Software-Enabled Consumer Products Study: Notice and Request for Public Comment, 77668-77672 [2015-31411]
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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.
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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
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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.
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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 https://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
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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.
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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 https://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.
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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.
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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
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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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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).
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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
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`
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).
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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
https://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).
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34 Compare
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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
https://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.
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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:
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ACTION:
National Labor Relations
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Notice; correction.
[NARA–2016–007]
State, Local, Tribal, and Private Sector
Policy Advisory Committee (SLTPS–
PAC) Meeting
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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
https://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
]]>Agencies
- Library of Congress
- U.S. Copyright Office
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 https://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\
---------------------------------------------------------------------------
\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 https://www.copyright.gov/policy/software.
\2\ Id. at 2.
\3\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\12\ See CONTU Report at 12-14.
\13\ Id. at 12-13.
\14\ Id.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.'').
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\24\ Id. at 96-97.
\25\ Id. at xvi-xvii.
\26\ Id. at 162-64.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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 https://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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\37\ Unlocking Technology Act, H.R. 1587, 114th Cong. sec. 3
(2015).
\38\ Id. sec. 2.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\39\ YODA, H.R. 862, 114th Cong. sec. 2 (2015).
\40\ Id.
\41\ Id.
---------------------------------------------------------------------------
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 https://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
