 1201, please do so through the forthcoming section 1201 study, information on which will be available shortly at www.copyright.gov. asabaliauskas on DSK5VPTVN1PROD with NOTICES I. Background Copyright law has expressly protected computer programs,4 whether used in 1 Letter from Sen. Charles E. Grassley, Chairman, Senate Committee on the Judiciary, and Sen. Patrick Leahy, Ranking Member, Senate Committee on the Judiciary, to Maria A. Pallante, Register of Copyrights, U.S. Copyright Office, at 1 (Oct. 22, 2015), available at http://www.copyright.gov/ policy/software. 2 Id. at 2. 3 Id. 4 Although the Copyright Act uses the term ‘‘computer program,’’ see 17 U.S.C. 101 (definition of ‘‘computer program’’), the terms ‘‘software’’ and ‘‘computer program’’ are used interchangeably in this notice. VerDate Sep<11>2014 17:08 Dec 14, 2015 Jkt 238001 general purpose computers or embedded in everyday consumer products, since the enactment of the 1976 Copyright Act (‘‘1976 Act’’). Though the 1976 Act did not expressly list computer programs as copyrightable subject matter, the Act’s legislative history makes it evident that Congress intended for them to be protected by copyright law as literary works.5 At the same time, in the 1976 Act, Congress recognized that ‘‘the area of computer uses of copyrighted works’’ was a ‘‘major area [where] the problems are not sufficiently developed for a definitive legislative solution.’’ 6 Accordingly, as originally enacted, 17 U.S.C. 117 ‘‘preserve[d] the status quo’’ as it existed in 1976 with respect to computer uses,7 by providing that copyright owners had no ‘‘greater and lesser rights with respect to the use of the work in conjunction with automatic systems capable of storing, processing, retrieving, or transferring information, or in conjunction with any similar device, machine, or process, than those afforded to works under the law’’ as it existed prior to the effective date of the 1976 Act.8 Since the 1976 Act’s enactment, the scope of copyright protection for computer programs has continued to be refined by Congress through legislation and by the courts through litigation. At least some of that attention has focused on the precise problem presented here: The presence of software in everyday products. A. CONTU Report In the mid-1970s, Congress created the National Commission on New Technological Uses of Copyrighted Works (‘‘CONTU’’) to study and report on the complex issues raised by extending copyright protection to computer programs.9 In its 1978 Report, CONTU recommended that Congress continue to protect computer programs under copyright law, specifically by amending section 101 of the 1976 Act to include a definition of computer programs and by replacing section 117 as enacted in the 1976 Act with a new provision providing express limitations on the exclusive rights of reproduction and adaptation of computer programs 5 See H.R. Rep. No. 94–1476, at 55 (1976); see also National Commission on New Technological Uses of Copyrighted Works, Final Report of the National Commission on New Technological Uses of Copyrighted Works 16 (1978) (‘‘CONTU Report’’). 6 H.R. Rep. No. 94–1476, at 55. 7 Id. 8 Public Law 94–553, sec. 117, 90 Stat. 2541, 2565 (1976). 9 See CONTU Report at 3–4. PO 00000 Frm 00070 Fmt 4703 Sfmt 4703 77669 under certain conditions.10 Congress adopted CONTU’s legislative recommendations in 1980.11 While CONTU did not specifically anticipate that software would become embedded in everyday products, CONTU did recognize some general issues resulting from the fact that computer programs need a machine to operate. Specifically, CONTU recognized that the process by which a machine operates a computer program necessitates the making of a copy of the program and that adaptations are sometimes necessary to make a program interoperable with the machine.12 CONTU preliminarily addressed these issues by including in its recommended revisions to section 117 a provision permitting the reproduction or adaptation of a computer program when created as an essential step in using the program in conjunction with a machine, finding that ‘‘[b]ecause the placement of a work into a computer is the preparation of a copy, the law should provide that persons in rightful possession of copies of programs be able to use them freely without fear of exposure to copyright liability.’’ 13 CONTU’s recommendations for the new section 117 also included a provision permitting the making of copies and adaptations for archival purposes.14 At the same time, CONTU foresaw that the issues surrounding copyright protection for software would have to be examined again by Congress and the Copyright Office: [T]he Commission recognizes that the dynamics of computer science promise changes in the creation and use of authors’ writings that cannot be predicted with any certainty. The effects of these changes should have the attention of Congress and its appropriate agencies to ensure that those who are the responsible policy makers maintain an awareness of the changing impact of computer technology on both the needs of authors and the role of authors in the information age. To that end, the Commission recommends that Congress, through the appropriate committees, and the Copyright Office, in the course of its administration of copyright registrations and other activities, continuously monitor the impact of computer applications on the creation of works of authorship.15 B. Computer Software Rental Amendments Act of 1990 A decade later, in response to concerns that commercial rental of 10 Id. at 12. Act of Dec. 12, 1980, Public Law 96–517, sec. 10, 94 Stat. 3015, 3028–29. 12 See CONTU Report at 12–14. 13 Id. at 12–13. 14 Id. 15 Id. at 46. 11 See E:\FR\FM\15DEN1.SGM 15DEN1 77670 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices computer programs would encourage illegal copying of such programs, Congress passed the Computer Software Rental Amendments Act of 1990 (‘‘Computer Software Rental Act’’), which amended section 109 of the Copyright Act to prohibit the rental, lease or lending of a computer program for direct or indirect commercial gain unless authorized by the copyright owner of the program.16 Notably, Congress also expressly provided an exception to this prohibition for ‘‘a computer program which is embodied in a machine or product and which cannot be copied during the ordinary operation or use of the machine or product.’’ 17 In doing so, Congress recognized that computer programs can be embedded in machines or products and tailored the rental legislation to avoid interference with the ordinary use of such products.18 asabaliauskas on DSK5VPTVN1PROD with NOTICES C. DMCA Congress revisited the issues surrounding software and copyright law with the DMCA.19 As particularly relevant here, the DMCA amended section 117 of the Copyright Act to permit the reproduction of computer programs for the purposes of machine maintenance or repair following a court of appeals decision 20 that cast doubt on the ability of independent service organizations to repair computer hardware.21 This provision foreshadows the more general concerns raised by the spread of software in everyday products—namely, that maintaining or repairing a software-enabled product often will require copying of the software. Section 104 of the DMCA also directed the Office to study the effects of the DMCA amendments and the development of electronic commerce and associated technology on the operation of sections 109 and 117 of the Copyright Act, as well as ‘‘the relationship between existing and 16 See Public Law 101–650, 104 Stat. 5089, 5134– 35 (1990); 17 U.S.C. 109(b)(1)(A). 17 17 U.S.C. 109(b)(1)(B)(i). 18 See Computer Software Rental Amendments Act (H.R. 2740, H.R. 5297, and S. 198): Hearing Before the Subcomm. on Courts, Intellectual Prop., and the Admin. of Justice of the H. Comm. on the Judiciary, 101st Cong. 15–16 (1990) (statement of Rep. Mike Synar) (‘‘Some parties have interpreted the [Computer Software Rental Act] as potentially affecting computer programs which may be contained as a component of another machine, such as a program which drives a mechanized robot or runs a microwave or a household kitchen utensil. Such a result was not intended and will be addressed in this legislation.’’). 19 Public Law 105–304, 112 Stat. 2860 (1998). 20 MAI Sys. Corp. v. Peak Computer, 991 F.2d 511 (9th Cir. 1993). 21 See DMCA, sec. 302, 112 Stat. 2860, 2887 (1998); S. Rep. No. 105–190, at 21–22 (1998). VerDate Sep<11>2014 17:08 Dec 14, 2015 Jkt 238001 emergent technology and the operation of sections 109 and 117.’’ 22 The Office subsequently published a report detailing its findings and recommendations in August 2001 (‘‘Section 104 Report’’).23 The Section 104 Report discussed a number of issues relevant to the discussion of software in everyday products. For instance, it addressed proposals to add a ‘‘digital first sale’’ right to section 109 of the Copyright Act to explicitly grant consumers the authority to resell works in digital format. Although the Office concluded that no legislative changes to section 109 were necessary at the time, it recognized that ‘‘[t]he time may come when Congress may wish to consider further how to address these concerns.’’ 24 In particular, the Office anticipated some of the issues presented here when it highlighted ‘‘the operation of the first sale doctrine in the context of works tethered to a particular device’’—an example of which would be software embedded in everyday products—as an issue worthy of continued monitoring.25 Additionally, the Office noted the concern that unilateral contractual provisions could be used to limit consumers’ ability to invoke exceptions and limitations in copyright law. Although the Office concluded that those issues were outside the scope of the study, and that ‘‘market forces may well prevent right holders from unreasonably limiting consumer privileges,’’ it also recognized that ‘‘it is possible that at some point in the future a case could be made for statutory change.’’ 26 D. Developments in Case Law In the meantime, courts, too, have weighed in on a number of issues concerning copyright protection of software, including copyrightability, the application of the fair use doctrine, and ownership of software by consumers. In analyzing these issues, however, courts have not generally distinguished between software installed on general purpose computers and that embedded in everyday products. Courts have helped define the scope of copyright protection for software and address questions of infringement through application of doctrines such as the idea/expression dichotomy (codified ` in 17 U.S.C. 102(b)), merger, and scenes 22 DMCA, sec. 104, 112 Stat. 2860, 2876 (1998). generally U.S. Copyright Office, DMCA Section 104 Report (2001). 24 Id. at 96–97. 25 Id. at xvi–xvii. 26 Id. at 162–64. 23 See PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 ` a faire.27 The idea/expression dichotomy, as applied to software, excludes from copyright protection the abstract ‘‘methodology or processes adopted by the programmer’’ in creating the code.28 In the context of software, the merger doctrine excludes certain otherwise creative expression from copyright protection when it is the only way, or one of a limited number of ways, to perform a given computing ` ` task.29 The scenes a faire doctrine has been used to limit or eliminate copyright protection for elements of a program that are dictated by external factors or by efficiency concerns, such as the mechanical specifications of the computer on which the program runs.30 The fair use doctrine, codified in 17 U.S.C. 107, is also relevant here. Courts have applied the fair use doctrine to permit uses of software that ensure interoperability of software with new products and devices. For example, in Sega Enterprises Ltd. v. Accolade, Inc., the Court of Appeals for the Ninth Circuit held that copying a video game console’s computer program to decompile and reverse engineer the object code to make it interoperable with video games created by the defendant was a fair use.31 Similarly, in Sony Computer Entertainment, Inc. v. Connectix Corp., the court held that reverse engineering the operating system of a PlayStation gaming console to develop a computer program allowing users to play PlayStation video games on a desktop computer, as well as making copies in the course of such reverse engineering, was a fair use.32 Another important issue courts have tackled involves the scope of section 117’s limitations on exclusive rights in computer programs. Section 117(a) allows copies or adaptations of 27 See, e.g., Lexmark International, Inc. v. Static Control Components, Inc., 387 F.3d 522, 534–36 (6th Cir. 2004); Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252–53 (3d Cir. 1983); Computer Management Assistance Co. v. DeCastro, 220 F.3d 396, 400–02 (5th Cir. 2000). 28 H.R. Rep. No. 94–1476, at 9; see also CONTU Report at 22 (‘‘[C]opyright leads to the result that anyone is free to make a computer carry out any unpatented process, but not to misappropriate another’s writing to do so.’’). 29 See CONTU Report at 20 (‘‘[C]opyrighted language may be copied without infringing when there is but a limited number of ways to express a given idea. . . . In the computer context, this means that when specific instructions, even though previously copyrighted, are the only and essential means of accomplishing a given task, their later use by another will not amount to an infringement.’’). 30 See, e.g., Lexmark, 387 F.3d at 535–36 (outlining applicability of doctrine to computer programs). 31 977 F.2d 1510, 1527–28 (9th Cir. 1992), amended by 1993 U.S. App. LEXIS 78 (9th Cir. 1993). 32 203 F.3d 596, 602–08 (9th Cir. 2000). E:\FR\FM\15DEN1.SGM 15DEN1 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices computer programs to be made either ‘‘as an essential step in the utilization of the computer program in conjunction with a machine’’ or for archival purposes, but this provision may only be invoked by ‘‘the owner of a copy of a computer program.’’ 33 This raises difficult questions regarding whether a consumer owns a copy of software installed on a device or machine for purposes of section 117 when formal title is lacking or a license purports to impose restrictions on the use of the computer program. Courts have provided somewhat conflicting guidance regarding this issue, and the application of the law can be unclear in many contexts.34 E. Recent Legislation Issues associated with the spread of copyrighted software in everyday products have prompted legislative action in an attempt to address some of the copyright issues created by the spread of such works.35 In the context of section 1201—which, as explained, is the subject of a separate Copyright Office study—Congress enacted legislation in August 2014 to broaden the regulatory exemption permitting the circumvention of technological measures for the purpose of connecting wireless telephone handsets to wireless communication networks (a process commonly known as ‘‘cellphone unlocking’’).36 The Unlocking Technology Act of 2015, as most pertinent to this study, would amend section 117 of the Copyright Act to permit the reproduction or adaptation of ‘‘the software or firmware of a user33 17 U.S.C. 117(a). Krause v. Titleserv, Inc., 402 F.3d 119, 124 (2d Cir. 2005), with Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th Cir. 2010). 35 Bills have also been introduced addressing related issues outside copyright law stemming from the spread of software in everyday products. The Spy Car Act of 2015 would direct the National Highway Traffic Safety Administration to conduct a rulemaking and issue motor vehicle cybersecurity regulations protecting against unauthorized access to electronic systems in vehicles or driving data, such as information about a vehicle’s location, speed or owner, collected by such electronic systems. SPY Car Act of 2015, S. 1806, 114th Cong. sec. 2 (2015). A discussion draft introduced in the Commerce, Manufacturing, and Trade Subcommittee of the Energy & Commerce Committee of the House of Representatives would prohibit access to electronic control units or critical systems in a motor vehicle. A Bill to provide greater transparency, accountability, and safety authority to the National Highway Traffic Safety Administration, and for other purposes [Discussion Draft], 114th Cong. sec. 302 (2015), available at http://docs.house.gov/meetings/IF/IF17/20151021/ 104070/BILLS-114pihDiscussionDraftonVehicleandRoadwaySafety.pdf. 36 See Unlocking Consumer Choice and Wireless Competition Act, Public Law 113–144, 128 Stat. 1751 (2014). asabaliauskas on DSK5VPTVN1PROD with NOTICES 34 Compare VerDate Sep<11>2014 17:08 Dec 14, 2015 Jkt 238001 purchased mobile communications device for the sole purpose of . . . connect[ing] to a wireless communications network’’ if the reproduction or adaptation is initiated by or with the consent of the owner of the device, the owner is in legal possession of the device, and the owner has the consent of the authorized operator of the wireless communications network to use the network.37 The legislation would also limit the prohibition on circumvention in section 1201 of title 17 to circumstances where circumvention is carried out in order to infringe or facilitate the infringement of a copyrighted work, and would permit the use of or trafficking in circumvention devices unless the intent of such use or trafficking is to infringe or facilitate infringement.38 In addition, the You Own Devices Act (‘‘YODA’’) would amend section 109 of the Copyright Act to allow the transfer of ownership of a copy of a computer program embedded on a machine or other product ‘‘if [the] computer program enables any part of [that] machine or other product to operate,’’ as well as any right to receive software updates or security patches from the manufacturer.39 This right of transfer could not be waived by any contractual agreement.40 In addition, the original owner of the device would be prohibited from retaining an unauthorized copy of the computer program after transferring the device and the computer program to another person.41 F. Relationship to Questions About Section 1201 Some issues related to software embedded in everyday products have come to the forefront in recent years through the 1201 rulemaking process. As the Copyright Office has frequently noted, the 1201 rulemaking can serve as a barometer for larger public policy questions, including issues that may merit or would require legislative change. The public should not submit concerns about section 1201 through this software study, but rather through the Copyright Office’s forthcoming study on section 1201, information about which will be available shortly at http://www.copyright.gov/. 37 Unlocking Technology Act, H.R. 1587, 114th Cong. sec. 3 (2015). 38 Id. sec. 2. 39 YODA, H.R. 862, 114th Cong. sec. 2 (2015). 40 Id. 41 Id. PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 77671 II. Subjects of Inquiry In response to the letter from Senators Grassley and Leahy, the Office is seeking public comment on the following five topics. A party choosing to respond to this Notice of Inquiry need not address every subject, but the Office requests that responding parties clearly identify and separately address each subject for which a response is submitted. 1. The provisions of the copyright law that are implicated by the ubiquity of copyrighted software in everyday products; 2. Whether, and to what extent, the design, distribution, and legitimate uses of products are being enabled and/or frustrated by the application of existing copyright law to software in everyday products; 3. Whether, and to what extent, innovative services are being enabled and/or frustrated by the application of existing copyright law to software in everyday products; 4. Whether, and to what extent, legitimate interests or business models for copyright owners and users could be undermined or improved by changes to the copyright law in this area; and 5. Key issues in how the copyright law intersects with other areas of law in establishing how products that rely on software to function can be lawfully used. When addressing these topics, respondents should consider the following specific issues: 1. Whether copyright law should distinguish between software embedded in ‘‘everyday products’’ and other types of software, and, if so, how such a distinction might be drawn in an administrable manner. a. Whether ‘‘everyday products’’ can be distinguished from other products that contain software, such as general purpose computers—essentially how to define ‘‘everyday products.’’ b. If distinguishing between software embedded in ‘‘everyday products’’ and other types of software is impracticable, whether there are alternative ways the Office can distinguish between categories of software. 2. The rationale and proper scope of copyright protection for software embedded in everyday products, including the extent to which copyright infringement is a concern with respect to such software. 3. The need to enable interoperability with software-embedded devices, including specific examples of ways in which the law frustrates or enables such interoperability. 4. Whether current limitations on and exceptions to copyright protection E:\FR\FM\15DEN1.SGM 15DEN1 77672 Federal Register / Vol. 80, No. 240 / Tuesday, December 15, 2015 / Notices adequately address issues concerning software embedded in everyday products, or whether amendments or clarifications would be useful. Specific areas of interest include: a. The idea/expression dichotomy (codified in 17 U.S.C. 102(b)) b. The merger doctrine ` ` c. The scenes a faire doctrine d. Fair use (codified in 17 U.S.C. 107) e. The first-sale doctrine (codified in 17 U.S.C. 109) f. Statutory limitations on exclusive rights in computer programs (codified in 17 U.S.C. 117) ` 5. The state of contract law vis-a-vis software embedded in everyday products, and how contracts such as end user license agreements impact investment in and the dissemination and use of everyday products, including whether any legislative action in this area is needed. 6. Any additional relevant issues not raised above. SUPPLEMENTARY INFORMATION: Dated: December 9, 2015. Maria A. Pallante, Register of Copyrights, U.S. Copyright Office. NATIONAL LABOR RELATIONS BOARD [FR Doc. 2015–31411 Filed 12–14–15; 8:45 am] BILLING CODE 1410–30–P The purpose of this meeting is to discuss matters relating to the Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities. The meeting will be open to the public. However, due to space limitations and access procedures, you must submit the name and telephone number of individuals planning to attend to the Information Security Oversight Office (ISOO) no later than Friday, January 22, 2016. ISOO will provide additional instructions for accessing the meeting’s location. Dated: December 8, 2015. Patrice Little Murray, Committee Management Officer. BILLING CODE 7515–01–P Notice of Appointments of Individuals To Serve as Members of Performance Review Boards; Correction Authority: 5 U.S.C. 4314(c)(4). AGENCY: Information Security Oversight Office ACTION: National Labor Relations Board. Notice; correction. [NARA–2016–007] State, Local, Tribal, and Private Sector Policy Advisory Committee (SLTPS– PAC) Meeting National Archives and Records Administration (NARA). ACTION: Notice of Advisory Committee Meeting. AGENCY: In accordance with the Federal Advisory Committee Act (5 U.S.C. app 2) and implementing regulation 41 CFR 101–6, NARA announces the following committee meeting. DATES: The meeting will be on January 27, 2016, from 10:00 a.m. to 12:00 p.m. EDT. ADDRESSES: National Archives and Records Administration; 700 Pennsylvania Avenue NW.; Jefferson Room; Washington, DC 20408. FOR FURTHER INFORMATION CONTACT: Robert J. Skwirot, Senior Program Analyst, by mail at ISOO, National Archives Building; 700 Pennsylvania Avenue NW.; Washington, DC 20408, by telephone number at (202) 357–5398, or by email at robert.skwirot@nara.gov. Contact ISOO at ISOO@nara.gov. asabaliauskas on DSK5VPTVN1PROD with NOTICES SUMMARY: VerDate Sep<11>2014 18:55 Dec 14, 2015 Jkt 238001 The National Labor Relations Board published a document in the Federal Register of November 25, 2015, giving notice that certain named individuals had been appointed to serve as members of performance review boards in the National Labor Relations Board for the rating year beginning October 1, 2014 and ending September 30, 2015. The document failed to list one of the individuals so appointed. SUMMARY: Gary Shinners, Executive Secretary, National Labor Relations Board, 1099 14th Street NW., Washington, DC 20570, (202) 273– 3737 (this is not a toll-free number), 1– 866–315–6572 (TTY/TDD). FOR FURTHER INFORMATION CONTACT: Correction In the Federal Register of November 25, 2015, in FR Doc. 2015–30031, on page 73836, in the third column, correct the list of names of individuals appointed to serve as members of performance review boards by adding the following individual: Name and Title Deborah Yaffee—Director, Office of Appeals Dated: December 9, 2015. PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 [FR Doc. 2015–31421 Filed 12–14–15; 8:45 am] BILLING CODE 7545–01–P NUCLEAR REGULATORY COMMISSION [Docket Nos. 50–275, 50–323, and 72–26; NRC–2015–0244] Pacific Gas and Electric Company; Diablo Canyon Power Plant, Units 1 and 2, and Diablo Canyon Independent Spent Fuel Storage Installation Nuclear Regulatory Commission. ACTION: Finding of no significant impact with associated environmental assessment; final issuance. AGENCY: [FR Doc. 2015–31526 Filed 12–14–15; 8:45 am] NATIONAL ARCHIVES AND RECORDS ADMINISTRATION By Direction of the Board. William B. Cowen, Solicitor. The U.S. Nuclear Regulatory Commission (NRC) is issuing an environmental assessment (EA) and finding of no significant impact (FONSI) related to a request to amend the Facility Operating License Nos. DPR–80, DPR–82, and SNM–2511 issued to Pacific Gas and Electric Company (PG&E), for operation of the Diablo Canyon Power Plant, Units 1 and 2, including the specific-license Independent Spent Fuel Storage Installation (hereinafter DCPP or the facility), located in San Luis Obispo County, California. The requested amendments would permit licensee security personnel to use certain firearms and ammunition feeding devices not previously permitted, notwithstanding State, local, and certain Federal firearms laws or regulations that otherwise prohibit such actions. ADDRESSES: Please refer to Docket ID NRC–2015–0244 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods: • Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC–2015–0244. Address questions about NRC dockets to Carol Gallagher; telephone: 301–415–3463; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document. • NRC’s Agencywide Documents Access and Management System (ADAMS): You may obtain publiclyavailable documents online in the ADAMS Public Documents collection at SUMMARY: E:\FR\FM\15DEN1.SGM 15DEN1

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[Federal Register Volume 80, Number 240 (Tuesday, December 15, 2015)]
[Notices]
[Pages 77668-77672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-31411]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015-6]


Software-Enabled Consumer Products Study: Notice and Request for 
Public Comment

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

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office is undertaking a study at the 
request of Congress to review the role of copyright law with respect to 
software-enabled consumer products. The topics of public inquiry 
include whether the application of copyright law to software in 
everyday products enables or frustrates innovation and creativity in 
the design, distribution and legitimate uses of new products and 
innovative services. The Office also is seeking information as to 
whether legitimate interests or business models for copyright owners 
and users could be improved or undermined by changes to the copyright 
law in this area. This is a highly specific study not intended to 
examine or address more general questions about software and copyright 
protection.

DATES: Written comments must be received no later than February 16, 
2016 at 11:59 p.m. Eastern Time. Written reply comments must be 
received no later than March 18, 2016 at 11:59 p.m. Eastern Time. The 
Office will be announcing one or more public meetings, to take place 
after written comments are received, by separate notice in the future.

ADDRESSES: All comments must be submitted electronically. Specific 
instructions for submitting comments will be posted on the Copyright 
Office Web site at http://www.copyright.gov/policy/software on or 
before February 1, 2016. To meet accessibility standards, all comments 
must be provided in a single file not to exceed six megabytes (MB) in 
one of the following formats: Portable Document File (PDF) format 
containing searchable, accessible text (not an image); Microsoft Word; 
WordPerfect; Rich Text Format (RTF); or ASCII text file format (not a 
scanned document). Both the web form and face of the uploaded comments 
must include the name of the submitter and any organization the 
submitter represents. The Office will post all comments publicly in the 
form that they are received. If electronic submission of comments is 
not feasible, please contact the Office using the contact information 
below for special instructions.

FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, Deputy General 
Counsel, sdam@loc.gov; Catherine Rowland, Senior Advisor to the 
Register of Copyrights, crowland@loc.gov; or Erik Bertin, Deputy 
Director of Registration Policy and Practice, ebertin@loc.gov. Each can 
be reached by telephone at (202) 707-8350.

SUPPLEMENTARY INFORMATION: Copyrighted software can be found in a wide 
range of everyday consumer products--from cars, to refrigerators, to 
cellphones, to thermostats, and more. Consumers have benefited greatly 
from this development: Software brings new

[[Page 77669]]

qualities to ordinary products, making them safer, more efficient, and 
easier to use. At the same time, software's ubiquity raises significant 
policy issues across a broad range of subjects, including privacy, 
cybersecurity, and intellectual property rights. These include 
questions about the impact of existing copyright law on innovation and 
consumer uses of everyday products and innovative services that rely on 
such products. In light of these concerns, Senators Charles E. Grassley 
and Patrick Leahy (the Chairman and Ranking Member, respectively, of 
the Senate Committee on the Judiciary) have asked the U.S. Copyright 
Office to ``undertake a comprehensive review of the role of copyright 
in the complex set of relationships at the heart'' of the issues raised 
by the spread of software in everyday products.\1\ The Senators called 
on the Office to seek public input from ``interested industry 
stakeholders, consumer advocacy groups, and relevant federal 
agencies,'' and make appropriate recommendations for legislative or 
other changes.\2\ The report must be completed no later than December 
15, 2016.\3\
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    \1\ Letter from Sen. Charles E. Grassley, Chairman, Senate 
Committee on the Judiciary, and Sen. Patrick Leahy, Ranking Member, 
Senate Committee on the Judiciary, to Maria A. Pallante, Register of 
Copyrights, U.S. Copyright Office, at 1 (Oct. 22, 2015), available 
at http://www.copyright.gov/policy/software.
    \2\ Id. at 2.
    \3\ Id.
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    This study is not the proper forum for issues arising under section 
1201 of the Copyright Act, which addresses the circumvention of 
technological protection measures on copyrighted works. Earlier this 
year, the Register of Copyrights testified that certain aspects of the 
section 1201 anticircumvention provisions of the Digital Millennium 
Copyright Act (``DMCA'') were unanticipated when enacted almost twenty 
years ago, and would benefit from further review. These issues include, 
for example, the application of anticircumvention rules to everyday 
products, as well as their impact on encryption research and security 
testing. If you wish to submit comments about section 1201, please do 
so through the forthcoming section 1201 study, information on which 
will be available shortly at www.copyright.gov.

I. Background

    Copyright law has expressly protected computer programs,\4\ whether 
used in general purpose computers or embedded in everyday consumer 
products, since the enactment of the 1976 Copyright Act (``1976 Act''). 
Though the 1976 Act did not expressly list computer programs as 
copyrightable subject matter, the Act's legislative history makes it 
evident that Congress intended for them to be protected by copyright 
law as literary works.\5\ At the same time, in the 1976 Act, Congress 
recognized that ``the area of computer uses of copyrighted works'' was 
a ``major area [where] the problems are not sufficiently developed for 
a definitive legislative solution.'' \6\ Accordingly, as originally 
enacted, 17 U.S.C. 117 ``preserve[d] the status quo'' as it existed in 
1976 with respect to computer uses,\7\ by providing that copyright 
owners had no ``greater and lesser rights with respect to the use of 
the work in conjunction with automatic systems capable of storing, 
processing, retrieving, or transferring information, or in conjunction 
with any similar device, machine, or process, than those afforded to 
works under the law'' as it existed prior to the effective date of the 
1976 Act.\8\
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    \4\ Although the Copyright Act uses the term ``computer 
program,'' see 17 U.S.C. 101 (definition of ``computer program''), 
the terms ``software'' and ``computer program'' are used 
interchangeably in this notice.
    \5\ See H.R. Rep. No. 94-1476, at 55 (1976); see also National 
Commission on New Technological Uses of Copyrighted Works, Final 
Report of the National Commission on New Technological Uses of 
Copyrighted Works 16 (1978) (``CONTU Report'').
    \6\ H.R. Rep. No. 94-1476, at 55.
    \7\ Id.
    \8\ Public Law 94-553, sec. 117, 90 Stat. 2541, 2565 (1976).
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    Since the 1976 Act's enactment, the scope of copyright protection 
for computer programs has continued to be refined by Congress through 
legislation and by the courts through litigation. At least some of that 
attention has focused on the precise problem presented here: The 
presence of software in everyday products.

A. CONTU Report

    In the mid-1970s, Congress created the National Commission on New 
Technological Uses of Copyrighted Works (``CONTU'') to study and report 
on the complex issues raised by extending copyright protection to 
computer programs.\9\ In its 1978 Report, CONTU recommended that 
Congress continue to protect computer programs under copyright law, 
specifically by amending section 101 of the 1976 Act to include a 
definition of computer programs and by replacing section 117 as enacted 
in the 1976 Act with a new provision providing express limitations on 
the exclusive rights of reproduction and adaptation of computer 
programs under certain conditions.\10\ Congress adopted CONTU's 
legislative recommendations in 1980.\11\
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    \9\ See CONTU Report at 3-4.
    \10\ Id. at 12.
    \11\ See Act of Dec. 12, 1980, Public Law 96-517, sec. 10, 94 
Stat. 3015, 3028-29.
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    While CONTU did not specifically anticipate that software would 
become embedded in everyday products, CONTU did recognize some general 
issues resulting from the fact that computer programs need a machine to 
operate. Specifically, CONTU recognized that the process by which a 
machine operates a computer program necessitates the making of a copy 
of the program and that adaptations are sometimes necessary to make a 
program interoperable with the machine.\12\ CONTU preliminarily 
addressed these issues by including in its recommended revisions to 
section 117 a provision permitting the reproduction or adaptation of a 
computer program when created as an essential step in using the program 
in conjunction with a machine, finding that ``[b]ecause the placement 
of a work into a computer is the preparation of a copy, the law should 
provide that persons in rightful possession of copies of programs be 
able to use them freely without fear of exposure to copyright 
liability.'' \13\ CONTU's recommendations for the new section 117 also 
included a provision permitting the making of copies and adaptations 
for archival purposes.\14\
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    \12\ See CONTU Report at 12-14.
    \13\ Id. at 12-13.
    \14\ Id.
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    At the same time, CONTU foresaw that the issues surrounding 
copyright protection for software would have to be examined again by 
Congress and the Copyright Office:

    [T]he Commission recognizes that the dynamics of computer 
science promise changes in the creation and use of authors' writings 
that cannot be predicted with any certainty. The effects of these 
changes should have the attention of Congress and its appropriate 
agencies to ensure that those who are the responsible policy makers 
maintain an awareness of the changing impact of computer technology 
on both the needs of authors and the role of authors in the 
information age. To that end, the Commission recommends that 
Congress, through the appropriate committees, and the Copyright 
Office, in the course of its administration of copyright 
registrations and other activities, continuously monitor the impact 
of computer applications on the creation of works of authorship.\15\
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    \15\ Id. at 46.

B. Computer Software Rental Amendments Act of 1990

    A decade later, in response to concerns that commercial rental of

[[Page 77670]]

computer programs would encourage illegal copying of such programs, 
Congress passed the Computer Software Rental Amendments Act of 1990 
(``Computer Software Rental Act''), which amended section 109 of the 
Copyright Act to prohibit the rental, lease or lending of a computer 
program for direct or indirect commercial gain unless authorized by the 
copyright owner of the program.\16\ Notably, Congress also expressly 
provided an exception to this prohibition for ``a computer program 
which is embodied in a machine or product and which cannot be copied 
during the ordinary operation or use of the machine or product.'' \17\ 
In doing so, Congress recognized that computer programs can be embedded 
in machines or products and tailored the rental legislation to avoid 
interference with the ordinary use of such products.\18\
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    \16\ See Public Law 101-650, 104 Stat. 5089, 5134-35 (1990); 17 
U.S.C. 109(b)(1)(A).
    \17\ 17 U.S.C. 109(b)(1)(B)(i).
    \18\ See Computer Software Rental Amendments Act (H.R. 2740, 
H.R. 5297, and S. 198): Hearing Before the Subcomm. on Courts, 
Intellectual Prop., and the Admin. of Justice of the H. Comm. on the 
Judiciary, 101st Cong. 15-16 (1990) (statement of Rep. Mike Synar) 
(``Some parties have interpreted the [Computer Software Rental Act] 
as potentially affecting computer programs which may be contained as 
a component of another machine, such as a program which drives a 
mechanized robot or runs a microwave or a household kitchen utensil. 
Such a result was not intended and will be addressed in this 
legislation.'').
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C. DMCA

    Congress revisited the issues surrounding software and copyright 
law with the DMCA.\19\ As particularly relevant here, the DMCA amended 
section 117 of the Copyright Act to permit the reproduction of computer 
programs for the purposes of machine maintenance or repair following a 
court of appeals decision \20\ that cast doubt on the ability of 
independent service organizations to repair computer hardware.\21\ This 
provision foreshadows the more general concerns raised by the spread of 
software in everyday products--namely, that maintaining or repairing a 
software-enabled product often will require copying of the software. 
Section 104 of the DMCA also directed the Office to study the effects 
of the DMCA amendments and the development of electronic commerce and 
associated technology on the operation of sections 109 and 117 of the 
Copyright Act, as well as ``the relationship between existing and 
emergent technology and the operation of sections 109 and 117.'' \22\ 
The Office subsequently published a report detailing its findings and 
recommendations in August 2001 (``Section 104 Report'').\23\
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    \19\ Public Law 105-304, 112 Stat. 2860 (1998).
    \20\ MAI Sys. Corp. v. Peak Computer, 991 F.2d 511 (9th Cir. 
1993).
    \21\ See DMCA, sec. 302, 112 Stat. 2860, 2887 (1998); S. Rep. 
No. 105-190, at 21-22 (1998).
    \22\ DMCA, sec. 104, 112 Stat. 2860, 2876 (1998).
    \23\ See generally U.S. Copyright Office, DMCA Section 104 
Report (2001).
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    The Section 104 Report discussed a number of issues relevant to the 
discussion of software in everyday products. For instance, it addressed 
proposals to add a ``digital first sale'' right to section 109 of the 
Copyright Act to explicitly grant consumers the authority to resell 
works in digital format. Although the Office concluded that no 
legislative changes to section 109 were necessary at the time, it 
recognized that ``[t]he time may come when Congress may wish to 
consider further how to address these concerns.'' \24\ In particular, 
the Office anticipated some of the issues presented here when it 
highlighted ``the operation of the first sale doctrine in the context 
of works tethered to a particular device''--an example of which would 
be software embedded in everyday products--as an issue worthy of 
continued monitoring.\25\ Additionally, the Office noted the concern 
that unilateral contractual provisions could be used to limit 
consumers' ability to invoke exceptions and limitations in copyright 
law. Although the Office concluded that those issues were outside the 
scope of the study, and that ``market forces may well prevent right 
holders from unreasonably limiting consumer privileges,'' it also 
recognized that ``it is possible that at some point in the future a 
case could be made for statutory change.'' \26\
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    \24\ Id. at 96-97.
    \25\ Id. at xvi-xvii.
    \26\ Id. at 162-64.
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D. Developments in Case Law

    In the meantime, courts, too, have weighed in on a number of issues 
concerning copyright protection of software, including 
copyrightability, the application of the fair use doctrine, and 
ownership of software by consumers. In analyzing these issues, however, 
courts have not generally distinguished between software installed on 
general purpose computers and that embedded in everyday products.
    Courts have helped define the scope of copyright protection for 
software and address questions of infringement through application of 
doctrines such as the idea/expression dichotomy (codified in 17 U.S.C. 
102(b)), merger, and sc[egrave]nes [agrave] faire.\27\ The idea/
expression dichotomy, as applied to software, excludes from copyright 
protection the abstract ``methodology or processes adopted by the 
programmer'' in creating the code.\28\ In the context of software, the 
merger doctrine excludes certain otherwise creative expression from 
copyright protection when it is the only way, or one of a limited 
number of ways, to perform a given computing task.\29\ The 
sc[egrave]nes [agrave] faire doctrine has been used to limit or 
eliminate copyright protection for elements of a program that are 
dictated by external factors or by efficiency concerns, such as the 
mechanical specifications of the computer on which the program 
runs.\30\
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    \27\ See, e.g., Lexmark International, Inc. v. Static Control 
Components, Inc., 387 F.3d 522, 534-36 (6th Cir. 2004); Apple 
Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1252-53 
(3d Cir. 1983); Computer Management Assistance Co. v. DeCastro, 220 
F.3d 396, 400-02 (5th Cir. 2000).
    \28\ H.R. Rep. No. 94-1476, at 9; see also CONTU Report at 22 
(``[C]opyright leads to the result that anyone is free to make a 
computer carry out any unpatented process, but not to misappropriate 
another's writing to do so.'').
    \29\ See CONTU Report at 20 (``[C]opyrighted language may be 
copied without infringing when there is but a limited number of ways 
to express a given idea. . . . In the computer context, this means 
that when specific instructions, even though previously copyrighted, 
are the only and essential means of accomplishing a given task, 
their later use by another will not amount to an infringement.'').
    \30\ See, e.g., Lexmark, 387 F.3d at 535-36 (outlining 
applicability of doctrine to computer programs).
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    The fair use doctrine, codified in 17 U.S.C. 107, is also relevant 
here. Courts have applied the fair use doctrine to permit uses of 
software that ensure interoperability of software with new products and 
devices. For example, in Sega Enterprises Ltd. v. Accolade, Inc., the 
Court of Appeals for the Ninth Circuit held that copying a video game 
console's computer program to decompile and reverse engineer the object 
code to make it interoperable with video games created by the defendant 
was a fair use.\31\ Similarly, in Sony Computer Entertainment, Inc. v. 
Connectix Corp., the court held that reverse engineering the operating 
system of a PlayStation gaming console to develop a computer program 
allowing users to play PlayStation video games on a desktop computer, 
as well as making copies in the course of such reverse engineering, was 
a fair use.\32\
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    \31\ 977 F.2d 1510, 1527-28 (9th Cir. 1992), amended by 1993 
U.S. App. LEXIS 78 (9th Cir. 1993).
    \32\ 203 F.3d 596, 602-08 (9th Cir. 2000).
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    Another important issue courts have tackled involves the scope of 
section 117's limitations on exclusive rights in computer programs. 
Section 117(a) allows copies or adaptations of

[[Page 77671]]

computer programs to be made either ``as an essential step in the 
utilization of the computer program in conjunction with a machine'' or 
for archival purposes, but this provision may only be invoked by ``the 
owner of a copy of a computer program.'' \33\ This raises difficult 
questions regarding whether a consumer owns a copy of software 
installed on a device or machine for purposes of section 117 when 
formal title is lacking or a license purports to impose restrictions on 
the use of the computer program. Courts have provided somewhat 
conflicting guidance regarding this issue, and the application of the 
law can be unclear in many contexts.\34\
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    \33\ 17 U.S.C. 117(a).
    \34\ Compare Krause v. Titleserv, Inc., 402 F.3d 119, 124 (2d 
Cir. 2005), with Vernor v. Autodesk, Inc., 621 F.3d 1102, 1111 (9th 
Cir. 2010).
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E. Recent Legislation

    Issues associated with the spread of copyrighted software in 
everyday products have prompted legislative action in an attempt to 
address some of the copyright issues created by the spread of such 
works.\35\ In the context of section 1201--which, as explained, is the 
subject of a separate Copyright Office study--Congress enacted 
legislation in August 2014 to broaden the regulatory exemption 
permitting the circumvention of technological measures for the purpose 
of connecting wireless telephone handsets to wireless communication 
networks (a process commonly known as ``cellphone unlocking'').\36\
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    \35\ Bills have also been introduced addressing related issues 
outside copyright law stemming from the spread of software in 
everyday products. The Spy Car Act of 2015 would direct the National 
Highway Traffic Safety Administration to conduct a rulemaking and 
issue motor vehicle cybersecurity regulations protecting against 
unauthorized access to electronic systems in vehicles or driving 
data, such as information about a vehicle's location, speed or 
owner, collected by such electronic systems. SPY Car Act of 2015, S. 
1806, 114th Cong. sec. 2 (2015). A discussion draft introduced in 
the Commerce, Manufacturing, and Trade Subcommittee of the Energy & 
Commerce Committee of the House of Representatives would prohibit 
access to electronic control units or critical systems in a motor 
vehicle. A Bill to provide greater transparency, accountability, and 
safety authority to the National Highway Traffic Safety 
Administration, and for other purposes [Discussion Draft], 114th 
Cong. sec. 302 (2015), available at http://docs.house.gov/meetings/IF/IF17/20151021/104070/BILLS-114pih-DiscussionDraftonVehicleandRoadwaySafety.pdf.
    \36\ See Unlocking Consumer Choice and Wireless Competition Act, 
Public Law 113-144, 128 Stat. 1751 (2014).
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    The Unlocking Technology Act of 2015, as most pertinent to this 
study, would amend section 117 of the Copyright Act to permit the 
reproduction or adaptation of ``the software or firmware of a user-
purchased mobile communications device for the sole purpose of . . . 
connect[ing] to a wireless communications network'' if the reproduction 
or adaptation is initiated by or with the consent of the owner of the 
device, the owner is in legal possession of the device, and the owner 
has the consent of the authorized operator of the wireless 
communications network to use the network.\37\ The legislation would 
also limit the prohibition on circumvention in section 1201 of title 17 
to circumstances where circumvention is carried out in order to 
infringe or facilitate the infringement of a copyrighted work, and 
would permit the use of or trafficking in circumvention devices unless 
the intent of such use or trafficking is to infringe or facilitate 
infringement.\38\
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    \37\ Unlocking Technology Act, H.R. 1587, 114th Cong. sec. 3 
(2015).
    \38\ Id. sec. 2.
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    In addition, the You Own Devices Act (``YODA'') would amend section 
109 of the Copyright Act to allow the transfer of ownership of a copy 
of a computer program embedded on a machine or other product ``if [the] 
computer program enables any part of [that] machine or other product to 
operate,'' as well as any right to receive software updates or security 
patches from the manufacturer.\39\ This right of transfer could not be 
waived by any contractual agreement.\40\ In addition, the original 
owner of the device would be prohibited from retaining an unauthorized 
copy of the computer program after transferring the device and the 
computer program to another person.\41\
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    \39\ YODA, H.R. 862, 114th Cong. sec. 2 (2015).
    \40\ Id.
    \41\ Id.
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F. Relationship to Questions About Section 1201

    Some issues related to software embedded in everyday products have 
come to the forefront in recent years through the 1201 rulemaking 
process. As the Copyright Office has frequently noted, the 1201 
rulemaking can serve as a barometer for larger public policy questions, 
including issues that may merit or would require legislative change. 
The public should not submit concerns about section 1201 through this 
software study, but rather through the Copyright Office's forthcoming 
study on section 1201, information about which will be available 
shortly at http://www.copyright.gov/.

II. Subjects of Inquiry

    In response to the letter from Senators Grassley and Leahy, the 
Office is seeking public comment on the following five topics. A party 
choosing to respond to this Notice of Inquiry need not address every 
subject, but the Office requests that responding parties clearly 
identify and separately address each subject for which a response is 
submitted.
    1. The provisions of the copyright law that are implicated by the 
ubiquity of copyrighted software in everyday products;
    2. Whether, and to what extent, the design, distribution, and 
legitimate uses of products are being enabled and/or frustrated by the 
application of existing copyright law to software in everyday products;
    3. Whether, and to what extent, innovative services are being 
enabled and/or frustrated by the application of existing copyright law 
to software in everyday products;
    4. Whether, and to what extent, legitimate interests or business 
models for copyright owners and users could be undermined or improved 
by changes to the copyright law in this area; and
    5. Key issues in how the copyright law intersects with other areas 
of law in establishing how products that rely on software to function 
can be lawfully used.
    When addressing these topics, respondents should consider the 
following specific issues:
    1. Whether copyright law should distinguish between software 
embedded in ``everyday products'' and other types of software, and, if 
so, how such a distinction might be drawn in an administrable manner.
    a. Whether ``everyday products'' can be distinguished from other 
products that contain software, such as general purpose computers--
essentially how to define ``everyday products.''
    b. If distinguishing between software embedded in ``everyday 
products'' and other types of software is impracticable, whether there 
are alternative ways the Office can distinguish between categories of 
software.
    2. The rationale and proper scope of copyright protection for 
software embedded in everyday products, including the extent to which 
copyright infringement is a concern with respect to such software.
    3. The need to enable interoperability with software-embedded 
devices, including specific examples of ways in which the law 
frustrates or enables such interoperability.
    4. Whether current limitations on and exceptions to copyright 
protection

[[Page 77672]]

adequately address issues concerning software embedded in everyday 
products, or whether amendments or clarifications would be useful. 
Specific areas of interest include:
    a. The idea/expression dichotomy (codified in 17 U.S.C. 102(b))
    b. The merger doctrine
    c. The sc[egrave]nes [agrave] faire doctrine
    d. Fair use (codified in 17 U.S.C. 107)
    e. The first-sale doctrine (codified in 17 U.S.C. 109)
    f. Statutory limitations on exclusive rights in computer programs 
(codified in 17 U.S.C. 117)
    5. The state of contract law vis-[agrave]-vis software embedded in 
everyday products, and how contracts such as end user license 
agreements impact investment in and the dissemination and use of 
everyday products, including whether any legislative action in this 
area is needed.
    6. Any additional relevant issues not raised above.

    Dated: December 9, 2015.
Maria A. Pallante,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2015-31411 Filed 12-14-15; 8:45 am]
 BILLING CODE 1410-30-P