Section 1201 Study: Request for Additional Comments, 66296-66299 [2016-23167]

Agencies

• Library of Congress
• U.S. Copyright Office

[Federal Register Volume 81, Number 187 (Tuesday, September 27, 2016)]
[Notices]
[Pages 66296-66299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23167]


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LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015-8]


Section 1201 Study: Request for Additional Comments

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

ACTION: Notice of Inquiry.

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SUMMARY: The United States Copyright Office is requesting additional 
written comments in connection with its ongoing study on the operation 
of the statutory provisions regarding the circumvention of copyright 
protection systems. This request provides an opportunity for interested 
parties to address certain issues raised by various members of the 
public in response to the Office's initial Notice of Inquiry.

DATES: Written comments must be received no later than 11:59 p.m. 
Eastern Time on October 27, 2016. Written reply comments must be 
received no later than 11:59 p.m. Eastern Time on November 16, 2016.

ADDRESSES: The Copyright Office is using the regulations.gov system for 
the submission and posting of public comments in this proceeding. All 
comments are therefore to be submitted electronically through 
regulations.gov. Specific instructions for submitting comments are 
available on the Copyright Office Web site at https://copyright.gov/policy/1201/commentsubmission/. If electronic submission of comments is 
not feasible, please contact the Office using the contact information 
below for special instructions.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Senior Counsel for 
Policy and International Affairs, by email at kamer@loc.gov or by 
telephone at 202-707-8350; or Regan A. Smith, Associate General 
Counsel, by email at resm@loc.gov or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION:

I. Background

    At the request of the Ranking Member of the House Committee on the 
Judiciary, the Copyright Office is conducting a study to assess the 
operation of section 1201 of title 17. In December 2015, the Office 
issued a Notice of Inquiry identifying several aspects of the statutory 
and regulatory framework that the Office believes are ripe for review, 
and inviting public comment on those and any other pertinent issues.\1\ 
The Notice provided for two rounds of written comments. In response, 
the Office received sixty-eight initial comments and sixteen reply 
comments.\2\ The Office then announced public roundtables on the topics 
addressed in the Notice and comments.\3\ These sessions, held in 
Washington, DC and San Francisco, California in May 2016, involved 
participation by more than thirty panelists, representing a wide range 
of interests and perspectives. Transcripts of the roundtables are 
available at https://copyright.gov/policy/1201/, and video recordings 
will be available at that location at a later date.
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    \1\ Section 1201 Study: Notice and Request for Public Comment, 
80 FR 81369 (Dec. 29, 2015).
    \2\ All comments may be accessed from the Copyright Office Web 
site at https://copyright.gov/policy/1201/ by clicking the ``Public 
Comments'' tab, followed by the ``Comments'' link.
    \3\ Software-Enabled Consumer Products Study and Section 1201 
Study: Announcement of Public Roundtables, 81 FR 17206 (Mar. 28, 
2016).
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    In the written comments and during the roundtables, parties 
expressed a variety of views regarding whether legislative amendments 
to section 1201 may be warranted. Among other suggested changes, 
commenters discussed proposals to update the statute's permanent 
exemption framework and to amend the anti-trafficking provisions to 
permit third-party assistance with lawful circumvention activities. At 
this time, as explained below, the Office is interested in receiving 
additional stakeholder input on particular aspects of those proposals. 
In addition, parties submitted numerous and varied views regarding the 
triennial rulemaking process under section 1201(a)(1)(C); while the 
Office continues to thoroughly evaluate these comments in conducting 
its study, this second Notice of Inquiry does not specifically address 
those issues.
    A party choosing to respond to this Notice of Inquiry need not 
address every topic below, but the Office requests that responding 
parties clearly identify and separately address those subjects for 
which a response is submitted. Parties also are invited to address any 
other pertinent issues that the Office should consider in conducting 
its study.

II. Subjects of Inquiry

1. Proposals for New Permanent Exemptions

    a. Assistive Technologies for Use by Persons Who Are Blind, 
Visually Impaired, or Print Disabled. The written comments and 
roundtable discussions revealed widespread support for adoption of a 
permanent exemption to facilitate access to works in electronic formats 
by persons who are blind, visually impaired, or print disabled. The 
Office invites comment regarding specific provisions that commenters 
believe should be included in legislation proposing such an exemption. 
For example, the exemption for this purpose granted in the 2015 
rulemaking permits circumvention of access controls applied to literary 
works distributed electronically, where the access controls ``either 
prevent the enabling of read-aloud functionality or interfere with 
screen readers or other applications or assistive technologies.'' \4\ 
The exemption applies in the following circumstances:
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    \4\ Exemption to Prohibition on Circumvention of Copyright 
Protection Systems for Access Control Technologies, 80 FR 65944, 
65950 (Oct. 28, 2015) (``2015 Final Rule'').

    (i) When a copy of such a work is lawfully obtained by a blind 
or other person with a disability, as such a person is defined in 17 
U.S.C. 121; provided, however, that the rights owner is remunerated, 
as appropriate, for the price of the mainstream copy of the work as 
made available to the general public through customary channels, or
    (ii) When such work is a nondramatic literary work, lawfully 
obtained and used by an authorized entity pursuant to 17 U.S.C. 
121.\5\
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    \5\ Id.

The Office is interested in commenters' views on whether this language 
would be appropriate for adoption as a permanent exemption, or whether 
there are specific changes or additional provisions that Congress may 
wish to consider.
    b. Device Unlocking. Some commenters advocated the adoption of a 
permanent exemption to permit circumvention of access controls on 
wireless devices for purposes of

[[Page 66297]]

``unlocking'' such devices--i.e., enabling them to connect to the 
network of a different mobile wireless carrier. Since 2006, the 
rulemaking process has involved consideration of exemptions permitting 
unlocking of cellphones, and in the 2015 rulemaking, pursuant to 
Congress's direction,\6\ the Register considered whether to extend the 
exemption to other categories of wireless devices. At the conclusion of 
the 2015 proceeding, the Librarian, upon the Register's recommendation, 
adopted an unlocking exemption that applies to used wireless devices of 
the following types:
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    \6\ See Unlocking Consumer Choice and Wireless Competition Act, 
Public Law 113-144, sec. 2(b), 128 Stat. 1751, 1751 (2014).

    (A) Wireless telephone handsets (i.e., cellphones);
    (B) All-purpose tablet computers;
    (C) Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; 
and
    (D) Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.\7\
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    \7\ 2015 Final Rule, 80 FR at 65952.

    The Office invites comment on whether an unlocking exemption would 
be appropriate for adoption as a permanent exemption or whether such 
activities are more properly considered as part of the triennial 
rulemaking. For commenters who favor consideration of a permanent 
exemption, the Office is interested in commenters' views on whether the 
language of the 2015 unlocking exemption would be appropriate for 
adoption as a permanent exemption, or whether there are specific 
changes or additional provisions that Congress may wish to consider.
    c. Computer Programs. Several commenters expressed concern over the 
scope of section 1201 in the context of copyrighted computer programs 
that enable the operation of a machine or device. These commenters 
suggested that by prohibiting the circumvention of access controls on 
such programs, the statute prevents the public from engaging in 
legitimate activities, such as the repair of automobiles or the use of 
third-party device components, that seem far removed from the 
protection of creative expression that section 1201 was intended to 
address. To respond to this concern, some commenters argued that 
Congress should establish a statutory exemption that would permit 
circumvention of technological protection measures (``TPM''s) 
controlling access to such software in appropriate circumstances. The 
Office is interested in additional views on such proposals.
    For purposes of focusing the discussion, the Office invites comment 
on whether there are specific formulations of such an exemption that 
could serve as helpful starting points for further consideration of 
legislation. For example, Congress could consider adoption of a 
permanent exemption for purposes of diagnosis, maintenance, and repair. 
Such legislation could provide that a person who has lawfully obtained 
the right to use a computer program may circumvent a TPM controlling 
access to that program, so long as the circumvention is undertaken for 
purposes of diagnosis, maintenance, or repair. Are existing legal 
doctrines or statutes, such as the current language addressing machine 
maintenance and repair in section 117(c),\8\ the doctrine of repair and 
reconstruction in patent law,\9\ case law addressing refurbishment 
under trademark law,\10\ or ``right to repair'' bills introduced into 
various state legislatures,\11\ helpful to inform the appropriate scope 
of repair in this context? To what extent would the combination of such 
an exemption with the current language of 1201(f) \12\--which allows 
circumvention for purposes of facilitating interoperability under 
certain circumstances--adequately address users' concerns regarding 
section 1201's impact on consumer activities?
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    \8\ 17 U.S.C. 117(c).
    \9\ See Aro Mfg. Co. v. Convertible Top Replacement Co., 365 
U.S. 336 (1961); see also Aro Mfg. Co. v. Convertible Top 
Replacement Co., 377 U.S. 476 (1964).
    \10\ See Champion Spark Plug Co. v. Sanders, 331 U.S. 125 
(1947); see also Karl Storz Endoscopy-America, Inc. v. Fiber Tech 
Med., Inc., 4 F. App'x 128, 131-32 (4th Cir. 2001) (``[T]he Lanham 
Act does not apply in the narrow category of cases where a 
trademarked product is repaired, rebuilt or modified at the request 
of the product's owner,'' so long as ``the owner is not, to the 
repairer's knowledge, merely obtaining modifications or repairs for 
purposes of resale.'').
    \11\ See, e.g., H.R. 3383, 189th Gen. Ct. (Mass. 2015); S. 
3998B, 2015 Leg., Reg. Sess. (N.Y. 2015); Assemb. 6068A, 2015 Leg., 
Reg. Sess. (N.Y. 2015); Legis. B. 1072, 104th Leg., 2d Sess. (Neb. 
2016); H.R. 1048, 89th Leg., Reg. Sess. (Minn. 2015); see also Mass. 
Gen. Laws ch. 93K (2013).
    \12\ 17 U.S.C. 1201(f).
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    Please also comment upon whether it would be advisable to consider, 
in addition to diagnosis, maintenance, or repair, an exemption to 
explicitly permit circumvention for purposes of engaging in any lawful 
modification of a computer program. Such an exemption could allow 
circumventions undertaken to make non-infringing adaptations, 
including, for example, uses permitted under section 117(a) and/or the 
fair use doctrine.\13\ Please address whether this broader formulation 
would, or would not, be likely to result in economically harmful 
unauthorized uses of copyrighted works.
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    \13\ See 17 U.S.C. 117(a), 107.
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    With either formulation, would concerns over enabling unauthorized 
uses be mitigated by conditioning the exemption on the circumventing 
party not engaging in any unauthorized use of a copyrighted work other 
than the accessed computer program, or by limiting the exemption to 
computer programs that are ``not a conduit to protectable 
expression''--i.e., those that do ``not in turn create any protected 
expression'' when executed? \14\ In the United Kingdom, for example, 
the prohibition on circumvention specifically excludes TPMs applied to 
computer programs, but does apply in at least some circumstances where 
copyrighted content is generated by a computer program (e.g., graphical 
content in video games).\15\ The Office is particularly interested in 
any information or perspectives on the impact of the UK law and how 
operating under it contrasts or not with the U.S. experience. 
Alternatively, should the exemption be limited to computer programs in 
particular categories of devices?
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    \14\ Lexmark Int'l, Inc. v. Static Control Components, Inc., 387 
F.3d 522, 548 (6th Cir. 2004).
    \15\ Copyright, Designs and Patents Act 1988, c. 48, Sec.  296ZA 
(UK); see Nintendo Co. Ltd. v. Playables Ltd. [2010] EWHC 1932 (Ch) 
(Eng.) (construing related anti-trafficking provision).
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    The Office is interested in commenters' views on the advisability 
of these various approaches. Which of these models, if any, would 
facilitate users' ability to engage in permissible uses of software, 
while preserving congressional intent in supporting new ways of 
disseminating copyrighted materials to users? \16\ Responding parties 
are also encouraged to suggest alternate formulations, keeping in mind 
the Office's goal of focusing discussion on this topic.
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    \16\ See Staff of H. Comm. on the Judiciary, 105th Cong., 
Section-by-Section Analysis of H.R. 2281 as Passed by the United 
States House of Representatives on August 4th, 1998, at 6 (Comm. 
Print 1998).
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    d. Obsolete Technologies. In prior rulemakings, the Copyright 
Office and the Librarian of Congress have considered multiple petitions 
to permit circumvention of an access control mechanism protecting a 
given class of works that fails to permit access because of 
malfunction, damage, or obsoleteness.\17\ The Office has

[[Page 66298]]

recommended, and the Librarian has adopted, multiple exemptions after 
finding that the definition of ``obsolete'' in section 108 captures the 
circumstances under which such an exemption was justified, i.e., where 
the access control ``is no longer manufactured or is no longer 
reasonably available in the commercial marketplace.'' \18\ The Office 
is interested in commenters' views on whether Congress should consider 
a legislative amendment to permit circumvention of such faulty access 
controls, or whether there are other specific changes or additional 
provisions that Congress may wish to consider to address this issue.
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    \17\ See, e.g., Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, 65 FR 
64556, 64564-66, 64574 (Oct. 27, 2000) (``2000 Recommendation and 
Final Rule''); Exemption to Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies, Final 
Rule, 68 FR 62011, 62013-16 (Oct. 31, 2003) (``2003 Final Rule''); 
Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies, 71 FR 68472, 68474-75, 
68480 (Nov. 27, 2006) (``2006 Final Rule''); Exemption to 
Prohibition on Circumvention of Copyright Protection Systems for 
Access Control Technologies, 75 FR 43825, 43833-34, 43839 (July 27, 
2010) (``2010 Final Rule''); 2015 Final Rule, 80 FR at 65955, 65961.
    \18\ 17 U.S.C. 108(c); see, e.g., 2000 Recommendation and Final 
Rule, 65 FR at 64565-66; Recommendation of the Register of 
Copyrights in RM 2002-4; Rulemaking on Exemptions from Prohibition 
on Circumvention of Copyright Protection Systems for Access Control 
Technologies 40 (Oct. 27, 2003); 2003 Final Rule, 68 FR at 62013-14; 
Recommendation of the Register of Copyrights in RM 2005-11; 
Rulemaking on Exemptions from Prohibition on Circumvention of 
Copyright Protection Systems for Access Control Technologies 36 & 
n.105 (Nov. 17, 2006); 2006 Final Rule, 71 FR at 68475.
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    e. International Considerations. In addition to the questions on 
specific proposals provided above, please discuss the interaction of 
these proposals with existing international obligations of the United 
States, including free trade agreements.

2. Proposed Amendments to Existing Permanent Exemptions

    Some parties expressed the view that the existing permanent 
exemptions for security testing, encryption research, and reverse 
engineering \19\ do not adequately accommodate good-faith research into 
malfunctions, security flaws, and vulnerabilities in computer 
programs.\20\ The Office invites comment on whether legislation to 
address this concern may be warranted, and if so, on specific changes 
that should be considered. In particular, the Office requests 
commenters' views on the following topics:
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    \19\ 17 U.S.C. 1201(f), (g), (j).
    \20\ Similarly, in the 2015 rulemaking, the Register noted that 
section 1201(j) ``does not seem sufficiently robust in light of the 
perils of today's connected world.'' U.S. Copyright Office, Section 
1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions 
to the Prohibition on Circumvention 3 (2015), https://copyright.gov/1201/2015/registersrecommendation.pdf (``2015 Recommendation'').
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    a. In the 2015 rulemaking, the Register recommended, and the 
Librarian of Congress adopted, an exemption that permits circumvention 
of TPMs controlling access to computer programs in the following 
circumstances:

    (i) . . . the circumvention is undertaken on a lawfully acquired 
device or machine on which the computer program operates solely for 
the purpose of good-faith security research and does not violate any 
applicable law, including without limitation the Computer Fraud and 
Abuse Act of 1986, as amended and codified in title 18, United 
States Code; . . . and the device or machine is one of the 
following:
    (A) A device or machine primarily designed for use by individual 
consumers (including voting machines);
    (B) A motorized land vehicle; or
    (C) A medical device designed for whole or partial implantation 
in patients or a corresponding personal monitoring system, that is 
not and will not be used by patients or for patient care.
    (ii) For purposes of this exemption, ``good-faith security 
research'' means accessing a computer program solely for purposes of 
good-faith testing, investigation and/or correction of a security 
flaw or vulnerability, where such activity is carried out in a 
controlled environment designed to avoid any harm to individuals or 
the public, and where the information derived from the activity is 
used primarily to promote the security or safety of the class of 
devices or machines on which the computer program operates, or those 
who use such devices or machines, and is not used or maintained in a 
manner that facilitates copyright infringement.\21\
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    \21\ 2015 Recommendation at 319-20; 2015 Final Rule, 80 FR at 
65956.

    The Office is interested in commenters' views on whether this 
language would be appropriate for adoption as a permanent exemption, or 
whether there are specific changes or additional provisions that 
Congress may wish to consider.
    b. The exemption for security testing under section 1201(j) is 
limited to activities undertaken ``with the authorization of the owner 
or operator of [the] computer, computer system, or computer network.'' 
\22\ In the 2015 rulemaking, the Register noted that in some cases ``it 
may be difficult to identify the relevant owner'' for purposes of this 
requirement and that ``it may not be feasible to obtain authorization 
even where there is an identifiable owner.'' \23\ Echoing those 
concerns, one group of commenters argued that the authorization 
requirement should be eliminated, while another urged Congress to 
provide greater clarity in situations involving multiple owners. Please 
assess whether legislation may be appropriate in this area and discuss 
any specific legislative proposals that you believe should be 
considered.
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    \22\ 17 U.S.C. 1201(j)(1).
    \23\ 2015 Recommendation at 309.
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    c. Section 1201(j) provides a two-factor framework to determine 
whether a person qualifies for the security testing exemption.\24\ In 
the 2015 rulemaking, the Register noted that these factors ``would 
appear to be of uncertain application to at least some'' security 
research activities.\25\ Some commenters advocated the removal of one 
or both of these factors from the statute.\26\ Please assess the 
advisability of such changes, or discuss any other specific legislative 
proposals you believe should be considered.
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    \24\ 17 U.S.C. 1201(j)(3).
    \25\ 2015 Recommendation at 309.
    \26\ The proposed Breaking Down Barriers to Innovation Act of 
2015 would eliminate the two-factor framework, as well as the 
multifactor framework under section 1201(g)(3). H.R. 1883, 114th 
Cong. sec. 3(c)(3), 3(e)(2) (2015); S. 990, 114th Cong. sec. 
3(c)(3), 3(e)(2) (2015).
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    d. The exemption for encryption research in section 1201(g) is 
similarly limited to activities qualifying under a four-factor 
framework that includes making ``a good faith effort to obtain 
authorization'' before the circumvention.\27\ In the 2015 rulemaking, 
the Register noted that meeting these requirements ``may not always be 
feasible'' for researchers.\28\ Please assess whether legislation may 
be appropriate in this area and discuss any specific legislative 
proposals that you believe should be considered.
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    \27\ 17 U.S.C. 1201(g)(2)(C).
    \28\ 2015 Recommendation at 307.
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    e. Section 1201(f) permits circumvention for the ``sole purpose'' 
of identifying and analyzing elements of computer programs necessary to 
achieve interoperability.\29\ In the 2015 rulemaking, the Register 
noted that ``section 1201(f)(1) is limited to circumvention solely for 
the identification and analysis of program elements necessary for 
interoperability, and does not address circumvention after that 
analysis has been performed.'' \30\ Please assess whether legislation 
may be appropriate in this area and discuss any specific legislative 
proposals that you believe should be considered.
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    \29\ 17 U.S.C. 1201(f).
    \30\ 2015 Recommendation at 337 n.2295.
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3. Anti-Trafficking Provisions

    Commenters offered differing views regarding the role of the anti-
trafficking provisions under sections 1201(a)(2) and 1201(b). User 
groups expressed

[[Page 66299]]

concern that, to the extent these provisions prohibit third parties 
from providing assistance to beneficiaries of exemptions, or prohibit 
the making and distribution of necessary tools, they undermine 
beneficiaries' practical ability to engage in the permitted conduct. 
Copyright owners, however, cautioned against amendment of the anti-
trafficking provisions, arguing that because circumvention tools may be 
used for lawful and unlawful purposes alike, it would be impossible to 
ensure that tools manufactured and distributed pursuant to an 
exemption, once available in the marketplace, would be employed solely 
for authorized uses. The Office is interested in receiving additional 
views on this topic, and specifically invites comment on the following 
issues:
    a. A few parties argued that section 1201 contains an implied right 
permitting a beneficiary of a statutory or administrative exemption to 
make a tool for his or her own use in engaging in the permitted 
circumvention. What are commenters' views regarding this interpretation 
of the statute? To what extent, if any, does the statutory prohibition 
on the ``manufacture'' of circumvention tools affect the analysis? \31\ 
If such a right is not currently implied, or the question is uncertain, 
should Congress consider amending the statute to expressly permit such 
activity, while maintaining the prohibition against trafficking in such 
tools?
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    \31\ See 17 U.S.C. 1201(a)(2), (b)(1).
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    b. Some parties suggested that, in certain circumstances, third-
party assistance may fall outside the scope of the anti-trafficking 
provisions and therefore may be permissible under current law. What are 
commenters' views regarding this interpretation of the statute? Are 
there forms of third-party assistance that do not qualify as a 
``service'' within the meaning of sections 1201(a)(2) and 1201(b)(1)? 
If so, what considerations are relevant to this analysis?

    Dated: September 21, 2016.
Maria A. Pallante,
Register of Copyrights, U.S. Copyright Office.
[FR Doc. 2016-23167 Filed 9-26-16; 8:45 am]
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