Exemptions To Permit Circumvention of Access Controls on Copyrighted Works, 65293-65310 [2020-22893]

Download as PDF Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules the kind of public notice given, and other information the Lead Executive finds pertinent to the analysis of the referendum and its results. § 1500.107 Confidential information. The ballots and other information or reports that reveal, or tend to reveal, the vote of any person covered under the order and the voter list shall be strictly confidential and shall not be disclosed. § 1500.108 OMB control number. The control number assigned to the information collection requirement in this subpart by the Office of Management and Budget pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq., is OMB control number xxxx. Dated: September 4, 2020. Kenneth White, Senior Policy Analyst, Under Secretary for Economic Affairs. [FR Doc. 2020–20035 Filed 10–14–20; 8:45 am] BILLING CODE 3510–20–P LIBRARY OF CONGRESS U.S. Copyright Office 37 CFR Part 201 [Docket No. 2020–11] Exemptions To Permit Circumvention of Access Controls on Copyrighted Works U.S. Copyright Office, Library of Congress. ACTION: Notice of proposed rulemaking. AGENCY: The United States Copyright Office is conducting the eighth triennial rulemaking proceeding under the Digital Millennium Copyright Act (‘‘DMCA’’), concerning possible temporary exemptions to the DMCA’s prohibition against circumvention of technological measures that control access to copyrighted works. In this proceeding, the Copyright Office is considering petitions for the renewal of exemptions that were granted during the seventh triennial rulemaking along with petitions for new exemptions to engage in activities not currently permitted by existing exemptions. On June 22, 2020, the Office published a notification of inquiry requesting petitions to renew existing exemptions and comments in response to those petitions, as well as petitions for new exemptions. Having carefully considered the comments received in response to that notification, in this notice of proposed rulemaking (‘‘NPRM’’), the Office announces its intention to recommend each of the jbell on DSKJLSW7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 existing exemptions for readoption. This NPRM also initiates three rounds of public comment on the newly-proposed exemptions. Interested parties are invited to make full legal and evidentiary submissions in support of or in opposition to the proposed exemptions, in accordance with the requirements set forth below. DATES: Initial written comments (including documentary evidence) and multimedia evidence from proponents and other members of the public who support the adoption of a proposed exemption, as well as parties that neither support nor oppose an exemption but seek to share pertinent information about a proposal, are due December 14, 2020. Written response comments (including documentary evidence) and multimedia evidence from those who oppose the adoption of a proposed exemption are due February 9, 2021. Written reply comments from supporters of particular proposals and parties that neither support nor oppose a proposal are due March 10, 2021. Commenting parties should be aware that rather than reserving time for potential extensions of time to file comments, the Office has already established what it believes to be the most generous possible deadlines consistent with the goal of concluding the triennial proceeding in a timely fashion. ADDRESSES: The Copyright Office is using the regulations.gov system for the submission and posting of comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. The Office is accepting two types of comments. First, commenters who wish briefly to express general support for or opposition to a proposed exemption may submit such comments electronically by typing into the comment field on regulations.gov. Second, commenters who wish to provide a fuller legal and evidentiary basis for their position may upload a Word or PDF document, but such longer submissions must be completed using the long-comment form provided on the Office’s website at https:// www.copyright.gov/1201/2021. Specific instructions for submitting comments, including multimedia evidence that cannot be uploaded through regulations.gov, are also available on that web page. If a commenter cannot meet a particular submission requirement, please contact the Office using the contact information below for special instructions. FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and Associate Register of Copyrights, by PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 65293 email at regans@copyright.gov, Kevin R. Amer, Deputy General Counsel, by email at kamer@copyright.gov, or Terry Hart, Assistant General Counsel, by email at tehart@copyright.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: On June 22, 2020, the Office published a notification of inquiry requesting petitions to renew current exemptions, oppositions to the renewal petitions, and petitions for newly proposed exemptions in connection with the eighth triennial section 1201 rulemaking.1 In response, the Office received thirty-two renewal petitions, eight comments in opposition to renewal of a current exemption, and seven comments supporting renewal of a current exemption.2 These comments are discussed further below. In addition, the Office received twenty-six petitions for new exemptions or expansion of previously granted exemptions. With this NPRM, the Office sets forth the exemptions that it intends to recommend for readoption without the need for further development of the administrative record, and outlines the proposed classes for new exemptions for which the Office initiates three rounds of public comment. I. Standard for Evaluating Proposed Exemptions As the notification of inquiry explained, for a temporary exemption from the prohibition on circumvention to be granted through the triennial rulemaking, it must be established that ‘‘persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition . . . in their ability to make noninfringing uses under [title 17] of a particular class of copyrighted works.’’ 3 To define an appropriate class of copyrighted works, the Office begins with the broad 1 85 FR 37399 (June 22, 2020). comments received in response to the notification of inquiry are available at https:// www.regulations.gov/docketBrowser?rpp=25&so= DESC&sb=comment DueDate&po=0&dct=PS&D=COLC-2020-0010 and on the Copyright Office website. Renewal petitions are available at https://www.copyright.gov/1201/ 2021/petitions/renewal/, and petitions for new exemptions are available at https:// www.copyright.gov/1201/2021/petitions/proposed/. References to renewal petitions and comments are by party name (abbreviated where appropriate) and a brief identification of the previously granted exemption, followed by either ‘‘Renewal Pet.,’’ ‘‘Supp.’’ (for comments supporting an exemption), or ‘‘Opp.’’ (for comments opposing an exemption). References to petitions for new exemptions are by party name (abbreviated where appropriate), the Office’s proposed class number, and ‘‘Pet.’’ 3 17 U.S.C. 1201(a)(1)(C). 2 The E:\FR\FM\15OCP1.SGM 15OCP1 65294 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS categories of works identified in 17 U.S.C. 102 and then refines them by other criteria, such as the technological protection measures (‘‘TPMs’’) used, distribution platforms, and/or types of uses or users.4 In evaluating the evidence, the statutory factors listed in section 1201(a)(1)(C) are weighed: (i) The availability for use of copyrighted works; (ii) the availability for use of works for nonprofit archival, preservation, and educational purposes; (iii) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (iv) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (v) such other factors as the Librarian considers appropriate.5 After developing a comprehensive administrative record, the Register makes a recommendation to the Librarian of Congress concerning whether exemptions are warranted based on that record. The Office has previously articulated the substantive legal and evidentiary standard for the granting of an exemption under section 1201(a)(1) multiple times, including in video and PowerPoint tutorials, its 2017 policy study for Congress on section 1201, and in prior recommendations of the Register concerning proposed classes of exemptions, each of which is accessible from the Office’s section 1201 rulemaking web page at https:// www.copyright.gov/1201/. In considering whether to recommend an exemption, the Office must inquire: ‘‘Are users of a copyrighted work adversely affected by the prohibition on circumvention in their ability to make noninfringing uses of a class of copyrighted works, or are users likely to be so adversely affected in the next three years?’’ 6 This inquiry breaks down into the following elements: • The proposed class includes at least some works protected by copyright. • The uses at issue are noninfringing under title 17. 4 See H.R. Rep. No. 105–551, pt. 2, at 38 (1998) (‘‘Commerce Comm. Report’’); U.S. Copyright Office, Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Acting Register of Copyrights 13–14 (2018) (‘‘2018 Recommendation’’); U.S. Copyright Office, Section 1201 of Title 17, at 26, 108–10 (2017), https://www.copyright.gov/policy/1201/section1201-full-report.pdf (‘‘Section 1201 Study’’); see also 82 FR 49550, 49551 (Oct. 26, 2017) (same). 5 17 U.S.C. 1201(a)(1)(C). 6 Section 1201 Study at 114. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 • Users are adversely affected in their ability to make such noninfringing uses or, alternatively, users are likely to be adversely affected in their ability to make such noninfringing uses during the next three years. This element is analyzed in reference to section 1201(a)(1)(C)’s five statutory factors. • The statutory prohibition on circumventing access controls is the cause of the adverse effects.7 The Register will consider the Copyright Act and relevant judicial precedents when analyzing whether a proposed use is likely to be noninfringing.8 When considering whether such uses are being adversely impacted by the prohibition on circumvention, the rulemaking focuses on ‘‘distinct, verifiable, and measurable impacts’’ compared to ‘‘de minimis impacts.’’ 9 Taking the administrative record as a whole, the Office will consider whether the preponderance of the evidence shows that the conditions for granting an exemption have been met.10 II. Review of Petitions To Renew Existing Exemptions As with the previous rulemaking proceeding, the Office is using a streamlined process for recommending readoption of previously-adopted exemptions to the Librarian. As the 7 Id. at 115; see also id. at 115–27. at 115–17. While controlling precedent directly on point is not required to justify an exemption, there is no ‘‘rule of doubt’’ favoring an exemption when it is unclear that a particular use is fair or otherwise noninfringing. See U.S. Copyright Office, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 15 (2015) (‘‘2015 Recommendation’’). 9 Commerce Comm. Report at 37; see also Staff of H. Comm. on the Judiciary, 105th Cong., Sectionby-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase ‘‘substantial adverse impact’’) (‘‘House Manager’s Report’’); see also, e.g., Section 1201 Study at 119–21 (discussing same and citing application of this standard in five prior rulemakings). 10 See 17 U.S.C. 1201(a)(1)(C) (asking whether users ‘‘are, or are likely to be in the succeeding 3year period, adversely affected by the prohibition [on circumvention] in their ability to make noninfringing uses’’) (emphasis added); Section 1201 Study at 111–12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980) (noting that ‘‘[t]he use of the ‘preponderance of evidence’ standard is the traditional standard in civil and administrative proceedings’’); 70 FR 57526, 57528 (Oct. 3, 2005); 2018 Recommendation at 18; 2015 Recommendation at 13–14; U.S. Copyright Office, Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 6 (2012) (‘‘2012 Recommendation’’); U.S. Copyright Office, Section 1201 Rulemaking: Second Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 19–20 (2003). 8 Id. PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 Office explained in its 2017 policy study, the ‘‘Register must apply the same evidentiary standards in recommending the renewal of exemptions as for first-time exemption requests,’’ and the statute requires that ‘‘a determination must be made specifically for each triennial period.’’ 11 The Office further determined that ‘‘the statutory language appears to be broad enough to permit determinations to be based upon evidence drawn from prior proceedings, but only upon a conclusion that this evidence remains reliable to support granting an exemption in the current proceeding.’’ 12 The Office first instituted this streamlined renewal process in the seventh triennial rulemaking, which concluded in 2018.13 The process elicited requests to renew each of the exemptions that had been previously exempted, none of which were meaningfully contested.14 As a result, the Office was able to recommend renewal of all previously granted exemptions.15 The streamlined renewal process was praised by participants during the ensuing rulemaking phases.16 Following the same procedure that was successfully implemented in the last cycle, for this rulemaking, the Office solicited petitions for the renewal of exemptions as they are currently formulated, without modification. As noted, streamlined renewal is based upon a determination that, due to a lack of legal, marketplace, or technological changes, the factors that led the Office to recommend adoption of the exemption in the prior rulemaking will continue into the forthcoming triennial period.17 That is, the same facts and circumstances underlying the previously-adopted regulatory exemption may be relied on to renew the exemption. Accordingly, to the extent that any renewal petition proposed uses beyond the current exemption, the Office disregarded those portions of the petition for purposes of considering the renewal of the exemption, and instead focused on whether it provided sufficient information to warrant readoption of the exemption in its current form. The Office received thirty-two petitions to renew existing exemptions, including at least one petition to renew each currently-adopted exemption. Each 11 Section 1201 Study at 142, 145. at 143. 13 2018 Recommendation at 17. 14 Id. at 22. 15 Id. at 19. 16 See, e.g., id. at 19 n.80 (collecting transcript testimony from 2018 rulemaking). 17 Section 1201 Study at 143–44. 12 Id. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS petition to renew an existing exemption included an explanation summarizing the basis for claiming a continuing need and justification for the exemption. In each case, petitioners also signed a declaration stating that, to the best of their personal knowledge, there has not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified. The Office received fifteen comments in response to the renewal petitions; seven of these supported renewal of a specific exemption. Eight raised discrete concerns with specific petitions, but none opposed the verbatim readoption of an existing regulatory exemption. Rather, many of these comments address whether the petitions received were sufficient for the Office to consider renewal of the full scope of an exemption, rather than themselves disputing the reliability of the previously-analyzed administrative record.18 These comments are specifically addressed in the context of the relevant exemption below. The Office has generally not required petitions to speak to each and every type of use, but rather generally aver that the overall conditions persist.19 Requiring a fulsome showing would undermine the goal of the streamlined process. The impetus for instituting the streamlined process was to create a 18 See, e.g., DVD Copy Control Ass’n (‘‘DVD CCA’’) & Advanced Access Content Sys. Licensing Adm’r (‘‘AACS LA’’) AV Educ. Opp’n at 4 (‘‘the failure of any proponent to provide any example of use by K–12 students should result in the Copyright Office finding in this streamlined renewal process that the exemption may not be renewed as to such uses’’); DVD CCA & AACS LA Nonfiction Multimedia Ebooks Opp’n at 2 (‘‘To the extent the proponents are requesting renewal of the full exemption, the failure to provide any example of use of this expansion to all nonfiction works beyond film analysis should render the exemption’s expanded nonfiction uses ineligible for the streamlined renewal process’’); ESA, MPA & RIAA Noncom. Video Opp’n at 1 (‘‘the Register should . . . carefully scrutinize OTW’s petition, and all of the streamlined renewal petitions, to consider whether the examples of alleged exemption use provided in the petitions fall within the parameters of the existing exemptions’’). 19 See 85 FR at 37401 (‘‘The petitioner must provide a brief explanation summarizing the basis for claiming a continuing need and justification for the exemption. The required showing is meant to be minimal.’’); Section 1201 Study at 144 (‘‘The Office believes that the evidentiary showing required in a declaration can be minimal, as the aim is only to show that the harm that existed when the exemption was first granted continues to occur or would return but for the exemption, thus providing a sufficient justification for the Office to rely upon the prior rulemaking record in making a new recommendation supporting renewal of the exemption. Moreover, this approach appears consistent with relevant case law upholding determinations based upon a single sworn affidavit.’’). VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 more efficient process for unopposed exemptions, and the Office was mindful in shaping the streamlined renewal process to avoid recreating the requirements of the full rulemaking process.20 In outlining potential mechanics in its Section 1201 Study, the Office envisioned brief filings,21 with a ‘‘minimal’’ evidentiary showing required.22 The Office has previously advised that it is sufficient for petitioners to declare that ‘‘there had not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified.’’ 23 In the current proceeding, the Office explained that it expects petitioners would need only ‘‘a paragraph or two’’ to explain the need for renewal and that documentary evidence at this stage of the process is accepted but not necessary.24 Petitioners must also ‘‘sign a declaration attesting to the continued need for the exemption and the truth of the explanation provided in support’’ and attest that ‘‘there has not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record . . . that originally demonstrated the need for the selected exemption, such that renewal of the exemption would not be justified.’’ 25 That attestation also serves as a basis for the Office to evaluate whether the entirety of the prior administrative record supporting a given exemption continues to obtain. The Office thus concludes that the petitions received are formally and substantively sufficient for the Office to consider in evaluating whether renewal of the existing exemptions is appropriate. To the extent a commenter questions whether there is a continued need for a specific exempted use or otherwise believes that the scope of an exemption should be narrowed, that commenter should come forward and oppose the exemption. As explained in the notification of inquiry, opposition to a renewal request asks opponents to provide evidence that would make it ‘‘reasonable for the Office to conclude that the prior rulemaking record and 20 Section 1201 Study at 144 (also noting that ‘‘some stakeholders expressed wariness that, in practice, a short-form filing might recreate the requirements of the current rulemaking’’). 21 See id. at 143 (Office will request ‘‘parties seeking renewal of an exemption to submit a short declaration outlining the continuing need for an exemption’’); see also id. at 144 (referring to ‘‘a short-form filing’’). 22 Id. at 144. 23 2018 Recommendation at 18. 24 85 FR at 37401. 25 Id. PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 65295 any further information provided in the renewal petition are insufficient to support recommending renewal of an exemption.’’ 26 The Office will then consider such statements and, as appropriate, will notice the issue for subsequent comment phases to ensure the administrative record remains reliable in light of current developments. But in this rulemaking, the Office has not received comments actually disputing whether there is a continued basis for any exemptions. In the next rulemaking, the Office may consider whether to include a mechanism for petitioners to disclaim types of uses or other aspects of an exemption if they believe only partial renewal is appropriate. As detailed below, after reviewing the petitions for renewal and comments in response, the Office concludes that it has received a sufficient petition to renew each existing exemption, and it does not find any meaningful opposition to such renewal. Accordingly, the Office intends to recommend readoption of all existing exemptions in their current form. A. Audiovisual Works—Criticism and Comment—Universities and K–12 Educational Institutions Multiple organizations petitioned to renew the exemption for motion pictures 27 for educational purposes by college and university or K–12 faculty and students (codified at 37 CFR 201.40(b)(1)(ii)(A)).28 The petitions demonstrated the continuing need and justification for the exemption, stating that educators and students continue to rely on excerpts from digital media for class presentations and coursework. Peter Decherney, Katherine Sender, John Jackson, Console-ing Passions, the American Association of University Professors (‘‘AAUP’’), International Communication Association (‘‘ICA’’), Library Copyright Alliance (‘‘LCA’’), and Society for Cinema and Media Studies (‘‘SCMS’’) (collectively ‘‘Joint Educators I’’) provide several examples of professors using DVD clips in the classroom; for example, ‘‘Cornell University Communication professor Lee Humphreys samples short segments of movies and television shows for her lectures in her ‘Media Communication’ class’’ and has ‘‘shifted from using clips from YouTube because she wants to show higher quality clips and to avoid 26 Id. at 37402; see also 2018 Recommendation at 18. 27 Unless otherwise noted, all references to motion pictures as a category include television programs and videos. 28 Joint Educators I AV Educ. Renewal Pet.; Brigham Young Univ. & Brigham Young Univ.— Idaho (collectively, ‘‘BYU’’) AV Educ. Renewal Pet. E:\FR\FM\15OCP1.SGM 15OCP1 65296 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules showing the attached advertisements to her students.’’ 29 In addition, copetitioner Peter Decherney declares that he ‘‘continues to teach a course on Multimedia Criticism’’ where his students ‘‘produce short videos analyzing media.’’ 30 Indeed, Joint Educators I broadly suggest that the ‘‘entire field’’ of video essays or multimedia criticism ‘‘could not have existed in the United States without fair use and the 1201 educational exemption.’’ 31 Through these submissions, petitioners demonstrated personal knowledge and experience with regard to this exemption based on their representation of thousands of digital and literacy educators and/or members supporting educators and students, combined with past participation in the section 1201 triennial rulemaking. DVD CCA and AACS LA filed comments that do not object to the renewal of this exemption but ask the Office to address several purported deficiencies in the renewal petitions.32 Because DVD CCA and AACS LA expressly disclaim opposition to streamlined renewal of this exemption, the Office does not treat the concerns raised as meaningful opposition. It does, however, provide brief additional comment on the points raised by DVD CCA and AACS LA regarding the sufficiency of the petition. Regarding the lack of evidence of use of the exemption by K–12 educators or students, DVD CCA and AACS LA argue that ‘‘the failure of any proponent to provide any example of use by K–12 students should result in the Copyright Office finding in this streamlined renewal process that the exemption may not be renewed as to such uses.’’ 33 As explained above, petitioners need not address every possible use covered by an exemption when seeking to renew an exemption, and the Office has concluded that the petition was submitted in a sufficient manner.34 A similar conclusion applies to DVD CCA and AACS LA’s complaint that ‘‘the users ignore the threshold requirement to consider alternatives to 29 Joint Educators I AV Educ. Renewal Pet. at 3. 30 Id. 32 DVD CCA & AACS LA AV Educ. Opp’n. at 4. 34 To the extent the eighth rulemaking has received information relating to whether the exemption remains necessary for K–12 educational activities, Joint Educator’s petition for expansion of this exemption also suggests it continues to be necessary, especially in light of the ongoing pandemic. See Decherney, Sender, Jackson, Stein, Gaglani, Wisbauer, Berg, Siddiqui, Robertson, Console-ing Passions, AAUP, ICA, LCA & SCMS (collectively ‘‘Joint Educators III) Class 1 Pet. at 2. 33 Id. jbell on DSKJLSW7X2PROD with PROPOSALS 35 DVD CCA & AACS LA AV Educ. Opp’n at 7. CFR 201.40(b)(1). 37 DVD CCA & AACS LA AV Educ. Opp’n at 6– 36 37 7. 38 Id. at 6. Educators I AV Educ. Renewal Pet. at 3. 40 See also, e.g., 2015 Recommendation at 92 (citing examples where high-definition quality is necessary, including close analysis of ‘‘The Wizard of Oz (to highlight prop wires and other ‘stage-like’ elements), Citizen Kane (to appreciate depth of field, chiaroscuro effects, and subtle narrative elements), Jacques Tati’s Playtime (to better approximate the intended 70mm viewing experience and appreciate the film’s very detailed and complex composition), and Saving Private Ryan (to experience the enhanced color and contrast effect of bleach bypass film processing, hyper-realism, and complex soundscapes)’’). 39 Joint 31 Id. VerDate Sep<11>2014 circumvention.’’ 35 DVD CCA and AACS LA are correct in noting that, although the 2018 rulemaking eliminated prior language limiting the exemption to circumstances where ‘‘close analysis’’ of video is required, it retained the requirement that the user ‘‘reasonably believe[ ] that non-circumventing alternatives are unable to produce the required level of high-quality content.’’ 36 From their comment, it appears that DVD CCA and AACS LA believe that the ‘‘close analysis’’ requirement should be reinstated, but wish to reiterate a ‘‘lack of opposition’’ to the exemption in light of recognition that schools are currently ‘‘wrestling with implementing distance learning.’’ 37 The Office has examined the record and finds the petitions sufficient. As explained above, it does not follow that petitioners seeking renewal must provide an ‘‘explanation why screen capture technology could not suffice to capture and show’’ for each and every one of the film clips they seek to use.38 Petitioners made that showing in the prior rulemaking, and their renewal petition attests that there has been no material change in the facts. Indeed, Joint Educators I reference the need of a communication professor to embed clips in PowerPoint rather than played from YouTube ‘‘because she wants to show higher quality clips and to avoid showing the attached advertisements to her students.’’ 39 The same petition also provides multiple examples asserting a continued need to make use of the exemption for purposes of engaging in film analysis, precisely the kind of pedagogy that has been discussed in connection with the prior ‘‘close analysis’’ limitation.40 This is sufficient. It then becomes opponents’ burden to establish a basis for concluding that the prior findings no longer obtain. DVD CCA and AACS LA AV have provided no such evidence here. Based on the information provided in the renewal petitions and the lack of 16:31 Oct 14, 2020 Jkt 253001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 meaningful opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. B. Audiovisual Works—Criticism and Comment—Massively Open Online Courses (‘‘MOOCs’’) Brigham Young University and Peter Decherney, Katherine Sender, John Jackson, Console-ing Passions, ICA, LCA, and SCMS (collectively ‘‘Joint Educators II’’) petitioned to renew the exemption for motion pictures for educational uses in MOOCs (codified at 37 CFR 201.40(b)(1)(ii)(B)).41 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, stating that instructors continue to rely on the exemption to develop, provide, and improve MOOCs, as well as increase the number of (and therefore access to) MOOCs in the field of film and media studies—with Joint Educators II noting that the ‘‘exemption has never been so relevant as it is now during the COVID–19 pandemic and the universal shift of our education systems to online learning.’’ 42 In response to the renewal petition, DVD CCA and AACS LA filed a comment noting that they did not oppose renewal of the exemption but asking the Office to address what they described as the ‘‘apparent failure of the proponents’’ to employ technological measures preventing retention and redistribution of MOOC content.43 The comment suggests that this does not reflect any changed circumstances, and notes that the Office suggested in the seventh rulemaking that the proper method to air DVD CCA and AACS LA’s concerns would be to oppose the renewal.44 Again, they have not done so. The Office declines to address whether any user’s activities may or may not be consistent with the exemption. The relevant exemption language is not in dispute, and interpreting compliance with or eligibility for the exemption is outside the scope of this proceeding. If DVD CCA and AACS LA believe that the exemption should be adjusted or eliminated in light of abuse or difficulty in complying with the condition that 41 BYU AV Educ. MOOCS Renewal Pet.; Joint Educators AV Educ. MOOCs Renewal Pet. 42 Joint Educators II AV Educ. MOOCs Renewal Pet. at 3. 43 DVD CCA & AACS LA AV Educ. MOOCs Opp’n at 1. 44 Id. at 2 n.3. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules exemption beneficiaries reasonable technological measures, the proper response would be to submit an opposition to this exemption so the Office can determine whether fuller airing through notice and comment to evaluate this issue is appropriate. Based on the information provided in the renewal petition and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. C. Audiovisual Works—Criticism and Comment—Digital and Media Literacy Programs LCA and Professor Renee Hobbs petitioned to renew the exemption for motion pictures for educational uses in nonprofit digital and media literacy programs offered by libraries, museums, and other nonprofits (codified at 37 CFR 201.40(b)(1)(ii)(C)).45 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and petitioners demonstrated personal knowledge and experience with regard to this exemption. For example, the petition stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and media literacy programs.46 Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. jbell on DSKJLSW7X2PROD with PROPOSALS D. Audiovisual Works—Criticism and Comment—Multimedia E-Books Multiple petitioners jointly sought to renew the exemption for the use of motion picture excerpts in nonfiction multimedia e-books (codified at 37 CFR 201.40(b)(1)(i)(C)).47 The petition demonstrated the continuing need and justification for the exemption. In addition, the petitioners demonstrated personal knowledge through Professor Buster’s continued work on an e-book series based on her lecture series, ‘‘Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,’’ which, they said, ‘‘relies on the availability of high-resolution video not available without circumvention of technological protection measures.’’ 48 In response, DVD CCA and AACS LA filed a comment that did not object to renewal of an exemption limited to ‘‘ebooks offering filming analysis,’’ but did object to renewing the existing exemption as it is currently formulated.49 DVD CCA and AACS LA asserted that the renewal petition failed to ‘‘provide any example of use of this expansion to all nonfiction works beyond film analysis.’’ 50 As a result, they argue that the evidence is only sufficient to support an exemption for use in e-books offering film analysis. As noted above, however, in making a petition to renew an exemption, it is sufficient for petitioners to declare that to their knowledge, ‘‘there had not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified.’’ 51 Petitioners are not required to provide examples that pertain to every type of use covered by the exemption. To the extent an opponent of renewal seeks to narrow an exemption, it should ‘‘provide evidence that would allow the Acting Register to reasonably conclude that the prior rulemaking record and any further information provided in the petitions are insufficient for her to recommend renewal without the benefit of a further developed record.’’ 52 In this case, the Office determined in the 2018 proceeding that the record was sufficient to justify recommending an exemption that includes nonfiction uses beyond film analysis.53 The Office concludes that the renewal petition, which seeks renewal of the exemption as previously adopted, is sufficient to support renewal. Although DVD CCA and AACS LA note that the statements in the renewal petition are limited to examples related to e-books offering film analysis, this opposition does not amount to evidence in the form of legal, marketplace, or technological changes that render the prior rulemaking record insufficient to support recommending renewal. Based on the information provided in the renewal petition and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, 48 Id. at 3. CCA & AACS LA Nonfiction Multimedia E-Books Opposition Pet. 50 Id. at 2. 51 2018 Recommendation at 18. 52 Id. 53 Id. at 64. 49 DVD 45 LCA & Hobbs AV Educ. Nonprofits Renewal Pet. 46 Id. 47 Buster, Authors Alliance & AAUP Nonfiction Multimedia E-Books Renewal Pet. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 65297 the Office intends to recommend renewal of this exemption. E. Audiovisual Works—Criticism and Comment—Filmmaking Multiple organizations petitioned to renew the exemption for motion pictures for uses in documentary films or other films where use is in parody or for a biographical or historically significant nature (codified at 37 CFR 201.40(b)(1)(i)(A)).54 The petitions summarized the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to this exemption. For example, the International Documentary Association, Film Independent, and Kartemquin Educational Films (collectively ‘‘Joint Filmmakers’’)—which represent thousands of independent filmmakers across the nation—stated that TPMs such as encryption continue to prevent filmmakers from accessing needed material, and that this is ‘‘especially true for the kind of high fidelity motion picture material filmmakers need to satisfy both distributors and viewers.’’ 55 Petitioners state that they personally know many filmmakers who have found it necessary to rely on this exemption and will continue to do so.56 DVD CCA and AACS LA filed comments that did not oppose renewal of the exemption but did object to the characterization of the exemption filed by the filmmaking proponents.57 Specifically, DVD CCA and AACS LA noted that the exemption is limited to criticism or comment, documentary filmmaking, or any filmmaking that would make use of a clip in a parody or for its biographical or historical nature; in their view, petitioners suggest the exemption covers all fair use or noninfringing uses.58 The Office does not find it necessary to opine on the characterization of the petitions by DVD CCA and AACS LA and believes that petitioners’ declarations have met the minimal showing sufficient to support renewal of the exemption without modification. Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during 54 Joint Filmmakers Documentary Films Renewal Pet.; New Media Rights (‘‘NMR’’) Documentary Films Renewal Pet. 55 Joint Filmmakers Documentary Films Renewal Pet. at 3. 56 Id.; NMR Documentary Films Renewal Pet. at 3. 57 DVD CCA & AACS LA Documentary Filmmaking Opp’n. 58 Id. at 2. E:\FR\FM\15OCP1.SGM 15OCP1 65298 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. F. Audiovisual Works—Criticism and Comment—Noncommercial Videos Two organizations petitioned to renew the exemption for motion pictures for uses in noncommercial videos (codified at 37 CFR 201.40(b)(1)(i)(B)).59 The petitions demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to this exemption. For example, one of the petitioners, the Organization for Transformative Works (‘‘OTW’’), has advocated for the noncommercial video exemption in past triennial rulemakings, and has heard from ‘‘a number of noncommercial remix artists’’ who have used the exemption and anticipate needing to use it in the future.60 OTW included an account from an academic stating that footage ripped from DVDs and Blu-ray was preferred for ‘‘vidders’’ (noncommercial remix artists) because ‘‘it is high quality enough to bear up under the transformations that vidders make to it.’’ 61 Similarly, NMR stated that its staff personally knows ‘‘many video creators that have found it necessary to rely on this exemption during the current triennial period’’ and who intend to make these types of uses in the next triennial period.62 OTW contends that ‘‘the exemption should be renewed using the relatively simple language defining the exempted class from the 2008 rulemaking, covering both DVDs and Blu-Ray (and streaming where necessary) ‘when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.’ ’’ 63 OTW asserts that this change would not constitute ‘‘an expansion of the existing exemption, but a more understandable restatement.’’ 64 Two comments, one from DVD CCA and AACS LA and the other from the Entertainment Software Association (‘‘ESA’’), Motion Picture Association (‘‘MPA’’), and Recording Industry Association of America 59 NMR Noncom. Videos Renewal Pet.; OTW Noncom. Videos Renewal Pet. 60 OTW Noncom. Videos Renewal Pet. at 3. 61 Id. 62 NMR Noncom. Videos Renewal Pet. at 3. 63 OTW Noncom. Videos Renewal Pet. at 4. 64 Id. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 (‘‘RIAA’’) did not object to the renewal of the exemption for noncommercial videos but did object to the proposed change in the language sought by OTW, arguing that it involves a modification of the current exemption.65 The Office agrees that OTW’s proposed modifications are appropriately addressed as part of the full rulemaking proceeding, and therefore the Office has included this request with the proposed classes discussed below.66 Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. G. Audiovisual Works—Accessibility Multiple organizations petitioned to renew the exemption for motion pictures for the provision of captioning and/or audio description by disability services offices or similar units at educational institutions for students with disabilities (codified at 37 CFR 201.40(b)(2)(i)(A)).67 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience. For example, Brigham Young University asserts that its disability services offices ‘‘sometimes need to create accessible versions of motion pictures’’ to accommodate its students with disabilities.68 Both petitions stated that there is a need for the exemption going forward; indeed, one group of petitioners states that ‘‘the need is likely to increase significantly in light of the ongoing COVID–19 pandemic as many educational institutions shift to online learning and the use of digital multimedia by faculty increases.’’ 69 65 DVD CCA & AACS LA Noncom. Videos Opp’n; ESA, MPA & RIAA Noncom. Videos Opp’n. 66 The Office notes that much of the language that has been added to the exemption since 2008 was sought by proponents of the exemption, e.g., the addition of a reference to the statutory definition of motion pictures was sought by EFF. See 2012 Recommendation at 105. In some cases, the addition of such language was supported by OTW itself. See, e.g., id. at 110 (adding clarification that commissioned videos are included within exemption if ultimate use is noncommercial, a proposal that was supported by OTW). 67 Ass’n of Transcribers and Speech-to-Text Providers (‘‘ATSP’’), Ass’n on Higher Educ. and Disability (‘‘AHEAD’’) & LCA Captioning Renewal Pet.; BYU Captioning Renewal Pet. 68 BYU Captioning Renewal Pet. at 3. 69 ATSP, AHEAD & LCA Captioning Renewal Pet. at 3. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 Based on the information provided in the renewal petition and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. H. Literary Works—Accessibility Multiple organizations petitioned to renew the exemption for literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired, or have print disabilities (codified at 37 CFR 201.40(b)(3)).70 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that individuals who are blind, visually impaired, or print disabled are significantly disadvantaged with respect to obtaining accessible ebook content because TPMs interfere with the use of assistive technologies.71 Petitioners noted that the record underpinning this exemption ‘‘has stood and been re-established in the past six triennial reviews, dating back to 2003,’’ and that the ‘‘accessibility of ebooks is frequently cited as a top priority’’ by its members.72 In addition, petitioners noted the unique challenges COVID–19 poses to the blind, visually impaired, and print disabled due to limited physical access to libraries and the shift to virtual learning.73 Finally, the petitioners demonstrated personal knowledge and experience with regard to the assistive technology exemption; they are all organizations that advocate for the blind, visually impaired, and print disabled. Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. I. Literary Works—Medical Device Data Hugo Campos petitioned to renew the exemption covering access to patient data on networked medical devices (codified at 37 CFR 201.40(b)(4)).74 No oppositions were filed, and Consumer 70 Am. Council for the Blind (‘‘ACB’’), Am. Fed’n for the Blind (‘‘AFB’’), Nat’l Fed’n of the Blind (‘‘NFB’’), LCA, American Association of Law Libraries (‘‘AALL’’), Benetech/Bookshare, and HathiTrust Assistive Technologies Renewal Pet. 71 Id. at 3. 72 Id. at 3–4. 73 Id. at 4. 74 Campos Medical Devices Renewal Pet. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS Reports submitted a comment in support.75 Mr. Campos’s petition demonstrated the continuing need and justification for the exemption, stating that patients continue to need access to data output from their medical devices to manage their health.76 Mr. Campos demonstrated personal knowledge and experience with regard to this exemption, as he is a patient needing access to the data output from his medical device and is a member of a coalition whose members research, comment on, and examine the effectiveness of networked medical devices. Based on the information provided in the renewal petition and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. J. Computer Programs—Unlocking Multiple organizations petitioned to renew the exemption for computer programs that operate cellphones, tablets, mobile hotspots, or wearable devices (e.g., smartwatches), to allow connection of a new or used device to an alternative wireless network (‘‘unlocking’’) (codified at 37 CFR 201.40(b)(5)).77 No oppositions were filed against the petitions seeking to renew this exemption; Consumer Reports filed in support of renewal.78 The petitions demonstrate the continuing need and justification for the exemption, stating that consumers of the enumerated products continue to need to be able to unlock the devices so they can switch network providers. For example, ISRI stated that its members continue to purchase or acquire donated cell phones, tablets, and other wireless devices and try to reuse them, but that wireless carriers still lock devices to prevent them from being used on other carriers.79 In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption. CCA and ISRI represent companies that rely on the ability to unlock cellphones. Both petitioners also participated in past 1201 triennial rulemakings relating to unlocking lawfully-acquired wireless devices. Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the 75 Consumer Reports Medical Devices Supp. Medical Devices Renewal Pet. at 3. 77 Competitive Carriers Ass’n (‘‘CCA’’) Unlocking Renewal Pet.; Inst. of Scrap Recycling Industries (‘‘ISRI’’) Unlocking Renewal Pet. 78 Consumer Reports Unlocking Supp. 79 ISRI Unlocking Renewal Pet. at 3. 76 Campos VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. K. Computer Programs—Jailbreaking Multiple organizations petitioned to renew the exemptions for computer programs that operate smartphones, tablets and other portable all-purpose mobile computing devices, smart TVs, or voice assistant devices to allow the device to interoperate with or to remove software applications (‘‘jailbreaking’’) (codified at 37 CFR 201.40(b)(6)–(8)).80 The petitions demonstrate the continuing need and justification for the exemption, and that petitioners had personal knowledge and experience with regard to this exemption. For example, regarding smart TVs specifically, the Software Freedom Conservancy (‘‘SFC’’) asserts that it has ‘‘reviewed the policies and product offerings of major Smart TV manufacturers (Sony, LG, Samsung, etc.) and they are substantially the same as those examined during the earlier rulemaking process.’’ 81 The petitions state that, absent an exemption, TPMs applied to the enumerated products would have an adverse effect on noninfringing uses, such as being able to install third-party applications on a smartphone or download third-party software on a smart TV to enable interoperability.82 For example, EFF’s petition outlined its declarant’s experience with instances where it was necessary to replace the software on a smartphone, smart TV, and tablet.83 Consumer Reports filed a comment in support of the exemption,84 and no one opposed renewal. Based on the information provided in the renewal petitions and the lack of meaningful opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. L. Computer Programs—Repair of Motorized Land Vehicles Multiple organizations petitioned to renew the exemption for computer programs that control motorized land 80 EFF Jailbreaking Renewal Pet.; NMR Jailbreaking Renewal Pet.; SFC Jailbreaking Renewal Pet. 81 SFC Jailbreaking Renewal Pet. at 3. 82 EFF Jailbreaking Renewal Pet. at 3; NMR Jailbreaking Renewal Pet. at 3; SFC Jailbreaking Renewal Pet. at 3. 83 EFF Jailbreaking Renewal Pet. at 3–4. 84 Consumer Reports Jailbreaking Supp. PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 65299 vehicles, including farm equipment, for purposes of diagnosis, repair, or modification of a vehicle function (codified at 37 CFR 201.40(b)(9)).85 The petitions demonstrated the continuing need and justification for the exemption. For example, the Motor & Equipment Manufacturers Association (‘‘MEMA’’) stated that over the past three years, its membership ‘‘has seen firsthand that the exemption is helping protect consumer choice and a competitive market, while mitigating risks to intellectual property and vehicle safety.’’ 86 The Auto Care Association (‘‘ACA’’) stated that ‘‘[u]nless this exemption is renewed, the software measures manufacturers deploy for the purpose of controlling access to vehicle software will prevent Auto Care members from lawfully assisting consumers in the maintenance, repair, and upgrade of their vehicles.’’ 87 SEMA stated that it ‘‘is unaware of any factor, incident or reason to change the exemption and the need for the exemption remains valid and imperative.’’ 88 The petitioners demonstrated personal knowledge and experience with regard to this exemption; each either represents or gathered information from individuals conducting repairs or businesses that manufacture, distribute, and sell motor vehicle parts, and perform vehicle service and repair. Consumer Reports filed in support of the petition.89 Although not opposing readoption of this exemption, the Alliance for Automotive Innovation (‘‘AAI’’) submitted comments raising concerns with the ACA and MEMA petitions.90 Specifically, the AAI argued that the two petitions ‘‘mischaracterize the scope of the existing exemption and appear to argue for an expanded exemption, rather than for renewal of the existing exemption as it is ‘currently formulated, without modification.’ ’’ 91 It states that both ACA and MEMA suggest ‘‘that the existing exemption permits third party repair shops to circumvent access controls on vehicle software in order to provide commercial repair services.’’ 92 AAI asserts that ‘‘[p]roviding a commercial service that 85 ACA Vehicle Repair Renewal Pet.; Am. Farm Bureau Fed’n Vehicle Repair Renewal Pet.; Consumer Tech. Ass’n Vehicle Repair Renewal Pet.; MEMA Vehicle Repair Renewal Pet.; Specialty Equip. Mkt. Ass’n (‘‘SEMA’’) Vehicle Repair Renewal Pet. 86 MEMA Vehicle Repair Renewal Pet. at 3. 87 ACA Vehicle Repair Renewal Pet. at 3. 88 SEMA Vehicle Repair Renewal Pet. at 3. 89 Consumer Reports Vehicle Repair Supp. 90 AAI Vehicle Repair Opp’n. 91 Id. at 1. 92 Id. at 2. E:\FR\FM\15OCP1.SGM 15OCP1 65300 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules requires circumventing access controls or copy controls (e.g., using or providing certain engine tuning software) is indisputably trafficking in an unlawful service under Sections 1201(a)(2) and (b) and, therefore, is clearly outside the scope of the existing exemption.’’ 93 The Office addressed the relationship of this exemption to the anti-trafficking provisions in some detail in the 2018 Recommendation. In response to petitioners’ requests, the Office recommended removal of the language in the prior repair exemption requiring that circumvention be ‘‘undertaken by the authorized owner.’’ 94 That change, the Office explained, was intended to ‘‘account[] for the possibility that certain third parties may qualify as ‘user[s]’ eligible for an exemption from liability under section 1201(a)(1).’’ 95 In making this recommendation, which the Librarian accepted, the Office declined to express any ‘‘view as to whether particular examples of assistance do or do not constitute unlawful circumvention services’’—specifically, ‘‘whether vehicle or other repair services may run afoul of the antitrafficking provisions when engaging in circumvention on behalf of customers.’’ 96 The Office adheres to this position and accordingly expresses no view as to the activities described by ACA and MEMA. Based on the information provided in the renewal petitions and the lack of opposition to the specific exemption, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. jbell on DSKJLSW7X2PROD with PROPOSALS M. Computer Programs—Repair of Smartphones, Home Appliances, and Home Systems Multiple organizations petitioned to renew the exemption for computer programs that control smartphones, home appliances, or home systems, for diagnosis, maintenance, or repair of the device or system (codified at 37 CFR 201.40(b)(10)).97 The petitions demonstrated the continuing need and justification for the exemption. For example, EFF, the Repair Association, and iFixit asserted that ‘‘[m]anufacturers of these devices continue to implement technological protection measures that inhibit lawful repairs, maintenance, and 93 Id. 94 2018 95 Id. Recommendation at 223–25. at 225. 96 Id. 97 EFF Device Repair Renewal Pet.; EFF, Repair Ass’n & iFixit Device Repair Renewal Pet. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 diagnostics, and they show no sign of changing course.98 Consumer Reports filed in support of the petition.99 In comments filed in response to the petitions, DVD CCA and AACS LA did not object to renewal of the exemption, but did request that the Office ‘‘expressly . . . reject the implied assertion that some of the activity used as examples in the renewal petition . . . is permitted under the current exemption.’’ 100 Specifically, they pointed to an example in which petitioners stated a purported need to ‘‘repair any disrupted functionality’’ in Sonos smart speakers for which the manufacturer had ceased to provide software updates.101 DVD CCA and AACS LA contend that such activity does not constitute ‘‘repair’’ under the exemption because, under relevant licensing schemes, a manufacturer ‘‘may outright deactivate one or more functions due to the product’s TPM being compromised. These results are not the consequences of the product falling out of repair or breaking.’’ 102 DVD CCA and AACS LA do not appear to be arguing that the use of this example renders the renewal petitions insufficient with respect to home systems. The Office agrees that the sufficiency of the petitions do not depend on whether this specific example qualifies under the current exemption. Even if this example were excluded, the petitions attest to a continuing need for the exemption and the continued validity of the prior record.103 To the extent DVD CCA and AACS LA are asking the Office to opine on examples of particular uses, such a request is beyond the scope of the renewal phase, though they are free to raise such concerns in the comment phase to the extent they relate to proposed expansions of the current rule. Based on the information provided in the renewal petitions and the lack of opposition to renewal, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends 98 EFF Device Repair Renewal Pet. at 3; EFF, Repair Ass’n & iFixit Device Repair Renewal Pet. at 3. 99 Consumer Reports Device Repair Supp. 100 DVD CCA & AACS LA Device Repair Opp’n at 1. 101 Id. at 3. 102 DVD CCA & AACS LA Device Repair Opp’n at 4. 103 See, e.g., EFF Device Repair Renewal Pet. at 3 (‘‘Manufacturers of these devices continue to implement technological protection measures that inhibit lawful repairs, maintenance, and diagnostics, and they show no sign of changing course.’’). PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 to recommend renewal of this exemption. N. Computer Programs—Security Research Multiple organizations and security researchers petitioned to renew the exemption permitting circumvention for purposes of good-faith security research (codified at 37 CFR 201.40(b)(11)).104 The petitioners demonstrated the continuing need and justification for the exemption, as well as personal knowledge and experience with regard to this exemption. For example, the petition from Professor J. Alex Halderman, the Center for Democracy and Technology (‘‘CDT’’), and the U.S. Technology Policy Committee of the Association for Computing Machinery (‘‘ACM’’) highlighted a number of concerns justifying the continuing need for the exemption, including the need to find and detect vulnerabilities in voting machines and other election systems, the increased proliferation of consumer Internet of Things devices, and the increasing reliance on digital systems combined with greater aggressiveness on the part of threat actors, including other nation states.105 The petition from Professors Matt Blaze and Steven Bellovin asserted that in the past three years ‘‘one of us has received threats of litigation from copyright holders in connection with his security research on software in voting systems.’’ 106 Finally, MEMA stated that its membership ‘‘experienced firsthand that the exemption is helping encourage innovation in the automotive industry while mitigating risks to intellectual property and vehicle safety.’’ 107 No oppositions were filed against readoption of this exemption, while Consumer Reports filed in support of renewal.108 A petition seeking renewal of a separate exemption submitted by Hugo Campos, a member of a coalition of medical device patients and researchers, also noted support for this exemption.109 Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, 104 Blaze & Bellovin Security Research Renewal Pet.; Halderman, CDT & ACM Security Research Renewal Pet.; MEMA Security Research Renewal Pet. 105 Halderman, CDT & ACM Security Research Renewal Pet. at 4. 106 Blaze & Bellovin Security Research Renewal Pet. at 3. 107 MEMA Security Research Renewal Pet. at 3. 108 Consumer Reports Security Research Supp. 109 Campos Medical Device Renewal Pet. at 4. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules the Office intends to recommend renewal of this exemption. jbell on DSKJLSW7X2PROD with PROPOSALS O. Computer Programs—Software Preservation The Software Preservation Network (‘‘SPN’’) and LCA petitioned to renew the exemption for computer programs other than video games, for the preservation of computer programs and computer program-dependent materials by libraries, archives, and museums (codified at 37 CFR 201.40(b)(13)).110 The petitions state that libraries, archives, and museums continue to need the exemption to preserve and curate software and materials dependent on software. For example, the petition asserts that ‘‘researchers at UVA designed a project in order to access the ‘Peter Sheeran papers’—a collection of drawings and plans from a local Charlottesville architecture firm,’’ and that without the exemption, ‘‘the outdated Computer Aided Design (‘‘CAD’’) software used to create many of the designs in the Sheeran papers may have remained inaccessible to researchers, rendering the designs themselves inaccessible, too.’’ 111 In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the section 1201 triennial rulemaking relating to access controls on software, and/or representing major library associations with members that have relied on this exemption. Readoption of this exemption was unopposed. Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. P. Computer Programs—Video Game Preservation SPN and LCA petitioned to renew the exemption for preservation of video games for which outside server support has been discontinued (codified at 37 CFR 201.40(b)(12)).112 Consumer Reports supported the petition.113 The petitions state that libraries, archives, and museums continue to need the exemption to preserve and curate video games in playable form. For example, the petition highlights the Georgia Tech 110 SPN University Library’s Computing Lab, retroTECH, which has a significant collection of recovered video game consoles, made accessible for research and teaching uses pursuant to the exemption.114 In addition, the Museum of Digital Arts and Entertainment in Oakland, California, relied on the exemption to restore a recent PC game, in collaboration with Microsoft and the original developers, despite potential DRM issues.115 The petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the section1201 triennial rulemaking, and/or through their representation of members that have relied on this exemption. Readoption of this exemption was unopposed. Based on the information provided in the renewal petitions and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. Q. Computer Programs—3D Printing Michael Weinberg petitioned to renew the exemption for computer programs that operate 3D printers to allow use of alternative feedstock (codified at 37 CFR 201.40(b)(14)).116 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and the petitioner demonstrated personal knowledge and experience. Specifically, Mr. Weinberg declared he is a member of the 3D printing community and has been involved with this exemption request during each cycle it has been considered by the Office.117 In addition, the petition states that 3D printers continue to limit the types of materials used, and new companies and printers may consider implementing similar restrictions in the future, thereby requiring renewal of the exemption.118 Based on the information provided in the renewal petition and the lack of opposition, the Office believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Office intends to recommend renewal of this exemption. & LCA Software Preservation Renewal Pet. 111 Id. at 3. 112 SPN & LCA Abandoned Video Game Renewal Pet. 113 Consumer Reports Abandoned Video Game Supp. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 114 SPN & LCA Abandoned Video Game Renewal Pet. at 3. 115 Id. 116 Weinberg 3D Printers Renewal Pet. 117 Id. at 3. 118 Id. PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 65301 III. Analysis and Classification of Proposed New or Expanded Exemptions Having addressed the petitions to renew existing exemptions, the Office now turns to the petitions for new or expanded exemptions. The Office received twenty-six petitions,119 which it has organized into seventeen proposed classes, as described below. Before discussing those classes, the Office first explains the process and standards for submission of written comments. A. Submission of Written Comments Persons wishing to address proposed exemptions in written comments should familiarize themselves with the substantive legal and evidentiary standards for the granting of an exemption under section 1201(a)(1), which are also described in more detail on the Office’s form for submissions of longer comments, available on its website. In addressing factual matters, commenters should be aware that the Office favors specific, ‘‘real-world’’ examples supported by evidence over speculative, hypothetical observations. In cases where the technology at issue is not apparent from the requested exemption, it can be helpful for commenters to describe the TPM(s) that control access to the work and method of circumvention. Commenters’ legal analysis should explain why the proposal meets or fails to meet the criteria for an exemption under section 1201(a)(1), including, without limitation, why the uses sought are or are not noninfringing as a matter of law. The legal analysis should also discuss statutory or other legal provisions that could impact the necessity for or scope of the proposed exemption. Legal assertions should be supported by statutory citations, relevant case law, and other pertinent authority. In cases where a class proposes to expand an existing exemption, participants should focus their comments on the legal and evidentiary bases for modifying the exemption, rather than the underlying exemption; as discussed above, the Office intends to recommend each current temporary exemption for renewal. To ensure a clear and definite record for each of the proposals, commenters are required to provide a separate submission for each proposed class during each stage of the public comment period. Although a single comment may 119 In addition, as noted, OTW’s renewal petition seeks to amend the current regulatory language. The Office is treating that request as a petition for expansion. E:\FR\FM\15OCP1.SGM 15OCP1 65302 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules not address more than one proposed class, the same party may submit multiple written comments on different proposals. The Office acknowledges that the requirement of separate submissions may require commenters to repeat certain information across multiple submissions, but the Office believes that the administrative benefits of creating a self-contained, separate record for each proposal will be worth the modest amount of added effort. The first round of public comment is limited to submissions from proponents (i.e., those parties who proposed new exemptions during the petition phase) and other members of the public who support the adoption of a proposed exemption, as well as any members of the public who neither support nor oppose an exemption but seek only to share pertinent information about a specific proposal. Proponents of exemptions should present their complete affirmative case for an exemption during the initial round of public comment, including all legal and evidentiary support for the proposal. Members of the public who oppose an exemption should present the full legal and evidentiary basis for their opposition in the second round of public comment. The third round of public comment will be limited to supporters of particular proposals and those who neither support nor oppose a proposal, who, in either case, seek to reply to points made in the earlier rounds of comments. Reply comments should not raise new issues, but should instead be limited to addressing arguments and evidence presented by others. jbell on DSKJLSW7X2PROD with PROPOSALS B. The Proposed Classes As noted above, the Office has reviewed and classified the proposed exemptions set forth in the twentyseven petitions received in response to its notification of inquiry. Any exemptions adopted must be based on ‘‘a particular class of works,’’ 120 and each class is intended to ‘‘be a narrow and focused subset of the broad categories of works . . . identified in Section 102 of the Copyright Act.’’ 121 As explained in the Notice of Inquiry, the Office consolidates or groups related and/or overlapping proposed exemptions where possible to simplify 120 17 U.S.C. 1201(a)(1)(B). Comm. Report at 38; see also Section 1201 Study at 109–10 (noting that while ‘‘in some cases, [the Office] can make a greater effort to group similar classes together, and will do so going forward,’’ ‘‘in other cases, the Office’s ability to narrowly define the class is what enabled it to recommend the exemption at all, and so the Office will continue to refine classes when merited by the record’’). 121 Commerce VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 the rulemaking process and encourage joint participation among parties with common interests (though collaboration is not required). Accordingly, the Office has categorized the petitions into seventeen proposed classes of works. Each proposed class is briefly described below; additional information can be found in the underlying petitions posted on the Office website. As explained in the notification of inquiry, the proposed classes ‘‘represent only a starting point for further consideration in the rulemaking proceeding, and will be subject to further refinement based on the record.’’ 122 The Office further notes that it has not put forward precise regulatory language for the proposed classes, because any specific language for exemptions that the Register ultimately recommends to the Librarian will depend on the full record developed during this rulemaking. Indeed, in the case of proposed modifications to existing exemptions, as stated above, the Register may propose altering current regulatory language to expand the scope of an exemption, where the record suggests such a change is appropriate. After examining the petitions, the Office has preliminarily identified some initial legal and factual areas of interest with respect to certain proposed classes. The Office stresses, however, that these areas are not exhaustive, and commenters should consider and offer all legal argument and evidence they believe necessary to create a complete record. These early observations are offered without prejudice to the Office’s ability to raise other questions or concerns at later stages of the proceeding. Finally, ‘‘where an exemption request resurrects legal or factual arguments that have been previously rejected, the Office will continue to rely on past reasoning to dismiss such arguments in the absence of new information.’’ 123 Proposed Class 1: Audiovisual Works— Criticism and Comment Three petitions seek to expand the existing exemptions for circumvention of access controls protecting motion pictures on DVDs, Blu-ray discs, and digitally transmitted video for purposes of criticism and comment, including for educational purposes by certain users. Because these petitions raise some shared concerns, the Office has grouped them into one class, as it did during the seventh triennial proceeding. This grouping is without prejudice to 122 85 FR at 37403. 1201 Study at 147; see also 79 FR 55687, 55690 (Sept. 17, 2014). 123 Section PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 possible further refinement of this class, including dividing it into subclasses based on specific uses. First, as noted, OTW filed a renewal petition requesting that the exemption regarding the creation of noncommercial videos be amended to incorporate the language of the exemption for such uses adopted in the 2010 rulemaking.124 That exemption permitted circumvention undertaken ‘‘solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use.’’ 125 Noting that the current exemption is longer than this formulation, OTW contends that ‘‘the complexity of [the current] provisions substantially increases the difficulty of communicating and implementing the exemptions in practice.’’ 126 In OTW’s view, reverting to the 2010 language would not expand the scope of the existing rule but merely would help ‘‘clarify the exemption for ordinary users.’’ 127 The exemption, however, has been expanded since 2010, including by encompassing works on a Blu-ray disc or received via a digital transmission, and by including language clarifying that the exemption includes ‘‘videos produced for a paid commission if the commissioning entity’s use is noncommercial.’’ 128 The Office seeks comment on whether, or to what extent, commenters believe the suggested language would alter the substance of the current provision. As part of that analysis, commenters should discuss the extent to which the evidence submitted in the prior rulemaking may be relied upon to support the proposed change. Second, Joint Educators III seek to expand the current exemption for educational uses to allow a greater number of users to engage in ‘‘online instructional learning.’’ 129 They acknowledge that the existing exemption already covers the use of short clips in distance learning by certain users—college and university faculty and students, K–12 educators 124 OTW Noncomm. Videos Renewal Pet. at 3. OTW’s petition refers to that proceeding as the ‘‘2008 rulemaking,’’ but the Office generally identifies each proceeding by its year of completion. 125 75 FR 43825, 43827 (2010). 126 OTW Noncomm. Videos Renewal Pet. at 3. 127 Id. 128 37 CFR 201.40(b)(1). See 2015 Recommendation at 103–06 (expanding exemption to include Blu-ray and digital transmission). 129 Joint Educators III Class 1 Pet. at 2. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules jbell on DSKJLSW7X2PROD with PROPOSALS and students, and faculty of accredited massive open online courses (MOOCs).130 Indeed, the 2018 Recommendation specifically described the exemption language pertaining to college and university and K–12 users as ‘‘broad enough to encompass exempted uses under sections 110(1) and 110(2) (i.e., face-to-face and distance teaching).’’ 131 Joint Educators III, however, seek to expand the exemption to other online learning platforms that offer ‘‘supplemental education, upskilling, retraining, recharging, and lifelong learning,’’ such as Khan Academy, LinkedIn Learning, Osmosis.org and Code.org.132 To enable these providers to exercise the exemption, they propose an expansion allowing ‘‘educators and preparers of online learning materials to use short portions of motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, for the purpose of criticism, comment, illustration and explanation in offerings for registered learners on online learning platforms when use of the film and media excerpts will contribute significantly to learning.’’ 133 Third, BYU requests to expand the class of eligible users to include ‘‘college and university employees,’’ instead of ‘‘college and university faculty.’’ 134 In addition, it seeks to broaden the permitted uses from ‘‘criticism, comment, teaching, or scholarship’’ to ‘‘a noninfringing use under 17 U.S.C. 107, 110(1), 110(2), or 112(f).’’ 135 BYU’s proposal also would remove the current reference to screencapture technology and the requirement that the exempted use be limited to ‘‘short portions’’ of motion pictures.136 With respect to both BYU’s and Joint Educators III’s petitions, the Office notes that certain proposals to remove the limitations on eligible users of this exemption were considered during the 2015 and 2018 rulemakings, and invites comment on any changed legal or factual circumstances with respect to these provisions.137 In particular, the Office seeks specific examples where the presence of TPMs is resulting in an adverse effect on users who are not already included in the existing regulatory language. Further, with respect to BYU’s request to expand the types of permitted uses, the Office notes 130 Id. at 2–3. Recommendation at 86. 132 Joint Educators III Class 1 Pet. at 2. 133 Id. 134 BYU Class 1 Pet. at 2. 135 Id. 136 Id. 137 2018 Recommendation at 53–55; 2015 Recommendation at 102. 131 2018 VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 that it has previously rejected similar proposed classes as overbroad.138 And in the previous rulemaking, the Office declined a proposed exemption by BYU that would permit circumvention for nonprofit educational purposes in accordance with sections 110(1) and 110(2) and eliminate the ‘‘criticism and comment’’ limitation and references to screen-capture technology.139 The Office invites comment on whether any changed circumstances warrant altering that determination. Proposed Class 2: Audiovisual Works— Texting SolaByte Corp. petitions for a new exemption to access ‘‘licensed audio/ video works stored on optical disc media for the purpose of creating short (10 seconds or less) A/V clips that enhance communication effectiveness and understanding when using TEXTing messages.’’ 140 The proposed class ‘‘[i]ncludes movies, TV shows, music video, other copyrighted works’’ that are stored on ‘‘[p]ackaged and replicated DVD or Blu-ray discs playable on computer or CE player hardware.’’ 141 Eligible users would include persons ‘‘who want to create expressive clips that convey their thoughts when texting.’’ 142 Because these proposed activities do not appear to be limited to criticism and comment or educational uses, the Office has classified this proposal as a separate proposed class. The Office seeks additional detail about the scope of the proposed exemption from SolaByte or others, such as whether the exemption would be available for commercial services. Commenters should describe with specificity the relevant TPMs and whether their presence is adversely affecting noninfringing uses, including identifying whether eligible users may access expressive clips through alternate channels that do not require circumvention and the legal basis for concluding that the proposed uses are likely to be noninfringing. Similarly, commenters should address any anticipated effect that circumvention of TPMs would have on the market for or value of the relevant copyrighted works, which appears to extend to the same 138 See 2015 Recommendation at 100 (citing 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 at 17–19 (Nov. 17, 2006) (‘‘2006 Recommendation’’)). 139 2018 Recommendation at 32, 52–53. 140 SolaByte Class 2 Pet. at 2. 141 Id. 142 Id. PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 65303 broad swatch of motion pictures as Class 1. Proposed Class 3: Audiovisual Works— Accessibility ATSP, AHEAD, and LCA petition to expand the existing exemption relating to the creation of accessible versions of motion pictures for students with disabilities. They propose several changes to the existing exemption language, which includes the following requirements: • Circumvention is undertaken by a disability services office or other unit of a kindergarten through twelfth-grade educational institution, college, or university engaged in and/or responsible for the provision of accessibility services to students, for the purpose of adding captions and/or audio description to a motion picture to create an accessible version as a necessary accommodation for a student or students with disabilities under an applicable disability law, such as the Americans With Disabilities Act, the Individuals with Disabilities Education Act, or Section 504 of the Rehabilitation Act; • The educational institution unit has, after a reasonable effort, determined that an accessible version cannot be obtained at a fair price or in a timely manner; and • The accessible versions are provided to students or educators and stored by the educational institution in a manner intended to reasonably prevent unauthorized further dissemination of a work.143 First, petitioners seek to expand the exemption ‘‘to allow for the remediation of video for faculty and staff, as well as students.’’ 144 They recommend that the current language be revised to read: ‘‘to create an accessible version as a necessary accommodation for students, faculty, and staff with disabilities.’’ 145 Second, to clarify that a covered educational institution unit (‘‘EIU’’) may create accessible versions ‘‘proactively,’’ petitioners suggest removing the phrase ‘‘as a necessary accommodation’’ and requiring only that the creation of an accessible version be ‘‘consistent with’’ an applicable disability law.146 Third, petitioners ask the Office to clarify that the ‘‘reasonable effort’’ requirement applies ‘‘only where an ‘accessible version’ is available that contains captions and descriptions of sufficient quality to satisfy applicable disability 143 37 CFR 201.40(b)(2)(i). AHEAD & LCA Class 3 Pet. at 2. 144 ATSP, 145 Id. 146 Id. E:\FR\FM\15OCP1.SGM at 3. 15OCP1 65304 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules law.’’ 147 The Office notes that in recommending the existing regulatory language, it stated that an EIU may proceed after reaching a conclusion ‘‘that it must create an accessible version as a necessary accommodation for a student with disabilities.’’ 148 Fourth, petitioners recommend qualifying the ‘‘reasonable effort’’ requirement in circumstances where ‘‘no accessible version of a video included with a textbook exists, but a publisher might be willing to generate an accessible version of the video at extra cost,’’ by eliminating this requirement when a publisher does not include an accessible version of materials with purchased materials.149 The Office would welcome comment upon whether petitioners believe that the extra costs should be of an unreasonable amount, or whether they contend that every offer carrying additional cost should be dismissed, along with any thoughts from copyright owners or licensors on this issue. Finally, petitioners recommend ‘‘altering the current exemption language to make clear that an EIU can reuse stored accessible versions instead of re-circumventing and re-remediating inaccessible media when complying with an accommodation request.’’ 150 The Office seeks comment on whether this exemption, including petitioners’ suggested regulatory language, should be adopted. Proposed Class 4: Audiovisual Works— Livestream Recording FloSports, Inc. petitions for an exemption ‘‘for circumvention of technology used in the digital storage of audiovisual works originating as a livestream of sports and other competitive events.’’ 151 The exemption ‘‘would enable a livestreaming service to provide individual viewers, via a virtual digital video recorder (‘vDVR’), with access to a recording on a server for fair use purposes.’’ 152 The petition indicates that circumvention is necessary to alter the functioning of HTTP Live Streaming (‘‘HLS’’), ‘‘a live-video streaming technique that enables high quality streaming of media content over the internet from web servers.’’ 153 According to FloSports, the use of HLS jbell on DSKJLSW7X2PROD with PROPOSALS 147 Id. Recommendation at 109–10. The petition refers to a purchased textbook, but the Office queries if that was petitioner’s intent, since the exemption concerns access to audiovisual works. 150 Id. 151 FloSports Class 4 Pet. at 2. 152 Id. 153 Id. to stream content ‘‘results in only an ephemeral copy in addition to the live broadcast.’’ 154 FloSports seeks to enable ‘‘copies of the audio and video data files [to] be stored on a longer-term basis and synchronized for later replay by the viewer.’’ 155 It states that ‘‘[t]he cost and practical difficulty of obtaining synchronization licenses, combined with the cost and technical challenges of creating individualized audio and visual stored files for each viewer seeking to access the stored files, effectively control viewers access to the material for fair use purposes.’’ 156 FloSports contends that the recording of such material constitutes fair use on the following basis: Individual recordings of audiovisual performances, historically, had been used by directors of the groups in such recordings to instruct, teach, and otherwise educated [sic] the participants in the recordings on what went right, what went wrong, and how each could improve. Generally, the individual performances in the audiovisual streams this petition considers are a very small percentage of the entire copyrighted work (e.g., all individual performances combined for an entire copyrighted broadcast). Further, there is no current market for educational recordings at the moment. Granting this exemption, or the performance of such a recording, would not adversely affect the market for the copyrighted recordings.157 The Office invites comment on this proposal but notes at the outset that the description of the proposed class in the petition is insufficiently clear to meet the statutory requirement to identify ‘‘a particular class of copyrighted works.’’ 158 While the petition generally describes the class as covering livestreams of ‘‘sports and other competitive events,’’ elsewhere it states that the relevant works are ‘‘audiovisual recordings of musical performances as identified in 17 U.S.C. 102(a)(6) and 17 U.S.C. 106(a)(5).’’ 159 It then states that the proposed class ‘‘incorporates any and all works for which audiovisual recordings may be made and used as fair use. This includes individual school performances.’’ 160 Given this inconsistent information, the Office is unable to determine whether, for example, the petition is intended to cover the use of copyrighted broadcasts owned by another party or simply musical or other works that may be captured in broadcasts owned by 148 2018 149 Id. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 154 Id. 155 Id. 156 Id. 157 Id. at 3. U.S.C. 1201(a)(1)(C) (emphasis added); see supra Section I. 159 FloSports Class 4 Pet. at 2. 160 Id. 158 17 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 FloSports. Without further clarification, the petition does not seem to relate to a particular class of works. Nor is it apparent to what extent the asserted adverse effects are attributable to ‘‘[t]he cost and practical difficulty of obtaining synchronization licenses,’’ 161 as opposed to TPMs. As noted, the Office will only recommend an exemption where causation has been established; that is, where the Office can conclude that the statutory prohibition on circumventing access controls is the cause of the adverse effects.162 Finally, the Office seeks additional information regarding the intended noninfringing uses, including whether it would be appropriate to clarify that the petition is directed at facilitating educational, noncommercial uses. Petitioner appears to operate a commercial livestreaming service,163 and it is unclear whether this exemption is intended to facilitate growth in that market. In addition to factual development regarding the intended uses, the Office welcomes information on the legal basis for finding that such uses would be fair. For example, in connection with petitioner’s statement that ‘‘the individual performances in the audiovisual streams this petition considers are a very small percentage of the entire copyrighted work,’’ 164 commenters should address the wellestablished principle that copying even a quantitatively ‘‘insubstantial portion’’ of a work may weigh against fair use where the material is qualitatively significant to that work.165 These factual and legal issues should be described with sufficient particularity to enable the Office to determine whether the specific uses are likely to be fair. As it has done in the past, the Office is inclined to reject overbroad proposed classes such as ‘‘fair use works’’ or ‘‘educational fair use works.’’ 166 Absent such clarification, the Office will decline further consideration of the petition.167 161 Id. 162 See Section 1201 Study at 115 (‘‘The statutory prohibition on circumventing access controls [must be] the cause of the adverse effects.’’). 163 See Flosports, https://www.flosports.tv/joinnow/ (advertising ‘‘plans starting from $12.49/mo’’) (last visited Oct. 8, 2020). 164 FloSports Class 4 Pet. at 3. 165 See Harper & Row Publrs., Inc. v. Nation Enters., 471 U.S. 539, 564–65 (1985). 166 See 2015 Recommendation at 100 (citing 2006 Recommendation at 17–19). 167 Cf. 79 FR 73856, 73859 (Dec. 12, 2014) (declining to put forward exemption proposals that could not be granted as a matter of law). E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules Proposed Class 5: Audiovisual Works— Preservation legal or factual circumstances bearing upon that issue. LCA proposes a new exemption to facilitate preservation of audiovisual works stored on DVDs or Blu-ray discs. a class that would include ‘‘[m]otion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully acquired on a DVD protected by the Content Scramble System, or on a Bluray disc protected by the Advanced Access Content System, and is no longer reasonably available in the commercial marketplace, for the purpose of lawful preservation of the motion picture, by a library, archives, or museum.’’ 168 The petition is quite terse, consisting of a single sentence, and so the Office encourages proponents to develop the legal and factual administrative record in their initial submissions. The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language. Proposed Classes 7(a): Motion Pictures and 7(b): Literary Works—Text and Data Mining Authors Alliance, AAUP, and LCA petition for an exemption ‘‘for researchers to circumvent technological protection measures on lawfully accessed literary works distributed electronically as well as on lawfully accessed motion pictures, in order to deploy text and data mining techniques.’’ 173 Petitioners believe that these two categories of works ‘‘should be grouped together in a single exemption because they involve the same petitioners, the same proposed use, and implicate the same arguments for an exemption.’’ 174 The proposed class includes both works embodied in physical discs and those transmitted digitally.175 The users seeking access include ‘‘researchers engaged in text and data mining in the humanities, social sciences, and sciences.’’ 176 For reasons of administrative efficiency, the Office has grouped these proposals into one category that encompasses two proposed classes pertaining to motion pictures and literary works, respectively (i.e., Classes 7(a) and 7(b)). Commenters therefore may submit a single comment addressing one or both aspects of the petition. It is important to emphasize, however, that proponents are required to make the statutorily required showing with respect to each category of works. As discussed above, the statute requires that exemptions describe ‘‘a particular class of copyrighted works.’’ 177 Congress made clear that such a class may not encompass more than one of the categories of works set out in section 102; to the contrary, the ‘‘particular class’’ language refers to ‘‘a narrow and focused subset’’ of the section 102 categories.178 This means that for each type of work for which an exemption is sought, petitioners must demonstrate an actual or likely adverse impact on a noninfringing use as a result of the statutory prohibition on circumvention. In the case of this proposal, to the extent proponents believe the relevant factual and legal issues are similar as to the two classes of works, the supporting comments should describe those matters Proposed Class 6: Audiovisual Works— Space-Shifting jbell on DSKJLSW7X2PROD with PROPOSALS Somewhat related to LCA’s petition, but not cabined to preservation activities conducted by libraries, archives, or museums, SolaByte proposes a broader exemption that would be available to ‘‘[t]he legitimate owner of the DVD or blu-ray disc and licensee of the content’’ for the purpose of ‘‘making a usable personal back up copy.’’ 169 The exemption ‘‘would apply to any title of audio/visual works 5 years after its public release date.’’ 170 SolaByte notes that ‘‘[i]ncomplete licensing of titles by internet media service providers requires the owner of the disc to subscribe to multiple service providers at high personal cost to cover a fraction of their library titles.’’ 171 The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language. The Office notes that in the 2006, 2012, 2015, and 2018 rulemakings, the Librarian rejected proposed exemptions for space-shifting or format-shifting, finding that the proponents had failed to establish under applicable law that space-shifting is a noninfringing use.172 The Office invites comment on whether, in the past three years, there has been any change in the 173 Authors 168 LCA Class 5 Pet. at 2. 169 SolaByte Class 6 Pet. at 2. 170 Id. 171 Id. 172 See 83 FR 54010, 54026–27 (Oct. 26, 2018); 80 FR 65944, 65960 (Oct. 28, 2015); 77 FR 65260, 65276–77 (Oct. 26, 2012); 71 FR 68472, 68478 (Nov. 27, 2006). VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 Alliance, AAUP & LCA Class 6 Pet. at 2. 174 Id. 175 Id. at 3. 176 Id. 177 17 U.S.C. 1201(a)(1)(C) (emphasis added); see supra Section I. 178 Commerce Comm. Report at 38 (emphasis added). PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 65305 in detail. For example, commenters may wish to address the extent to which there is overlap with respect to the types of TPMs applied to these works, the nature of the proposed research activities, the relevant markets for the works, and the availability of potential alternatives to circumvention. Proposed Class 8: Literary Works— Accessibility ACB, AFB, NFB, LCA, AALL, Benetech/Bookshare, and HathiTrust petition to expand the current exemption for the use of assistive technologies by visually impaired persons in connection with electronically distributed literary works. The current regulatory language applies to literary works, distributed electronically, that are protected by technological measures that either prevent the enabling of read-aloud functionality or interfere with screen readers or other applications or assistive technologies: • 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 • When such work is a nondramatic literary work, lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121.179 The proposed exemption would amend this language to reflect recent changes to U.S. law to implement the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘‘Marrakesh Treaty’’).180 These include updates to the Chaffee Amendment, codified at section 121 of title 17, and the newly adopted section 121A, which pertains to the import and export of works in accessible formats. Petitioners propose the following changes: • Updating the description of eligible users from ‘‘blind or other person with a disability’’ to ‘‘eligible person, as such a person is defined in 17 U.S.C. 121’’; • Updating the description of eligible works to ‘‘literary works and previously published musical works that have been fixed in the form of text or notation’’; and • Adding the phrase ‘‘or 121A’’ to the end of 37 CFR 201.40(b)(3)(ii). As an 179 37 CFR 201.40(b)(3). Treaty, art. 7, June 27, 2013, 52 I.L.M. 1312. 180 Marrakesh E:\FR\FM\15OCP1.SGM 15OCP1 65306 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules alternative, petitioners request clarification that exercising the rights described in section 121A does not implicate section 1201.181 In addition, petitioners request that the Office ‘‘eliminate the reference to the price of ‘mainstream’ copies of works . . . and replace this term with a more inclusive phrase such as ‘market price of an inaccessible copy.’ ’’ 182 The Office seeks comment on whether this proposed exemption, including petitioners’ suggested regulatory language, should be adopted. jbell on DSKJLSW7X2PROD with PROPOSALS Proposed Class 9: Literary Works— Medical Device Data Hugo Campos, a member of a coalition of medical device patients and researchers, requests two modifications to the current exemption permitting circumvention to access compilations of data generated by medical devices or corresponding personal monitoring systems. First, he seeks removal of the language limiting the exemption to devices ‘‘that are wholly or partially implanted in the body.’’ 183 He notes that ‘‘[m]any current and upcoming devices obtain medical data about a patient without the need to be fully or partially implanted in the body,’’ including smart watches, personal EKG monitors, and non-implanted glucose meters.184 And he argues that ‘‘there is no relevant difference between implanted and non-implanted devices with respect to copyright.’’ 185 Second, Mr. Campos requests that the exemption ‘‘permit third parties to perform the circumvention, with permission, on behalf of the patient.’’ 186 He notes that the Office and the Library ‘‘have structured other exemptions so that the identity of the person doing the circumvention does not matter.’’ 187 The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language. With respect to the request to permit third-party assistance, the Office notes that it has addressed this issue on several occasions, most recently in the 2018 Recommendation’s discussion of the current exemptions for repair of software-enabled motor vehicles and devices. There, the Office recommended removal of the prior requirement that circumvention be ‘‘undertaken by the authorized owner’’ 181 ACB, AFB, NFB, LCA, AALL, Benetech/ Bookshare & HathiTrust Class 8 Pet. at 4. 182 Id. 183 Campos Class 9 Pet. at 2 (citing 37 CFR 201.40(b)(4)). 184 Id. at 2. 185 Id. 186 Id. 187 Id. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 of the vehicle or device, noting participants’ concern that such language ‘‘improperly excludes other users with a legitimate interest in engaging in noninfringing diagnosis, repair, or modification activities.’’ 188 But the Office emphasized the limited nature of the change: To be clear, removal of the ‘‘authorized owner’’ language should in no way be understood to suggest that the exemption extends to conduct prohibited by the antitrafficking provisions; such an exemption is beyond the Librarian’s authority to adopt. . . . The recommended revision simply accounts for the possibility that certain third parties may qualify as ‘‘user[s]’’ eligible for an exemption from liability under section 1201(a)(1). Such parties still will be required to consider whether their activities could separately give rise to liability under section 1201(a)(2) or (b). Given the legal uncertainty in this area, services electing to proceed with circumvention activity pursuant to the exemption do so at their peril.189 The Office invites comment on the extent to which this analysis may be relevant to the current proposal. Proposed Class 10: Computer Programs—Unlocking ISRI submitted two separate petitions to expand the current exemption for ‘‘unlocking’’—i.e., connecting a wireless device to an alternative wireless network. The current exemption permits circumvention of the following lawfully acquired devices for unlocking purposes: • Wireless telephone handsets (i.e., cellphones); • All-purpose tablet computers; • Portable mobile connectivity devices, such as mobile hotspots, removable wireless broadband modems, and similar devices; and • Wearable wireless devices designed to be worn on the body, such as smartwatches or fitness devices.190 In its first petition, ISRI seeks to add ‘‘laptop computers (including chromebooks) with 4G LTE or 5G or other cellular connection capabilities’’ to the list of covered devices.191 In its second petition, ISRI seeks to remove the enumeration of devices altogether and extend the exemption to ‘‘any other devices with 4G LTE or 5G or other cellular connection capabilities,’’ including, but not limited to, ‘‘Smart TVs, Internet of Things (IoT) devices, immersive extended reality (XR) headsets, desktop computers, and drones.’’ 192 Recommendation at 229. at 225. 190 37 CFR 201.40(b)(5). 191 ISRI Class 10 Pet. #1 at 2. 192 ISRI Class 10 Pet. #2 at 2. The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language. The Office notes that in the seventh triennial rulemaking it considered a similar petition to remove the list of enumerated device categories, but concluded that the proponents had failed to carry their burden of demonstrating adverse effects on noninfringing uses with respect to all types of wireless devices with cellular connection capability.193 Comments responding to this petition should address the extent to which factual and legal issues pertaining to certain categories of devices may be relevant to wireless devices more generally. Proposed Class 11: Computer Programs—Jailbreaking Two petitions seek to expand or clarify the categories of devices covered by the exemptions for jailbreaking, which currently include smartphones and portable all-purpose mobile computing devices, smart televisions, and voice assistant devices.194 SFC petitions for a new exemption to enable the installation of alternative firmware in ‘‘routers and other networking devices.’’ 195 EFF proposes a clarification of the current exemption regarding smart televisions. In EFF’s view, it is ‘‘unclear whether that exemption includes hardware devices that enable the viewing of video streams, along with other software applications, when such devices are not physically integrated into a television.’’ 196 The petition refers to such hardware as ‘‘streaming devices’’ and cites ‘‘the Roku line of products, the Amazon Fire TV Stick, and the Apple TV’’ as examples.197 The Office seeks comment on whether these proposed exemptions should be adopted, including any proposed regulatory language to define the types of devices that would be covered. Proposed Class 12: Computer Programs—Repair Multiple organizations petition for new or expanded exemptions relating to diagnosis, repair, and modification of software-enabled devices. As noted, the current regulations include two repairrelated exemptions, covering (1) computer programs that are contained in and control the functioning of a lawfully acquired motorized land vehicle, when circumvention is a 188 2018 193 2018 189 Id. 194 37 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 Recommendation at 162. CFR 201.40(b)(6)–(8). 195 SFC Class 11 Pet. at 2. 196 EFF Class 11 Pet. at 2. 197 Id. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules necessary step to allow the diagnosis, repair, or lawful modification of a vehicle function; and (2) computer programs that are contained in and control the functioning of a lawfully acquired smartphone or home appliance or home system, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system.198 Three petitions seek to expand the current exemptions to include additional types of devices. Summit Imaging, Inc. and Transtate Equipment Co., Inc. separately petition for an exemption allowing circumvention of TPMs for purposes of diagnosis, modification, and repair of medical devices.199 iFixit and Public Knowledge jointly petition for an exemption permitting circumvention ‘‘to repair video game consoles and replace damaged hardware.’’ 200 With respect to the latter petition, the Office notes that in prior rulemakings it has declined to recommend exemptions for jailbreaking and repair of video game consoles in light of evidence that circumvention of TPMs in such devices may adversely affect the value of the affected software, as well as a lack of evidence of adverse effects on noninfringing uses.201 The Office invites comment on whether, in the past three years, there has been any change in the legal or factual circumstances bearing upon these issues. Two additional petitions request removal of the limitation to specific categories of devices, along with further changes to the current regulatory text.202 EFF seeks to expand the exemption to permit circumvention for purposes of modification of a device, in addition to repair-related activities. iFixit and the Repair Association propose to remove the current requirement that circumvention of TPMs protecting software in motor vehicles not constitute a violation of applicable law.203 The Office notes that it considered similar requests regarding these issues in the 2018 rulemaking.204 Therefore, as with the above petitions, comments addressing these proposals 198 37 CFR 201.40(b)(9)–(10). Imaging, Inc. Class 12 Pet. at 2; Transtate Equip. Co. Class 12 Pet. at 2. 200 iFixit & Public Knowledge Class 12 Pet. at 2. 201 See 2018 Recommendation at 206, 219–20; 2015 Recommendation at 199–201; 2012 Recommendation at 44, 47. 202 EFF Class 12 Pet. at 2–3; iFixit & Repair Ass’n Class 12 Pet. at 2–3. 203 iFixit & Repair.org Class 12 Pet. at 3. 204 See 2018 Recommendation at 189–94, 206–09, 310–11. should include discussion of any relevant changed circumstances. Finally, the Office notes that all of the petitions in this class appear to request that the users eligible to exercise these exemptions include third-party service providers.205 As above, the Office invites comment on the extent to which its prior analysis of that issue may be applicable here.206 Proposed Class 13: Computer Programs—Security Research Two petitions seek to expand the current exemption permitting circumvention for purposes of goodfaith security research. Professor J. Alex Halderman, CDT, and ACM propose removal of several limitations in the current regulation: (1) The requirement that circumvention be undertaken on a ‘‘lawfully acquired device or machine on which the computer program operates’’ and ‘‘not violate any applicable law’’; (2) both instances of the term ‘‘solely’’ (i.e., ‘‘solely for the purpose of good-faith security research’’ and ‘‘solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability’’); and (3) the requirement that the information derived from the activity be 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.’’ 207 As petitioners note, the Office considered these proposed changes in the 2018 rulemaking and provided interpretive guidance as to the regulatory language’s intended scope.208 Petitioners state, however, that they ‘‘intend to further develop the record in favor of these changes in the current rulemaking period.’’ 209 SFC petitions for an expansion to ‘‘clarify that the definition of ‘good faith security research’ . . . includes goodfaith testing, investigation, and/or correction of privacy issues (including flaws or functionality that may expose personal information) and permits the owner of the device to remove software or disable functionality that may expose personal information.’’ 210 Eligible users under this proposal would include jbell on DSKJLSW7X2PROD with PROPOSALS 199 Summit VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 65307 ‘‘privacy and security researchers who investigate and publish information about privacy flaws in computing devices; and individual consumers and hobbyists who wish to prevent their private data from being disclosed by the devices they own.’’ 211 The Office seeks comment on whether these proposed changes should be adopted. With respect to SFC’s petition, comments should include discussion of the extent to which the proposed activities may or may not be addressed by permanent statutory exemptions or current regulatory exemptions. Proposed Classes 14(a): Computer Programs and 14(b): Video Games— Preservation SPN and LCA filed two petitions to expand the current exemptions for preservation of software and video games by eligible libraries, archives, and museums.212 Both of these exemptions currently require that the covered works not be ‘‘distributed or made available outside of the physical premises of the eligible library, archives, or museum.’’ 213 The proposed exemptions would remove those requirements.214 The Office welcomes further elaboration on how proponents of the exemptions would envision these works to be distributed or made available in a manner likely to be noninfringing, respectively. For example, the current exemptions are focused on circumvention to enable preservation uses, in contrast to enabling provision of lending copies for users, a preliminary distinction that the Office has found critical in the past when analyzing potential legislative reforms to the section 108 exception for libraries and archives.215 Would the proposed modification maintain this distinction, and if so, how? Would there be conditions on access restrictions to registered users of an eligible library, archives, or museum or would material be made available more generally to members of the public? The Office notes that in the 2018 rulemaking, it declined to recommend a proposal to expand the video game preservation exemption to allow circumvention by affiliate archivists outside the premises of a covered institution, concluding that the 211 Id. 205 Summit Imaging, Inc. Class 12 Pet. at 3; Transtate Equip. Co. Class 12 Pet. at 2; iFixit & Public Knowledge Class 12 Pet. at 2; EFF Class 12 Pet. at 2–3; iFixit & Repair Ass’n Class 12 Pet. at 2. 206 See 2018 Recommendation at 225. 207 Halderman, CDT & ACM Class 13 Pet. at 3. 208 See 2018 Recommendation at 283–314. 209 Halderman, CDT & ACM Class 13 Pet. at 3. 210 SFC Class 13 Pet. at 2. PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 212 37 CFR 201.40(b)(12), (13). at § 201.40(b)(12)(ii), (b)(13)(i). 214 SPN & LCA Class 14(a) Pet. at 2; SPN & LCA Class 14(b) Pet. at 2. 215 U.S. Copyright Office, Revising Section 108: Copyright Exceptions for Libraries and Archives at 24–34 (addressing preservation uses), 35–41 (addressing user copies) (2017), https:// www.copyright.gov/policy/section108/discussiondocument.pdf. 213 Id. E:\FR\FM\15OCP1.SGM 15OCP1 65308 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules proponents had failed to establish that such activity was likely noninfringing.216 Commenters responding to these petitions should address the extent to which the legal and factual issues relevant to this class may differ from those considered previously. Although these proposed classes both involve computer programs (which constitute literary works under the Copyright Act), the petition regarding video games involves an additional category of works insofar as video games also constitute audiovisual works.217 Therefore, the Office is following the same procedure discussed above in relation to the proposed TDM exemption: the Office has grouped these petitions into a single category encompassing two proposed classes. Commenters addressing these proposals may submit a single comment addressing both computer programs and video games, but the supporting evidence must be sufficient to establish an adverse effect on noninfringing uses with respect to each category of works. In particular, the Office is interested in the extent to which licensing markets for video games may be similar or different from those for software more generally, and whether any such differences may be relevant under the fair use analysis or the expected effect of circumvention of technological measures on the market for or value of copyrighted works.218 The Office seeks comment on these and other relevant issues, including any proposed regulatory language. jbell on DSKJLSW7X2PROD with PROPOSALS Proposed Class 15: Computer Programs—3D Printing Michael Weinberg petitions to amend the current exemption permitting circumvention to enable the use of alternative feedstock in 3D printers. The current exemption allows access to ‘‘[c]omputer programs that operate 3D printers that employ microchip-reliant technological measures to limit the use of feedstock, when circumvention is accomplished solely for the purpose of using alternative feedstock and not for the purpose of accessing design software, design files, or proprietary data.’’ 219 Mr. Weinberg seeks two changes to this language. First, he proposes to ‘‘replace the term ‘feedstock’ . . . with the term ‘material,’ ’’ stating that the latter ‘‘is more commonly used to describe the substances used by 3D printers within the 3D printing community and industry.’’ 220 Second, he proposes to remove the term ‘‘microchip-reliant.’’ In his view, there is no ‘‘justification to narrow the scope of the exemption to a specific subset of technological measures tied to microchip-based verifications,’’ and ‘‘the inclusion of the limiting language creates unnecessary ambiguity.’’ 221 As noted, to recommend an exemption, the Office requires a showing that the statutory prohibition on circumventing access controls is yielding adverse effects on noninfringing uses. The current reference to ‘‘microchip-reliant’’ was based on the record of relevant TPMs submitted in connection with the exemption request.222 In particular, the Office now solicits descriptions and examples of the prevalence of TPMs that are not microchip-based verifications, and descriptions of adverse effects stemming from such TPMs.223 In general, the Office seeks comment on whether these proposed changes should be adopted. Proposed Class 16: Computer Programs—Copyright License Investigation SFC petitions for a new exemption to permit circumvention of TPMs protecting computer programs for purposes of ‘‘(a) investigating potential copyright infringement of the computer programs; and (b) making lawful use of computer programs (e.g., copying, modifying, redistributing, and updating free and open source software (FOSS)).’’ 224 The proposed exemption does not appear to be limited to particular users or types of devices. SFC states that the users seeking access include: software authors and publishers, including the authors of FOSS computer programs (which are frequently incorporated in embedded computing devices in an infringing manner); and individual consumers who are lawful owners of embedded computing devices and licensees of the computer programs embedded therein, and who wish to make lawful use of computer programs protected by technological protection measures (e.g. the right granted by certain FOSS licenses to 220 Weinberg Class 15 Pet. at 2. 221 Id. 216 2018 Recommendation at 271–75. Copyright Office, Compendium of U.S. Copyright Office Practices sec. 807.7(A)(1) (3d ed. 2017) (‘‘Generally, a videogame contains two major components: the audiovisual material and the computer program that runs the game.’’). 218 See 17 U.S.C. 107; 1201(a)(1)(C)(iv). 219 37 CFR 201.40(b)(14). 217 U.S. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 222 2015 Recommendation at 376. Lexmark Int’l Inc. v. Static Control Components, Inc., 387 F.3d 522, 547 (6th Cir. 2004) (‘‘Because the statute refers to ‘control[ling] access to a work protected under this title,’ it does not naturally apply when the ‘work protected under this title’ is otherwise accessible.’’). 224 SFC Class 16 Pet. at 2. 223 See PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 install modified versions of the FOSS computer programs).225 It is somewhat unclear whether the requested exemption for ‘‘lawful use of computer programs’’ would apply to any lawful use or seeks merely to allow licensed uses of FOSS software. To the extent the former is intended, the proposed exemption appears beyond the Librarian’s authority to grant. As the Office has consistently noted, the rulemaking requires a showing of ‘‘distinct, verifiable and measurable’’ adverse impacts on noninfringing uses.226 Such evidence ‘‘cannot be hypothetical, theoretical, or speculative, but must be real, tangible, and concrete.’’ 227 In light of that requirement, ‘‘the Register has previously rejected broad proposed categories such as ‘fair use works’ or ‘educational fair use works’ as inappropriate.’’ 228 SFC and any other proponents of this request therefore must narrow or clarify the specific uses of computer programs that the proposed exemption seeks to permit, so that participants and the Office may fairly assess whether they are likely to be noninfringing and adversely affected by the prohibition on circumvention. The Office also welcomes additional detail regarding the first subpart of SFC’s intended uses ‘‘investigating potential copyright infringement of the computer programs, including the statement ‘‘FOSS computer programs ([ ] are frequently incorporated in embedded computing devices in an infringing manner).’’ Proposed Class 17: All Works— Accessibility Uses Multiple organizations representing persons with disabilities (‘‘Accessibility Petitioners’’) jointly filed a petition proposing ‘‘a more comprehensive exemption to resolve the shortcomings of the current, piecemeal approach to Section 1201 exemptions for accessibility.’’ 229 The proposed exemption would permit circumvention to access ‘‘all cognizable classes of works under Section 102 (a) of the Copyright Act’’ to facilitate accessibility for persons with disabilities. Accessibility Petitioners state that this 225 Id. 226 Commerce Committee Report at 37; see also Section 1201 Study at 119–21. 227 Section 1201 Study at 120. 228 2015 Recommendation at 100 (citing 2006 Recommendation at 17–19). 229 ACB, AFB, Ass’n of Late-Deafened Adults, ATSP, AHEAD, Benetech/Bookshare, Gallaudet U., HathiTrust, Hearing Loss Ass’n of Am., LCA, Nat’l Ass’n of the Deaf, Nat’l Fed’n of the Blind, Telecomm. for the Deaf and Hard of Hearing, Inc. (collectively ‘‘Accessibility Petitioners’’) Class 17 Pet. at 4. E:\FR\FM\15OCP1.SGM 15OCP1 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules exemption would allow such users, as well as ‘‘advocates[ ] and organizations that produce accessible versions of copyrighted works protected by technological protection measures[,] to press ahead on accessibility without the burden of engaging in a complex, situation-specific analysis.’’ 230 They state that the relevant barriers to access include ‘‘(1) the access controls that inhibit accessibility and (2) failures of producers, publishers, and other rightsholders to authorize access for accessibility purposes or to produce accessible versions of their works.’’ 231 As presently suggested, this proposed exemption is beyond the Librarian’s authority to adopt because it does not meet the statutory requirement to describe ‘‘a particular class of copyrighted works.’’ 232 As discussed above, the legislative history confirms that this language is intended to refer to ‘‘a narrow and focused subset of the broad categories of works . . . identified in section 102 of the Copyright Act.’’ 233 Therefore, the Office uses the section 102 categories as a starting point and refines the proposed classes by other criteria, such as the types of TPMs used or the types of uses.234 For example, while the category of ‘‘literary works’’ under section 102(a)(1) ‘‘embraces both prose creations such as journals, periodicals or books, and computer programs of all kinds,’’ Congress explained that ‘‘[i]t is exceedingly unlikely that the impact of the prohibition on circumvention of access control technologies will be the same for scientific journals as it is for computer operating systems.’’ 235 Thus, ‘‘these two categories of works, while both ‘literary works,’ do not constitute a single ‘particular class’ for purposes of’’ section 1201(a)(1).236 Further, petitioners are required to establish ‘‘distinct, verifiable and measurable impacts’’ on noninfringing uses,237 and those impacts must be caused by the statutory prohibition on circumvention.238 While TPMs undoubtedly have such impacts with respect to many accessibility uses (as 230 Id. at 5. 231 Id. 232 17 U.S.C. 1201(a)(1)(C) (emphasis added). Committee Report at 38 (emphasis jbell on DSKJLSW7X2PROD with PROPOSALS 233 Commerce added). 234 See supra Section I. 235 House Manager’s Report at 7. 236 Id. As noted, the Office has repeatedly declined to recommend proposed exemptions that have failed to define the class of works to be covered with sufficient particularity. See, e.g., 2018 Recommendation at 131–32; 79 FR at 73859; 2006 Recommendation at 17–19. 237 Commerce Committee Report at 37. 238 17 U.S.C. 1201(a)(1)(C); see also Section 1201 Study at 115, 117. VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 reflected by the exemptions adopted for such uses in prior rulemakings), it is not clear to what extent various TPMs are effectively applied to every category of work in section 102, some of which may not readily lend themselves to such measures (e.g., sculptural works). In addition, the availability of accessibleformat versions of works in the marketplace is a relevant consideration in determining adverse effects,239 and it is not clear that that factor applies equally to all categories of works. The Office notes its continuing discretion to decline to put forward proposals for public comment that are unlikely to yield consideration of exemptions consistent with the standards of section 1201(a)(1).240 In light of the important public policy considerations raised by this request and past exemptions adopted with respect to facilitating accessibility uses, however, the Office is noticing this category for public comment while flagging the need to further develop and refine petitioners’ request into separate proposed classes. Accordingly, Accessibility Petitioners and any other proponents in this category must provide evidence and legal analysis sufficient to enable the Office to make a particularized assessment as to each class of works for which an exemption is sought. Based on prior exemptions adopted, the Office anticipates Accessibility Petitioners to be seeking exemptions related to TPMs protecting literary works as well as motion pictures distributed electronically, and proponents should provide evidence and proposed regulatory language with respect to these and any other relevant classes, and clearly identify and propose contours for each such class. For example, the Office is not inclined to recommend an exemption for printed copies of literary works, for which no TPMs are employed. Nor is the Office empowered to recommend regulatory language that extends to sound recordings, musical works, architectural works, etc. without development of an adequate administrative record demonstrating that an exemption is appropriate for each of these classes.241 239 See, e.g., 2018 Recommendation at 110 (including market check requirement in exemption for accessibility uses of audiovisual works ‘‘to prevent copies being made of works already available in accessible formats, while supporting the motion picture industry’s effort to further expand the availability of accessible versions in the marketplace’’). 240 79 FR at 73859 (declining to notice three proposals for public comment). 241 See supra Section I (outlining four elements to the evidentiary standard applied by the Office in evaluating requests). PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 65309 Accessibility Petitioners should also include, with respect to each class, evidence of an actual or likely adverse effect on accessibility uses resulting from TPMs applied to that type of work. While the Office recognizes the vital importance of ensuring accessibility for persons with disabilities, and indeed has recommended legislation to make permanent the current exemption regarding assistive technologies for electronically-distributed literary works,242 its authority in this proceeding is bound by the provisions of the statute. Subject to these requirements, the Office invites comment on this proposed class(es). IV. Future Phases of the Eighth Triennial Rulemaking As in prior rulemakings, after receipt of written comments, the Office will continue to solicit public engagement to create a comprehensive record. Described below are the future phases of the administrative process that will be employed for this rulemaking, so that parties may use this information in their planning. A. Public Hearings The Copyright Office intends to hold public hearings in spring 2021 following the last round of written comments. The hearings will allow for participation by videoconference and will be streamed online. In addition, the Office will determine at a later date, based on applicable public health guidelines, whether in-person participation will be possible. A separate notice providing details about the hearings and how to participate will be published in the Federal Register at a later date. The Office will identify specific items of inquiry to be addressed during the hearings. B. Post-Hearing Questions As with previous rulemakings, following the hearings, the Copyright Office may request additional information with respect to particular classes from rulemaking participants. The Office may rely on this process in cases where it would be useful for participants to supply missing information for the record or otherwise resolve issues that the Office believes are material to particular exemptions. Such requests for information will take the form of a letter from the Copyright Office and will be addressed to individual parties involved in the proposal as to which more information is sought. While responding to such a request will be voluntary, any response 242 See E:\FR\FM\15OCP1.SGM Section 1201 Study at 84–88. 15OCP1 65310 Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Proposed Rules will need to be supplied by a specified deadline. After the receipt of all responses, the Office will post the questions and responses on the Office’s website as part of the public record. C. Ex Parte Communication In the seventh triennial rulemaking, in response to stakeholder requests, the Office issued written guidelines under which interested non-governmental participants could request informal communications with the Office during the post-hearing phase of the proceeding. The Office expects to follow substantially the same process in this proceeding. To ensure transparency, participating parties will be required to submit a list of attendees and a written summary of any oral communications, which will be posted on the Office’s website. Specific guidelines for this proceeding will be made available following the public hearings. No ex parte communications with the Office regarding this proceeding will be permitted prior to the post-hearing phase. Dated: October 9, 2020. Regan A. Smith, General Counsel and Associate Register of Copyrights. [FR Doc. 2020–22893 Filed 10–14–20; 8:45 am] BILLING CODE 1410–30–P POSTAL SERVICE 39 CFR Part 20 International Mailing Services: Proposed Product and Price Changes—CPI Postal ServiceTM. ACTION: Proposed rule; request for comments. AGENCY: The Postal Service proposes to revise Mailing Standards of the United States Postal Service, International Mail Manual (IMM®), to reflect changes coincident with the recently announced mailing services price adjustments. DATES: We must receive your comments on or before November 16, 2020. ADDRESSES: Mail or deliver comments to the manager, Product Classification, U.S. Postal Service®, 475 L’Enfant Plaza SW, RM 4446, Washington, DC 20260– 5015. You may inspect and photocopy all written comments at USPS® Headquarters Library, 475 L’Enfant Plaza SW, 11th Floor N, Washington DC by appointment only between the hours of 9 a.m. and 4 p.m., Monday through Friday by calling 1–202–268–2906 in advance. Email comments, containing the name and address of the commenter, to: PCFederalRegister@usps.gov, with a subject line of ‘‘January 2021 International Mailing Services Price SUMMARY: Change—CPI.’’ Faxed comments are not accepted. FOR FURTHER INFORMATION CONTACT: Kathy Frigo at 202–268–4178. SUPPLEMENTARY INFORMATION: International Price and Service Adjustments On October 9, 2020, the Postal Service filed a notice of mailing services price adjustments with the Postal Regulatory Commission (PRC), effective on January 24, 2021. The Postal Service proposes to revise Notice 123, Price List, available on Postal Explorer® at https:// pe.usps.com, to reflect these new price changes. The new prices are or will be available under Docket Number R2021– 1 on the Postal Regulatory Commission’s website at www.prc.gov. This proposed rule describes the price changes for the following market dominant international services: • International extra services and fees. International Extra Services and Fees The Postal Service plans to increase prices for certain market dominant international extra services including: • Certificate of Mailing • Registered MailTM • Return Receipt • Customs Clearance and Delivery Fee • International Business ReplyTM Mail Service CERTIFICATE OF MAILING Fee Individual pieces Individual article (PS Form 3817) ........................................................................................................................................................ Duplicate copy of PS Form 3817 or PS Form 3665 (per page) ......................................................................................................... Firm mailing sheet (PS Form 3665), per piece (minimum 3), First-Class Mail International only ..................................................... $1.55 1.55 0.44 Bulk quantities For first 1,000 pieces (or fraction thereof) ........................................................................................................................................... Each additional 1,000 pieces (or fraction thereof) .............................................................................................................................. Duplicate copy of PS Form 3606 ........................................................................................................................................................ Registered Mail Fee: $16.30. Return Receipt Fee: $4.25. jbell on DSKJLSW7X2PROD with PROPOSALS Customs Clearance and Delivery Fee: per piece $6.65. International Business Reply Service Fee: Cards $1.55; Envelopes up to 2 ounces $2.05 Following the completion of Docket No. R2021–1, the Postal Service will adjust the prices for products and VerDate Sep<11>2014 16:31 Oct 14, 2020 Jkt 253001 services covered by the International Mail Manual. These prices will be on Postal Explorer at pe.usps.com. Accordingly, although exempt from the notice and comment requirements of the Administrative Procedure Act (5 U.S.C. 553(b), (c)) regarding proposed rulemaking by 39 U.S.C. 410(a), the Postal Service invites public comment on the following proposed changes to Mailing Standards of the United States Postal Service, International Mail Manual (IMM®), which is incorporated by reference in the Code of Federal Regulations in accordance with 39 CFR PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 $8.80 1.10 1.55 20.1, and to associated changes to Notice 123, Price List. List of Subjects in 39 CFR Part 20 Foreign relations, International postal services. Accordingly, 39 CFR part 20 is proposed to be amended as follows: PART 20—[AMENDED] 1. The authority citation for 39 CFR part 20 continues to read as follows: ■ Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, E:\FR\FM\15OCP1.SGM 15OCP1

Agencies

[Federal Register Volume 85, Number 200 (Thursday, October 15, 2020)]
[Proposed Rules]
[Pages 65293-65310]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22893]


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LIBRARY OF CONGRESS

U.S. Copyright Office

37 CFR Part 201

[Docket No. 2020-11]


Exemptions To Permit Circumvention of Access Controls on 
Copyrighted Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is conducting the eighth 
triennial rulemaking proceeding under the Digital Millennium Copyright 
Act (``DMCA''), concerning possible temporary exemptions to the DMCA's 
prohibition against circumvention of technological measures that 
control access to copyrighted works. In this proceeding, the Copyright 
Office is considering petitions for the renewal of exemptions that were 
granted during the seventh triennial rulemaking along with petitions 
for new exemptions to engage in activities not currently permitted by 
existing exemptions. On June 22, 2020, the Office published a 
notification of inquiry requesting petitions to renew existing 
exemptions and comments in response to those petitions, as well as 
petitions for new exemptions. Having carefully considered the comments 
received in response to that notification, in this notice of proposed 
rulemaking (``NPRM''), the Office announces its intention to recommend 
each of the existing exemptions for readoption. This NPRM also 
initiates three rounds of public comment on the newly-proposed 
exemptions. Interested parties are invited to make full legal and 
evidentiary submissions in support of or in opposition to the proposed 
exemptions, in accordance with the requirements set forth below.

DATES: Initial written comments (including documentary evidence) and 
multimedia evidence from proponents and other members of the public who 
support the adoption of a proposed exemption, as well as parties that 
neither support nor oppose an exemption but seek to share pertinent 
information about a proposal, are due December 14, 2020. Written 
response comments (including documentary evidence) and multimedia 
evidence from those who oppose the adoption of a proposed exemption are 
due February 9, 2021. Written reply comments from supporters of 
particular proposals and parties that neither support nor oppose a 
proposal are due March 10, 2021. Commenting parties should be aware 
that rather than reserving time for potential extensions of time to 
file comments, the Office has already established what it believes to 
be the most generous possible deadlines consistent with the goal of 
concluding the triennial proceeding in a timely fashion.

ADDRESSES: The Copyright Office is using the regulations.gov system for 
the submission and posting of comments in this proceeding. All comments 
are therefore to be submitted electronically through regulations.gov. 
The Office is accepting two types of comments. First, commenters who 
wish briefly to express general support for or opposition to a proposed 
exemption may submit such comments electronically by typing into the 
comment field on regulations.gov. Second, commenters who wish to 
provide a fuller legal and evidentiary basis for their position may 
upload a Word or PDF document, but such longer submissions must be 
completed using the long-comment form provided on the Office's website 
at https://www.copyright.gov/1201/2021. Specific instructions for 
submitting comments, including multimedia evidence that cannot be 
uploaded through regulations.gov, are also available on that web page. 
If a commenter cannot meet a particular submission requirement, please 
contact the Office using the contact information below for special 
instructions.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at [email protected], 
Kevin R. Amer, Deputy General Counsel, by email at [email protected], 
or Terry Hart, Assistant General Counsel, by email at 
[email protected]. Each can be contacted by telephone by calling 
(202) 707-8350.

SUPPLEMENTARY INFORMATION: On June 22, 2020, the Office published a 
notification of inquiry requesting petitions to renew current 
exemptions, oppositions to the renewal petitions, and petitions for 
newly proposed exemptions in connection with the eighth triennial 
section 1201 rulemaking.\1\ In response, the Office received thirty-two 
renewal petitions, eight comments in opposition to renewal of a current 
exemption, and seven comments supporting renewal of a current 
exemption.\2\ These comments are discussed further below. In addition, 
the Office received twenty-six petitions for new exemptions or 
expansion of previously granted exemptions.
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    \1\ 85 FR 37399 (June 22, 2020).
    \2\ The comments received in response to the notification of 
inquiry are available at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2020-0010 and on the Copyright Office website. Renewal petitions are 
available at https://www.copyright.gov/1201/2021/petitions/renewal/, 
and petitions for new exemptions are available at https://www.copyright.gov/1201/2021/petitions/proposed/. References to 
renewal petitions and comments are by party name (abbreviated where 
appropriate) and a brief identification of the previously granted 
exemption, followed by either ``Renewal Pet.,'' ``Supp.'' (for 
comments supporting an exemption), or ``Opp.'' (for comments 
opposing an exemption). References to petitions for new exemptions 
are by party name (abbreviated where appropriate), the Office's 
proposed class number, and ``Pet.''
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    With this NPRM, the Office sets forth the exemptions that it 
intends to recommend for readoption without the need for further 
development of the administrative record, and outlines the proposed 
classes for new exemptions for which the Office initiates three rounds 
of public comment.

I. Standard for Evaluating Proposed Exemptions

    As the notification of inquiry explained, for a temporary exemption 
from the prohibition on circumvention to be granted through the 
triennial rulemaking, it must be established that ``persons who are 
users of a copyrighted work are, or are likely to be in the succeeding 
3-year period, adversely affected by the prohibition . . . in their 
ability to make noninfringing uses under [title 17] of a particular 
class of copyrighted works.'' \3\ To define an appropriate class of 
copyrighted works, the Office begins with the broad

[[Page 65294]]

categories of works identified in 17 U.S.C. 102 and then refines them 
by other criteria, such as the technological protection measures 
(``TPMs'') used, distribution platforms, and/or types of uses or 
users.\4\
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    \3\ 17 U.S.C. 1201(a)(1)(C).
    \4\ See H.R. Rep. No. 105-551, pt. 2, at 38 (1998) (``Commerce 
Comm. Report''); U.S. Copyright Office, Section 1201 Rulemaking: 
Seventh Triennial Proceeding to Determine Exemptions to the 
Prohibition on Circumvention, Recommendation of the Acting Register 
of Copyrights 13-14 (2018) (``2018 Recommendation''); U.S. Copyright 
Office, Section 1201 of Title 17, at 26, 108-10 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf 
(``Section 1201 Study''); see also 82 FR 49550, 49551 (Oct. 26, 
2017) (same).
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    In evaluating the evidence, the statutory factors listed in section 
1201(a)(1)(C) are weighed: (i) The availability for use of copyrighted 
works; (ii) the availability for use of works for nonprofit archival, 
preservation, and educational purposes; (iii) the impact that the 
prohibition on the circumvention of technological measures applied to 
copyrighted works has on criticism, comment, news reporting, teaching, 
scholarship, or research; (iv) the effect of circumvention of 
technological measures on the market for or value of copyrighted works; 
and (v) such other factors as the Librarian considers appropriate.\5\ 
After developing a comprehensive administrative record, the Register 
makes a recommendation to the Librarian of Congress concerning whether 
exemptions are warranted based on that record.
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    \5\ 17 U.S.C. 1201(a)(1)(C).
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    The Office has previously articulated the substantive legal and 
evidentiary standard for the granting of an exemption under section 
1201(a)(1) multiple times, including in video and PowerPoint tutorials, 
its 2017 policy study for Congress on section 1201, and in prior 
recommendations of the Register concerning proposed classes of 
exemptions, each of which is accessible from the Office's section 1201 
rulemaking web page at https://www.copyright.gov/1201/. In considering 
whether to recommend an exemption, the Office must inquire: ``Are users 
of a copyrighted work adversely affected by the prohibition on 
circumvention in their ability to make noninfringing uses of a class of 
copyrighted works, or are users likely to be so adversely affected in 
the next three years?'' \6\ This inquiry breaks down into the following 
elements:
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    \6\ Section 1201 Study at 114.
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     The proposed class includes at least some works protected 
by copyright.
     The uses at issue are noninfringing under title 17.
     Users are adversely affected in their ability to make such 
noninfringing uses or, alternatively, users are likely to be adversely 
affected in their ability to make such noninfringing uses during the 
next three years. This element is analyzed in reference to section 
1201(a)(1)(C)'s five statutory factors.
     The statutory prohibition on circumventing access controls 
is the cause of the adverse effects.\7\
---------------------------------------------------------------------------

    \7\ Id. at 115; see also id. at 115-27.

The Register will consider the Copyright Act and relevant judicial 
precedents when analyzing whether a proposed use is likely to be 
noninfringing.\8\ When considering whether such uses are being 
adversely impacted by the prohibition on circumvention, the rulemaking 
focuses on ``distinct, verifiable, and measurable impacts'' compared to 
``de minimis impacts.'' \9\ Taking the administrative record as a 
whole, the Office will consider whether the preponderance of the 
evidence shows that the conditions for granting an exemption have been 
met.\10\
---------------------------------------------------------------------------

    \8\ Id. at 115-17. While controlling precedent directly on point 
is not required to justify an exemption, there is no ``rule of 
doubt'' favoring an exemption when it is unclear that a particular 
use is fair or otherwise noninfringing. See U.S. Copyright Office, 
Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine 
Exemptions to the Prohibition on Circumvention, Recommendation of 
the Register of Copyrights 15 (2015) (``2015 Recommendation'').
    \9\ Commerce Comm. Report at 37; see also 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) (using the equivalent phrase 
``substantial adverse impact'') (``House Manager's Report''); see 
also, e.g., Section 1201 Study at 119-21 (discussing same and citing 
application of this standard in five prior rulemakings).
    \10\ See 17 U.S.C. 1201(a)(1)(C) (asking whether users ``are, or 
are likely to be in the succeeding 3-year period, adversely affected 
by the prohibition [on circumvention] in their ability to make 
noninfringing uses'') (emphasis added); Section 1201 Study at 111-
12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. 
Cir. 1980) (noting that ``[t]he use of the `preponderance of 
evidence' standard is the traditional standard in civil and 
administrative proceedings''); 70 FR 57526, 57528 (Oct. 3, 2005); 
2018 Recommendation at 18; 2015 Recommendation at 13-14; U.S. 
Copyright Office, Section 1201 Rulemaking: Fifth Triennial 
Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights 6 (2012) 
(``2012 Recommendation''); U.S. Copyright Office, Section 1201 
Rulemaking: Second Triennial Proceeding to Determine Exemptions to 
the Prohibition on Circumvention, Recommendation of the Register of 
Copyrights 19-20 (2003).
---------------------------------------------------------------------------

II. Review of Petitions To Renew Existing Exemptions

    As with the previous rulemaking proceeding, the Office is using a 
streamlined process for recommending readoption of previously-adopted 
exemptions to the Librarian. As the Office explained in its 2017 policy 
study, the ``Register must apply the same evidentiary standards in 
recommending the renewal of exemptions as for first-time exemption 
requests,'' and the statute requires that ``a determination must be 
made specifically for each triennial period.'' \11\ The Office further 
determined that ``the statutory language appears to be broad enough to 
permit determinations to be based upon evidence drawn from prior 
proceedings, but only upon a conclusion that this evidence remains 
reliable to support granting an exemption in the current proceeding.'' 
\12\ The Office first instituted this streamlined renewal process in 
the seventh triennial rulemaking, which concluded in 2018.\13\ The 
process elicited requests to renew each of the exemptions that had been 
previously exempted, none of which were meaningfully contested.\14\ As 
a result, the Office was able to recommend renewal of all previously 
granted exemptions.\15\ The streamlined renewal process was praised by 
participants during the ensuing rulemaking phases.\16\
---------------------------------------------------------------------------

    \11\ Section 1201 Study at 142, 145.
    \12\ Id. at 143.
    \13\ 2018 Recommendation at 17.
    \14\ Id. at 22.
    \15\ Id. at 19.
    \16\ See, e.g., id. at 19 n.80 (collecting transcript testimony 
from 2018 rulemaking).
---------------------------------------------------------------------------

    Following the same procedure that was successfully implemented in 
the last cycle, for this rulemaking, the Office solicited petitions for 
the renewal of exemptions as they are currently formulated, without 
modification. As noted, streamlined renewal is based upon a 
determination that, due to a lack of legal, marketplace, or 
technological changes, the factors that led the Office to recommend 
adoption of the exemption in the prior rulemaking will continue into 
the forthcoming triennial period.\17\ That is, the same facts and 
circumstances underlying the previously-adopted regulatory exemption 
may be relied on to renew the exemption. Accordingly, to the extent 
that any renewal petition proposed uses beyond the current exemption, 
the Office disregarded those portions of the petition for purposes of 
considering the renewal of the exemption, and instead focused on 
whether it provided sufficient information to warrant readoption of the 
exemption in its current form.
---------------------------------------------------------------------------

    \17\ Section 1201 Study at 143-44.
---------------------------------------------------------------------------

    The Office received thirty-two petitions to renew existing 
exemptions, including at least one petition to renew each currently-
adopted exemption. Each

[[Page 65295]]

petition to renew an existing exemption included an explanation 
summarizing the basis for claiming a continuing need and justification 
for the exemption. In each case, petitioners also signed a declaration 
stating that, to the best of their personal knowledge, there has not 
been any material change in the facts, law, or other circumstances set 
forth in the prior rulemaking record such that renewal of the exemption 
would not be justified.
    The Office received fifteen comments in response to the renewal 
petitions; seven of these supported renewal of a specific exemption. 
Eight raised discrete concerns with specific petitions, but none 
opposed the verbatim readoption of an existing regulatory exemption. 
Rather, many of these comments address whether the petitions received 
were sufficient for the Office to consider renewal of the full scope of 
an exemption, rather than themselves disputing the reliability of the 
previously-analyzed administrative record.\18\ These comments are 
specifically addressed in the context of the relevant exemption below.
---------------------------------------------------------------------------

    \18\ See, e.g., DVD Copy Control Ass'n (``DVD CCA'') & Advanced 
Access Content Sys. Licensing Adm'r (``AACS LA'') AV Educ. Opp'n at 
4 (``the failure of any proponent to provide any example of use by 
K-12 students should result in the Copyright Office finding in this 
streamlined renewal process that the exemption may not be renewed as 
to such uses''); DVD CCA & AACS LA Nonfiction Multimedia Ebooks 
Opp'n at 2 (``To the extent the proponents are requesting renewal of 
the full exemption, the failure to provide any example of use of 
this expansion to all nonfiction works beyond film analysis should 
render the exemption's expanded nonfiction uses ineligible for the 
streamlined renewal process''); ESA, MPA & RIAA Noncom. Video Opp'n 
at 1 (``the Register should . . . carefully scrutinize OTW's 
petition, and all of the streamlined renewal petitions, to consider 
whether the examples of alleged exemption use provided in the 
petitions fall within the parameters of the existing exemptions'').
---------------------------------------------------------------------------

    The Office has generally not required petitions to speak to each 
and every type of use, but rather generally aver that the overall 
conditions persist.\19\ Requiring a fulsome showing would undermine the 
goal of the streamlined process. The impetus for instituting the 
streamlined process was to create a more efficient process for 
unopposed exemptions, and the Office was mindful in shaping the 
streamlined renewal process to avoid recreating the requirements of the 
full rulemaking process.\20\ In outlining potential mechanics in its 
Section 1201 Study, the Office envisioned brief filings,\21\ with a 
``minimal'' evidentiary showing required.\22\ The Office has previously 
advised that it is sufficient for petitioners to declare that ``there 
had not been any material change in the facts, law, or other 
circumstances set forth in the prior rulemaking record such that 
renewal of the exemption would not be justified.'' \23\ In the current 
proceeding, the Office explained that it expects petitioners would need 
only ``a paragraph or two'' to explain the need for renewal and that 
documentary evidence at this stage of the process is accepted but not 
necessary.\24\ Petitioners must also ``sign a declaration attesting to 
the continued need for the exemption and the truth of the explanation 
provided in support'' and attest that ``there has not been any material 
change in the facts, law, or other circumstances set forth in the prior 
rulemaking record . . . that originally demonstrated the need for the 
selected exemption, such that renewal of the exemption would not be 
justified.'' \25\ That attestation also serves as a basis for the 
Office to evaluate whether the entirety of the prior administrative 
record supporting a given exemption continues to obtain. The Office 
thus concludes that the petitions received are formally and 
substantively sufficient for the Office to consider in evaluating 
whether renewal of the existing exemptions is appropriate.
---------------------------------------------------------------------------

    \19\ See 85 FR at 37401 (``The petitioner must provide a brief 
explanation summarizing the basis for claiming a continuing need and 
justification for the exemption. The required showing is meant to be 
minimal.''); Section 1201 Study at 144 (``The Office believes that 
the evidentiary showing required in a declaration can be minimal, as 
the aim is only to show that the harm that existed when the 
exemption was first granted continues to occur or would return but 
for the exemption, thus providing a sufficient justification for the 
Office to rely upon the prior rulemaking record in making a new 
recommendation supporting renewal of the exemption. Moreover, this 
approach appears consistent with relevant case law upholding 
determinations based upon a single sworn affidavit.'').
    \20\ Section 1201 Study at 144 (also noting that ``some 
stakeholders expressed wariness that, in practice, a short-form 
filing might recreate the requirements of the current rulemaking'').
    \21\ See id. at 143 (Office will request ``parties seeking 
renewal of an exemption to submit a short declaration outlining the 
continuing need for an exemption''); see also id. at 144 (referring 
to ``a short-form filing'').
    \22\ Id. at 144.
    \23\ 2018 Recommendation at 18.
    \24\ 85 FR at 37401.
    \25\ Id.
---------------------------------------------------------------------------

    To the extent a commenter questions whether there is a continued 
need for a specific exempted use or otherwise believes that the scope 
of an exemption should be narrowed, that commenter should come forward 
and oppose the exemption. As explained in the notification of inquiry, 
opposition to a renewal request asks opponents to provide evidence that 
would make it ``reasonable for the Office to conclude that the prior 
rulemaking record and any further information provided in the renewal 
petition are insufficient to support recommending renewal of an 
exemption.'' \26\ The Office will then consider such statements and, as 
appropriate, will notice the issue for subsequent comment phases to 
ensure the administrative record remains reliable in light of current 
developments. But in this rulemaking, the Office has not received 
comments actually disputing whether there is a continued basis for any 
exemptions.
---------------------------------------------------------------------------

    \26\ Id. at 37402; see also 2018 Recommendation at 18.
---------------------------------------------------------------------------

    In the next rulemaking, the Office may consider whether to include 
a mechanism for petitioners to disclaim types of uses or other aspects 
of an exemption if they believe only partial renewal is appropriate. As 
detailed below, after reviewing the petitions for renewal and comments 
in response, the Office concludes that it has received a sufficient 
petition to renew each existing exemption, and it does not find any 
meaningful opposition to such renewal. Accordingly, the Office intends 
to recommend readoption of all existing exemptions in their current 
form.

A. Audiovisual Works--Criticism and Comment--Universities and K-12 
Educational Institutions

    Multiple organizations petitioned to renew the exemption for motion 
pictures \27\ for educational purposes by college and university or K-
12 faculty and students (codified at 37 CFR 201.40(b)(1)(ii)(A)).\28\ 
The petitions demonstrated the continuing need and justification for 
the exemption, stating that educators and students continue to rely on 
excerpts from digital media for class presentations and coursework. 
Peter Decherney, Katherine Sender, John Jackson, Console-ing Passions, 
the American Association of University Professors (``AAUP''), 
International Communication Association (``ICA''), Library Copyright 
Alliance (``LCA''), and Society for Cinema and Media Studies (``SCMS'') 
(collectively ``Joint Educators I'') provide several examples of 
professors using DVD clips in the classroom; for example, ``Cornell 
University Communication professor Lee Humphreys samples short segments 
of movies and television shows for her lectures in her `Media 
Communication' class'' and has ``shifted from using clips from YouTube 
because she wants to show higher quality clips and to avoid

[[Page 65296]]

showing the attached advertisements to her students.'' \29\ In 
addition, co-petitioner Peter Decherney declares that he ``continues to 
teach a course on Multimedia Criticism'' where his students ``produce 
short videos analyzing media.'' \30\ Indeed, Joint Educators I broadly 
suggest that the ``entire field'' of video essays or multimedia 
criticism ``could not have existed in the United States without fair 
use and the 1201 educational exemption.'' \31\ Through these 
submissions, petitioners demonstrated personal knowledge and experience 
with regard to this exemption based on their representation of 
thousands of digital and literacy educators and/or members supporting 
educators and students, combined with past participation in the section 
1201 triennial rulemaking.
---------------------------------------------------------------------------

    \27\ Unless otherwise noted, all references to motion pictures 
as a category include television programs and videos.
    \28\ Joint Educators I AV Educ. Renewal Pet.; Brigham Young 
Univ. & Brigham Young Univ.--Idaho (collectively, ``BYU'') AV Educ. 
Renewal Pet.
    \29\ Joint Educators I AV Educ. Renewal Pet. at 3.
    \30\ Id.
    \31\ Id.
---------------------------------------------------------------------------

    DVD CCA and AACS LA filed comments that do not object to the 
renewal of this exemption but ask the Office to address several 
purported deficiencies in the renewal petitions.\32\ Because DVD CCA 
and AACS LA expressly disclaim opposition to streamlined renewal of 
this exemption, the Office does not treat the concerns raised as 
meaningful opposition. It does, however, provide brief additional 
comment on the points raised by DVD CCA and AACS LA regarding the 
sufficiency of the petition. Regarding the lack of evidence of use of 
the exemption by K-12 educators or students, DVD CCA and AACS LA argue 
that ``the failure of any proponent to provide any example of use by K-
12 students should result in the Copyright Office finding in this 
streamlined renewal process that the exemption may not be renewed as to 
such uses.'' \33\ As explained above, petitioners need not address 
every possible use covered by an exemption when seeking to renew an 
exemption, and the Office has concluded that the petition was submitted 
in a sufficient manner.\34\
---------------------------------------------------------------------------

    \32\ DVD CCA & AACS LA AV Educ. Opp'n.
    \33\ Id. at 4.
    \34\ To the extent the eighth rulemaking has received 
information relating to whether the exemption remains necessary for 
K-12 educational activities, Joint Educator's petition for expansion 
of this exemption also suggests it continues to be necessary, 
especially in light of the ongoing pandemic. See Decherney, Sender, 
Jackson, Stein, Gaglani, Wisbauer, Berg, Siddiqui, Robertson, 
Console-ing Passions, AAUP, ICA, LCA & SCMS (collectively ``Joint 
Educators III) Class 1 Pet. at 2.
---------------------------------------------------------------------------

    A similar conclusion applies to DVD CCA and AACS LA's complaint 
that ``the users ignore the threshold requirement to consider 
alternatives to circumvention.'' \35\ DVD CCA and AACS LA are correct 
in noting that, although the 2018 rulemaking eliminated prior language 
limiting the exemption to circumstances where ``close analysis'' of 
video is required, it retained the requirement that the user 
``reasonably believe[ ] that non-circumventing alternatives are unable 
to produce the required level of high-quality content.'' \36\ From 
their comment, it appears that DVD CCA and AACS LA believe that the 
``close analysis'' requirement should be reinstated, but wish to 
reiterate a ``lack of opposition'' to the exemption in light of 
recognition that schools are currently ``wrestling with implementing 
distance learning.'' \37\
---------------------------------------------------------------------------

    \35\ DVD CCA & AACS LA AV Educ. Opp'n at 7.
    \36\ 37 CFR 201.40(b)(1).
    \37\ DVD CCA & AACS LA AV Educ. Opp'n at 6-7.
---------------------------------------------------------------------------

    The Office has examined the record and finds the petitions 
sufficient. As explained above, it does not follow that petitioners 
seeking renewal must provide an ``explanation why screen capture 
technology could not suffice to capture and show'' for each and every 
one of the film clips they seek to use.\38\ Petitioners made that 
showing in the prior rulemaking, and their renewal petition attests 
that there has been no material change in the facts. Indeed, Joint 
Educators I reference the need of a communication professor to embed 
clips in PowerPoint rather than played from YouTube ``because she wants 
to show higher quality clips and to avoid showing the attached 
advertisements to her students.'' \39\ The same petition also provides 
multiple examples asserting a continued need to make use of the 
exemption for purposes of engaging in film analysis, precisely the kind 
of pedagogy that has been discussed in connection with the prior 
``close analysis'' limitation.\40\ This is sufficient. It then becomes 
opponents' burden to establish a basis for concluding that the prior 
findings no longer obtain. DVD CCA and AACS LA AV have provided no such 
evidence here.
---------------------------------------------------------------------------

    \38\ Id. at 6.
    \39\ Joint Educators I AV Educ. Renewal Pet. at 3.
    \40\ See also, e.g., 2015 Recommendation at 92 (citing examples 
where high-definition quality is necessary, including close analysis 
of ``The Wizard of Oz (to highlight prop wires and other `stage-
like' elements), Citizen Kane (to appreciate depth of field, 
chiaroscuro effects, and subtle narrative elements), Jacques Tati's 
Playtime (to better approximate the intended 70mm viewing experience 
and appreciate the film's very detailed and complex composition), 
and Saving Private Ryan (to experience the enhanced color and 
contrast effect of bleach bypass film processing, hyper-realism, and 
complex soundscapes)'').
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of meaningful opposition, the Office believes that the conditions 
that led to adoption of this exemption are likely to continue during 
the next triennial period. Accordingly, the Office intends to recommend 
renewal of this exemption.

B. Audiovisual Works--Criticism and Comment--Massively Open Online 
Courses (``MOOCs'')

    Brigham Young University and Peter Decherney, Katherine Sender, 
John Jackson, Console-ing Passions, ICA, LCA, and SCMS (collectively 
``Joint Educators II'') petitioned to renew the exemption for motion 
pictures for educational uses in MOOCs (codified at 37 CFR 
201.40(b)(1)(ii)(B)).\41\ No oppositions were filed against readoption 
of this exemption. The petition demonstrated the continuing need and 
justification for the exemption, stating that instructors continue to 
rely on the exemption to develop, provide, and improve MOOCs, as well 
as increase the number of (and therefore access to) MOOCs in the field 
of film and media studies--with Joint Educators II noting that the 
``exemption has never been so relevant as it is now during the COVID-19 
pandemic and the universal shift of our education systems to online 
learning.'' \42\
---------------------------------------------------------------------------

    \41\ BYU AV Educ. MOOCS Renewal Pet.; Joint Educators AV Educ. 
MOOCs Renewal Pet.
    \42\ Joint Educators II AV Educ. MOOCs Renewal Pet. at 3.
---------------------------------------------------------------------------

    In response to the renewal petition, DVD CCA and AACS LA filed a 
comment noting that they did not oppose renewal of the exemption but 
asking the Office to address what they described as the ``apparent 
failure of the proponents'' to employ technological measures preventing 
retention and redistribution of MOOC content.\43\ The comment suggests 
that this does not reflect any changed circumstances, and notes that 
the Office suggested in the seventh rulemaking that the proper method 
to air DVD CCA and AACS LA's concerns would be to oppose the 
renewal.\44\ Again, they have not done so. The Office declines to 
address whether any user's activities may or may not be consistent with 
the exemption. The relevant exemption language is not in dispute, and 
interpreting compliance with or eligibility for the exemption is 
outside the scope of this proceeding. If DVD CCA and AACS LA believe 
that the exemption should be adjusted or eliminated in light of abuse 
or difficulty in complying with the condition that

[[Page 65297]]

exemption beneficiaries reasonable technological measures, the proper 
response would be to submit an opposition to this exemption so the 
Office can determine whether fuller airing through notice and comment 
to evaluate this issue is appropriate.
---------------------------------------------------------------------------

    \43\ DVD CCA & AACS LA AV Educ. MOOCs Opp'n at 1.
    \44\ Id. at 2 n.3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

C. Audiovisual Works--Criticism and Comment--Digital and Media Literacy 
Programs

    LCA and Professor Renee Hobbs petitioned to renew the exemption for 
motion pictures for educational uses in nonprofit digital and media 
literacy programs offered by libraries, museums, and other nonprofits 
(codified at 37 CFR 201.40(b)(1)(ii)(C)).\45\ No oppositions were filed 
against readoption of this exemption. The petition demonstrated the 
continuing need and justification for the exemption, and petitioners 
demonstrated personal knowledge and experience with regard to this 
exemption. For example, the petition stated that librarians across the 
country have relied on the current exemption and will continue to do so 
for their digital and media literacy programs.\46\
---------------------------------------------------------------------------

    \45\ LCA & Hobbs AV Educ. Nonprofits Renewal Pet.
    \46\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

D. Audiovisual Works--Criticism and Comment--Multimedia E-Books

    Multiple petitioners jointly sought to renew the exemption for the 
use of motion picture excerpts in nonfiction multimedia e-books 
(codified at 37 CFR 201.40(b)(1)(i)(C)).\47\ The petition demonstrated 
the continuing need and justification for the exemption. In addition, 
the petitioners demonstrated personal knowledge through Professor 
Buster's continued work on an e-book series based on her lecture 
series, ``Deconstructing Master Filmmakers: The Uses of Cinematic 
Enchantment,'' which, they said, ``relies on the availability of high-
resolution video not available without circumvention of technological 
protection measures.'' \48\
---------------------------------------------------------------------------

    \47\ Buster, Authors Alliance & AAUP Nonfiction Multimedia E-
Books Renewal Pet.
    \48\ Id. at 3.
---------------------------------------------------------------------------

    In response, DVD CCA and AACS LA filed a comment that did not 
object to renewal of an exemption limited to ``e-books offering filming 
analysis,'' but did object to renewing the existing exemption as it is 
currently formulated.\49\ DVD CCA and AACS LA asserted that the renewal 
petition failed to ``provide any example of use of this expansion to 
all nonfiction works beyond film analysis.'' \50\ As a result, they 
argue that the evidence is only sufficient to support an exemption for 
use in e-books offering film analysis.
---------------------------------------------------------------------------

    \49\ DVD CCA & AACS LA Nonfiction Multimedia E-Books Opposition 
Pet.
    \50\ Id. at 2.
---------------------------------------------------------------------------

    As noted above, however, in making a petition to renew an 
exemption, it is sufficient for petitioners to declare that to their 
knowledge, ``there had not been any material change in the facts, law, 
or other circumstances set forth in the prior rulemaking record such 
that renewal of the exemption would not be justified.'' \51\ 
Petitioners are not required to provide examples that pertain to every 
type of use covered by the exemption. To the extent an opponent of 
renewal seeks to narrow an exemption, it should ``provide evidence that 
would allow the Acting Register to reasonably conclude that the prior 
rulemaking record and any further information provided in the petitions 
are insufficient for her to recommend renewal without the benefit of a 
further developed record.'' \52\
---------------------------------------------------------------------------

    \51\ 2018 Recommendation at 18.
    \52\ Id.
---------------------------------------------------------------------------

    In this case, the Office determined in the 2018 proceeding that the 
record was sufficient to justify recommending an exemption that 
includes nonfiction uses beyond film analysis.\53\ The Office concludes 
that the renewal petition, which seeks renewal of the exemption as 
previously adopted, is sufficient to support renewal. Although DVD CCA 
and AACS LA note that the statements in the renewal petition are 
limited to examples related to e-books offering film analysis, this 
opposition does not amount to evidence in the form of legal, 
marketplace, or technological changes that render the prior rulemaking 
record insufficient to support recommending renewal.
---------------------------------------------------------------------------

    \53\ Id. at 64.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

E. Audiovisual Works--Criticism and Comment--Filmmaking

    Multiple organizations petitioned to renew the exemption for motion 
pictures for uses in documentary films or other films where use is in 
parody or for a biographical or historically significant nature 
(codified at 37 CFR 201.40(b)(1)(i)(A)).\54\ The petitions summarized 
the continuing need and justification for the exemption, and the 
petitioners demonstrated personal knowledge and experience with regard 
to this exemption. For example, the International Documentary 
Association, Film Independent, and Kartemquin Educational Films 
(collectively ``Joint Filmmakers'')--which represent thousands of 
independent filmmakers across the nation--stated that TPMs such as 
encryption continue to prevent filmmakers from accessing needed 
material, and that this is ``especially true for the kind of high 
fidelity motion picture material filmmakers need to satisfy both 
distributors and viewers.'' \55\ Petitioners state that they personally 
know many filmmakers who have found it necessary to rely on this 
exemption and will continue to do so.\56\
---------------------------------------------------------------------------

    \54\ Joint Filmmakers Documentary Films Renewal Pet.; New Media 
Rights (``NMR'') Documentary Films Renewal Pet.
    \55\ Joint Filmmakers Documentary Films Renewal Pet. at 3.
    \56\ Id.; NMR Documentary Films Renewal Pet. at 3.
---------------------------------------------------------------------------

    DVD CCA and AACS LA filed comments that did not oppose renewal of 
the exemption but did object to the characterization of the exemption 
filed by the filmmaking proponents.\57\ Specifically, DVD CCA and AACS 
LA noted that the exemption is limited to criticism or comment, 
documentary filmmaking, or any filmmaking that would make use of a clip 
in a parody or for its biographical or historical nature; in their 
view, petitioners suggest the exemption covers all fair use or 
noninfringing uses.\58\ The Office does not find it necessary to opine 
on the characterization of the petitions by DVD CCA and AACS LA and 
believes that petitioners' declarations have met the minimal showing 
sufficient to support renewal of the exemption without modification.
---------------------------------------------------------------------------

    \57\ DVD CCA & AACS LA Documentary Filmmaking Opp'n.
    \58\ Id. at 2.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during

[[Page 65298]]

the next triennial period. Accordingly, the Office intends to recommend 
renewal of this exemption.

F. Audiovisual Works--Criticism and Comment--Noncommercial Videos

    Two organizations petitioned to renew the exemption for motion 
pictures for uses in noncommercial videos (codified at 37 CFR 
201.40(b)(1)(i)(B)).\59\ The petitions demonstrated the continuing need 
and justification for the exemption, and the petitioners demonstrated 
personal knowledge and experience with regard to this exemption. For 
example, one of the petitioners, the Organization for Transformative 
Works (``OTW''), has advocated for the noncommercial video exemption in 
past triennial rulemakings, and has heard from ``a number of 
noncommercial remix artists'' who have used the exemption and 
anticipate needing to use it in the future.\60\ OTW included an account 
from an academic stating that footage ripped from DVDs and Blu-ray was 
preferred for ``vidders'' (noncommercial remix artists) because ``it is 
high quality enough to bear up under the transformations that vidders 
make to it.'' \61\ Similarly, NMR stated that its staff personally 
knows ``many video creators that have found it necessary to rely on 
this exemption during the current triennial period'' and who intend to 
make these types of uses in the next triennial period.\62\
---------------------------------------------------------------------------

    \59\ NMR Noncom. Videos Renewal Pet.; OTW Noncom. Videos Renewal 
Pet.
    \60\ OTW Noncom. Videos Renewal Pet. at 3.
    \61\ Id.
    \62\ NMR Noncom. Videos Renewal Pet. at 3.
---------------------------------------------------------------------------

    OTW contends that ``the exemption should be renewed using the 
relatively simple language defining the exempted class from the 2008 
rulemaking, covering both DVDs and Blu-Ray (and streaming where 
necessary) `when circumvention is accomplished solely in order to 
accomplish the incorporation of short portions of motion pictures into 
new works for the purpose of criticism or comment, and where the person 
engaging in circumvention believes and has reasonable grounds for 
believing that circumvention is necessary to fulfill the purpose of the 
use.' '' \63\ OTW asserts that this change would not constitute ``an 
expansion of the existing exemption, but a more understandable 
restatement.'' \64\ Two comments, one from DVD CCA and AACS LA and the 
other from the Entertainment Software Association (``ESA''), Motion 
Picture Association (``MPA''), and Recording Industry Association of 
America (``RIAA'') did not object to the renewal of the exemption for 
noncommercial videos but did object to the proposed change in the 
language sought by OTW, arguing that it involves a modification of the 
current exemption.\65\ The Office agrees that OTW's proposed 
modifications are appropriately addressed as part of the full 
rulemaking proceeding, and therefore the Office has included this 
request with the proposed classes discussed below.\66\
---------------------------------------------------------------------------

    \63\ OTW Noncom. Videos Renewal Pet. at 4.
    \64\ Id.
    \65\ DVD CCA & AACS LA Noncom. Videos Opp'n; ESA, MPA & RIAA 
Noncom. Videos Opp'n.
    \66\ The Office notes that much of the language that has been 
added to the exemption since 2008 was sought by proponents of the 
exemption, e.g., the addition of a reference to the statutory 
definition of motion pictures was sought by EFF. See 2012 
Recommendation at 105. In some cases, the addition of such language 
was supported by OTW itself. See, e.g., id. at 110 (adding 
clarification that commissioned videos are included within exemption 
if ultimate use is noncommercial, a proposal that was supported by 
OTW).
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

G. Audiovisual Works--Accessibility

    Multiple organizations petitioned to renew the exemption for motion 
pictures for the provision of captioning and/or audio description by 
disability services offices or similar units at educational 
institutions for students with disabilities (codified at 37 CFR 
201.40(b)(2)(i)(A)).\67\ No oppositions were filed against readoption 
of this exemption.
---------------------------------------------------------------------------

    \67\ Ass'n of Transcribers and Speech-to-Text Providers 
(``ATSP''), Ass'n on Higher Educ. and Disability (``AHEAD'') & LCA 
Captioning Renewal Pet.; BYU Captioning Renewal Pet.
---------------------------------------------------------------------------

    The petition demonstrated the continuing need and justification for 
the exemption, and the petitioners demonstrated personal knowledge and 
experience. For example, Brigham Young University asserts that its 
disability services offices ``sometimes need to create accessible 
versions of motion pictures'' to accommodate its students with 
disabilities.\68\ Both petitions stated that there is a need for the 
exemption going forward; indeed, one group of petitioners states that 
``the need is likely to increase significantly in light of the ongoing 
COVID-19 pandemic as many educational institutions shift to online 
learning and the use of digital multimedia by faculty increases.'' \69\
---------------------------------------------------------------------------

    \68\ BYU Captioning Renewal Pet. at 3.
    \69\ ATSP, AHEAD & LCA Captioning Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

H. Literary Works--Accessibility

    Multiple organizations petitioned to renew the exemption for 
literary works distributed electronically (i.e., e-books), for use with 
assistive technologies for persons who are blind, visually impaired, or 
have print disabilities (codified at 37 CFR 201.40(b)(3)).\70\ No 
oppositions were filed against readoption of this exemption. The 
petitions demonstrated the continuing need and justification for the 
exemption, stating that individuals who are blind, visually impaired, 
or print disabled are significantly disadvantaged with respect to 
obtaining accessible e-book content because TPMs interfere with the use 
of assistive technologies.\71\ Petitioners noted that the record 
underpinning this exemption ``has stood and been re-established in the 
past six triennial reviews, dating back to 2003,'' and that the 
``accessibility of ebooks is frequently cited as a top priority'' by 
its members.\72\ In addition, petitioners noted the unique challenges 
COVID-19 poses to the blind, visually impaired, and print disabled due 
to limited physical access to libraries and the shift to virtual 
learning.\73\ Finally, the petitioners demonstrated personal knowledge 
and experience with regard to the assistive technology exemption; they 
are all organizations that advocate for the blind, visually impaired, 
and print disabled.
---------------------------------------------------------------------------

    \70\ Am. Council for the Blind (``ACB''), Am. Fed'n for the 
Blind (``AFB''), Nat'l Fed'n of the Blind (``NFB''), LCA, American 
Association of Law Libraries (``AALL''), Benetech/Bookshare, and 
HathiTrust Assistive Technologies Renewal Pet.
    \71\ Id. at 3.
    \72\ Id. at 3-4.
    \73\ Id. at 4.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

I. Literary Works--Medical Device Data

    Hugo Campos petitioned to renew the exemption covering access to 
patient data on networked medical devices (codified at 37 CFR 
201.40(b)(4)).\74\ No oppositions were filed, and Consumer

[[Page 65299]]

Reports submitted a comment in support.\75\ Mr. Campos's petition 
demonstrated the continuing need and justification for the exemption, 
stating that patients continue to need access to data output from their 
medical devices to manage their health.\76\ Mr. Campos demonstrated 
personal knowledge and experience with regard to this exemption, as he 
is a patient needing access to the data output from his medical device 
and is a member of a coalition whose members research, comment on, and 
examine the effectiveness of networked medical devices.
---------------------------------------------------------------------------

    \74\ Campos Medical Devices Renewal Pet.
    \75\ Consumer Reports Medical Devices Supp.
    \76\ Campos Medical Devices Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

J. Computer Programs--Unlocking

    Multiple organizations petitioned to renew the exemption for 
computer programs that operate cellphones, tablets, mobile hotspots, or 
wearable devices (e.g., smartwatches), to allow connection of a new or 
used device to an alternative wireless network (``unlocking'') 
(codified at 37 CFR 201.40(b)(5)).\77\ No oppositions were filed 
against the petitions seeking to renew this exemption; Consumer Reports 
filed in support of renewal.\78\ The petitions demonstrate the 
continuing need and justification for the exemption, stating that 
consumers of the enumerated products continue to need to be able to 
unlock the devices so they can switch network providers. For example, 
ISRI stated that its members continue to purchase or acquire donated 
cell phones, tablets, and other wireless devices and try to reuse them, 
but that wireless carriers still lock devices to prevent them from 
being used on other carriers.\79\ In addition, the petitioners 
demonstrated personal knowledge and experience with regard to this 
exemption. CCA and ISRI represent companies that rely on the ability to 
unlock cellphones. Both petitioners also participated in past 1201 
triennial rulemakings relating to unlocking lawfully-acquired wireless 
devices.
---------------------------------------------------------------------------

    \77\ Competitive Carriers Ass'n (``CCA'') Unlocking Renewal 
Pet.; Inst. of Scrap Recycling Industries (``ISRI'') Unlocking 
Renewal Pet.
    \78\ Consumer Reports Unlocking Supp.
    \79\ ISRI Unlocking Renewal Pet. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

K. Computer Programs--Jailbreaking

    Multiple organizations petitioned to renew the exemptions for 
computer programs that operate smartphones, tablets and other portable 
all-purpose mobile computing devices, smart TVs, or voice assistant 
devices to allow the device to interoperate with or to remove software 
applications (``jailbreaking'') (codified at 37 CFR 201.40(b)(6)-
(8)).\80\ The petitions demonstrate the continuing need and 
justification for the exemption, and that petitioners had personal 
knowledge and experience with regard to this exemption. For example, 
regarding smart TVs specifically, the Software Freedom Conservancy 
(``SFC'') asserts that it has ``reviewed the policies and product 
offerings of major Smart TV manufacturers (Sony, LG, Samsung, etc.) and 
they are substantially the same as those examined during the earlier 
rulemaking process.'' \81\ The petitions state that, absent an 
exemption, TPMs applied to the enumerated products would have an 
adverse effect on noninfringing uses, such as being able to install 
third-party applications on a smartphone or download third-party 
software on a smart TV to enable interoperability.\82\ For example, 
EFF's petition outlined its declarant's experience with instances where 
it was necessary to replace the software on a smartphone, smart TV, and 
tablet.\83\ Consumer Reports filed a comment in support of the 
exemption,\84\ and no one opposed renewal.
---------------------------------------------------------------------------

    \80\ EFF Jailbreaking Renewal Pet.; NMR Jailbreaking Renewal 
Pet.; SFC Jailbreaking Renewal Pet.
    \81\ SFC Jailbreaking Renewal Pet. at 3.
    \82\ EFF Jailbreaking Renewal Pet. at 3; NMR Jailbreaking 
Renewal Pet. at 3; SFC Jailbreaking Renewal Pet. at 3.
    \83\ EFF Jailbreaking Renewal Pet. at 3-4.
    \84\ Consumer Reports Jailbreaking Supp.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of meaningful opposition, the Office believes that the conditions 
that led to adoption of this exemption are likely to continue during 
the next triennial period. Accordingly, the Office intends to recommend 
renewal of this exemption.

L. Computer Programs--Repair of Motorized Land Vehicles

    Multiple organizations petitioned to renew the exemption for 
computer programs that control motorized land vehicles, including farm 
equipment, for purposes of diagnosis, repair, or modification of a 
vehicle function (codified at 37 CFR 201.40(b)(9)).\85\ The petitions 
demonstrated the continuing need and justification for the exemption. 
For example, the Motor & Equipment Manufacturers Association (``MEMA'') 
stated that over the past three years, its membership ``has seen 
firsthand that the exemption is helping protect consumer choice and a 
competitive market, while mitigating risks to intellectual property and 
vehicle safety.'' \86\ The Auto Care Association (``ACA'') stated that 
``[u]nless this exemption is renewed, the software measures 
manufacturers deploy for the purpose of controlling access to vehicle 
software will prevent Auto Care members from lawfully assisting 
consumers in the maintenance, repair, and upgrade of their vehicles.'' 
\87\ SEMA stated that it ``is unaware of any factor, incident or reason 
to change the exemption and the need for the exemption remains valid 
and imperative.'' \88\ The petitioners demonstrated personal knowledge 
and experience with regard to this exemption; each either represents or 
gathered information from individuals conducting repairs or businesses 
that manufacture, distribute, and sell motor vehicle parts, and perform 
vehicle service and repair. Consumer Reports filed in support of the 
petition.\89\
---------------------------------------------------------------------------

    \85\ ACA Vehicle Repair Renewal Pet.; Am. Farm Bureau Fed'n 
Vehicle Repair Renewal Pet.; Consumer Tech. Ass'n Vehicle Repair 
Renewal Pet.; MEMA Vehicle Repair Renewal Pet.; Specialty Equip. 
Mkt. Ass'n (``SEMA'') Vehicle Repair Renewal Pet.
    \86\ MEMA Vehicle Repair Renewal Pet. at 3.
    \87\ ACA Vehicle Repair Renewal Pet. at 3.
    \88\ SEMA Vehicle Repair Renewal Pet. at 3.
    \89\ Consumer Reports Vehicle Repair Supp.
---------------------------------------------------------------------------

    Although not opposing readoption of this exemption, the Alliance 
for Automotive Innovation (``AAI'') submitted comments raising concerns 
with the ACA and MEMA petitions.\90\ Specifically, the AAI argued that 
the two petitions ``mischaracterize the scope of the existing exemption 
and appear to argue for an expanded exemption, rather than for renewal 
of the existing exemption as it is `currently formulated, without 
modification.' '' \91\ It states that both ACA and MEMA suggest ``that 
the existing exemption permits third party repair shops to circumvent 
access controls on vehicle software in order to provide commercial 
repair services.'' \92\ AAI asserts that ``[p]roviding a commercial 
service that

[[Page 65300]]

requires circumventing access controls or copy controls (e.g., using or 
providing certain engine tuning software) is indisputably trafficking 
in an unlawful service under Sections 1201(a)(2) and (b) and, 
therefore, is clearly outside the scope of the existing exemption.'' 
\93\
---------------------------------------------------------------------------

    \90\ AAI Vehicle Repair Opp'n.
    \91\ Id. at 1.
    \92\ Id. at 2.
    \93\ Id.
---------------------------------------------------------------------------

    The Office addressed the relationship of this exemption to the 
anti-trafficking provisions in some detail in the 2018 Recommendation. 
In response to petitioners' requests, the Office recommended removal of 
the language in the prior repair exemption requiring that circumvention 
be ``undertaken by the authorized owner.'' \94\ That change, the Office 
explained, was intended to ``account[] for the possibility that certain 
third parties may qualify as `user[s]' eligible for an exemption from 
liability under section 1201(a)(1).'' \95\ In making this 
recommendation, which the Librarian accepted, the Office declined to 
express any ``view as to whether particular examples of assistance do 
or do not constitute unlawful circumvention services''--specifically, 
``whether vehicle or other repair services may run afoul of the anti-
trafficking provisions when engaging in circumvention on behalf of 
customers.'' \96\ The Office adheres to this position and accordingly 
expresses no view as to the activities described by ACA and MEMA.
---------------------------------------------------------------------------

    \94\ 2018 Recommendation at 223-25.
    \95\ Id. at 225.
    \96\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition to the specific exemption, the Office believes that 
the conditions that led to adoption of this exemption are likely to 
continue during the next triennial period. Accordingly, the Office 
intends to recommend renewal of this exemption.

M. Computer Programs--Repair of Smartphones, Home Appliances, and Home 
Systems

    Multiple organizations petitioned to renew the exemption for 
computer programs that control smartphones, home appliances, or home 
systems, for diagnosis, maintenance, or repair of the device or system 
(codified at 37 CFR 201.40(b)(10)).\97\ The petitions demonstrated the 
continuing need and justification for the exemption. For example, EFF, 
the Repair Association, and iFixit asserted that ``[m]anufacturers of 
these devices continue to implement technological protection measures 
that inhibit lawful repairs, maintenance, and diagnostics, and they 
show no sign of changing course.\98\ Consumer Reports filed in support 
of the petition.\99\
---------------------------------------------------------------------------

    \97\ EFF Device Repair Renewal Pet.; EFF, Repair Ass'n & iFixit 
Device Repair Renewal Pet.
    \98\ EFF Device Repair Renewal Pet. at 3; EFF, Repair Ass'n & 
iFixit Device Repair Renewal Pet. at 3.
    \99\ Consumer Reports Device Repair Supp.
---------------------------------------------------------------------------

    In comments filed in response to the petitions, DVD CCA and AACS LA 
did not object to renewal of the exemption, but did request that the 
Office ``expressly . . . reject the implied assertion that some of the 
activity used as examples in the renewal petition . . . is permitted 
under the current exemption.'' \100\ Specifically, they pointed to an 
example in which petitioners stated a purported need to ``repair any 
disrupted functionality'' in Sonos smart speakers for which the 
manufacturer had ceased to provide software updates.\101\ DVD CCA and 
AACS LA contend that such activity does not constitute ``repair'' under 
the exemption because, under relevant licensing schemes, a manufacturer 
``may outright deactivate one or more functions due to the product's 
TPM being compromised. These results are not the consequences of the 
product falling out of repair or breaking.'' \102\
---------------------------------------------------------------------------

    \100\ DVD CCA & AACS LA Device Repair Opp'n at 1.
    \101\ Id. at 3.
    \102\ DVD CCA & AACS LA Device Repair Opp'n at 4.
---------------------------------------------------------------------------

    DVD CCA and AACS LA do not appear to be arguing that the use of 
this example renders the renewal petitions insufficient with respect to 
home systems. The Office agrees that the sufficiency of the petitions 
do not depend on whether this specific example qualifies under the 
current exemption. Even if this example were excluded, the petitions 
attest to a continuing need for the exemption and the continued 
validity of the prior record.\103\ To the extent DVD CCA and AACS LA 
are asking the Office to opine on examples of particular uses, such a 
request is beyond the scope of the renewal phase, though they are free 
to raise such concerns in the comment phase to the extent they relate 
to proposed expansions of the current rule.
---------------------------------------------------------------------------

    \103\ See, e.g., EFF Device Repair Renewal Pet. at 3 
(``Manufacturers of these devices continue to implement 
technological protection measures that inhibit lawful repairs, 
maintenance, and diagnostics, and they show no sign of changing 
course.'').
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition to renewal, the Office believes that the conditions 
that led to adoption of this exemption are likely to continue during 
the next triennial period. Accordingly, the Office intends to recommend 
renewal of this exemption.

N. Computer Programs--Security Research

    Multiple organizations and security researchers petitioned to renew 
the exemption permitting circumvention for purposes of good-faith 
security research (codified at 37 CFR 201.40(b)(11)).\104\ The 
petitioners demonstrated the continuing need and justification for the 
exemption, as well as personal knowledge and experience with regard to 
this exemption. For example, the petition from Professor J. Alex 
Halderman, the Center for Democracy and Technology (``CDT''), and the 
U.S. Technology Policy Committee of the Association for Computing 
Machinery (``ACM'') highlighted a number of concerns justifying the 
continuing need for the exemption, including the need to find and 
detect vulnerabilities in voting machines and other election systems, 
the increased proliferation of consumer Internet of Things devices, and 
the increasing reliance on digital systems combined with greater 
aggressiveness on the part of threat actors, including other nation 
states.\105\ The petition from Professors Matt Blaze and Steven 
Bellovin asserted that in the past three years ``one of us has received 
threats of litigation from copyright holders in connection with his 
security research on software in voting systems.'' \106\ Finally, MEMA 
stated that its membership ``experienced firsthand that the exemption 
is helping encourage innovation in the automotive industry while 
mitigating risks to intellectual property and vehicle safety.'' \107\
---------------------------------------------------------------------------

    \104\ Blaze & Bellovin Security Research Renewal Pet.; 
Halderman, CDT & ACM Security Research Renewal Pet.; MEMA Security 
Research Renewal Pet.
    \105\ Halderman, CDT & ACM Security Research Renewal Pet. at 4.
    \106\ Blaze & Bellovin Security Research Renewal Pet. at 3.
    \107\ MEMA Security Research Renewal Pet. at 3.
---------------------------------------------------------------------------

    No oppositions were filed against readoption of this exemption, 
while Consumer Reports filed in support of renewal.\108\ A petition 
seeking renewal of a separate exemption submitted by Hugo Campos, a 
member of a coalition of medical device patients and researchers, also 
noted support for this exemption.\109\
---------------------------------------------------------------------------

    \108\ Consumer Reports Security Research Supp.
    \109\ Campos Medical Device Renewal Pet. at 4.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly,

[[Page 65301]]

the Office intends to recommend renewal of this exemption.

O. Computer Programs--Software Preservation

    The Software Preservation Network (``SPN'') and LCA petitioned to 
renew the exemption for computer programs other than video games, for 
the preservation of computer programs and computer program-dependent 
materials by libraries, archives, and museums (codified at 37 CFR 
201.40(b)(13)).\110\ The petitions state that libraries, archives, and 
museums continue to need the exemption to preserve and curate software 
and materials dependent on software. For example, the petition asserts 
that ``researchers at UVA designed a project in order to access the 
`Peter Sheeran papers'--a collection of drawings and plans from a local 
Charlottesville architecture firm,'' and that without the exemption, 
``the outdated Computer Aided Design (``CAD'') software used to create 
many of the designs in the Sheeran papers may have remained 
inaccessible to researchers, rendering the designs themselves 
inaccessible, too.'' \111\ In addition, the petitioners demonstrated 
personal knowledge and experience with regard to this exemption through 
past participation in the section 1201 triennial rulemaking relating to 
access controls on software, and/or representing major library 
associations with members that have relied on this exemption. 
Readoption of this exemption was unopposed.
---------------------------------------------------------------------------

    \110\ SPN & LCA Software Preservation Renewal Pet.
    \111\ Id. at 3.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

P. Computer Programs--Video Game Preservation

    SPN and LCA petitioned to renew the exemption for preservation of 
video games for which outside server support has been discontinued 
(codified at 37 CFR 201.40(b)(12)).\112\ Consumer Reports supported the 
petition.\113\ The petitions state that libraries, archives, and 
museums continue to need the exemption to preserve and curate video 
games in playable form. For example, the petition highlights the 
Georgia Tech University Library's Computing Lab, retroTECH, which has a 
significant collection of recovered video game consoles, made 
accessible for research and teaching uses pursuant to the 
exemption.\114\ In addition, the Museum of Digital Arts and 
Entertainment in Oakland, California, relied on the exemption to 
restore a recent PC game, in collaboration with Microsoft and the 
original developers, despite potential DRM issues.\115\ The petitioners 
demonstrated personal knowledge and experience with regard to this 
exemption through past participation in the section1201 triennial 
rulemaking, and/or through their representation of members that have 
relied on this exemption. Readoption of this exemption was unopposed.
---------------------------------------------------------------------------

    \112\ SPN & LCA Abandoned Video Game Renewal Pet.
    \113\ Consumer Reports Abandoned Video Game Supp.
    \114\ SPN & LCA Abandoned Video Game Renewal Pet. at 3.
    \115\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petitions and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

Q. Computer Programs--3D Printing

    Michael Weinberg petitioned to renew the exemption for computer 
programs that operate 3D printers to allow use of alternative feedstock 
(codified at 37 CFR 201.40(b)(14)).\116\ No oppositions were filed 
against readoption of this exemption. The petition demonstrated the 
continuing need and justification for the exemption, and the petitioner 
demonstrated personal knowledge and experience. Specifically, Mr. 
Weinberg declared he is a member of the 3D printing community and has 
been involved with this exemption request during each cycle it has been 
considered by the Office.\117\ In addition, the petition states that 3D 
printers continue to limit the types of materials used, and new 
companies and printers may consider implementing similar restrictions 
in the future, thereby requiring renewal of the exemption.\118\
---------------------------------------------------------------------------

    \116\ Weinberg 3D Printers Renewal Pet.
    \117\ Id. at 3.
    \118\ Id.
---------------------------------------------------------------------------

    Based on the information provided in the renewal petition and the 
lack of opposition, the Office believes that the conditions that led to 
adoption of this exemption are likely to continue during the next 
triennial period. Accordingly, the Office intends to recommend renewal 
of this exemption.

III. Analysis and Classification of Proposed New or Expanded Exemptions

    Having addressed the petitions to renew existing exemptions, the 
Office now turns to the petitions for new or expanded exemptions. The 
Office received twenty-six petitions,\119\ which it has organized into 
seventeen proposed classes, as described below. Before discussing those 
classes, the Office first explains the process and standards for 
submission of written comments.
---------------------------------------------------------------------------

    \119\ In addition, as noted, OTW's renewal petition seeks to 
amend the current regulatory language. The Office is treating that 
request as a petition for expansion.
---------------------------------------------------------------------------

A. Submission of Written Comments

    Persons wishing to address proposed exemptions in written comments 
should familiarize themselves with the substantive legal and 
evidentiary standards for the granting of an exemption under section 
1201(a)(1), which are also described in more detail on the Office's 
form for submissions of longer comments, available on its website. In 
addressing factual matters, commenters should be aware that the Office 
favors specific, ``real-world'' examples supported by evidence over 
speculative, hypothetical observations. In cases where the technology 
at issue is not apparent from the requested exemption, it can be 
helpful for commenters to describe the TPM(s) that control access to 
the work and method of circumvention.
    Commenters' legal analysis should explain why the proposal meets or 
fails to meet the criteria for an exemption under section 1201(a)(1), 
including, without limitation, why the uses sought are or are not 
noninfringing as a matter of law. The legal analysis should also 
discuss statutory or other legal provisions that could impact the 
necessity for or scope of the proposed exemption. Legal assertions 
should be supported by statutory citations, relevant case law, and 
other pertinent authority. In cases where a class proposes to expand an 
existing exemption, participants should focus their comments on the 
legal and evidentiary bases for modifying the exemption, rather than 
the underlying exemption; as discussed above, the Office intends to 
recommend each current temporary exemption for renewal.
    To ensure a clear and definite record for each of the proposals, 
commenters are required to provide a separate submission for each 
proposed class during each stage of the public comment period. Although 
a single comment may

[[Page 65302]]

not address more than one proposed class, the same party may submit 
multiple written comments on different proposals. The Office 
acknowledges that the requirement of separate submissions may require 
commenters to repeat certain information across multiple submissions, 
but the Office believes that the administrative benefits of creating a 
self-contained, separate record for each proposal will be worth the 
modest amount of added effort.
    The first round of public comment is limited to submissions from 
proponents (i.e., those parties who proposed new exemptions during the 
petition phase) and other members of the public who support the 
adoption of a proposed exemption, as well as any members of the public 
who neither support nor oppose an exemption but seek only to share 
pertinent information about a specific proposal.
    Proponents of exemptions should present their complete affirmative 
case for an exemption during the initial round of public comment, 
including all legal and evidentiary support for the proposal. Members 
of the public who oppose an exemption should present the full legal and 
evidentiary basis for their opposition in the second round of public 
comment. The third round of public comment will be limited to 
supporters of particular proposals and those who neither support nor 
oppose a proposal, who, in either case, seek to reply to points made in 
the earlier rounds of comments. Reply comments should not raise new 
issues, but should instead be limited to addressing arguments and 
evidence presented by others.

B. The Proposed Classes

    As noted above, the Office has reviewed and classified the proposed 
exemptions set forth in the twenty-seven petitions received in response 
to its notification of inquiry. Any exemptions adopted must be based on 
``a particular class of works,'' \120\ and each class is intended to 
``be a narrow and focused subset of the broad categories of works . . . 
identified in Section 102 of the Copyright Act.'' \121\ As explained in 
the Notice of Inquiry, the Office consolidates or groups related and/or 
overlapping proposed exemptions where possible to simplify the 
rulemaking process and encourage joint participation among parties with 
common interests (though collaboration is not required). Accordingly, 
the Office has categorized the petitions into seventeen proposed 
classes of works.
---------------------------------------------------------------------------

    \120\ 17 U.S.C. 1201(a)(1)(B).
    \121\ Commerce Comm. Report at 38; see also Section 1201 Study 
at 109-10 (noting that while ``in some cases, [the Office] can make 
a greater effort to group similar classes together, and will do so 
going forward,'' ``in other cases, the Office's ability to narrowly 
define the class is what enabled it to recommend the exemption at 
all, and so the Office will continue to refine classes when merited 
by the record'').
---------------------------------------------------------------------------

    Each proposed class is briefly described below; additional 
information can be found in the underlying petitions posted on the 
Office website. As explained in the notification of inquiry, the 
proposed classes ``represent only a starting point for further 
consideration in the rulemaking proceeding, and will be subject to 
further refinement based on the record.'' \122\ The Office further 
notes that it has not put forward precise regulatory language for the 
proposed classes, because any specific language for exemptions that the 
Register ultimately recommends to the Librarian will depend on the full 
record developed during this rulemaking. Indeed, in the case of 
proposed modifications to existing exemptions, as stated above, the 
Register may propose altering current regulatory language to expand the 
scope of an exemption, where the record suggests such a change is 
appropriate.
---------------------------------------------------------------------------

    \122\ 85 FR at 37403.
---------------------------------------------------------------------------

    After examining the petitions, the Office has preliminarily 
identified some initial legal and factual areas of interest with 
respect to certain proposed classes. The Office stresses, however, that 
these areas are not exhaustive, and commenters should consider and 
offer all legal argument and evidence they believe necessary to create 
a complete record. These early observations are offered without 
prejudice to the Office's ability to raise other questions or concerns 
at later stages of the proceeding. Finally, ``where an exemption 
request resurrects legal or factual arguments that have been previously 
rejected, the Office will continue to rely on past reasoning to dismiss 
such arguments in the absence of new information.'' \123\
---------------------------------------------------------------------------

    \123\ Section 1201 Study at 147; see also 79 FR 55687, 55690 
(Sept. 17, 2014).
---------------------------------------------------------------------------

Proposed Class 1: Audiovisual Works--Criticism and Comment
    Three petitions seek to expand the existing exemptions for 
circumvention of access controls protecting motion pictures on DVDs, 
Blu-ray discs, and digitally transmitted video for purposes of 
criticism and comment, including for educational purposes by certain 
users. Because these petitions raise some shared concerns, the Office 
has grouped them into one class, as it did during the seventh triennial 
proceeding. This grouping is without prejudice to possible further 
refinement of this class, including dividing it into subclasses based 
on specific uses.
    First, as noted, OTW filed a renewal petition requesting that the 
exemption regarding the creation of noncommercial videos be amended to 
incorporate the language of the exemption for such uses adopted in the 
2010 rulemaking.\124\ That exemption permitted circumvention undertaken 
``solely in order to accomplish the incorporation of short portions of 
motion pictures into new works for the purpose of criticism or comment, 
and where the person engaging in circumvention believes and has 
reasonable grounds for believing that circumvention is necessary to 
fulfill the purpose of the use.'' \125\ Noting that the current 
exemption is longer than this formulation, OTW contends that ``the 
complexity of [the current] provisions substantially increases the 
difficulty of communicating and implementing the exemptions in 
practice.'' \126\ In OTW's view, reverting to the 2010 language would 
not expand the scope of the existing rule but merely would help 
``clarify the exemption for ordinary users.'' \127\ The exemption, 
however, has been expanded since 2010, including by encompassing works 
on a Blu-ray disc or received via a digital transmission, and by 
including language clarifying that the exemption includes ``videos 
produced for a paid commission if the commissioning entity's use is 
noncommercial.'' \128\ The Office seeks comment on whether, or to what 
extent, commenters believe the suggested language would alter the 
substance of the current provision. As part of that analysis, 
commenters should discuss the extent to which the evidence submitted in 
the prior rulemaking may be relied upon to support the proposed change.
---------------------------------------------------------------------------

    \124\ OTW Noncomm. Videos Renewal Pet. at 3. OTW's petition 
refers to that proceeding as the ``2008 rulemaking,'' but the Office 
generally identifies each proceeding by its year of completion.
    \125\ 75 FR 43825, 43827 (2010).
    \126\ OTW Noncomm. Videos Renewal Pet. at 3.
    \127\ Id.
    \128\ 37 CFR 201.40(b)(1). See 2015 Recommendation at 103-06 
(expanding exemption to include Blu-ray and digital transmission).
---------------------------------------------------------------------------

    Second, Joint Educators III seek to expand the current exemption 
for educational uses to allow a greater number of users to engage in 
``online instructional learning.'' \129\ They acknowledge that the 
existing exemption already covers the use of short clips in distance 
learning by certain users--college and university faculty and students, 
K-12 educators

[[Page 65303]]

and students, and faculty of accredited massive open online courses 
(MOOCs).\130\ Indeed, the 2018 Recommendation specifically described 
the exemption language pertaining to college and university and K-12 
users as ``broad enough to encompass exempted uses under sections 
110(1) and 110(2) (i.e., face-to-face and distance teaching).'' \131\ 
Joint Educators III, however, seek to expand the exemption to other 
online learning platforms that offer ``supplemental education, 
upskilling, retraining, recharging, and lifelong learning,'' such as 
Khan Academy, LinkedIn Learning, Osmosis.org and Code.org.\132\ To 
enable these providers to exercise the exemption, they propose an 
expansion allowing ``educators and preparers of online learning 
materials to use short portions of motion pictures (including 
television shows and videos), as defined in 17 U.S.C. 101, for the 
purpose of criticism, comment, illustration and explanation in 
offerings for registered learners on online learning platforms when use 
of the film and media excerpts will contribute significantly to 
learning.'' \133\
---------------------------------------------------------------------------

    \129\ Joint Educators III Class 1 Pet. at 2.
    \130\ Id. at 2-3.
    \131\ 2018 Recommendation at 86.
    \132\ Joint Educators III Class 1 Pet. at 2.
    \133\ Id.
---------------------------------------------------------------------------

    Third, BYU requests to expand the class of eligible users to 
include ``college and university employees,'' instead of ``college and 
university faculty.'' \134\ In addition, it seeks to broaden the 
permitted uses from ``criticism, comment, teaching, or scholarship'' to 
``a noninfringing use under 17 U.S.C. 107, 110(1), 110(2), or 112(f).'' 
\135\ BYU's proposal also would remove the current reference to screen-
capture technology and the requirement that the exempted use be limited 
to ``short portions'' of motion pictures.\136\
---------------------------------------------------------------------------

    \134\ BYU Class 1 Pet. at 2.
    \135\ Id.
    \136\ Id.
---------------------------------------------------------------------------

    With respect to both BYU's and Joint Educators III's petitions, the 
Office notes that certain proposals to remove the limitations on 
eligible users of this exemption were considered during the 2015 and 
2018 rulemakings, and invites comment on any changed legal or factual 
circumstances with respect to these provisions.\137\ In particular, the 
Office seeks specific examples where the presence of TPMs is resulting 
in an adverse effect on users who are not already included in the 
existing regulatory language. Further, with respect to BYU's request to 
expand the types of permitted uses, the Office notes that it has 
previously rejected similar proposed classes as overbroad.\138\ And in 
the previous rulemaking, the Office declined a proposed exemption by 
BYU that would permit circumvention for nonprofit educational purposes 
in accordance with sections 110(1) and 110(2) and eliminate the 
``criticism and comment'' limitation and references to screen-capture 
technology.\139\ The Office invites comment on whether any changed 
circumstances warrant altering that determination.
---------------------------------------------------------------------------

    \137\ 2018 Recommendation at 53-55; 2015 Recommendation at 102.
    \138\ See 2015 Recommendation at 100 (citing 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 at 17-19 (Nov. 17, 2006) (``2006 
Recommendation'')).
    \139\ 2018 Recommendation at 32, 52-53.
---------------------------------------------------------------------------

Proposed Class 2: Audiovisual Works--Texting
    SolaByte Corp. petitions for a new exemption to access ``licensed 
audio/video works stored on optical disc media for the purpose of 
creating short (10 seconds or less) A/V clips that enhance 
communication effectiveness and understanding when using TEXTing 
messages.'' \140\ The proposed class ``[i]ncludes movies, TV shows, 
music video, other copyrighted works'' that are stored on ``[p]ackaged 
and replicated DVD or Blu-ray discs playable on computer or CE player 
hardware.'' \141\ Eligible users would include persons ``who want to 
create expressive clips that convey their thoughts when texting.'' 
\142\
---------------------------------------------------------------------------

    \140\ SolaByte Class 2 Pet. at 2.
    \141\ Id.
    \142\ Id.
---------------------------------------------------------------------------

    Because these proposed activities do not appear to be limited to 
criticism and comment or educational uses, the Office has classified 
this proposal as a separate proposed class. The Office seeks additional 
detail about the scope of the proposed exemption from SolaByte or 
others, such as whether the exemption would be available for commercial 
services. Commenters should describe with specificity the relevant TPMs 
and whether their presence is adversely affecting noninfringing uses, 
including identifying whether eligible users may access expressive 
clips through alternate channels that do not require circumvention and 
the legal basis for concluding that the proposed uses are likely to be 
noninfringing. Similarly, commenters should address any anticipated 
effect that circumvention of TPMs would have on the market for or value 
of the relevant copyrighted works, which appears to extend to the same 
broad swatch of motion pictures as Class 1.
Proposed Class 3: Audiovisual Works--Accessibility
    ATSP, AHEAD, and LCA petition to expand the existing exemption 
relating to the creation of accessible versions of motion pictures for 
students with disabilities. They propose several changes to the 
existing exemption language, which includes the following requirements:
     Circumvention is undertaken by a disability services 
office or other unit of a kindergarten through twelfth-grade 
educational institution, college, or university engaged in and/or 
responsible for the provision of accessibility services to students, 
for the purpose of adding captions and/or audio description to a motion 
picture to create an accessible version as a necessary accommodation 
for a student or students with disabilities under an applicable 
disability law, such as the Americans With Disabilities Act, the 
Individuals with Disabilities Education Act, or Section 504 of the 
Rehabilitation Act;
     The educational institution unit has, after a reasonable 
effort, determined that an accessible version cannot be obtained at a 
fair price or in a timely manner; and
     The accessible versions are provided to students or 
educators and stored by the educational institution in a manner 
intended to reasonably prevent unauthorized further dissemination of a 
work.\143\
---------------------------------------------------------------------------

    \143\ 37 CFR 201.40(b)(2)(i).
---------------------------------------------------------------------------

    First, petitioners seek to expand the exemption ``to allow for the 
remediation of video for faculty and staff, as well as students.'' 
\144\ They recommend that the current language be revised to read: ``to 
create an accessible version as a necessary accommodation for students, 
faculty, and staff with disabilities.'' \145\ Second, to clarify that a 
covered educational institution unit (``EIU'') may create accessible 
versions ``proactively,'' petitioners suggest removing the phrase ``as 
a necessary accommodation'' and requiring only that the creation of an 
accessible version be ``consistent with'' an applicable disability 
law.\146\ Third, petitioners ask the Office to clarify that the 
``reasonable effort'' requirement applies ``only where an `accessible 
version' is available that contains captions and descriptions of 
sufficient quality to satisfy applicable disability

[[Page 65304]]

law.'' \147\ The Office notes that in recommending the existing 
regulatory language, it stated that an EIU may proceed after reaching a 
conclusion ``that it must create an accessible version as a necessary 
accommodation for a student with disabilities.'' \148\ Fourth, 
petitioners recommend qualifying the ``reasonable effort'' requirement 
in circumstances where ``no accessible version of a video included with 
a textbook exists, but a publisher might be willing to generate an 
accessible version of the video at extra cost,'' by eliminating this 
requirement when a publisher does not include an accessible version of 
materials with purchased materials.\149\ The Office would welcome 
comment upon whether petitioners believe that the extra costs should be 
of an unreasonable amount, or whether they contend that every offer 
carrying additional cost should be dismissed, along with any thoughts 
from copyright owners or licensors on this issue. Finally, petitioners 
recommend ``altering the current exemption language to make clear that 
an EIU can reuse stored accessible versions instead of re-circumventing 
and re-remediating inaccessible media when complying with an 
accommodation request.'' \150\
---------------------------------------------------------------------------

    \144\ ATSP, AHEAD & LCA Class 3 Pet. at 2.
    \145\ Id.
    \146\ Id. at 3.
    \147\ Id.
    \148\ 2018 Recommendation at 109-10.
    \149\ Id. The petition refers to a purchased textbook, but the 
Office queries if that was petitioner's intent, since the exemption 
concerns access to audiovisual works.
    \150\ Id.
---------------------------------------------------------------------------

    The Office seeks comment on whether this exemption, including 
petitioners' suggested regulatory language, should be adopted.
Proposed Class 4: Audiovisual Works--Livestream Recording
    FloSports, Inc. petitions for an exemption ``for circumvention of 
technology used in the digital storage of audiovisual works originating 
as a livestream of sports and other competitive events.'' \151\ The 
exemption ``would enable a livestreaming service to provide individual 
viewers, via a virtual digital video recorder (`vDVR'), with access to 
a recording on a server for fair use purposes.'' \152\
---------------------------------------------------------------------------

    \151\ FloSports Class 4 Pet. at 2.
    \152\ Id.
---------------------------------------------------------------------------

    The petition indicates that circumvention is necessary to alter the 
functioning of HTTP Live Streaming (``HLS''), ``a live-video streaming 
technique that enables high quality streaming of media content over the 
internet from web servers.'' \153\ According to FloSports, the use of 
HLS to stream content ``results in only an ephemeral copy in addition 
to the live broadcast.'' \154\ FloSports seeks to enable ``copies of 
the audio and video data files [to] be stored on a longer-term basis 
and synchronized for later replay by the viewer.'' \155\ It states that 
``[t]he cost and practical difficulty of obtaining synchronization 
licenses, combined with the cost and technical challenges of creating 
individualized audio and visual stored files for each viewer seeking to 
access the stored files, effectively control viewers access to the 
material for fair use purposes.'' \156\
---------------------------------------------------------------------------

    \153\ Id.
    \154\ Id.
    \155\ Id.
    \156\ Id.
---------------------------------------------------------------------------

    FloSports contends that the recording of such material constitutes 
fair use on the following basis:

    Individual recordings of audiovisual performances, historically, 
had been used by directors of the groups in such recordings to 
instruct, teach, and otherwise educated [sic] the participants in 
the recordings on what went right, what went wrong, and how each 
could improve. Generally, the individual performances in the 
audiovisual streams this petition considers are a very small 
percentage of the entire copyrighted work (e.g., all individual 
performances combined for an entire copyrighted broadcast). Further, 
there is no current market for educational recordings at the moment. 
Granting this exemption, or the performance of such a recording, 
would not adversely affect the market for the copyrighted 
recordings.\157\
---------------------------------------------------------------------------

    \157\ Id. at 3.

    The Office invites comment on this proposal but notes at the outset 
that the description of the proposed class in the petition is 
insufficiently clear to meet the statutory requirement to identify ``a 
particular class of copyrighted works.'' \158\ While the petition 
generally describes the class as covering livestreams of ``sports and 
other competitive events,'' elsewhere it states that the relevant works 
are ``audiovisual recordings of musical performances as identified in 
17 U.S.C. 102(a)(6) and 17 U.S.C. 106(a)(5).'' \159\ It then states 
that the proposed class ``incorporates any and all works for which 
audiovisual recordings may be made and used as fair use. This includes 
individual school performances.'' \160\ Given this inconsistent 
information, the Office is unable to determine whether, for example, 
the petition is intended to cover the use of copyrighted broadcasts 
owned by another party or simply musical or other works that may be 
captured in broadcasts owned by FloSports. Without further 
clarification, the petition does not seem to relate to a particular 
class of works.
---------------------------------------------------------------------------

    \158\ 17 U.S.C. 1201(a)(1)(C) (emphasis added); see supra 
Section I.
    \159\ FloSports Class 4 Pet. at 2.
    \160\ Id.
---------------------------------------------------------------------------

    Nor is it apparent to what extent the asserted adverse effects are 
attributable to ``[t]he cost and practical difficulty of obtaining 
synchronization licenses,'' \161\ as opposed to TPMs. As noted, the 
Office will only recommend an exemption where causation has been 
established; that is, where the Office can conclude that the statutory 
prohibition on circumventing access controls is the cause of the 
adverse effects.\162\
---------------------------------------------------------------------------

    \161\ Id.
    \162\ See Section 1201 Study at 115 (``The statutory prohibition 
on circumventing access controls [must be] the cause of the adverse 
effects.'').
---------------------------------------------------------------------------

    Finally, the Office seeks additional information regarding the 
intended noninfringing uses, including whether it would be appropriate 
to clarify that the petition is directed at facilitating educational, 
noncommercial uses. Petitioner appears to operate a commercial 
livestreaming service,\163\ and it is unclear whether this exemption is 
intended to facilitate growth in that market. In addition to factual 
development regarding the intended uses, the Office welcomes 
information on the legal basis for finding that such uses would be 
fair. For example, in connection with petitioner's statement that ``the 
individual performances in the audiovisual streams this petition 
considers are a very small percentage of the entire copyrighted work,'' 
\164\ commenters should address the well-established principle that 
copying even a quantitatively ``insubstantial portion'' of a work may 
weigh against fair use where the material is qualitatively significant 
to that work.\165\ These factual and legal issues should be described 
with sufficient particularity to enable the Office to determine whether 
the specific uses are likely to be fair. As it has done in the past, 
the Office is inclined to reject overbroad proposed classes such as 
``fair use works'' or ``educational fair use works.'' \166\ Absent such 
clarification, the Office will decline further consideration of the 
petition.\167\
---------------------------------------------------------------------------

    \163\ See Flosports, https://www.flosports.tv/join-now/ 
(advertising ``plans starting from $12.49/mo'') (last visited Oct. 
8, 2020).
    \164\ FloSports Class 4 Pet. at 3.
    \165\ See Harper & Row Publrs., Inc. v. Nation Enters., 471 U.S. 
539, 564-65 (1985).
    \166\ See 2015 Recommendation at 100 (citing 2006 Recommendation 
at 17-19).
    \167\ Cf. 79 FR 73856, 73859 (Dec. 12, 2014) (declining to put 
forward exemption proposals that could not be granted as a matter of 
law).

---------------------------------------------------------------------------

[[Page 65305]]

Proposed Class 5: Audiovisual Works--Preservation
    LCA proposes a new exemption to facilitate preservation of 
audiovisual works stored on DVDs or Blu-ray discs. a class that would 
include ``[m]otion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully acquired 
on a DVD protected by the Content Scramble System, or on a Blu-ray disc 
protected by the Advanced Access Content System, and is no longer 
reasonably available in the commercial marketplace, for the purpose of 
lawful preservation of the motion picture, by a library, archives, or 
museum.'' \168\ The petition is quite terse, consisting of a single 
sentence, and so the Office encourages proponents to develop the legal 
and factual administrative record in their initial submissions.
---------------------------------------------------------------------------

    \168\ LCA Class 5 Pet. at 2.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language.
Proposed Class 6: Audiovisual Works--Space-Shifting
    Somewhat related to LCA's petition, but not cabined to preservation 
activities conducted by libraries, archives, or museums, SolaByte 
proposes a broader exemption that would be available to ``[t]he 
legitimate owner of the DVD or blu-ray disc and licensee of the 
content'' for the purpose of ``making a usable personal back up copy.'' 
\169\ The exemption ``would apply to any title of audio/visual works 5 
years after its public release date.'' \170\ SolaByte notes that 
``[i]ncomplete licensing of titles by internet media service providers 
requires the owner of the disc to subscribe to multiple service 
providers at high personal cost to cover a fraction of their library 
titles.'' \171\
---------------------------------------------------------------------------

    \169\ SolaByte Class 6 Pet. at 2.
    \170\ Id.
    \171\ Id.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language. The Office 
notes that in the 2006, 2012, 2015, and 2018 rulemakings, the Librarian 
rejected proposed exemptions for space-shifting or format-shifting, 
finding that the proponents had failed to establish under applicable 
law that space-shifting is a noninfringing use.\172\ The Office invites 
comment on whether, in the past three years, there has been any change 
in the legal or factual circumstances bearing upon that issue.
---------------------------------------------------------------------------

    \172\ See 83 FR 54010, 54026-27 (Oct. 26, 2018); 80 FR 65944, 
65960 (Oct. 28, 2015); 77 FR 65260, 65276-77 (Oct. 26, 2012); 71 FR 
68472, 68478 (Nov. 27, 2006).
---------------------------------------------------------------------------

Proposed Classes 7(a): Motion Pictures and 7(b): Literary Works--Text 
and Data Mining
    Authors Alliance, AAUP, and LCA petition for an exemption ``for 
researchers to circumvent technological protection measures on lawfully 
accessed literary works distributed electronically as well as on 
lawfully accessed motion pictures, in order to deploy text and data 
mining techniques.'' \173\ Petitioners believe that these two 
categories of works ``should be grouped together in a single exemption 
because they involve the same petitioners, the same proposed use, and 
implicate the same arguments for an exemption.'' \174\ The proposed 
class includes both works embodied in physical discs and those 
transmitted digitally.\175\ The users seeking access include 
``researchers engaged in text and data mining in the humanities, social 
sciences, and sciences.'' \176\
---------------------------------------------------------------------------

    \173\ Authors Alliance, AAUP & LCA Class 6 Pet. at 2.
    \174\ Id.
    \175\ Id. at 3.
    \176\ Id.
---------------------------------------------------------------------------

    For reasons of administrative efficiency, the Office has grouped 
these proposals into one category that encompasses two proposed classes 
pertaining to motion pictures and literary works, respectively (i.e., 
Classes 7(a) and 7(b)). Commenters therefore may submit a single 
comment addressing one or both aspects of the petition. It is important 
to emphasize, however, that proponents are required to make the 
statutorily required showing with respect to each category of works. As 
discussed above, the statute requires that exemptions describe ``a 
particular class of copyrighted works.'' \177\ Congress made clear that 
such a class may not encompass more than one of the categories of works 
set out in section 102; to the contrary, the ``particular class'' 
language refers to ``a narrow and focused subset'' of the section 102 
categories.\178\ This means that for each type of work for which an 
exemption is sought, petitioners must demonstrate an actual or likely 
adverse impact on a noninfringing use as a result of the statutory 
prohibition on circumvention. In the case of this proposal, to the 
extent proponents believe the relevant factual and legal issues are 
similar as to the two classes of works, the supporting comments should 
describe those matters in detail. For example, commenters may wish to 
address the extent to which there is overlap with respect to the types 
of TPMs applied to these works, the nature of the proposed research 
activities, the relevant markets for the works, and the availability of 
potential alternatives to circumvention.
---------------------------------------------------------------------------

    \177\ 17 U.S.C. 1201(a)(1)(C) (emphasis added); see supra 
Section I.
    \178\ Commerce Comm. Report at 38 (emphasis added).
---------------------------------------------------------------------------

Proposed Class 8: Literary Works--Accessibility
    ACB, AFB, NFB, LCA, AALL, Benetech/Bookshare, and HathiTrust 
petition to expand the current exemption for the use of assistive 
technologies by visually impaired persons in connection with 
electronically distributed literary works. The current regulatory 
language applies to literary works, distributed electronically, that 
are protected by technological measures that either prevent the 
enabling of read-aloud functionality or interfere with screen readers 
or other applications or assistive technologies:
     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
     When such work is a nondramatic literary work, lawfully 
obtained and used by an authorized entity pursuant to 17 U.S.C. 
121.\179\
---------------------------------------------------------------------------

    \179\ 37 CFR 201.40(b)(3).
---------------------------------------------------------------------------

    The proposed exemption would amend this language to reflect recent 
changes to U.S. law to implement the Marrakesh Treaty to Facilitate 
Access to Published Works for Persons Who Are Blind, Visually Impaired, 
or Otherwise Print Disabled (``Marrakesh Treaty'').\180\ These include 
updates to the Chaffee Amendment, codified at section 121 of title 17, 
and the newly adopted section 121A, which pertains to the import and 
export of works in accessible formats. Petitioners propose the 
following changes:
---------------------------------------------------------------------------

    \180\ Marrakesh Treaty, art. 7, June 27, 2013, 52 I.L.M. 1312.
---------------------------------------------------------------------------

     Updating the description of eligible users from ``blind or 
other person with a disability'' to ``eligible person, as such a person 
is defined in 17 U.S.C. 121'';
     Updating the description of eligible works to ``literary 
works and previously published musical works that have been fixed in 
the form of text or notation''; and
     Adding the phrase ``or 121A'' to the end of 37 CFR 
201.40(b)(3)(ii). As an

[[Page 65306]]

alternative, petitioners request clarification that exercising the 
rights described in section 121A does not implicate section 1201.\181\
---------------------------------------------------------------------------

    \181\ ACB, AFB, NFB, LCA, AALL, Benetech/Bookshare & HathiTrust 
Class 8 Pet. at 4.
---------------------------------------------------------------------------

    In addition, petitioners request that the Office ``eliminate the 
reference to the price of `mainstream' copies of works . . . and 
replace this term with a more inclusive phrase such as `market price of 
an inaccessible copy.' '' \182\
---------------------------------------------------------------------------

    \182\ Id.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption, 
including petitioners' suggested regulatory language, should be 
adopted.
Proposed Class 9: Literary Works--Medical Device Data
    Hugo Campos, a member of a coalition of medical device patients and 
researchers, requests two modifications to the current exemption 
permitting circumvention to access compilations of data generated by 
medical devices or corresponding personal monitoring systems. First, he 
seeks removal of the language limiting the exemption to devices ``that 
are wholly or partially implanted in the body.'' \183\ He notes that 
``[m]any current and upcoming devices obtain medical data about a 
patient without the need to be fully or partially implanted in the 
body,'' including smart watches, personal EKG monitors, and non-
implanted glucose meters.\184\ And he argues that ``there is no 
relevant difference between implanted and non-implanted devices with 
respect to copyright.'' \185\
---------------------------------------------------------------------------

    \183\ Campos Class 9 Pet. at 2 (citing 37 CFR 201.40(b)(4)).
    \184\ Id. at 2.
    \185\ Id.
---------------------------------------------------------------------------

    Second, Mr. Campos requests that the exemption ``permit third 
parties to perform the circumvention, with permission, on behalf of the 
patient.'' \186\ He notes that the Office and the Library ``have 
structured other exemptions so that the identity of the person doing 
the circumvention does not matter.'' \187\
---------------------------------------------------------------------------

    \186\ Id.
    \187\ Id.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language. With respect to 
the request to permit third-party assistance, the Office notes that it 
has addressed this issue on several occasions, most recently in the 
2018 Recommendation's discussion of the current exemptions for repair 
of software-enabled motor vehicles and devices. There, the Office 
recommended removal of the prior requirement that circumvention be 
``undertaken by the authorized owner'' of the vehicle or device, noting 
participants' concern that such language ``improperly excludes other 
users with a legitimate interest in engaging in noninfringing 
diagnosis, repair, or modification activities.'' \188\ But the Office 
emphasized the limited nature of the change:
---------------------------------------------------------------------------

    \188\ 2018 Recommendation at 229.

    To be clear, removal of the ``authorized owner'' language should 
in no way be understood to suggest that the exemption extends to 
conduct prohibited by the anti-trafficking provisions; such an 
exemption is beyond the Librarian's authority to adopt. . . . The 
recommended revision simply accounts for the possibility that 
certain third parties may qualify as ``user[s]'' eligible for an 
exemption from liability under section 1201(a)(1). Such parties 
still will be required to consider whether their activities could 
separately give rise to liability under section 1201(a)(2) or (b). 
Given the legal uncertainty in this area, services electing to 
proceed with circumvention activity pursuant to the exemption do so 
at their peril.\189\
---------------------------------------------------------------------------

    \189\ Id. at 225.

The Office invites comment on the extent to which this analysis may be 
relevant to the current proposal.
Proposed Class 10: Computer Programs--Unlocking
    ISRI submitted two separate petitions to expand the current 
exemption for ``unlocking''--i.e., connecting a wireless device to an 
alternative wireless network. The current exemption permits 
circumvention of the following lawfully acquired devices for unlocking 
purposes:
     Wireless telephone handsets (i.e., cellphones);
     All-purpose tablet computers;
     Portable mobile connectivity devices, such as mobile 
hotspots, removable wireless broadband modems, and similar devices; and
     Wearable wireless devices designed to be worn on the body, 
such as smartwatches or fitness devices.\190\
---------------------------------------------------------------------------

    \190\ 37 CFR 201.40(b)(5).
---------------------------------------------------------------------------

    In its first petition, ISRI seeks to add ``laptop computers 
(including chromebooks) with 4G LTE or 5G or other cellular connection 
capabilities'' to the list of covered devices.\191\ In its second 
petition, ISRI seeks to remove the enumeration of devices altogether 
and extend the exemption to ``any other devices with 4G LTE or 5G or 
other cellular connection capabilities,'' including, but not limited 
to, ``Smart TVs, Internet of Things (IoT) devices, immersive extended 
reality (XR) headsets, desktop computers, and drones.'' \192\
---------------------------------------------------------------------------

    \191\ ISRI Class 10 Pet. #1 at 2.
    \192\ ISRI Class 10 Pet. #2 at 2.
---------------------------------------------------------------------------

    The Office seeks comment on whether this proposed exemption should 
be adopted, including any proposed regulatory language. The Office 
notes that in the seventh triennial rulemaking it considered a similar 
petition to remove the list of enumerated device categories, but 
concluded that the proponents had failed to carry their burden of 
demonstrating adverse effects on noninfringing uses with respect to all 
types of wireless devices with cellular connection capability.\193\ 
Comments responding to this petition should address the extent to which 
factual and legal issues pertaining to certain categories of devices 
may be relevant to wireless devices more generally.
---------------------------------------------------------------------------

    \193\ 2018 Recommendation at 162.
---------------------------------------------------------------------------

Proposed Class 11: Computer Programs--Jailbreaking
    Two petitions seek to expand or clarify the categories of devices 
covered by the exemptions for jailbreaking, which currently include 
smartphones and portable all-purpose mobile computing devices, smart 
televisions, and voice assistant devices.\194\ SFC petitions for a new 
exemption to enable the installation of alternative firmware in 
``routers and other networking devices.'' \195\ EFF proposes a 
clarification of the current exemption regarding smart televisions. In 
EFF's view, it is ``unclear whether that exemption includes hardware 
devices that enable the viewing of video streams, along with other 
software applications, when such devices are not physically integrated 
into a television.'' \196\ The petition refers to such hardware as 
``streaming devices'' and cites ``the Roku line of products, the Amazon 
Fire TV Stick, and the Apple TV'' as examples.\197\
---------------------------------------------------------------------------

    \194\ 37 CFR 201.40(b)(6)-(8).
    \195\ SFC Class 11 Pet. at 2.
    \196\ EFF Class 11 Pet. at 2.
    \197\ Id.
---------------------------------------------------------------------------

    The Office seeks comment on whether these proposed exemptions 
should be adopted, including any proposed regulatory language to define 
the types of devices that would be covered.
Proposed Class 12: Computer Programs--Repair
    Multiple organizations petition for new or expanded exemptions 
relating to diagnosis, repair, and modification of software-enabled 
devices. As noted, the current regulations include two repair-related 
exemptions, covering (1) computer programs that are contained in and 
control the functioning of a lawfully acquired motorized land vehicle, 
when circumvention is a

[[Page 65307]]

necessary step to allow the diagnosis, repair, or lawful modification 
of a vehicle function; and (2) computer programs that are contained in 
and control the functioning of a lawfully acquired smartphone or home 
appliance or home system, when circumvention is a necessary step to 
allow the diagnosis, maintenance, or repair of such a device or 
system.\198\
---------------------------------------------------------------------------

    \198\ 37 CFR 201.40(b)(9)-(10).
---------------------------------------------------------------------------

    Three petitions seek to expand the current exemptions to include 
additional types of devices. Summit Imaging, Inc. and Transtate 
Equipment Co., Inc. separately petition for an exemption allowing 
circumvention of TPMs for purposes of diagnosis, modification, and 
repair of medical devices.\199\ iFixit and Public Knowledge jointly 
petition for an exemption permitting circumvention ``to repair video 
game consoles and replace damaged hardware.'' \200\ With respect to the 
latter petition, the Office notes that in prior rulemakings it has 
declined to recommend exemptions for jailbreaking and repair of video 
game consoles in light of evidence that circumvention of TPMs in such 
devices may adversely affect the value of the affected software, as 
well as a lack of evidence of adverse effects on noninfringing 
uses.\201\ The Office invites comment on whether, in the past three 
years, there has been any change in the legal or factual circumstances 
bearing upon these issues.
---------------------------------------------------------------------------

    \199\ Summit Imaging, Inc. Class 12 Pet. at 2; Transtate Equip. 
Co. Class 12 Pet. at 2.
    \200\ iFixit & Public Knowledge Class 12 Pet. at 2.
    \201\ See 2018 Recommendation at 206, 219-20; 2015 
Recommendation at 199-201; 2012 Recommendation at 44, 47.
---------------------------------------------------------------------------

    Two additional petitions request removal of the limitation to 
specific categories of devices, along with further changes to the 
current regulatory text.\202\ EFF seeks to expand the exemption to 
permit circumvention for purposes of modification of a device, in 
addition to repair-related activities. iFixit and the Repair 
Association propose to remove the current requirement that 
circumvention of TPMs protecting software in motor vehicles not 
constitute a violation of applicable law.\203\ The Office notes that it 
considered similar requests regarding these issues in the 2018 
rulemaking.\204\ Therefore, as with the above petitions, comments 
addressing these proposals should include discussion of any relevant 
changed circumstances.
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    \202\ EFF Class 12 Pet. at 2-3; iFixit & Repair Ass'n Class 12 
Pet. at 2-3.
    \203\ iFixit & Repair.org Class 12 Pet. at 3.
    \204\ See 2018 Recommendation at 189-94, 206-09, 310-11.
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    Finally, the Office notes that all of the petitions in this class 
appear to request that the users eligible to exercise these exemptions 
include third-party service providers.\205\ As above, the Office 
invites comment on the extent to which its prior analysis of that issue 
may be applicable here.\206\
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    \205\ Summit Imaging, Inc. Class 12 Pet. at 3; Transtate Equip. 
Co. Class 12 Pet. at 2; iFixit & Public Knowledge Class 12 Pet. at 
2; EFF Class 12 Pet. at 2-3; iFixit & Repair Ass'n Class 12 Pet. at 
2.
    \206\ See 2018 Recommendation at 225.
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Proposed Class 13: Computer Programs--Security Research
    Two petitions seek to expand the current exemption permitting 
circumvention for purposes of good-faith security research. Professor 
J. Alex Halderman, CDT, and ACM propose removal of several limitations 
in the current regulation: (1) The requirement that circumvention be 
undertaken on a ``lawfully acquired device or machine on which the 
computer program operates'' and ``not violate any applicable law''; (2) 
both instances of the term ``solely'' (i.e., ``solely for the purpose 
of good-faith security research'' and ``solely for purposes of good-
faith testing, investigation, and/or correction of a security flaw or 
vulnerability''); and (3) the requirement that the information derived 
from the activity be 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.'' \207\ 
As petitioners note, the Office considered these proposed changes in 
the 2018 rulemaking and provided interpretive guidance as to the 
regulatory language's intended scope.\208\ Petitioners state, however, 
that they ``intend to further develop the record in favor of these 
changes in the current rulemaking period.'' \209\
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    \207\ Halderman, CDT & ACM Class 13 Pet. at 3.
    \208\ See 2018 Recommendation at 283-314.
    \209\ Halderman, CDT & ACM Class 13 Pet. at 3.
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    SFC petitions for an expansion to ``clarify that the definition of 
`good faith security research' . . . includes good-faith testing, 
investigation, and/or correction of privacy issues (including flaws or 
functionality that may expose personal information) and permits the 
owner of the device to remove software or disable functionality that 
may expose personal information.'' \210\ Eligible users under this 
proposal would include ``privacy and security researchers who 
investigate and publish information about privacy flaws in computing 
devices; and individual consumers and hobbyists who wish to prevent 
their private data from being disclosed by the devices they own.'' 
\211\
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    \210\ SFC Class 13 Pet. at 2.
    \211\ Id.
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    The Office seeks comment on whether these proposed changes should 
be adopted. With respect to SFC's petition, comments should include 
discussion of the extent to which the proposed activities may or may 
not be addressed by permanent statutory exemptions or current 
regulatory exemptions.
Proposed Classes 14(a): Computer Programs and 14(b): Video Games-- 
Preservation
    SPN and LCA filed two petitions to expand the current exemptions 
for preservation of software and video games by eligible libraries, 
archives, and museums.\212\ Both of these exemptions currently require 
that the covered works not be ``distributed or made available outside 
of the physical premises of the eligible library, archives, or 
museum.'' \213\ The proposed exemptions would remove those 
requirements.\214\ The Office welcomes further elaboration on how 
proponents of the exemptions would envision these works to be 
distributed or made available in a manner likely to be noninfringing, 
respectively. For example, the current exemptions are focused on 
circumvention to enable preservation uses, in contrast to enabling 
provision of lending copies for users, a preliminary distinction that 
the Office has found critical in the past when analyzing potential 
legislative reforms to the section 108 exception for libraries and 
archives.\215\ Would the proposed modification maintain this 
distinction, and if so, how? Would there be conditions on access 
restrictions to registered users of an eligible library, archives, or 
museum or would material be made available more generally to members of 
the public? The Office notes that in the 2018 rulemaking, it declined 
to recommend a proposal to expand the video game preservation exemption 
to allow circumvention by affiliate archivists outside the premises of 
a covered institution, concluding that the

[[Page 65308]]

proponents had failed to establish that such activity was likely 
noninfringing.\216\ Commenters responding to these petitions should 
address the extent to which the legal and factual issues relevant to 
this class may differ from those considered previously.
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    \212\ 37 CFR 201.40(b)(12), (13).
    \213\ Id. at Sec.  201.40(b)(12)(ii), (b)(13)(i).
    \214\ SPN & LCA Class 14(a) Pet. at 2; SPN & LCA Class 14(b) 
Pet. at 2.
    \215\ U.S. Copyright Office, Revising Section 108: Copyright 
Exceptions for Libraries and Archives at 24-34 (addressing 
preservation uses), 35-41 (addressing user copies) (2017), https://www.copyright.gov/policy/section108/discussion-document.pdf.
    \216\ 2018 Recommendation at 271-75.
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    Although these proposed classes both involve computer programs 
(which constitute literary works under the Copyright Act), the petition 
regarding video games involves an additional category of works insofar 
as video games also constitute audiovisual works.\217\ Therefore, the 
Office is following the same procedure discussed above in relation to 
the proposed TDM exemption: the Office has grouped these petitions into 
a single category encompassing two proposed classes. Commenters 
addressing these proposals may submit a single comment addressing both 
computer programs and video games, but the supporting evidence must be 
sufficient to establish an adverse effect on noninfringing uses with 
respect to each category of works. In particular, the Office is 
interested in the extent to which licensing markets for video games may 
be similar or different from those for software more generally, and 
whether any such differences may be relevant under the fair use 
analysis or the expected effect of circumvention of technological 
measures on the market for or value of copyrighted works.\218\ The 
Office seeks comment on these and other relevant issues, including any 
proposed regulatory language.
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    \217\ U.S. Copyright Office, Compendium of U.S. Copyright Office 
Practices sec. 807.7(A)(1) (3d ed. 2017) (``Generally, a videogame 
contains two major components: the audiovisual material and the 
computer program that runs the game.'').
    \218\ See 17 U.S.C. 107; 1201(a)(1)(C)(iv).
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Proposed Class 15: Computer Programs--3D Printing
    Michael Weinberg petitions to amend the current exemption 
permitting circumvention to enable the use of alternative feedstock in 
3D printers. The current exemption allows access to ``[c]omputer 
programs that operate 3D printers that employ microchip-reliant 
technological measures to limit the use of feedstock, when 
circumvention is accomplished solely for the purpose of using 
alternative feedstock and not for the purpose of accessing design 
software, design files, or proprietary data.'' \219\ Mr. Weinberg seeks 
two changes to this language. First, he proposes to ``replace the term 
`feedstock' . . . with the term `material,' '' stating that the latter 
``is more commonly used to describe the substances used by 3D printers 
within the 3D printing community and industry.'' \220\ Second, he 
proposes to remove the term ``microchip-reliant.'' In his view, there 
is no ``justification to narrow the scope of the exemption to a 
specific subset of technological measures tied to microchip-based 
verifications,'' and ``the inclusion of the limiting language creates 
unnecessary ambiguity.'' \221\ As noted, to recommend an exemption, the 
Office requires a showing that the statutory prohibition on 
circumventing access controls is yielding adverse effects on non-
infringing uses. The current reference to ``microchip-reliant'' was 
based on the record of relevant TPMs submitted in connection with the 
exemption request.\222\ In particular, the Office now solicits 
descriptions and examples of the prevalence of TPMs that are not 
microchip-based verifications, and descriptions of adverse effects 
stemming from such TPMs.\223\
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    \219\ 37 CFR 201.40(b)(14).
    \220\ Weinberg Class 15 Pet. at 2.
    \221\ Id.
    \222\ 2015 Recommendation at 376.
    \223\ See Lexmark Int'l Inc. v. Static Control Components, Inc., 
387 F.3d 522, 547 (6th Cir. 2004) (``Because the statute refers to 
`control[ling] access to a work protected under this title,' it does 
not naturally apply when the `work protected under this title' is 
otherwise accessible.'').
---------------------------------------------------------------------------

    In general, the Office seeks comment on whether these proposed 
changes should be adopted.
Proposed Class 16: Computer Programs--Copyright License Investigation
    SFC petitions for a new exemption to permit circumvention of TPMs 
protecting computer programs for purposes of ``(a) investigating 
potential copyright infringement of the computer programs; and (b) 
making lawful use of computer programs (e.g., copying, modifying, 
redistributing, and updating free and open source software (FOSS)).'' 
\224\ The proposed exemption does not appear to be limited to 
particular users or types of devices. SFC states that the users seeking 
access include:
---------------------------------------------------------------------------

    \224\ SFC Class 16 Pet. at 2.

software authors and publishers, including the authors of FOSS 
computer programs (which are frequently incorporated in embedded 
computing devices in an infringing manner); and individual consumers 
who are lawful owners of embedded computing devices and licensees of 
the computer programs embedded therein, and who wish to make lawful 
use of computer programs protected by technological protection 
measures (e.g. the right granted by certain FOSS licenses to install 
modified versions of the FOSS computer programs).\225\
---------------------------------------------------------------------------

    \225\ Id.

    It is somewhat unclear whether the requested exemption for ``lawful 
use of computer programs'' would apply to any lawful use or seeks 
merely to allow licensed uses of FOSS software. To the extent the 
former is intended, the proposed exemption appears beyond the 
Librarian's authority to grant. As the Office has consistently noted, 
the rulemaking requires a showing of ``distinct, verifiable and 
measurable'' adverse impacts on noninfringing uses.\226\ Such evidence 
``cannot be hypothetical, theoretical, or speculative, but must be 
real, tangible, and concrete.'' \227\ In light of that requirement, 
``the Register has previously rejected broad proposed categories such 
as `fair use works' or `educational fair use works' as inappropriate.'' 
\228\ SFC and any other proponents of this request therefore must 
narrow or clarify the specific uses of computer programs that the 
proposed exemption seeks to permit, so that participants and the Office 
may fairly assess whether they are likely to be noninfringing and 
adversely affected by the prohibition on circumvention. The Office also 
welcomes additional detail regarding the first subpart of SFC's 
intended uses ``investigating potential copyright infringement of the 
computer programs, including the statement ``FOSS computer programs ([ 
] are frequently incorporated in embedded computing devices in an 
infringing manner).''
---------------------------------------------------------------------------

    \226\ Commerce Committee Report at 37; see also Section 1201 
Study at 119-21.
    \227\ Section 1201 Study at 120.
    \228\ 2015 Recommendation at 100 (citing 2006 Recommendation at 
17-19).
---------------------------------------------------------------------------

Proposed Class 17: All Works--Accessibility Uses
    Multiple organizations representing persons with disabilities 
(``Accessibility Petitioners'') jointly filed a petition proposing ``a 
more comprehensive exemption to resolve the shortcomings of the 
current, piecemeal approach to Section 1201 exemptions for 
accessibility.'' \229\ The proposed exemption would permit 
circumvention to access ``all cognizable classes of works under Section 
102 (a) of the Copyright Act'' to facilitate accessibility for persons 
with disabilities. Accessibility Petitioners state that this

[[Page 65309]]

exemption would allow such users, as well as ``advocates[ ] and 
organizations that produce accessible versions of copyrighted works 
protected by technological protection measures[,] to press ahead on 
accessibility without the burden of engaging in a complex, situation-
specific analysis.'' \230\ They state that the relevant barriers to 
access include ``(1) the access controls that inhibit accessibility and 
(2) failures of producers, publishers, and other rightsholders to 
authorize access for accessibility purposes or to produce accessible 
versions of their works.'' \231\
---------------------------------------------------------------------------

    \229\ ACB, AFB, Ass'n of Late-Deafened Adults, ATSP, AHEAD, 
Benetech/Bookshare, Gallaudet U., HathiTrust, Hearing Loss Ass'n of 
Am., LCA, Nat'l Ass'n of the Deaf, Nat'l Fed'n of the Blind, 
Telecomm. for the Deaf and Hard of Hearing, Inc. (collectively 
``Accessibility Petitioners'') Class 17 Pet. at 4.
    \230\ Id. at 5.
    \231\ Id.
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    As presently suggested, this proposed exemption is beyond the 
Librarian's authority to adopt because it does not meet the statutory 
requirement to describe ``a particular class of copyrighted works.'' 
\232\ As discussed above, the legislative history confirms that this 
language is intended to refer to ``a narrow and focused subset of the 
broad categories of works . . . identified in section 102 of the 
Copyright Act.'' \233\ Therefore, the Office uses the section 102 
categories as a starting point and refines the proposed classes by 
other criteria, such as the types of TPMs used or the types of 
uses.\234\ For example, while the category of ``literary works'' under 
section 102(a)(1) ``embraces both prose creations such as journals, 
periodicals or books, and computer programs of all kinds,'' Congress 
explained that ``[i]t is exceedingly unlikely that the impact of the 
prohibition on circumvention of access control technologies will be the 
same for scientific journals as it is for computer operating systems.'' 
\235\ Thus, ``these two categories of works, while both `literary 
works,' do not constitute a single `particular class' for purposes of'' 
section 1201(a)(1).\236\
---------------------------------------------------------------------------

    \232\ 17 U.S.C. 1201(a)(1)(C) (emphasis added).
    \233\ Commerce Committee Report at 38 (emphasis added).
    \234\ See supra Section I.
    \235\ House Manager's Report at 7.
    \236\ Id. As noted, the Office has repeatedly declined to 
recommend proposed exemptions that have failed to define the class 
of works to be covered with sufficient particularity. See, e.g., 
2018 Recommendation at 131-32; 79 FR at 73859; 2006 Recommendation 
at 17-19.
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    Further, petitioners are required to establish ``distinct, 
verifiable and measurable impacts'' on noninfringing uses,\237\ and 
those impacts must be caused by the statutory prohibition on 
circumvention.\238\ While TPMs undoubtedly have such impacts with 
respect to many accessibility uses (as reflected by the exemptions 
adopted for such uses in prior rulemakings), it is not clear to what 
extent various TPMs are effectively applied to every category of work 
in section 102, some of which may not readily lend themselves to such 
measures (e.g., sculptural works). In addition, the availability of 
accessible-format versions of works in the marketplace is a relevant 
consideration in determining adverse effects,\239\ and it is not clear 
that that factor applies equally to all categories of works.
---------------------------------------------------------------------------

    \237\ Commerce Committee Report at 37.
    \238\ 17 U.S.C. 1201(a)(1)(C); see also Section 1201 Study at 
115, 117.
    \239\ See, e.g., 2018 Recommendation at 110 (including market 
check requirement in exemption for accessibility uses of audiovisual 
works ``to prevent copies being made of works already available in 
accessible formats, while supporting the motion picture industry's 
effort to further expand the availability of accessible versions in 
the marketplace'').
---------------------------------------------------------------------------

    The Office notes its continuing discretion to decline to put 
forward proposals for public comment that are unlikely to yield 
consideration of exemptions consistent with the standards of section 
1201(a)(1).\240\ In light of the important public policy considerations 
raised by this request and past exemptions adopted with respect to 
facilitating accessibility uses, however, the Office is noticing this 
category for public comment while flagging the need to further develop 
and refine petitioners' request into separate proposed classes. 
Accordingly, Accessibility Petitioners and any other proponents in this 
category must provide evidence and legal analysis sufficient to enable 
the Office to make a particularized assessment as to each class of 
works for which an exemption is sought. Based on prior exemptions 
adopted, the Office anticipates Accessibility Petitioners to be seeking 
exemptions related to TPMs protecting literary works as well as motion 
pictures distributed electronically, and proponents should provide 
evidence and proposed regulatory language with respect to these and any 
other relevant classes, and clearly identify and propose contours for 
each such class. For example, the Office is not inclined to recommend 
an exemption for printed copies of literary works, for which no TPMs 
are employed. Nor is the Office empowered to recommend regulatory 
language that extends to sound recordings, musical works, architectural 
works, etc. without development of an adequate administrative record 
demonstrating that an exemption is appropriate for each of these 
classes.\241\
---------------------------------------------------------------------------

    \240\ 79 FR at 73859 (declining to notice three proposals for 
public comment).
    \241\ See supra Section I (outlining four elements to the 
evidentiary standard applied by the Office in evaluating requests).
---------------------------------------------------------------------------

    Accessibility Petitioners should also include, with respect to each 
class, evidence of an actual or likely adverse effect on accessibility 
uses resulting from TPMs applied to that type of work. While the Office 
recognizes the vital importance of ensuring accessibility for persons 
with disabilities, and indeed has recommended legislation to make 
permanent the current exemption regarding assistive technologies for 
electronically-distributed literary works,\242\ its authority in this 
proceeding is bound by the provisions of the statute. Subject to these 
requirements, the Office invites comment on this proposed class(es).
---------------------------------------------------------------------------

    \242\ See Section 1201 Study at 84-88.
---------------------------------------------------------------------------

IV. Future Phases of the Eighth Triennial Rulemaking

    As in prior rulemakings, after receipt of written comments, the 
Office will continue to solicit public engagement to create a 
comprehensive record. Described below are the future phases of the 
administrative process that will be employed for this rulemaking, so 
that parties may use this information in their planning.

A. Public Hearings

    The Copyright Office intends to hold public hearings in spring 2021 
following the last round of written comments. The hearings will allow 
for participation by videoconference and will be streamed online. In 
addition, the Office will determine at a later date, based on 
applicable public health guidelines, whether in-person participation 
will be possible. A separate notice providing details about the 
hearings and how to participate will be published in the Federal 
Register at a later date. The Office will identify specific items of 
inquiry to be addressed during the hearings.

B. Post-Hearing Questions

    As with previous rulemakings, following the hearings, the Copyright 
Office may request additional information with respect to particular 
classes from rulemaking participants. The Office may rely on this 
process in cases where it would be useful for participants to supply 
missing information for the record or otherwise resolve issues that the 
Office believes are material to particular exemptions. Such requests 
for information will take the form of a letter from the Copyright 
Office and will be addressed to individual parties involved in the 
proposal as to which more information is sought. While responding to 
such a request will be voluntary, any response

[[Page 65310]]

will need to be supplied by a specified deadline. After the receipt of 
all responses, the Office will post the questions and responses on the 
Office's website as part of the public record.

C. Ex Parte Communication

    In the seventh triennial rulemaking, in response to stakeholder 
requests, the Office issued written guidelines under which interested 
non-governmental participants could request informal communications 
with the Office during the post-hearing phase of the proceeding. The 
Office expects to follow substantially the same process in this 
proceeding. To ensure transparency, participating parties will be 
required to submit a list of attendees and a written summary of any 
oral communications, which will be posted on the Office's website. 
Specific guidelines for this proceeding will be made available 
following the public hearings. No ex parte communications with the 
Office regarding this proceeding will be permitted prior to the post-
hearing phase.

    Dated: October 9, 2020.
Regan A. Smith,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2020-22893 Filed 10-14-20; 8:45 am]
BILLING CODE 1410-30-P