Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies, 59627-59641 [2021-23311]

Download as PDF Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations in its place the citation ‘‘34 CFR 668.23(b)’’. ■ b. In the parenthetical OMB control number at the end of the section, removing the words ‘‘control number 1840–0688’’ and adding in their place the words ‘‘control number 1845–0039’’. ■ c. Removing the parenthetical authority citation at the end of the section PART 691 [Removed and Reserved] 18. Under the authority of 20 U.S.C. 1221e–3, part 691 is removed and reserved. ■ [FR Doc. 2021–23423 Filed 10–27–21; 8:45 am] BILLING CODE 4000–01–P LIBRARY OF CONGRESS I. Background Copyright Office A. Statutory Requirements Congress enacted the DMCA in 1998 to implement certain provisions of the WIPO Copyright and WIPO Performances and Phonograms Treaties. Among other things, title I of the DMCA, which added a new chapter 12 to title 17 of the U.S. Code, prohibits circumvention of technological measures employed by or on behalf of copyright owners to protect access to their works. In enacting this aspect of the law, Congress observed that technological protection measures (‘‘TPMs’’) can ‘‘support new ways of disseminating copyrighted materials to users, and . . . safeguard the availability of legitimate uses of those materials by individuals.’’ 1 Section 1201(a)(1) provides in pertinent part that ‘‘[n]o person shall circumvent a technological measure that effectively controls access to a work protected under [title 17].’’ Under the statute, to ‘‘circumvent a technological measure’’ means ‘‘to descramble a scrambled work, to decrypt an encrypted work, or otherwise to avoid, bypass, remove, deactivate, or impair a technological measure, without the authority of the copyright owner.’’ 2 A technological measure that ‘‘effectively controls access to a work’’ is one that ‘‘in the ordinary course of its operation, requires the application of information, or a process or a treatment, with the authority of the copyright owner, to gain access to the work.’’ 3 Section 1201(a)(1) also includes what Congress characterized as a ‘‘fail-safe’’ 37 CFR Part 201 [Docket No. 2020–11] Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies U.S. Copyright Office, Library of Congress. ACTION: Final rule. AGENCY: In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act (‘‘DMCA’’) that prohibits circumvention of technological measures that control access to copyrighted works. As required under the statute, the Register of Copyrights, following a public proceeding, submitted a recommendation concerning proposed exemptions to the Librarian of Congress (‘‘Register’s Recommendation’’). After careful consideration, the Librarian adopts final regulations based upon the Register’s Recommendation. SUMMARY: DATES: Effective October 28, 2021. FOR FURTHER INFORMATION CONTACT: jspears on DSK121TN23PROD with RULES1 measures that effectively control access to copyrighted works shall not apply for the next three years to persons who engage in certain noninfringing uses of certain classes of such works. This determination is based upon the Register’s Recommendation. The below discussion summarizes the rulemaking proceeding and the Register’s recommendations, announces the Librarian’s determination, and publishes the regulatory text specifying the exempted classes of works. A more complete discussion of the rulemaking process, the evidentiary record, and the Register’s analysis with respect to each proposed exemption can be found in the Register’s Recommendation, which is posted at www.copyright.gov/1201/ 2021/. Kevin R. Amer, Acting General Counsel and Associate Register of Copyrights, by email at kamer@copyright.gov, or Mark Gray, Attorney-Advisor, by email at mgray@copyright.gov. Each can be contacted by telephone by calling (202) 707–8350. SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to section 1201(a)(1) of title 17, United States Code, has determined in this eighth triennial rulemaking proceeding that the prohibition against circumvention of technological VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 1 Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4, 1998, at 6 (Comm. Print 1998). 2 17 U.S.C. 1201(a)(3)(A). 3 17 U.S.C. 1201(a)(3)(B). PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 59627 mechanism,4 which requires the Librarian of Congress, following a rulemaking proceeding, to exempt any class from the prohibition for a threeyear period if she has determined that noninfringing uses by persons who are users of copyrighted works in that class are, or are likely to be, adversely affected by the prohibition against circumvention during that period.5 The Librarian’s determination to grant an exemption is based upon the recommendation of the Register of Copyrights, who conducts the rulemaking proceeding.6 The Register consults with the Assistant Secretary for Communications and Information of the Department of Commerce, who oversees the National Telecommunications and Information Administration (‘‘NTIA’’), in the course of formulating her recommendations.7 Exemptions adopted by rule under section 1201(a)(1) apply only to the conduct of circumventing a technological measure that controls access to a copyrighted work. Other parts of section 1201 address the manufacture and provision of—or ‘‘trafficking’’ in—products and services designed for purposes of circumvention. Section 1201(a)(2) bars trafficking in products and services that are used to circumvent technological measures that control access to copyrighted works (for example, a password needed to open a media file),8 while section 1201(b) bars trafficking in products and services used to circumvent technological measures that protect the exclusive rights of the copyright owner (for example, technology that prevents the work from being reproduced).9 The Librarian has no authority to adopt exemptions for the anti-trafficking prohibitions contained in section 1201(a)(2) or (b).10 The statute contains certain permanent exemptions to permit specified uses. These include section 1201(d), which exempts certain activities of nonprofit libraries, archives, and educational institutions; section 1201(e), which exempts ‘‘lawfully authorized investigative, protective, information security, or intelligence activity’’ of a state or the federal 4 See H.R. Rep. No. 105–551, pt. 2, at 36 (1998). 17 U.S.C. 1201(a)(1). 6 17 U.S.C. 1201(a)(1)(C). 7 Id. 8 17 U.S.C. 1201(a)(2). 9 17 U.S.C. 1201(b). 10 See 17 U.S.C. 1201(a)(1)(E) (‘‘Neither the exception under subparagraph (B) from the applicability of the prohibition contained in subparagraph (A), nor any determination made in a rulemaking conducted under subparagraph (C), may be used as a defense in any action to enforce any provision of this title other than this paragraph.’’). 5 See E:\FR\FM\28OCR1.SGM 28OCR1 59628 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations government; section 1201(f), which exempts certain ‘‘reverse engineering’’ activities to facilitate interoperability; section 1201(g), which exempts certain types of research into encryption technologies; section 1201(h), which exempts certain activities to prevent the ‘‘access of minors to material on the internet’’; section 1201(i), which exempts certain activities ‘‘solely for the purpose of preventing the collection or dissemination of personally identifying information’’; and section 1201(j), which exempts certain acts of ‘‘security testing’’ of computers and computer systems. B. Rulemaking Standards In adopting the DMCA, Congress imposed legal and evidentiary requirements for the section 1201 rulemaking proceeding, as discussed in greater detail in the Register’s Recommendation 11 and the Copyright Office’s 2017 policy study on section 1201.12 The Register will recommend granting an exemption only ‘‘when the preponderance of the evidence in the record shows that the conditions for granting an exemption have been met.’’ 13 The evidence must show ‘‘that it is more likely than not that users of a copyrighted work will, in the succeeding three-year period, be adversely affected by the prohibition on circumvention in their ability to make noninfringing uses of a particular class of copyrighted works.’’ 14 The Librarian must assess whether the implementation of access controls impairs the ability of individuals to make noninfringing uses of copyrighted works within the meaning of section 1201(a)(1). To aid in this process, the Register develops a comprehensive administrative record using information submitted by interested members of the jspears on DSK121TN23PROD with RULES1 11 Register of Copyrights, Section 1201 Rulemaking: Eighth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights (Oct. 2021), https://cdn.loc.gov/ copyright/1201/2021/2021_Section_1201_Registers_ Recommendation.pdf (Register’s Recommendation’’). 12 Register’s Recommendation at section II.C; U.S. Copyright Office, Section 1201 of Title 17 111–12 (2017), https://www.copyright.gov/policy/1201/ section-1201-full-report.pdf (‘‘Section 1201 Report’’). 13 Section 1201 Report at 111–12; accord Register of Copyrights, Section 1201 Rulemaking: Seventh Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 12–13 (Oct. 2018). References to the Register’s recommendations in prior rulemakings are cited by the year of publication followed by ‘‘Recommendation’’ (e.g., ‘‘2018 Recommendation’’). Prior Recommendations are available on the Copyright Office website at https:// www.copyright.gov/1201/. 14 Section 1201 Report at 112. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 public, and makes recommendations to the Librarian concerning whether exemptions are warranted based on that record. To establish the need for an exemption, proponents must show, at a minimum, (1) that uses affected by the prohibition on circumvention are or are likely to be noninfringing; and (2) that as a result of a technological measure controlling access to a copyrighted work, the prohibition is causing, or in the next three years is likely to cause, an adverse impact on those uses. In addition, the Librarian must examine the statutory factors listed in section 1201(a)(1): (1) The availability for use of copyrighted works; (2) the availability for use of works for nonprofit archival, preservation, and educational purposes; (3) the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; (4) the effect of circumvention of technological measures on the market for or value of copyrighted works; and (5) such other factors as the Librarian considers appropriate. Finally, section 1201(a)(1) specifies that any exemption adopted as part of this rulemaking must be defined based on ‘‘a particular class of works.’’ 15 Among other things, the determination of the appropriate scope of a ‘‘class of works’’ recommended for exemption may take into account the adverse effects an exemption may have on the market for or value of copyrighted works. Accordingly, ‘‘it can be appropriate to refine a class by reference to the use or user in order to remedy the adverse effect of the prohibition and to limit the adverse consequences of an exemption.’’ 16 II. History of the Eighth Triennial Proceeding The Office initiated the eighth triennial rulemaking proceeding through a Notice of Inquiry (‘‘NOI’’) on June 22, 2020.17 The NOI requested petitions for renewal of exemptions adopted in the 2018 rulemaking, petitions in opposition to renewal, and any petitions for new exemptions, including proposals to expand a current exemption. The Office received twentysix petitions for new exemptions, including thirteen comments seeking to expand certain current exemptions. As in the prior rulemaking, the Office employed a streamlined process for 15 17 U.S.C. 1201(a)(1)(B). Recommendation at 19. 17 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 37399 (June 22, 2020). 16 2006 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 renewing existing exemptions in this proceeding, detailing the renewal process in its public notices.18 Streamlined renewal is based upon a determination that, due to a lack of legal, marketplace, or technological changes, the factors that led the Register to recommend adoption of the exemption in the prior rulemaking are expected to continue into the forthcoming triennial period.19 That is, the same material facts and circumstances underlying the previously-adopted regulatory exemption may be relied on to renew the exemption. Because the statute requires that exemptions be adopted upon a new determination concerning the next three-year period, the fact that the Librarian previously adopted an exemption creates no presumption that readoption is appropriate. The Register’s Recommendation provides a detailed description of the process the Office used to create a record for each renewal petition.20 In brief, the Office first solicited renewal petitions as well as comments from participants opposing the readoption of the exemption. The Office received thirty-two renewal petitions and fifteen comments in response to those petitions. Seven comments supported renewal of a current exemption, and eight comments raised discrete concerns with specific petitions, but did not oppose readoption of the relevant exemption.21 On October 15, 2020, the Office issued its notice of proposed rulemaking (‘‘NPRM’’) identifying the existing exemptions for which the Register intended to recommend renewal, and outlined the proposed classes for new exemptions, for which three rounds of public comments were initiated.22 Those proposals were organized into seventeen classes of works. Six of the seventeen proposed exemptions sought 18 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 37399, 37400–02 (June 22, 2020); Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 65293, 65294–95 (Oct. 15, 2020). 19 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 37399, 37401–02 (June 22, 2020); Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020). 20 Register’s Recommendation at III.D & IV. 21 The submissions received in response to the NOI are available at https://www.copyright.gov/ 1201/2021/. References to these submissions are by party and class name (abbreviated where appropriate) followed by ‘‘Renewal Pet.,’’ ‘‘Renewal Comment,’’ or party name and class number followed by ‘‘Pet.,’’ ‘‘Initial,’’ ‘‘Opp’n,’’ or ‘‘Reply’’ for comments submitted in the first, second, or third round, as applicable. 22 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 65293, 65293 (Oct. 15, 2020). E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations expansions of existing exemptions, seven proposed entirely new exemptions, and four contained a combination of both expansions and new exemptions. The Office then held seven days of public hearings in which it heard testimony from numerous participants. After the hearings, the Office issued written questions to hearing participants regarding certain proposed classes.23 Finally, the Office held several ex parte meetings with participants concerning ten proposed classes.24 As required by section 1201(a)(1), the Register consulted with NTIA during this rulemaking. NTIA provided input at various stages and participated in the virtual public hearings. NTIA formally communicated its views on each of the proposed exemptions to the Register on October 1, 2021. The Office addresses NTIA’s substantive views on the proposed classes below. NTIA’s recommendations can be viewed at https://cdn.loc.gov/copyright/1201/ 2021/2021_NTIA_DMCA_Letter.pdf. III. Summary of Register’s Recommendation A. Renewal Recommendations As set forth in the NPRM, the Register received petitions to renew each of the exemptions adopted pursuant to the seventh triennial rulemaking. Eight comments in response to renewal petitions raised discrete concerns with specific petitions, but none opposed the verbatim readoption of an existing regulatory exemption or disputed the reliability of the previously analyzed administrative record.25 The Register recommends renewal of these exemptions based on the information provided in the renewal petitions and the lack of meaningful opposition, finding that the conditions that led to adoption of the exemptions are likely to continue during the next triennial period. The existing exemptions, and the bases for the recommendation to readopt each exemption in accordance with the streamlined renewal process, are discussed in detail in the Recommendation and summarized briefly below. Where noted, these jspears on DSK121TN23PROD with RULES1 23 Participants’ post-hearing letter responses are available at https://www.copyright.gov/1201/2021/ post-hearing/. 24 All ex parte letters in the eighth triennial rulemaking can be found at https:// www.copyright.gov/1201/2021/ex-partecommunications.html. 25 Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020); see also Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 85 FR 37399, 37402 (June 22, 2020) (describing ‘‘meaningful opposition’’ standard). VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 59629 exemptions serve as a baseline in considering requests for expansion. continuing need and justification for the exemption. 1. Audiovisual Works—Educational and Derivative Uses b. Audiovisual Works—Criticism and Comment—Massive Open Online Courses (‘‘MOOCs’’).30 A collective of individuals and organizations and Brigham Young University (‘‘BYU’’) petitioned to renew the exemption for educational uses of motion pictures in MOOCs. The Office did not receive meaningful opposition to readoption of this exemption. The petitions 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 to increase the number of (and therefore access to) MOOCs in the field of film and media studies. Multiple individuals and organizations petitioned to renew the exemption covering the use of short portions of motion pictures for various educational and derivative uses.26 The Office did not receive meaningful opposition to readoption of these exemptions. Petitions to renew the various subparts of the exemption are discussed below. The existing exemption and its various subparts collectively serve as the baseline in assessing whether to recommend any expansions in Class 1. a. Audiovisual Works—Criticism and Comment, Teaching, or Scholarship— Universities and K–12 Educational Institutions.27 Multiple individuals and organizations petitioned to renew the exemption for motion pictures for educational purposes by college and university or K–12 faculty and students. The Office did not receive substantive opposition to readoption of this exemption. The petitions demonstrated that educators and students continue to rely on excerpts from digital media for class presentations and coursework. For example, a collective of individuals and organizations provided several examples of professors using DVD clips in the classroom. A group of individual educators and educational organizations 28 broadly suggested 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.’’ 29 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. The Register finds that petitioners demonstrated a 26 See 37 CFR 201.40(b)(1). In the 2018 rulemaking, this recommended regulatory language was the result of consideration of one proposed class of works that grouped together five petitions. See 2018 Recommendation at 31–34. 27 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.1. 28 The individuals and organizations include Peter Decherney, Katherine Sender, John L. Jackson, Int’l Commc’n Ass’n, Soc’y for Cinema and Media Studies, Console-ing Passions, Library Copyright All., and Am. Ass’n of Univ. Professors. 29 Joint Educators AV Educ. Renewal Pet. at 3. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 c. Audiovisual Works—Criticism and Comment—Digital and Media Literacy Programs 31 Library Copyright Alliance (‘‘LCA’’) and 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 organizations. No oppositions were filed against readoption of this exemption. 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, thereby demonstrating the continuing need and justification for the exemption. d. Audiovisual Works—Criticism and Comment—Multimedia E-books 32 Multiple petitioners jointly sought to renew the exemption for the use of motion picture excerpts in nonfiction multimedia e-books. The Office did not receive meaningful opposition to readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption. In addition, the petitioners demonstrated personal knowledge through Bobette Buster’s continued work on an e-book series based on her lecture series, ‘‘Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,’’ which ‘‘relies on the 30 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.2. 31 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.3. 32 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.4. E:\FR\FM\28OCR1.SGM 28OCR1 59630 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations availability of high-resolution video not available without circumvention of TPMs.’’ 33 e. Audiovisual Works—Criticism and Comment—Filmmaking 34 Multiple organizations petitioned to renew the exemption for motion pictures for uses in documentary films or other films where the use is a parody or based on the work’s biographical or historically significant nature. The Office did not receive meaningful opposition to readoption of this exemption. Petitioners stated that they personally know many filmmakers who have found it necessary to rely on this exemption and will continue to do so. The petitions summarized the continuing need and justification for the exemption. f. Audiovisual Works—Criticism and Comment—Noncommercial Videos 35 Two organizations petitioned to renew the exemption for motion pictures for uses in noncommercial videos. The Office did not receive meaningful opposition to readoption of this exemption. Petitioners stated that they had personal knowledge that video creators have relied on this exemption and anticipate needing to continue to use the exemption in the future. The Organization for Transformative Works (‘‘OTW’’) included an account from an academic who stated that footage ripped from DVDs and Blu-ray is preferred for ‘‘vidders’’ (noncommercial remix artists) because ‘‘it is high quality enough to bear up under the transformations that vidders make to it.’’ 36 The petitions therefore demonstrated the continuing need and justification for the exemption. jspears on DSK121TN23PROD with RULES1 2. Audiovisual Works—Accessibility 37 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. No oppositions were filed in connection with readoption of 33 Bobette Buster, Authors All. & Am. Ass’n of Univ. Professors Nonfiction Multimedia E-Books Renewal Pet. at 3. 34 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.5. 35 The Register’s analysis and conclusions for this subpart, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.A.6. 36 OTW Noncommercial Videos Renewal Pet. at 3. 37 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.B. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 this exemption. The petitions demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience as to the exemption. For example, BYU asserted that its disability services offices ‘‘sometimes need to create accessible versions of motion pictures’’ to accommodate its students with disabilities.38 The petitions stated that there is a need for the exemption going forward; indeed, one group of petitioners stated 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.’’ 39 This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 3. 3. Literary Works Distributed Electronically—Accessibility 40 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. 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 have difficulty obtaining accessible e-book content because TPMs interfere with the use of assistive technologies. Petitioners noted that their members frequently cite accessibility of e-books as a top priority. Finally, petitioners demonstrated personal knowledge and experience with regard to the assistive technology exemption because they are all organizations that advocate for the blind, visually impaired, and print disabled. This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 8. 4. Literary Works—Medical Device Data 41 Hugo Campos petitioned to renew the exemption covering access to patient data on networked medical devices. No oppositions were filed against 38 BYU Captioning Renewal Pet. at 3. 39 Accessibility Petitioners Captioning Renewal Pet. at 3. 40 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.C. 41 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.D. PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. 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. 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 a member of a coalition whose members research the effectiveness of networked medical devices. This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 9. 5. Computer Programs—Unlocking 42 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’’).43 No oppositions were filed against readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. The petitions demonstrated 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, the Institute of Scrap Recycling Industries, Inc. (‘‘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 lock devices to prevent them from being used on other carriers.44 In addition, petitioners demonstrated personal knowledge and experience with regard to this exemption. This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 10. 6. Computer Programs—Jailbreaking 45 Multiple organizations petitioned to renew the exemptions for computer programs that operate smartphones, 42 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.E. 43 Competitive Carriers Ass’n Unlocking Renewal Pet.; Inst. of Scrap Recycling Indus., Inc. Unlocking Renewal Pet. 44 ISRI Unlocking Renewal Pet. at 3. 45 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.F. E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations jspears on DSK121TN23PROD with RULES1 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’’). No oppositions were filed against readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. The petitions demonstrated the continuing need and justification for the exemption, and that petitioners have personal knowledge and experience with regard to this exemption. For example, regarding smart TVs specifically, the Software Freedom Conservancy (‘‘SFC’’) asserted 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.’’ 46 The petitions stated 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. This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 11. 7. Computer Programs—Repair of Motorized Land Vehicles 47 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. The Office did not receive meaningful opposition to readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. 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.’’ 48 Similarly, 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 46 SFC Jailbreaking Renewal Pet. at 3. Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.G. 48 MEMA Vehicle Repair Renewal Pet. at 3. 47 The VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 will prevent Auto Care members from lawfully assisting consumers in the maintenance, repair, and upgrade of their vehicles.’’ 49 The petitioners demonstrated personal knowledge and experience with regard to this exemption; each either represents or gathered information from individuals or businesses that perform vehicle service and repair. This existing exemption, as well as the existing exemption pertaining to repair of smartphones, home appliances, and home systems, serve as the baseline in assessing whether to recommend any expansions in Class 12. 8. Computer Programs—Repair of Smartphones, Home Appliances, and Home Systems 50 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. The Office did not receive meaningful opposition to readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. The petitions demonstrated the continuing need and justification for the exemption. For example, the Electronic Frontier Foundation (‘‘EFF’’), the Repair Association, and iFixit asserted that ‘‘[m]anufacturers of these devices continue to implement [TPMs] that inhibit lawful repairs, maintenance, and diagnostics, and they show no sign of changing course.’’ 51 This existing exemption, as well as the existing exemption pertaining to repair of motorized land vehicles, serve as the baseline in assessing whether to recommend any expansions in Class 12. 9. Computer Programs—Security Research 52 Multiple organizations and security researchers petitioned to renew the exemption permitting circumvention for purposes of good-faith security research. No oppositions were filed against readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. The petitioners demonstrated the continuing need and justification for the 49 ACA Vehicle Repair Renewal Pet. at 3. Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.H. 51 EFF Device Repair Renewal Pet. at 3; EFF, Repair Ass’n & iFixit Device Repair Renewal Pet. at 3. 52 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.I. 50 The PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 59631 exemption, as well as personal knowledge and experience with regard to this exemption. For example, 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 the need to find and detect vulnerabilities in voting machines and other election systems in response to increasing aggressiveness on the part of threat actors, including other nation states.53 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,’’ and opined that the current exemption strikes an ‘‘appropriate balance.’’ 54 This existing exemption serves as the baseline in assessing whether to recommend any expansions in Class 13. 10. Computer Programs—Software Preservation 55 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. No oppositions were filed against readoption of this exemption. The petition stated that libraries, archives, and museums continue to need the exemption to preserve and curate software and materials dependent on software. For example, the petition explained that researchers at the University of Virginia designed a project in order to access a collection of drawings and plans from a local Charlottesville architecture firm, and that without the exemption, the outdated Computer Aided Design software used to create many of the designs ‘‘may have remained inaccessible to researchers, rendering the designs themselves inaccessible, too.’’ 56 In addition, 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 who have relied on this exemption. This existing 53 J. Alex Halderman, CDT & ACM Security Research Renewal Pet. at 4. 54 MEMA Security Research Renewal Pet. at 3. 55 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.J. 56 SPN & LCA Software Preservation Renewal Pet. at 3. E:\FR\FM\28OCR1.SGM 28OCR1 59632 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations exemption, as well as the exemption pertaining to video game preservation, serve as the baseline in assessing whether to recommend any expansions in Class 14. 11. Computer Programs—Video Game Preservation 57 SPN and LCA petitioned to renew the exemption for preservation of video games for which outside server support has been discontinued. No oppositions were filed against readoption of this exemption, and Consumer Reports submitted a comment in support of the renewal petition. The petition stated that libraries, archives, and museums continue to need the exemption to preserve and curate video games in playable form. For example, the petition highlighted Georgia Tech University Library’s Computing Lab, retroTECH, which has made a significant collection of recovered video game consoles accessible for research and teaching uses pursuant to the exemption.58 Petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the section 1201 triennial rulemaking, and/or through their representation of members who have relied on this exemption. This existing exemption, as well as the above exemption pertaining to software preservation, serve as the baseline in assessing whether to recommend any expansions in Class 14. 12. Computer Programs—3D Printers 59 jspears on DSK121TN23PROD with RULES1 Michael Weinberg petitioned to renew the exemption for computer programs that operate 3D printers to allow use of alternative feedstock. No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and petitioner demonstrated personal knowledge and experience regarding the exemption. Specifically, Mr. Weinberg declared that he is a member of the 3D printing community and previously participated in the section 1201 triennial rulemaking. In addition, the petition stated that manufacturers of 3D printers continue to limit the types of materials that may be used with the devices. This existing exemption serves as the 57 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.K. 58 SPN & LCA Abandoned Video Game Renewal Pet. at 3. 59 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at IV.L. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 baseline in assessing whether to recommend any expansions in Class 15. B. New or Expanded Designations of Classes Based upon the record in this proceeding regarding proposed expansions to existing exemptions or newly proposed exemptions, the Register recommends that the Librarian determine that the following classes of works be exempt from the prohibition against circumvention of technological measures set forth in section 1201(a)(1): Creators’’) and the DVD Copy Control Association (‘‘DVD CCA’’) and the Advanced Access Content System Licensing Administrator, LLC (‘‘AACS LA’’) argued that screen capture technology has improved and remains an adequate alternative in some circumstances. Joint Creators also argued that the Joint Educators’ proposal to expand the exemption to ‘‘educators and preparers of online learning materials’’ could permit circumvention by businesses and threaten the market for licensed clips. DVD CCA and AACS LA contended that expanding the exemption to cover employees of a qualifying MOOC was unnecessary for online educators to prepare materials. For the reasons detailed in the Register’s Recommendation, the Register recommended expanding the exemption to permit employees of colleges and universities to circumvent at the direction of a faculty member for the purpose of teaching a course, and also to cover similar uses by both faculty and employees acting at the direction of faculty members of accredited nonprofit educational institutions for the purposes of offering MOOCs. The Register further recommended retaining the screen capture provision in the exemption to anticipate the possibility that screen capture technology could be found to involve circumvention. The Register concluded that the exemption should not be expanded or amended to cover copying for the purpose of performing full-length motion pictures for educational purposes; to replace the phrase ‘‘short portions’’ with ‘‘reasonable and limited portions’’; to enable circumvention by for-profit and/ or unaccredited educational companies and organizations; or to cover the broadly defined ‘‘educators and preparers of online learning materials’’ of ‘‘online learning platforms.’’ 1. Proposed Class 1: Audiovisual Works—Criticism and Comment 60 Proposed Class 1 sought to expand the existing exemption that permits circumvention of access controls protecting excerpts of motion pictures on DVDs, Blu-ray discs, and digitally transmitted video for the purposes of criticism and comment, including for educational purposes by certain users. Three different petitions were filed in this class. OTW’s proposed exemption sought to eliminate multiple limitations, including the requirement that a user consider whether screen capture technology is a viable alternative before circumvention. BYU’s proposed exemption would permit circumvention by college or university employees or students or by K–12 educators or students acting under the direct supervision of an educator, and would significantly alter the language of the current exemption regarding the purpose of the circumvention. A group of individual educators and educational organizations (‘‘Joint Educators’’) proposed an exemption that would permit circumvention by ‘‘educators and preparers of online learning materials’’ to be used on online learning platforms. All three proposals sought to remove the reference to screen capture from the existing exemption. OTW and Joint Educators’ proposals sought to use short portions of motion pictures; the BYU proposal sought use of full-length works. The proposals addressed several uses of motion pictures that proponents contended are noninfringing and that they argued are adversely affected by TPMs. NTIA supported the proposed exemption, but proposed some amendments to the text. Opponents argued that the proposed changes were unwarranted or unnecessary. The Motion Picture Association, the Alliance for Recorded Music, and the Entertainment Software Association (collectively, ‘‘Joint Class 3 proponents sought to expand several provisions of the current exemption for adding captions or audio description to motion pictures for the benefit of students with disabilities. Proponents requested expanding the exemption to include faculty and staff with disabilities at educational institutions as beneficiaries, explicitly permitting reuse of previously remediated materials, allowing for proactive remediation in advance of a 60 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.A. 61 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.C. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 2. Proposed Class 3: Audiovisual Works—Accessibility 61 E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations 59633 entirety of the works in a corpus would create a risk of substitutional use. They also argued that any exemption must require specific, robust security measures. As discussed in greater detail in the Register’s Recommendation, the Register found that the prohibition on circumvention adversely affects researchers’ ability to conduct TDM research projects, which are likely to be noninfringing with the addition of several limitations. Most importantly, the Register recommended requiring the institution of higher education storing or hosting a corpus of copyrighted works to implement either security measures that have been agreed upon by copyright owners and institutions of higher education, or, in the absence of such measures, those measures that the institution uses to keep its own highly confidential information secure. The Register also recommended adding a limitation that the person undertaking the circumvention view or listen to the contents of the copyrighted works in the corpus solely for the purpose of verification of the research findings, not for the works’ expressive purposes. The Register concluded that existing alternatives to circumvention do not meet researchers’ needs. specific request for accessible material, and clarifying the market-check requirement to encompass only works on the market that are of ‘‘sufficient quality.’’ Joint Creators and DVD CCA & AACS LA filed oppositions. NTIA supported the proposed exemption. For the reasons discussed in the Register’s Recommendation, the Register concluded that expanding the exemption to faculty and staff with disabilities, allowing reuse of previously remediated material, and permitting proactive remediation are likely fair uses because they are directed towards adding captions or audio descriptions in compliance with disability law, the same purpose found fair in the Register’s 2018 Recommendation. Additionally, the Register concluded that proponents had provided sufficient evidence that they would be adversely affected if the exemption were not expanded. picture is available for streaming through a licensed source. For the reasons detailed in the Register’s Recommendation, the Register concluded that it was likely to be a fair use for qualifying institutions to copy motion pictures from discs that are damaged or deteriorating if the motion pictures on those discs are not reasonably available in the marketplace for purchase or streaming. The Register concluded that proponents had not demonstrated that providing offpremises access to the replacement copies of motion pictures is likely to be noninfringing. The Register concluded that proponents had provided substantial evidence that granting the exemption would benefit preservation, education, and scholarship by making available motion pictures that might otherwise be lost to history and that the exemption is unlikely to adversely affect the market for or value of the motion pictures. 3. Proposed Class 5: Audiovisual Works—Preservation and Replacement 62 4. Proposed Classes 7(a): Motion Pictures and 7(b): Literary Works—Text and Data Mining 64 Class 5 proponents sought to permit circumvention of TPMs on motion pictures (including television shows and videos) stored on DVDs or Blu-ray discs that are no longer reasonably available in the marketplace to enable libraries, archives, and museums to make preservation and replacement copies of those works. The proposed exemption would permit qualifying institutions to make copies of discs that are damaged or deteriorating, as well as discs that have not yet begun to deteriorate; to make physical or digital copies of the motion pictures; and to make any digital copies available outside the premises of the institution. NTIA supported the proposed exemption. Joint Creators and DVD CCA and AACS LA opposed the exemption, arguing that it would enable institutions to space-shift 63 their film collections and launch online streaming services. Opponents contended that, should an exemption be granted, it should apply only to damaged or deteriorating discs; it should prohibit off-premises access to the copied works; and the market check should include a requirement that institutions determine if the motion Authors Alliance, the American Association of University Professors, and LCA jointly filed a petition proposing Classes 7(a) and 7(b), seeking to permit circumvention of TPMs on motion pictures and literary works stored on DVDs or Blu-ray discs or made available for digital download to enable researchers to perform text and data mining (‘‘TDM’’) techniques for the purpose of scholarly research and teaching. Proponents argued that copying literary works and motion pictures to create large collections on which to perform TDM research is a fair use, and that requirements to use security measures to protect the corpora from public access or further distribution should afford qualifying institutions flexibility to tailor the measures to the size and content of the corpus. NTIA supported the proposed exemptions. Joint Creators and DVD CCA and AACS LA opposed the proposed exemption for class 7(a), and the American Association for Publishers (‘‘AAP’’) and the Software and Information Industry Association opposed the proposed exemption for class 7(b). They argued that TDM research would interfere with the licensing market for collections of literary works and motion pictures and that researchers’ ability to view the Class 8 proponents sought to modify the current exemption for e-book accessibility to align with recent changes to the Copyright Act as a result of the Marrakesh Treaty Implementation Act. Proponents requested expanding the class of beneficiaries to ‘‘eligible persons’’ as defined in section 121 of the Copyright Act, expanding the exemption to cover previously published musical works, and replacing references to a ‘‘mainstream copy’’ in the remuneration requirement with the term ‘‘inaccessible copy.’’ Proponents also sought guidance on whether import and export activity under section 121A was implicated by the prohibition on circumvention. Joint Creators stated that they did not oppose the exemption to the extent it is consistent with sections 121 and 121A. AAP filed a reply comment in support of this class, and NTIA supported the proposed exemption. For the reasons discussed in the Register’s Recommendation, the Register concluded that without the proposed modifications, print-disabled 64 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.G. 65 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.H. 62 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.E. 63 Space-shifting occurs when a work is transferred from one storage medium to another, such as from a DVD to a computer hard drive. See 2015 Recommendation at 107. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 5. Proposed Class 8: Literary Works— Accessibility 65 E:\FR\FM\28OCR1.SGM 28OCR1 59634 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations individuals would be adversely affected in their ability to engage in the proposed noninfringing uses. The Register also determined that replacement of the reference to a ‘‘mainstream copy’’ with an ‘‘inaccessible copy’’ is a nonsubstantive change. Finally, the Register declined to recommend language regarding import and export of accessible works because the record did not indicate that such activity implicates the prohibition on circumvention. Proponents and Joint Creators filed a joint post-hearing submission proposing regulatory language that excludes sound recordings of performances of musical works from the exemption, which the Register recommended including. jspears on DSK121TN23PROD with RULES1 6. Proposed Class 9: Literary Works— Medical Device Data 66 Class 9 proponents sought to expand several provisions of the current exemption that permits the circumvention of TPMs on medical devices to access their data outputs. Proponents filed a petition seeking to eliminate the current limitation of the exemption to ‘‘wholly or partially implanted’’ devices; permit authorized third parties to perform the circumvention on behalf of a patient; extend the exemption to non-passive monitoring; and remove the condition that circumvention not violate other applicable laws. ACT | The App Association opposed the proposed exemption. NTIA supported adopting the proposed exemption, with some modification. For the reasons detailed in the Register’s Recommendation, the Register concluded that accessing medical data outputs likely qualifies as a fair use and that expanding the exemption to include non-implanted medical devices and non-passive monitoring would not alter the fair use analysis. Additionally, the Register concluded that proponents set forth sufficient evidence that the ‘‘wholly or partially implanted’’ language and the passive monitoring limitation are causing, or are likely to cause, adverse effects on these noninfringing uses. The Register also recommended expanding the exemption to permit circumvention ‘‘by or on behalf of a patient.’’ After consultation with the U.S. Food and Drug Administration, the Register recommended removing the language requiring compliance with other laws, and replacing it with a statement that 66 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.I. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 eligibility for the exemption does not preclude liability from other applicable laws. 7. Proposed Class 10: Computer Programs—Unlocking 67 ISRI petitioned to expand the existing exemption for unlocking to either (1) add a new device category for laptop computers or (2) remove enumerated device categories from the current exemption and permit unlocking of all wireless devices. It argued that the proposed uses are noninfringing based on the Register’s previous findings that unlocking of certain types of devices is a fair use, contending that the legal analysis does not differ depending on the type of device that is unlocked. The only opposition comment was filed by MEMA, which opposed expanding the exemption to permit unlocking cellularenabled vehicles. NTIA supported expanding the exemption to permit unlocking all lawfully-acquired devices. For the reasons discussed in the Register’s Recommendation, the Register concluded that proponents established that unlocking is likely to be a fair use regardless of the type of device involved. Proponents offered unrebutted evidence that many different types of wireless devices share the same wireless modem. Because the Register concluded that unlocking those modems is likely a fair use, she determined that users of these devices experience the same adverse effects from the prohibition on circumvention. 8. Proposed Class 11: Computer Programs—Jailbreaking 68 Two petitions were filed for new or expanded exemptions relating to the circumvention of computer programs for jailbreaking purposes. EFF filed a petition seeking to clarify and expand the current exemption pertaining to jailbreaking smart TVs to include video streaming devices. SFC filed a petition for a new exemption to allow jailbreaking of routers and other networking devices to enable the installation of alternative firmware. ACT | The App Association, DVD CCA and AACS LA, and Joint Creators opposed this proposed class. NTIA supported adopting both proposed exemptions. In supporting comments, EFF clarified that its proposed exemption 67 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.J. 68 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.K. PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 would cover devices whose primary purpose is to run applications that stream video from the internet for display on a screen, and would not extend to DVD or Blu-ray players or video game consoles. The Register concluded that jailbreaking video streaming devices likely constitutes a fair use. Additionally, the Register concluded that the prohibition on circumvention is likely to adversely affect proponents’ ability to engage in such activities. She recommended that the regulatory language contain certain limitations to address opponents’ concerns over potential market harm. With respect to SFC’s petition, the Register concluded that jailbreaking routers and other networking devices is likely to qualify as a fair use. Additionally, the Register concluded that the prohibition on circumvention is likely to prevent users from installing free and open source software (‘‘FOSS’’) on routers and other networking devices and that there are no viable alternatives to circumvention to accomplish that purpose. 9. Proposed Class 12: Computer Programs—Repair 69 Several organizations submitted petitions for new or expanded exemptions relating to the diagnosis, maintenance, repair, and modification of software-enabled devices. EFF and, jointly, iFixit and the Repair Association filed petitions seeking to merge and expand the two existing exemptions to cover all devices and vehicles and permit ‘‘modification’’ of all devices. Opponents objected that the proposed expansion to cover all devices was overbroad and that proponents failed to develop a record demonstrating sufficient commonalities among the various types of software-enabled devices. In addition, they argued that specific types of devices for which circumvention of TPMs raises piracy and safety concerns should be excluded from the proposed class. Opponents also contended that the term ‘‘modification’’ is so broad that it could implicate infringing activities, including violating copyright owners’ exclusive right to prepare derivative works. Separately, Public Knowledge and iFixit jointly petitioned for an exemption to repair optical drives in video game consoles and to replace damaged hardware in such devices. They asserted that authorized repair services are inadequate, particularly for 69 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.L. E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations certain legacy consoles that manufacturers no longer support. Opponents argued that the proposed exemption would create a risk of market harm for these devices and that adequate alternatives to circumvention exist. NTIA recommended expanding the current exemptions by merging them into a single exemption that would permit circumvention for the diagnosis, maintenance, and repair of all softwareenabled devices, machines, and systems. In addition, NTIA recommended allowing ‘‘lawful modification that is necessary for a repair or maintenance’’ and software modifications relating to device functionality. For the reasons discussed in the Register’s Recommendation, the Register recommended expanding the existing exemption for diagnosis, maintenance, and repair of certain categories of devices to cover any software-enabled device that is primarily designed for use by consumers. For video game consoles, the Register concluded that an exemption is warranted solely for the repair of optical drives. The proposals to merge the two existing repair exemptions would also effectively broaden the existing vehicle exemption by: (1) No longer limiting the class to ‘‘motorized land vehicles’’; and (2) removing other limitations in the exemption, including that users comply with other laws. Opponents did not object to including marine vessels in the vehicle exemption, but opposed removing language requiring compliance with other laws. For the reasons discussed in the Register’s Recommendation, the Register recommended that the exemption for land vehicles be expanded to cover marine vessels and to remove the condition requiring compliance with other laws. Finally, Summit Imaging, Inc. and Transtate Equipment Co., Inc. petitioned to exempt circumvention of TPMs on software-enabled medical devices and systems for purposes of diagnosis, maintenance, and repair. Petitioners also sought access to related data files stored on medical devices and systems, including manuals and servicing materials. Opponents argued that this exemption is unnecessary because adequate authorized repair services are available. They also contended that the proposed uses are commercial in nature, would harm the market for medical devices and systems, may undermine patient safety and create cybersecurity risks, and would interfere with manufacturers’ regulatory compliance obligations. For the reasons discussed in VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 the Register’s Recommendation, the Register recommended a new exemption allowing circumvention of TPMs restricting access to firmware and related data files on medical devices and systems for the purposes of diagnosis, maintenance, and repair. 10. Proposed Class 13: Computer Programs—Security Research 70 Two petitions sought to expand the current exemption that permits circumvention of TPMs on computer programs for good-faith security research. Together, the petitions sought to eliminate several limitations within the exemption and to explicitly extend the exemption to privacy research. Proponents generally argued that the limitations have chilled valuable security research, primarily by creating uncertainty about whether conducting or reporting security research could result in liability under section 1201. Six parties opposed class 13 at least in part; they argued that the existing exemption has sufficiently enabled good-faith security research and that the record did not justify removing the limitations. NTIA supported the elimination of several limitations, but did not recommend modifying the existing exemption to address privacyrelated research activities explicitly. For the reasons discussed in the Register’s Recommendation, the Register concluded that because the exemption is broadly defined and is not limited to specific issues or subjects relating to security flaws or vulnerabilities, expanding it to expressly cover privacy research is unnecessary. Regarding the specific limitations, the Register recommended removing the condition that circumvention not violate ‘‘other laws’’ and instead clarifying that the exemption does not provide a safe harbor from liability under other laws. The Department of Justice submitted comments supporting this change. The Register declined to recommend removal of limitations pertaining to access to and use of computer programs, finding a lack of specific evidence establishing adverse effects resulting from those provisions. The Register also did not recommend removal of the requirement that devices be lawfully acquired. 70 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.M. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 59635 11. Proposed Class 14(a): Computer Programs and 14(b) Video Games— Preservation 71 Proposed Classes 14(a) and 14(b) seek to amend the existing exemptions permitting libraries, archives, and museums to circumvent TPMs on computer programs and video games, respectively, for the purpose of preservation activities. Specifically, proponents seek to remove the requirement that the preserved computer program or video game must not be distributed or made available outside of the physical premises of the institution. Proposed Class 14(b) would also incorporate the current eligibility requirements for the software preservation exemption into the video game preservation exemption. Proponents argued that enabling remote access to the works is likely to be a fair use, based in part on a general federal policy favoring remote access to preservation materials, as reflected in various provisions of the Copyright Act. They also argued that the proposed uses would not affect the potential market for or value of the copyrighted works because only works that are no longer reasonably available in the commercial marketplace would be subject to the exemption. NTIA supported the removal of the premises limitation in both exemptions. Joint Creators and the Entertainment Software Association opposed removing the premises limitation, with most arguments directed to the video game class. They expressed concern that, because the proposed exemption did not limit beneficiaries of the exemption to authenticated educators or researchers, if preserved video games were made available outside the premises of an institution, they would become accessible to the general public, thereby adversely affecting the existing market for older video games. For the reasons discussed in the Register’s Recommendation, the Register concluded that off-premises access to software as described in the proposal is likely to be noninfringing, with the limitation that the work be accessible to only one user at a time and for a limited time. With respect to video games, the Register concluded that proponents failed to carry their burden to show that the uses are likely noninfringing, and noted the greater risk of market harm in this context given the market for legacy video games. The Register therefore recommends that the Librarian amend 71 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.N. E:\FR\FM\28OCR1.SGM 28OCR1 59636 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations the exemption for Class 14(a) to address the eligibility requirements for libraries, archives, and museums, but not to remove the premises limitation. The Register recommends removing the premises limitation in the exemption for Class 14(a). 12. Proposed Class 15: Computer Programs—3D Printing 72 Class 15 seeks to expand two provisions of the current exemption that permits the circumvention of access controls on computer programs in 3D printers to enable the use of nonmanufacturer approved feedstock. Michael Weinberg filed a petition to replace the term ‘‘feedstock’’ with the term ‘‘material,’’ stating that the latter is more commonly used within the industry and that the two terms are interchangeable. Additionally, Mr. Weinberg sought to eliminate the phrase ‘‘microchip-reliant’’ from the exemption, arguing that 3D printers may use technology other than microchips to verify 3D printing materials. Mr. Weinberg provided evidence that manufacturers are increasingly moving beyond microchip-based verification techniques, such as using optical scanners. No parties opposed proposed class 15. NTIA supported the proposed exemption. For the reasons discussed in greater detail in the Register’s Recommendation, the Register concluded that changing the word ‘‘feedstock’’ to ‘‘material’’ is not a substantive change, and found that the removal of the term ‘‘microchip-reliant’’ does not alter the fair use analysis because the expansion is directed at the same uses the Office previously concluded were fair. jspears on DSK121TN23PROD with RULES1 13. Proposed Class 16: Computer Programs—Copyright License Investigation 73 SFC petitioned for a new exemption that would permit investigating whether a particular computer program includes FOSS, and if so, whether the use of the program complies with applicable license terms. SFC, supported by the Free Software Foundation, subsequently agreed to add limitations to require that the circumvention be undertaken on a lawfully acquired device or machine; that it be solely for the purpose of investigating potential copyright 72 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.O. 73 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.P. VerDate Sep<11>2014 17:16 Oct 27, 2021 Jkt 256001 infringement; that it be performed by, or at the direction of, a party that has standing to bring a breach of license claim; and that it otherwise comply with applicable law. NTIA supported the proposed exemption as modified. Opponents—DVD CCA and AACS LA; the Equipment Dealers Association, and its regional affiliates, and Associated Equipment Distributors; Joint Creators; and Marcia Wilbur—argued that FOSS licensors could obtain the information they seek by other means. They objected to application of the proposed exemption to a broad category of devices, and requested exclusion of DVD and Blu-ray players, video game consoles, set-top boxes, and vehicles. They argued that any exemption should be limited to investigating potential violations of FOSS licenses, rather than infringement of any proprietary software, and that the investigation must be based on a good-faith, reasonable belief that the device may violate FOSS license terms. Finally, opponents expressed concerns about devices being left exposed to piracy or unauthorized access after circumvention. For the reasons discussed in the Register’s Recommendation, the Register recommended adopting an exemption with several limitations. First, the purpose of the investigation must be limited to investigating whether a computer program potentially infringes FOSS, and the user must have a goodfaith, reasonable belief in the need for the investigation. Second, circumvention must be undertaken by, or at the direction of, a party that would have standing to bring either a breach of license claim or a copyright infringement claim. Third, the copy of a computer program made pursuant to the exemption, or the device or machine on which it operates, cannot be used in a manner that facilitates copyright infringement. Finally, video game consoles should be excluded from the types of devices on which TPMs may be circumvented. to individuals with disabilities and that creating accessible versions of inaccessible works is unquestionably a fair use. Proponents argued that a broad exemption is warranted to prevent individuals with disabilities from being forced to make piecemeal requests every three years when new accessibility issues arise. NTIA supported the proposed exemption. Joint Creators, DVD CCA and AACS LA, and AAP filed comments opposing the proposed exemption, focusing primarily on the ground that the statute does not give the Librarian the authority to adopt a class consisting of ‘‘all works’’ sharing a particular attribute. Joint Creators also raised concerns about the lack of limitations on the use of copies, such as prohibiting further distribution to individuals without disabilities. As discussed in greater detail in the Register’s Recommendation, although the Register supports the policy goals that underpin the proposed exemption, the statute requires proponents to provide evidence of actual or likely adverse effects resulting from the prohibition on circumvention with respect to ‘‘particular class[es]’’ of works. Here, the Register determined that proponents submitted insufficient evidence of such adverse effects as to most types of works. Proponents did, however, provide evidence to support an exemption to enable individuals with disabilities to use alternate input devices to play video games. C. Classes Considered but Not Recommended Based upon the record in this proceeding, the Register recommended that the Librarian determine that the following classes of works shall not be exempt during the next three-year period from the prohibition against circumvention of technological measures set forth in section 1201(a)(1): Petitioners, a coalition of accessibility groups, requested a new exemption to create accessible versions of any copyrighted works that are inaccessible to individuals with disabilities. They argued that the Librarian has the authority to define a class of works that share the attribute of being inaccessible 1. Proposed Class 2: Audiovisual Works—Texting 75 Proposed Class 2 would allow circumvention of technological measures protecting motion pictures and other audiovisual works to create short audiovisual clips for expressive purposes in text messages. Petitioner did not provide legal arguments or evidence in support of its petition and did not participate in the public hearings. Petitioner failed to explain how the proposed uses were noninfringing and why an exemption is 74 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.Q. 75 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.B. 14. Proposed Class 17: All Works— Accessibility Uses 74 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\28OCR1.SGM 28OCR1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations necessary. NTIA recommended denying the proposed exemption. As discussed more fully in the Register’s Recommendation, due to the de minimis showing provided by proponents, the Register does not recommend the adoption of an exemption for proposed Class 2. 2. Proposed Class 4: Audiovisual Works—Livestream Recording 76 Proposed Class 4 would allow circumvention of HTTP Live Streaming technology for the purpose of recording audiovisual works originating as livestreams. Petitioner did not provide legal arguments or evidence to support its petition and did not participate in the public hearings. Petitioner first described the exemption as encompassing sports and other competitive events, but elsewhere stated that the class includes ‘‘any and all works’’ where audiovisual recordings may be made, including individual school performances. NTIA recommended denying the proposed exemption. As discussed more fully in the Register’s Recommendation, the Register does not recommend the adoption of an exemption for proposed Class 4. 3. Proposed Class 6: Audiovisual Works—Space-Shifting 77 Proposed Class 6 would allow circumvention of TPMs protecting motion pictures and other audiovisual works to engage in space-shifting. Petitioner failed to provide legal arguments or evidence to demonstrate that space-shifting is a noninfringing use. Additionally, petitioner did not participate in the public hearings to support its petition or clarify whether the proposed exemption would extend to commercial services. Opponents argued that petitioner did not provide the evidence necessary to support an exemption, citing several substantive and procedural deficiencies. NTIA recommended denying the proposed exemption. As discussed more fully in the Register’s Recommendation, the Register does not recommend the adoption of an exemption for proposed Class 6. jspears on DSK121TN23PROD with RULES1 D. Conclusion Having considered the evidence in the record, the contentions of the 76 The Register’s analysis and conclusions for these classes, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.D. 77 The Register’s analysis and conclusions for this class, including citations to the record and relevant legal authority, can be found in the Register’s Recommendation at V.F. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 commenting parties, and the statutory objectives, the Register of Copyrights has recommended that the Librarian of Congress publish certain classes of works, as designated above, so that the prohibition against circumvention of technological measures that effectively control access to copyrighted works shall not apply for the next three years to persons who engage in noninfringing uses of those particular classes of works. Dated: October 20, 2021. Shira Perlmutter, Register of Copyrights and Director of the U.S. Copyright Office. Determination of the Librarian of Congress Having duly considered and accepted the recommendation of the Register of Copyrights, the Librarian of Congress, pursuant to 17 U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the classes of copyrighted works that shall for a three-year period be subject to the exemption provided in 17 U.S.C. 1201(a)(1)(B) from the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A). List of Subjects in 37 CFR Part 201 Copyright, Exemptions to prohibition against circumvention. Final Regulations For the reasons set forth in the preamble, 37 CFR part 201 is amended as follows: PART 201—GENERAL PROVISIONS 1. The authority citation for part 201 continues to read as follows: ■ Authority: 17 U.S.C. 702. 2. Section 201.40 is amended by revising paragraph (b) to read as follows: ■ § 201.40 Exemption to prohibition against circumvention. * * * * * (b) Classes of copyrighted works. Pursuant to the authority set forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation of the Register of Copyrights, the Librarian has determined that the prohibition against circumvention of technological measures that effectively control access to copyrighted works set forth in 17 U.S.C. 1201(a)(1)(A) shall not apply to persons who engage in noninfringing uses of the following classes of copyrighted works: (1) Motion pictures (including television shows and videos), as defined in 17 U.S.C. 101, where the motion picture is lawfully made and acquired PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 59637 on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, and the person engaging in circumvention under paragraphs (b)(1)(i) and (b)(1)(ii)(A) and (B) of this section reasonably believes that non-circumventing alternatives are unable to produce the required level of high-quality content, or the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted, where circumvention is undertaken solely in order to make use of short portions of the motion pictures in the following instances: (i) For the purpose of criticism or comment: (A) For use in documentary filmmaking, or other films where the motion picture clip is used in parody or for its biographical or historically significant nature; (B) For use in noncommercial videos (including videos produced for a paid commission if the commissioning entity’s use is noncommercial); or (C) For use in nonfiction multimedia e-books. (ii) For educational purposes: (A) By college and university faculty and students or kindergarten through twelfth-grade (K–12) educators and students (where the K–12 student is circumventing under the direct supervision of an educator), or employees acting at the direction of faculty of such educational institutions for the purpose of teaching a course, including of accredited general educational development (GED) programs, for the purpose of criticism, comment, teaching, or scholarship; (B) By faculty of accredited nonprofit educational institutions and employees acting at the direction of faculty members of those institutions, for purposes of offering massive open online courses (MOOCs) to officially enrolled students through online platforms (which platforms themselves may be operated for profit), in film studies or other courses requiring close analysis of film and media excerpts, for the purpose of criticism or comment, where the MOOC provider through the online platform limits transmissions to the extent technologically feasible to such officially enrolled students, institutes copyright policies and provides copyright informational materials to faculty, students, and relevant staff members, and applies technological measures that reasonably E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 59638 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations prevent unauthorized further dissemination of a work in accessible form to others or retention of the work for longer than the course session by recipients of a transmission through the platform, as contemplated by 17 U.S.C. 110(2); or (C) By educators and participants in nonprofit digital and media literacy programs offered by libraries, museums, and other nonprofit entities with an educational mission, in the course of face-to-face instructional activities, for the purpose of criticism or comment, except that such users may only circumvent using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted. (2)(i) Motion 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, on a Blu-ray disc protected by the Advanced Access Content System, or via a digital transmission protected by a technological measure, where: (A) 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 for the purpose of adding captions and/or audio description to a motion picture to create an accessible version for students, faculty, or staff with disabilities; (B) The educational institution unit in paragraph (b)(2)(i)(A) of this section has a reasonable belief that the motion picture will be used for a specific future activity of the institution and, after a reasonable effort, has determined that an accessible version of sufficient quality cannot be obtained at a fair market price or in a timely manner, including where a copyright holder has not provided an accessible version of a motion picture that was included with a textbook; and (C) 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. (ii) For purposes of paragraph (b)(2) of this section, (A) ‘‘Audio description’’ means an oral narration that provides an accurate rendering of the motion picture; (B) ‘‘Accessible version of sufficient quality’’ means a version that in the reasonable judgment of the educational institution unit has captions and/or audio description that are sufficient to VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 meet the accessibility needs of students, faculty, or staff with disabilities and are substantially free of errors that would materially interfere with those needs; and (C) Accessible materials created pursuant to this exemption and stored pursuant to paragraph (b)(2)(i)(C) of this section may be reused by the educational institution unit to meet the accessibility needs of students, faculty, or staff with disabilities pursuant to paragraphs (b)(2)(i)(A) and (B) of this section. (3)(i) Motion 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, solely for the purpose of lawful preservation or the creation of a replacement copy of the motion picture, by an eligible library, archives, or museum, where: (A) Such activity is carried out without any purpose of direct or indirect commercial advantage; (B) The DVD or Blu-ray disc is damaged or deteriorating; (C) The eligible institution, after a reasonable effort, has determined that an unused and undamaged replacement copy cannot be obtained at a fair price and that no streaming service, download service, or on-demand cable and satellite service makes the motion picture available to libraries, archives, and museums at a fair price; and (D) The preservation or replacement copies are not distributed or made available outside of the physical premises of the eligible library, archives, or museum. (ii) For purposes of paragraph (b)(3)(i) of this section, a library, archives, or museum is considered ‘‘eligible’’ if— (A) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum; (B) The library, archives, or museum has a public service mission; (C) The library, archives, or museum’s trained staff or volunteers provide professional services normally associated with libraries, archives, or museums; (D) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and (E) The library, archives, or museum implements reasonable digital security measures as appropriate for the PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 activities permitted by paragraph (b)(3)(i) of this section. (4)(i) Motion pictures, as defined in 17 U.S.C. 101, where the motion picture is on a DVD protected by the Content Scramble System, on a Blu-ray disc protected by the Advanced Access Content System, or made available for digital download where: (A) The circumvention is undertaken by a researcher affiliated with a nonprofit institution of higher education, or by a student or information technology staff member of the institution at the direction of such researcher, solely to deploy text and data mining techniques on a corpus of motion pictures for the purpose of scholarly research and teaching; (B) The copy of each motion picture is lawfully acquired and owned by the institution, or licensed to the institution without a time limitation on access; (C) The person undertaking the circumvention views or listens to the contents of the motion pictures in the corpus solely for the purpose of verification of the research findings; and (D) The institution uses effective security measures to prevent further dissemination or downloading of motion pictures in the corpus, and to limit access to only the persons identified in paragraph (b)(4)(i)(A) of this section or to researchers affiliated with other institutions of higher education solely for purposes of collaboration or replication of the research. (ii) For purposes of paragraph (b)(4)(i) of this section: (A) An institution of higher education is defined as one that: (1) Admits regular students who have a certificate of graduation from a secondary school or the equivalent of such a certificate; (2) Is legally authorized to provide a postsecondary education program; (3) Awards a bachelor’s degree or provides not less than a two-year program acceptable towards such a degree; (4) Is a public or other nonprofit institution; and (5) Is accredited by a nationally recognized accrediting agency or association. (B) The term ‘‘effective security measures’’ means security measures that have been agreed to by interested copyright owners of motion pictures and institutions of higher education; or, in the absence of such measures, those measures that the institution uses to keep its own highly confidential information secure. If the institution uses the security measures it uses to protect its own highly confidential E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations information, it must, upon a reasonable request from a copyright owner whose work is contained in the corpus, provide information to that copyright owner regarding the nature of such measures. (5)(i) Literary works, excluding computer programs and compilations that were compiled specifically for text and data mining purposes, distributed electronically where: (A) The circumvention is undertaken by a researcher affiliated with a nonprofit institution of higher education, or by a student or information technology staff member of the institution at the direction of such researcher, solely to deploy text and data mining techniques on a corpus of literary works for the purpose of scholarly research and teaching; (B) The copy of each literary work is lawfully acquired and owned by the institution, or licensed to the institution without a time limitation on access; (C) The person undertaking the circumvention views the contents of the literary works in the corpus solely for the purpose of verification of the research findings; and (D) The institution uses effective security measures to prevent further dissemination or downloading of literary works in the corpus, and to limit access to only the persons identified in paragraph (b)(5)(i)(A) of this section or to researchers or to researchers affiliated with other institutions of higher education solely for purposes of collaboration or replication of the research. (ii) For purposes of paragraph (b)(5)(i) of this section: (A) An institution of higher education is defined as one that: (1) Admits regular students who have a certificate of graduation from a secondary school or the equivalent of such a certificate; (2) Is legally authorized to provide a postsecondary education program; (3) Awards a bachelor’s degree or provides not less than a two-year program acceptable towards such a degree; (4) Is a public or other nonprofit institution; and (5) Is accredited by a nationally recognized accrediting agency or association. (B) The term ‘‘effective security measures’’ means security measures that have been agreed to by interested copyright owners of literary works and institutions of higher education; or, in the absence of such measures, those measures that the institution uses to keep its own highly confidential information secure. If the institution uses the security measures it uses to VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 protect its own highly confidential information, it must, upon a reasonable request from a copyright owner whose work is contained in the corpus, provide information to that copyright owner regarding the nature of such measures. (6)(i) Literary works or previously published musical works that have been fixed in the form of text or notation, distributed electronically, that are protected by technological measures that either prevent the enabling of readaloud functionality or interfere with screen readers or other applications or assistive technologies: (A) When a copy or phonorecord of such a work is lawfully obtained by an eligible person, as such a person is defined in 17 U.S.C. 121; provided, however, that the rights owner is remunerated, as appropriate, for the market price of an inaccessible copy of the work as made available to the general public through customary channels; or (B) When such a work is lawfully obtained and used by an authorized entity pursuant to 17 U.S.C. 121. (ii) For the purposes of paragraph (b)(6)(i) of this section, a ‘‘phonorecord of such a work’’ does not include a sound recording of a performance of a musical work unless and only to the extent the recording is included as part of an audiobook or e-book. (7) Literary works consisting of compilations of data generated by medical devices or by their personal corresponding monitoring systems, where such circumvention is undertaken by or on behalf of a patient for the sole purpose of lawfully accessing data generated by a patient’s own medical device or monitoring system. Eligibility for this exemption is not a safe harbor from, or defense to, liability under other applicable laws, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Computer Fraud and Abuse Act of 1986, or regulations of the Food and Drug Administration. (8) Computer programs that enable wireless devices to connect to a wireless telecommunications network, when circumvention is undertaken solely in order to connect to a wireless telecommunications network and such connection is authorized by the operator of such network. (9) Computer programs that enable smartphones and portable all-purpose mobile computing devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 59639 smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this paragraph (b)(9), a ‘‘portable allpurpose mobile computing device’’ is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for mobile use, and is intended to be carried or worn by an individual. (10) Computer programs that enable smart televisions to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the smart television, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. For purposes of this paragraph (b)(10), ‘‘smart televisions’’ includes both internet-enabled televisions, as well as devices that are physically separate from a television and whose primary purpose is to run software applications that stream authorized video from the internet for display on a screen. (11) Computer programs that enable voice assistant devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the device, or to permit removal of software from the device, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. For purposes of this paragraph (b)(11), a ‘‘voice assistant device’’ is a device that is primarily designed to run a wide variety of programs rather than for consumption of a particular type of media content, is designed to take user input primarily by voice, and is designed to be installed in a home or office. (12) Computer programs that enable routers and dedicated network devices to execute lawfully obtained software applications, where circumvention is accomplished for the sole purpose of enabling interoperability of such applications with computer programs on the router or dedicated network device, and is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. For the purposes of this paragraph (b)(12), ‘‘dedicated network device’’ includes switches, hubs, bridges, gateways, modems, repeaters, and access points, and excludes devices that are not lawfully owned. (13) Computer programs that are contained in and control the functioning E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 59640 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations of a lawfully acquired motorized land vehicle or marine vessel such as a personal automobile or boat, commercial vehicle or vessel, or mechanized agricultural vehicle or vessel, except for programs accessed through a separate subscription service, when circumvention is a necessary step to allow the diagnosis, repair, or lawful modification of a vehicle or vessel function, where such circumvention is not accomplished for the purpose of gaining unauthorized access to other copyrighted works. Eligibility for this exemption is not a safe harbor from, or defense to, liability under other applicable laws, including without limitation regulations promulgated by the Department of Transportation or the Environmental Protection Agency. (14) Computer programs that are contained in and control the functioning of a lawfully acquired device that is primarily designed for use by consumers, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device, and is not accomplished for the purpose of gaining access to other copyrighted works. For purposes of this paragraph (b)(14): (i) The ‘‘maintenance’’ of a device is the servicing of the device in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that device; and (ii) The ‘‘repair’’ of a device is the restoring of the device to the state of working in accordance with its original specifications and any changes to those specifications authorized for that device. For video game consoles, ‘‘repair’’ is limited to repair or replacement of a console’s optical drive and requires restoring any technological protection measures that were circumvented or disabled. (15) Computer programs that are contained in and control the functioning of a lawfully acquired medical device or system, and related data files, when circumvention is a necessary step to allow the diagnosis, maintenance, or repair of such a device or system. For purposes of this paragraph (b)(15): (i) The ‘‘maintenance’’ of a device or system is the servicing of the device or system in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that device or system; and (ii) The ‘‘repair’’ of a device or system is the restoring of the device or system to the state of working in accordance with its original specifications and any changes to those specifications authorized for that device or system. VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 (16)(i) Computer programs, where the circumvention is undertaken on a lawfully acquired device or machine on which the computer program operates, or is undertaken on a computer, computer system, or computer network on which the computer program operates with the authorization of the owner or operator of such computer, computer system, or computer network, solely for the purpose of good-faith security research. (ii) For purposes of paragraph (b)(16)(i) of this section, ‘‘good-faith security research’’ means accessing a computer program solely for purposes of good-faith testing, investigation, and/or correction of a security flaw or vulnerability, where such activity is carried out in an environment designed to avoid any harm to individuals or the public, and where the information derived from the activity is used primarily to promote the security or safety of the class of devices or machines on which the computer program operates, or those who use such devices or machines, and is not used or maintained in a manner that facilitates copyright infringement. (iii) Good-faith security research that qualifies for the exemption under paragraph (b)(16)(i) of this section may nevertheless incur liability under other applicable laws, including without limitation the Computer Fraud and Abuse Act of 1986, as amended and codified in title 18, United States Code, and eligibility for that exemption is not a safe harbor from, or defense to, liability under other applicable laws. (17)(i) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, when the copyright owner or its authorized representative has ceased to provide access to an external computer server necessary to facilitate an authentication process to enable gameplay, solely for the purpose of: (A) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game for personal, local gameplay on a personal computer or video game console; or (B) Permitting access to the video game to allow copying and modification of the computer program to restore access to the game on a personal computer or video game console when necessary to allow preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum. (ii) Video games in the form of computer programs embodied in physical or downloaded formats that have been lawfully acquired as complete games, that do not require access to an external computer server for gameplay, and that are no longer reasonably available in the commercial marketplace, solely for the purpose of preservation of the game in a playable form by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage and the video game is not distributed or made available outside of the physical premises of the eligible library, archives, or museum. (iii) Computer programs used to operate video game consoles solely to the extent necessary for an eligible library, archives, or museum to engage in the preservation activities described in paragraph (b)(17)(i)(B) or (b)(17)(ii) of this section. (iv) For purposes of this paragraph (b)(17), the following definitions shall apply: (A) For purposes of paragraphs (b)(17)(i)(A) and (b)(17)(ii) of this section, ‘‘complete games’’ means video games that can be played by users without accessing or reproducing copyrightable content stored or previously stored on an external computer server. (B) For purposes of paragraph (b)(17)(i)(B) of this section, ‘‘complete games’’ means video games that meet the definition in paragraph (b)(17)(iv)(A) of this section, or that consist of both a copy of a game intended for a personal computer or video game console and a copy of the game’s code that was stored or previously stored on an external computer server. (C) ‘‘Ceased to provide access’’ means that the copyright owner or its authorized representative has either issued an affirmative statement indicating that external server support for the video game has ended and such support is in fact no longer available or, alternatively, server support has been discontinued for a period of at least six months; provided, however, that server support has not since been restored. (D) ‘‘Local gameplay’’ means gameplay conducted on a personal computer or video game console, or locally connected personal computers or consoles, and not through an online service or facility. (E) A library, archives, or museum is considered ‘‘eligible’’ if— E:\FR\FM\28OCR1.SGM 28OCR1 jspears on DSK121TN23PROD with RULES1 Federal Register / Vol. 86, No. 206 / Thursday, October 28, 2021 / Rules and Regulations (1) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum; (2) The library, archives, or museum has a public service mission; (3) The library, archives, or museum’s trained staff or volunteers provide professional services normally associated with libraries, archives, or museums; (4) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and (5) The library, archives, or museum implements reasonable digital security measures as appropriate for the activities permitted by this paragraph (b)(17). (18)(i) Computer programs, except video games, that have been lawfully acquired and that are no longer reasonably available in the commercial marketplace, solely for the purpose of lawful preservation of a computer program, or of digital materials dependent upon a computer program as a condition of access, by an eligible library, archives, or museum, where such activities are carried out without any purpose of direct or indirect commercial advantage. Any electronic distribution, display, or performance made outside of the physical premises of an eligible library, archives, or museum of works preserved under this paragraph may be made to only one user at a time, for a limited time, and only where the library, archives, or museum has no notice that the copy would be used for any purpose other than private study, scholarship, or research. (ii) For purposes of the exemption in paragraph (b)(18)(i) of this section, a library, archives, or museum is considered ‘‘eligible’’ if— (A) The collections of the library, archives, or museum are open to the public and/or are routinely made available to researchers who are not affiliated with the library, archives, or museum; (B) The library, archives, or museum has a public service mission; (C) The library, archives, or museum’s trained staff or volunteers provide professional services normally associated with libraries, archives, or museums; (D) The collections of the library, archives, or museum are composed of lawfully acquired and/or licensed materials; and (E) The library, archives, or museum implements reasonable digital security measures as appropriate for the VerDate Sep<11>2014 16:25 Oct 27, 2021 Jkt 256001 activities permitted by this paragraph (b)(18). (19) Computer programs that operate 3D printers that employ technological measures to limit the use of material, when circumvention is accomplished solely for the purpose of using alternative material and not for the purpose of accessing design software, design files, or proprietary data. (20) Computer programs, solely for the purpose of investigating a potential infringement of free and open source computer programs where: (i) The circumvention is undertaken on a lawfully acquired device or machine other than a video game console, on which the computer program operates; (ii) The circumvention is performed by, or at the direction of, a party that has a good-faith, reasonable belief in the need for the investigation and has standing to bring a breach of license or copyright infringement claim; (iii) Such circumvention does not constitute a violation of applicable law; and (iv) The copy of the computer program, or the device or machine on which it operates, is not used or maintained in a manner that facilitates copyright infringement. (21) Video games in the form of computer programs, embodied in lawfully acquired physical or downloaded formats, and operated on a general-purpose computer, where circumvention is undertaken solely for the purpose of allowing an individual with a physical disability to use software or hardware input methods other than a standard keyboard or mouse. * * * * * Dated: October 21, 2021. Carla D. Hayden, Librarian of Congress. [FR Doc. 2021–23311 Filed 10–27–21; 8:45 am] BILLING CODE 1410–30–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–R04–OAR–2020–0445; FRL–8779–02– R4] Air Plan Approval; SC; Revisions to Definitions Environmental Protection Agency (EPA). ACTION: Final rule. AGENCY: The Environmental Protection Agency (EPA) is finalizing approval of SUMMARY: PO 00000 Frm 00033 Fmt 4700 Sfmt 4700 59641 a State Implementation Plan (SIP) revision submitted by the State of South Carolina, through the South Carolina Department of Health and Environmental Control (SC DHEC or Department), on April 24, 2020. The SIP revision updates the definition of ‘‘Spec. Oil (Specification Oil)’’ and makes minor updates to formatting and numbering. EPA is finalizing approval of these changes pursuant to the Clean Air Act (CAA or Act) and implementing federal regulations. DATES: This rule is effective November 29, 2021. ADDRESSES: EPA has established a docket for this action under Docket Identification No. EPA–R04–OAR– 2020–0445. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office’s official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays. FOR FURTHER INFORMATION CONTACT: Andres Febres, Air Regulatory Management Section, Air Planning and Implementation Branch, Air and Radiation Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303–8960. The telephone number is (404) 562– 8966. Mr. Febres can also be reached via electronic mail at febresmartinez.andres@epa.gov. SUPPLEMENTARY INFORMATION: I. Background On April 24, 2020, SC DHEC submitted a SIP revision to EPA for approval that includes changes to South Carolina Regulation 61–62.1, Section I— Definitions.1 First, SC DHEC’s April 24, 1 In the April 24, 2020, SIP revision SC DHEC also submitted to EPA changes to Regulations 61–62.1, E:\FR\FM\28OCR1.SGM Continued 28OCR1

Agencies

[Federal Register Volume 86, Number 206 (Thursday, October 28, 2021)]
[Rules and Regulations]
[Pages 59627-59641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23311]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 201

[Docket No. 2020-11]


Exemption to Prohibition on Circumvention of Copyright Protection 
Systems for Access Control Technologies

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

ACTION: Final rule.

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

DATES: Effective October 28, 2021.

FOR FURTHER INFORMATION CONTACT: Kevin R. Amer, Acting General Counsel 
and Associate Register of Copyrights, by email at [email protected], 
or Mark Gray, Attorney-Advisor, by email at [email protected]. Each 
can be contacted by telephone by calling (202) 707-8350.

SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to 
section 1201(a)(1) of title 17, United States Code, has determined in 
this eighth triennial rulemaking proceeding that the prohibition 
against circumvention of technological measures that effectively 
control access to copyrighted works shall not apply for the next three 
years to persons who engage in certain noninfringing uses of certain 
classes of such works. This determination is based upon the Register's 
Recommendation.
    The below discussion summarizes the rulemaking proceeding and the 
Register's recommendations, announces the Librarian's determination, 
and publishes the regulatory text specifying the exempted classes of 
works. A more complete discussion of the rulemaking process, the 
evidentiary record, and the Register's analysis with respect to each 
proposed exemption can be found in the Register's Recommendation, which 
is posted at www.copyright.gov/1201/2021/.

I. Background

A. Statutory Requirements

    Congress enacted the DMCA in 1998 to implement certain provisions 
of the WIPO Copyright and WIPO Performances and Phonograms Treaties. 
Among other things, title I of the DMCA, which added a new chapter 12 
to title 17 of the U.S. Code, prohibits circumvention of technological 
measures employed by or on behalf of copyright owners to protect access 
to their works. In enacting this aspect of the law, Congress observed 
that technological protection measures (``TPMs'') can ``support new 
ways of disseminating copyrighted materials to users, and . . . 
safeguard the availability of legitimate uses of those materials by 
individuals.'' \1\
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    \1\ Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-
Section Analysis of H.R. 2281 as Passed by the United States House 
of Representatives on August 4, 1998, at 6 (Comm. Print 1998).
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    Section 1201(a)(1) provides in pertinent part that ``[n]o person 
shall circumvent a technological measure that effectively controls 
access to a work protected under [title 17].'' Under the statute, to 
``circumvent a technological measure'' means ``to descramble a 
scrambled work, to decrypt an encrypted work, or otherwise to avoid, 
bypass, remove, deactivate, or impair a technological measure, without 
the authority of the copyright owner.'' \2\ A technological measure 
that ``effectively controls access to a work'' is one that ``in the 
ordinary course of its operation, requires the application of 
information, or a process or a treatment, with the authority of the 
copyright owner, to gain access to the work.'' \3\
---------------------------------------------------------------------------

    \2\ 17 U.S.C. 1201(a)(3)(A).
    \3\ 17 U.S.C. 1201(a)(3)(B).
---------------------------------------------------------------------------

    Section 1201(a)(1) also includes what Congress characterized as a 
``fail-safe'' mechanism,\4\ which requires the Librarian of Congress, 
following a rulemaking proceeding, to exempt any class from the 
prohibition for a three-year period if she has determined that 
noninfringing uses by persons who are users of copyrighted works in 
that class are, or are likely to be, adversely affected by the 
prohibition against circumvention during that period.\5\ The 
Librarian's determination to grant an exemption is based upon the 
recommendation of the Register of Copyrights, who conducts the 
rulemaking proceeding.\6\ The Register consults with the Assistant 
Secretary for Communications and Information of the Department of 
Commerce, who oversees the National Telecommunications and Information 
Administration (``NTIA''), in the course of formulating her 
recommendations.\7\
---------------------------------------------------------------------------

    \4\ See H.R. Rep. No. 105-551, pt. 2, at 36 (1998).
    \5\ See 17 U.S.C. 1201(a)(1).
    \6\ 17 U.S.C. 1201(a)(1)(C).
    \7\ Id.
---------------------------------------------------------------------------

    Exemptions adopted by rule under section 1201(a)(1) apply only to 
the conduct of circumventing a technological measure that controls 
access to a copyrighted work. Other parts of section 1201 address the 
manufacture and provision of--or ``trafficking'' in--products and 
services designed for purposes of circumvention. Section 1201(a)(2) 
bars trafficking in products and services that are used to circumvent 
technological measures that control access to copyrighted works (for 
example, a password needed to open a media file),\8\ while section 
1201(b) bars trafficking in products and services used to circumvent 
technological measures that protect the exclusive rights of the 
copyright owner (for example, technology that prevents the work from 
being reproduced).\9\ The Librarian has no authority to adopt 
exemptions for the anti-trafficking prohibitions contained in section 
1201(a)(2) or (b).\10\
---------------------------------------------------------------------------

    \8\ 17 U.S.C. 1201(a)(2).
    \9\ 17 U.S.C. 1201(b).
    \10\ See 17 U.S.C. 1201(a)(1)(E) (``Neither the exception under 
subparagraph (B) from the applicability of the prohibition contained 
in subparagraph (A), nor any determination made in a rulemaking 
conducted under subparagraph (C), may be used as a defense in any 
action to enforce any provision of this title other than this 
paragraph.'').
---------------------------------------------------------------------------

    The statute contains certain permanent exemptions to permit 
specified uses. These include section 1201(d), which exempts certain 
activities of nonprofit libraries, archives, and educational 
institutions; section 1201(e), which exempts ``lawfully authorized 
investigative, protective, information security, or intelligence 
activity'' of a state or the federal

[[Page 59628]]

government; section 1201(f), which exempts certain ``reverse 
engineering'' activities to facilitate interoperability; section 
1201(g), which exempts certain types of research into encryption 
technologies; section 1201(h), which exempts certain activities to 
prevent the ``access of minors to material on the internet''; section 
1201(i), which exempts certain activities ``solely for the purpose of 
preventing the collection or dissemination of personally identifying 
information''; and section 1201(j), which exempts certain acts of 
``security testing'' of computers and computer systems.

B. Rulemaking Standards

    In adopting the DMCA, Congress imposed legal and evidentiary 
requirements for the section 1201 rulemaking proceeding, as discussed 
in greater detail in the Register's Recommendation \11\ and the 
Copyright Office's 2017 policy study on section 1201.\12\ The Register 
will recommend granting an exemption only ``when the preponderance of 
the evidence in the record shows that the conditions for granting an 
exemption have been met.'' \13\ The evidence must show ``that it is 
more likely than not that users of a copyrighted work will, in the 
succeeding three[hyphen]year period, be adversely affected by the 
prohibition on circumvention in their ability to make noninfringing 
uses of a particular class of copyrighted works.'' \14\
---------------------------------------------------------------------------

    \11\ Register of Copyrights, Section 1201 Rulemaking: Eighth 
Triennial Proceeding to Determine Exemptions to the Prohibition on 
Circumvention, Recommendation of the Register of Copyrights (Oct. 
2021), https://cdn.loc.gov/copyright/1201/2021/2021_Section_1201_Registers_Recommendation.pdf (Register's 
Recommendation'').
    \12\ Register's Recommendation at section II.C; U.S. Copyright 
Office, Section 1201 of Title 17 111-12 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf 
(``Section 1201 Report'').
    \13\ Section 1201 Report at 111-12; accord Register of 
Copyrights, Section 1201 Rulemaking: Seventh Triennial Proceeding to 
Determine Exemptions to the Prohibition on Circumvention, 
Recommendation of the Register of Copyrights 12-13 (Oct. 2018). 
References to the Register's recommendations in prior rulemakings 
are cited by the year of publication followed by ``Recommendation'' 
(e.g., ``2018 Recommendation''). Prior Recommendations are available 
on the Copyright Office website at https://www.copyright.gov/1201/.
    \14\ Section 1201 Report at 112.
---------------------------------------------------------------------------

    The Librarian must assess whether the implementation of access 
controls impairs the ability of individuals to make noninfringing uses 
of copyrighted works within the meaning of section 1201(a)(1). To aid 
in this process, the Register develops a comprehensive administrative 
record using information submitted by interested members of the public, 
and makes recommendations to the Librarian concerning whether 
exemptions are warranted based on that record.
    To establish the need for an exemption, proponents must show, at a 
minimum, (1) that uses affected by the prohibition on circumvention are 
or are likely to be noninfringing; and (2) that as a result of a 
technological measure controlling access to a copyrighted work, the 
prohibition is causing, or in the next three years is likely to cause, 
an adverse impact on those uses. In addition, the Librarian must 
examine the statutory factors listed in section 1201(a)(1): (1) The 
availability for use of copyrighted works; (2) the availability for use 
of works for nonprofit archival, preservation, and educational 
purposes; (3) the impact that the prohibition on the circumvention of 
technological measures applied to copyrighted works has on criticism, 
comment, news reporting, teaching, scholarship, or research; (4) the 
effect of circumvention of technological measures on the market for or 
value of copyrighted works; and (5) such other factors as the Librarian 
considers appropriate.
    Finally, section 1201(a)(1) specifies that any exemption adopted as 
part of this rulemaking must be defined based on ``a particular class 
of works.'' \15\ Among other things, the determination of the 
appropriate scope of a ``class of works'' recommended for exemption may 
take into account the adverse effects an exemption may have on the 
market for or value of copyrighted works. Accordingly, ``it can be 
appropriate to refine a class by reference to the use or user in order 
to remedy the adverse effect of the prohibition and to limit the 
adverse consequences of an exemption.'' \16\
---------------------------------------------------------------------------

    \15\ 17 U.S.C. 1201(a)(1)(B).
    \16\ 2006 Recommendation at 19.
---------------------------------------------------------------------------

II. History of the Eighth Triennial Proceeding

    The Office initiated the eighth triennial rulemaking proceeding 
through a Notice of Inquiry (``NOI'') on June 22, 2020.\17\ The NOI 
requested petitions for renewal of exemptions adopted in the 2018 
rulemaking, petitions in opposition to renewal, and any petitions for 
new exemptions, including proposals to expand a current exemption. The 
Office received twenty-six petitions for new exemptions, including 
thirteen comments seeking to expand certain current exemptions.
---------------------------------------------------------------------------

    \17\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 37399 (June 22, 2020).
---------------------------------------------------------------------------

    As in the prior rulemaking, the Office employed a streamlined 
process for renewing existing exemptions in this proceeding, detailing 
the renewal process in its public notices.\18\ Streamlined renewal is 
based upon a determination that, due to a lack of legal, marketplace, 
or technological changes, the factors that led the Register to 
recommend adoption of the exemption in the prior rulemaking are 
expected to continue into the forthcoming triennial period.\19\ That 
is, the same material facts and circumstances underlying the 
previously-adopted regulatory exemption may be relied on to renew the 
exemption. Because the statute requires that exemptions be adopted upon 
a new determination concerning the next three-year period, the fact 
that the Librarian previously adopted an exemption creates no 
presumption that readoption is appropriate.
---------------------------------------------------------------------------

    \18\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 37399, 37400-02 (June 22, 2020); Exemptions 
to Permit Circumvention of Access Controls on Copyrighted Works, 85 
FR 65293, 65294-95 (Oct. 15, 2020).
    \19\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 37399, 37401-02 (June 22, 2020); Exemptions 
to Permit Circumvention of Access Controls on Copyrighted Works, 85 
FR 65293, 65295 (Oct. 15, 2020).
---------------------------------------------------------------------------

    The Register's Recommendation provides a detailed description of 
the process the Office used to create a record for each renewal 
petition.\20\ In brief, the Office first solicited renewal petitions as 
well as comments from participants opposing the readoption of the 
exemption. The Office received thirty-two renewal petitions and fifteen 
comments in response to those petitions. Seven comments supported 
renewal of a current exemption, and eight comments raised discrete 
concerns with specific petitions, but did not oppose readoption of the 
relevant exemption.\21\
---------------------------------------------------------------------------

    \20\ Register's Recommendation at III.D & IV.
    \21\ The submissions received in response to the NOI are 
available at https://www.copyright.gov/1201/2021/. References to 
these submissions are by party and class name (abbreviated where 
appropriate) followed by ``Renewal Pet.,'' ``Renewal Comment,'' or 
party name and class number followed by ``Pet.,'' ``Initial,'' 
``Opp'n,'' or ``Reply'' for comments submitted in the first, second, 
or third round, as applicable.
---------------------------------------------------------------------------

    On October 15, 2020, the Office issued its notice of proposed 
rulemaking (``NPRM'') identifying the existing exemptions for which the 
Register intended to recommend renewal, and outlined the proposed 
classes for new exemptions, for which three rounds of public comments 
were initiated.\22\ Those proposals were organized into seventeen 
classes of works. Six of the seventeen proposed exemptions sought

[[Page 59629]]

expansions of existing exemptions, seven proposed entirely new 
exemptions, and four contained a combination of both expansions and new 
exemptions. The Office then held seven days of public hearings in which 
it heard testimony from numerous participants. After the hearings, the 
Office issued written questions to hearing participants regarding 
certain proposed classes.\23\ Finally, the Office held several ex parte 
meetings with participants concerning ten proposed classes.\24\
---------------------------------------------------------------------------

    \22\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 65293, 65293 (Oct. 15, 2020).
    \23\ Participants' post-hearing letter responses are available 
at https://www.copyright.gov/1201/2021/post-hearing/.
    \24\ All ex parte letters in the eighth triennial rulemaking can 
be found at https://www.copyright.gov/1201/2021/ex-parte-communications.html.
---------------------------------------------------------------------------

    As required by section 1201(a)(1), the Register consulted with NTIA 
during this rulemaking. NTIA provided input at various stages and 
participated in the virtual public hearings. NTIA formally communicated 
its views on each of the proposed exemptions to the Register on October 
1, 2021. The Office addresses NTIA's substantive views on the proposed 
classes below. NTIA's recommendations can be viewed at https://cdn.loc.gov/copyright/1201/2021/2021_NTIA_DMCA_Letter.pdf.

III. Summary of Register's Recommendation

A. Renewal Recommendations

    As set forth in the NPRM, the Register received petitions to renew 
each of the exemptions adopted pursuant to the seventh triennial 
rulemaking. Eight comments in response to renewal petitions raised 
discrete concerns with specific petitions, but none opposed the 
verbatim readoption of an existing regulatory exemption or disputed the 
reliability of the previously analyzed administrative record.\25\ The 
Register recommends renewal of these exemptions based on the 
information provided in the renewal petitions and the lack of 
meaningful opposition, finding that the conditions that led to adoption 
of the exemptions are likely to continue during the next triennial 
period. The existing exemptions, and the bases for the recommendation 
to readopt each exemption in accordance with the streamlined renewal 
process, are discussed in detail in the Recommendation and summarized 
briefly below. Where noted, these exemptions serve as a baseline in 
considering requests for expansion.
---------------------------------------------------------------------------

    \25\ Exemptions to Permit Circumvention of Access Controls on 
Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020); see also 
Exemptions to Permit Circumvention of Access Controls on Copyrighted 
Works, 85 FR 37399, 37402 (June 22, 2020) (describing ``meaningful 
opposition'' standard).
---------------------------------------------------------------------------

1. Audiovisual Works--Educational and Derivative Uses
    Multiple individuals and organizations petitioned to renew the 
exemption covering the use of short portions of motion pictures for 
various educational and derivative uses.\26\ The Office did not receive 
meaningful opposition to readoption of these exemptions. Petitions to 
renew the various subparts of the exemption are discussed below. The 
existing exemption and its various subparts collectively serve as the 
baseline in assessing whether to recommend any expansions in Class 1.
---------------------------------------------------------------------------

    \26\ See 37 CFR 201.40(b)(1). In the 2018 rulemaking, this 
recommended regulatory language was the result of consideration of 
one proposed class of works that grouped together five petitions. 
See 2018 Recommendation at 31-34.
---------------------------------------------------------------------------

a. Audiovisual Works--Criticism and Comment, Teaching, or Scholarship--
Universities and K-12 Educational Institutions.\27\
---------------------------------------------------------------------------

    \27\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.1.
---------------------------------------------------------------------------

    Multiple individuals and organizations petitioned to renew the 
exemption for motion pictures for educational purposes by college and 
university or K-12 faculty and students. The Office did not receive 
substantive opposition to readoption of this exemption. The petitions 
demonstrated that educators and students continue to rely on excerpts 
from digital media for class presentations and coursework. For example, 
a collective of individuals and organizations provided several examples 
of professors using DVD clips in the classroom. A group of individual 
educators and educational organizations \28\ broadly suggested 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.'' \29\ 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. The Register 
finds that petitioners demonstrated a continuing need and justification 
for the exemption.
---------------------------------------------------------------------------

    \28\ The individuals and organizations include Peter Decherney, 
Katherine Sender, John L. Jackson, Int'l Commc'n Ass'n, Soc'y for 
Cinema and Media Studies, Console-ing Passions, Library Copyright 
All., and Am. Ass'n of Univ. Professors.
    \29\ Joint Educators AV Educ. Renewal Pet. at 3.
---------------------------------------------------------------------------

b. Audiovisual Works--Criticism and Comment--Massive Open Online 
Courses (``MOOCs'').\30\
---------------------------------------------------------------------------

    \30\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.2.
---------------------------------------------------------------------------

    A collective of individuals and organizations and Brigham Young 
University (``BYU'') petitioned to renew the exemption for educational 
uses of motion pictures in MOOCs. The Office did not receive meaningful 
opposition to readoption of this exemption. The petitions 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 to increase the number of (and therefore 
access to) MOOCs in the field of film and media studies.
c. Audiovisual Works--Criticism and Comment--Digital and Media Literacy 
Programs \31\
---------------------------------------------------------------------------

    \31\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.3.
---------------------------------------------------------------------------

    Library Copyright Alliance (``LCA'') and 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 organizations. No oppositions were filed against 
readoption of this exemption. 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, 
thereby demonstrating the continuing need and justification for the 
exemption.
d. Audiovisual Works--Criticism and Comment--Multimedia E-books \32\
---------------------------------------------------------------------------

    \32\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.4.
---------------------------------------------------------------------------

    Multiple petitioners jointly sought to renew the exemption for the 
use of motion picture excerpts in nonfiction multimedia e-books. The 
Office did not receive meaningful opposition to readoption of this 
exemption. The petition demonstrated the continuing need and 
justification for the exemption. In addition, the petitioners 
demonstrated personal knowledge through Bobette Buster's continued work 
on an e-book series based on her lecture series, ``Deconstructing 
Master Filmmakers: The Uses of Cinematic Enchantment,'' which ``relies 
on the

[[Page 59630]]

availability of high-resolution video not available without 
circumvention of TPMs.'' \33\
---------------------------------------------------------------------------

    \33\ Bobette Buster, Authors All. & Am. Ass'n of Univ. 
Professors Nonfiction Multimedia E-Books Renewal Pet. at 3.
---------------------------------------------------------------------------

e. Audiovisual Works--Criticism and Comment--Filmmaking \34\
---------------------------------------------------------------------------

    \34\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.5.
---------------------------------------------------------------------------

    Multiple organizations petitioned to renew the exemption for motion 
pictures for uses in documentary films or other films where the use is 
a parody or based on the work's biographical or historically 
significant nature. The Office did not receive meaningful opposition to 
readoption of this exemption. Petitioners stated that they personally 
know many filmmakers who have found it necessary to rely on this 
exemption and will continue to do so. The petitions summarized the 
continuing need and justification for the exemption.
f. Audiovisual Works--Criticism and Comment--Noncommercial Videos \35\
---------------------------------------------------------------------------

    \35\ The Register's analysis and conclusions for this subpart, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.A.6.
---------------------------------------------------------------------------

    Two organizations petitioned to renew the exemption for motion 
pictures for uses in noncommercial videos. The Office did not receive 
meaningful opposition to readoption of this exemption. Petitioners 
stated that they had personal knowledge that video creators have relied 
on this exemption and anticipate needing to continue to use the 
exemption in the future. The Organization for Transformative Works 
(``OTW'') included an account from an academic who stated that footage 
ripped from DVDs and Blu-ray is preferred for ``vidders'' 
(noncommercial remix artists) because ``it is high quality enough to 
bear up under the transformations that vidders make to it.'' \36\ The 
petitions therefore demonstrated the continuing need and justification 
for the exemption.
---------------------------------------------------------------------------

    \36\ OTW Noncommercial Videos Renewal Pet. at 3.
---------------------------------------------------------------------------

2. Audiovisual Works--Accessibility \37\
---------------------------------------------------------------------------

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

    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. No oppositions were filed 
in connection with readoption of this exemption. The petitions 
demonstrated the continuing need and justification for the exemption, 
and the petitioners demonstrated personal knowledge and experience as 
to the exemption. For example, BYU asserted that its disability 
services offices ``sometimes need to create accessible versions of 
motion pictures'' to accommodate its students with disabilities.\38\ 
The petitions stated that there is a need for the exemption going 
forward; indeed, one group of petitioners stated 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.'' \39\ This 
existing exemption serves as the baseline in assessing whether to 
recommend any expansions in Class 3.
---------------------------------------------------------------------------

    \38\ BYU Captioning Renewal Pet. at 3.
    \39\ Accessibility Petitioners Captioning Renewal Pet. at 3.
---------------------------------------------------------------------------

3. Literary Works Distributed Electronically--Accessibility \40\
---------------------------------------------------------------------------

    \40\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.C.
---------------------------------------------------------------------------

    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. 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 have difficulty obtaining 
accessible e-book content because TPMs interfere with the use of 
assistive technologies. Petitioners noted that their members frequently 
cite accessibility of e-books as a top priority. Finally, petitioners 
demonstrated personal knowledge and experience with regard to the 
assistive technology exemption because they are all organizations that 
advocate for the blind, visually impaired, and print disabled. This 
existing exemption serves as the baseline in assessing whether to 
recommend any expansions in Class 8.
4. Literary Works--Medical Device Data \41\
---------------------------------------------------------------------------

    \41\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.D.
---------------------------------------------------------------------------

    Hugo Campos petitioned to renew the exemption covering access to 
patient data on networked medical devices. No oppositions were filed 
against readoption of this exemption, and Consumer Reports submitted a 
comment in support of the renewal petition. 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. 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 a member of a coalition whose members research the effectiveness of 
networked medical devices. This existing exemption serves as the 
baseline in assessing whether to recommend any expansions in Class 9.
5. Computer Programs--Unlocking \42\
---------------------------------------------------------------------------

    \42\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.E.
---------------------------------------------------------------------------

    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'').\43\ No 
oppositions were filed against readoption of this exemption, and 
Consumer Reports submitted a comment in support of the renewal 
petition. The petitions demonstrated 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, the Institute of 
Scrap Recycling Industries, Inc. (``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 lock 
devices to prevent them from being used on other carriers.\44\ In 
addition, petitioners demonstrated personal knowledge and experience 
with regard to this exemption. This existing exemption serves as the 
baseline in assessing whether to recommend any expansions in Class 10.
---------------------------------------------------------------------------

    \43\ Competitive Carriers Ass'n Unlocking Renewal Pet.; Inst. of 
Scrap Recycling Indus., Inc. Unlocking Renewal Pet.
    \44\ ISRI Unlocking Renewal Pet. at 3.
---------------------------------------------------------------------------

6. Computer Programs--Jailbreaking \45\
---------------------------------------------------------------------------

    \45\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.F.
---------------------------------------------------------------------------

    Multiple organizations petitioned to renew the exemptions for 
computer programs that operate smartphones,

[[Page 59631]]

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''). No 
oppositions were filed against readoption of this exemption, and 
Consumer Reports submitted a comment in support of the renewal 
petition. The petitions demonstrated the continuing need and 
justification for the exemption, and that petitioners have personal 
knowledge and experience with regard to this exemption. For example, 
regarding smart TVs specifically, the Software Freedom Conservancy 
(``SFC'') asserted 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.'' \46\ The petitions stated 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. This existing 
exemption serves as the baseline in assessing whether to recommend any 
expansions in Class 11.
---------------------------------------------------------------------------

    \46\ SFC Jailbreaking Renewal Pet. at 3.
---------------------------------------------------------------------------

7. Computer Programs--Repair of Motorized Land Vehicles \47\
---------------------------------------------------------------------------

    \47\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.G.
---------------------------------------------------------------------------

    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. The Office did not receive meaningful opposition to 
readoption of this exemption, and Consumer Reports submitted a comment 
in support of the renewal petition. 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.'' 
\48\ Similarly, 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.'' 
\49\ The petitioners demonstrated personal knowledge and experience 
with regard to this exemption; each either represents or gathered 
information from individuals or businesses that perform vehicle service 
and repair. This existing exemption, as well as the existing exemption 
pertaining to repair of smartphones, home appliances, and home systems, 
serve as the baseline in assessing whether to recommend any expansions 
in Class 12.
---------------------------------------------------------------------------

    \48\ MEMA Vehicle Repair Renewal Pet. at 3.
    \49\ ACA Vehicle Repair Renewal Pet. at 3.
---------------------------------------------------------------------------

8. Computer Programs--Repair of Smartphones, Home Appliances, and Home 
Systems \50\
---------------------------------------------------------------------------

    \50\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.H.
---------------------------------------------------------------------------

    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. 
The Office did not receive meaningful opposition to readoption of this 
exemption, and Consumer Reports submitted a comment in support of the 
renewal petition. The petitions demonstrated the continuing need and 
justification for the exemption. For example, the Electronic Frontier 
Foundation (``EFF''), the Repair Association, and iFixit asserted that 
``[m]anufacturers of these devices continue to implement [TPMs] that 
inhibit lawful repairs, maintenance, and diagnostics, and they show no 
sign of changing course.'' \51\ This existing exemption, as well as the 
existing exemption pertaining to repair of motorized land vehicles, 
serve as the baseline in assessing whether to recommend any expansions 
in Class 12.
---------------------------------------------------------------------------

    \51\ EFF Device Repair Renewal Pet. at 3; EFF, Repair Ass'n & 
iFixit Device Repair Renewal Pet. at 3.
---------------------------------------------------------------------------

9. Computer Programs--Security Research \52\
---------------------------------------------------------------------------

    \52\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.I.
---------------------------------------------------------------------------

    Multiple organizations and security researchers petitioned to renew 
the exemption permitting circumvention for purposes of good-faith 
security research. No oppositions were filed against readoption of this 
exemption, and Consumer Reports submitted a comment in support of the 
renewal petition. 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, 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 the need to find and detect 
vulnerabilities in voting machines and other election systems in 
response to increasing aggressiveness on the part of threat actors, 
including other nation states.\53\ 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,'' and opined that the current 
exemption strikes an ``appropriate balance.'' \54\ This existing 
exemption serves as the baseline in assessing whether to recommend any 
expansions in Class 13.
---------------------------------------------------------------------------

    \53\ J. Alex Halderman, CDT & ACM Security Research Renewal Pet. 
at 4.
    \54\ MEMA Security Research Renewal Pet. at 3.
---------------------------------------------------------------------------

10. Computer Programs--Software Preservation \55\
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    \55\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.J.
---------------------------------------------------------------------------

    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. No oppositions were 
filed against readoption of this exemption. The petition stated that 
libraries, archives, and museums continue to need the exemption to 
preserve and curate software and materials dependent on software. For 
example, the petition explained that researchers at the University of 
Virginia designed a project in order to access a collection of drawings 
and plans from a local Charlottesville architecture firm, and that 
without the exemption, the outdated Computer Aided Design software used 
to create many of the designs ``may have remained inaccessible to 
researchers, rendering the designs themselves inaccessible, too.'' \56\ 
In addition, 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 who have relied 
on this exemption. This existing

[[Page 59632]]

exemption, as well as the exemption pertaining to video game 
preservation, serve as the baseline in assessing whether to recommend 
any expansions in Class 14.
---------------------------------------------------------------------------

    \56\ SPN & LCA Software Preservation Renewal Pet. at 3.
---------------------------------------------------------------------------

11. Computer Programs--Video Game Preservation \57\
---------------------------------------------------------------------------

    \57\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.K.
---------------------------------------------------------------------------

    SPN and LCA petitioned to renew the exemption for preservation of 
video games for which outside server support has been discontinued. No 
oppositions were filed against readoption of this exemption, and 
Consumer Reports submitted a comment in support of the renewal 
petition. The petition stated that libraries, archives, and museums 
continue to need the exemption to preserve and curate video games in 
playable form. For example, the petition highlighted Georgia Tech 
University Library's Computing Lab, retroTECH, which has made a 
significant collection of recovered video game consoles accessible for 
research and teaching uses pursuant to the exemption.\58\ Petitioners 
demonstrated personal knowledge and experience with regard to this 
exemption through past participation in the section 1201 triennial 
rulemaking, and/or through their representation of members who have 
relied on this exemption. This existing exemption, as well as the above 
exemption pertaining to software preservation, serve as the baseline in 
assessing whether to recommend any expansions in Class 14.
---------------------------------------------------------------------------

    \58\ SPN & LCA Abandoned Video Game Renewal Pet. at 3.
---------------------------------------------------------------------------

12. Computer Programs--3D Printers \59\
---------------------------------------------------------------------------

    \59\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at IV.L.
---------------------------------------------------------------------------

    Michael Weinberg petitioned to renew the exemption for computer 
programs that operate 3D printers to allow use of alternative 
feedstock. No oppositions were filed against readoption of this 
exemption. The petition demonstrated the continuing need and 
justification for the exemption, and petitioner demonstrated personal 
knowledge and experience regarding the exemption. Specifically, Mr. 
Weinberg declared that he is a member of the 3D printing community and 
previously participated in the section 1201 triennial rulemaking. In 
addition, the petition stated that manufacturers of 3D printers 
continue to limit the types of materials that may be used with the 
devices. This existing exemption serves as the baseline in assessing 
whether to recommend any expansions in Class 15.

B. New or Expanded Designations of Classes

    Based upon the record in this proceeding regarding proposed 
expansions to existing exemptions or newly proposed exemptions, the 
Register recommends that the Librarian determine that the following 
classes of works be exempt from the prohibition against circumvention 
of technological measures set forth in section 1201(a)(1):
1. Proposed Class 1: Audiovisual Works--Criticism and Comment \60\
---------------------------------------------------------------------------

    \60\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.A.
---------------------------------------------------------------------------

    Proposed Class 1 sought to expand the existing exemption that 
permits circumvention of access controls protecting excerpts of motion 
pictures on DVDs, Blu-ray discs, and digitally transmitted video for 
the purposes of criticism and comment, including for educational 
purposes by certain users. Three different petitions were filed in this 
class. OTW's proposed exemption sought to eliminate multiple 
limitations, including the requirement that a user consider whether 
screen capture technology is a viable alternative before circumvention. 
BYU's proposed exemption would permit circumvention by college or 
university employees or students or by K-12 educators or students 
acting under the direct supervision of an educator, and would 
significantly alter the language of the current exemption regarding the 
purpose of the circumvention. A group of individual educators and 
educational organizations (``Joint Educators'') proposed an exemption 
that would permit circumvention by ``educators and preparers of online 
learning materials'' to be used on online learning platforms. All three 
proposals sought to remove the reference to screen capture from the 
existing exemption. OTW and Joint Educators' proposals sought to use 
short portions of motion pictures; the BYU proposal sought use of full-
length works. The proposals addressed several uses of motion pictures 
that proponents contended are noninfringing and that they argued are 
adversely affected by TPMs. NTIA supported the proposed exemption, but 
proposed some amendments to the text.
    Opponents argued that the proposed changes were unwarranted or 
unnecessary. The Motion Picture Association, the Alliance for Recorded 
Music, and the Entertainment Software Association (collectively, 
``Joint Creators'') and the DVD Copy Control Association (``DVD CCA'') 
and the Advanced Access Content System Licensing Administrator, LLC 
(``AACS LA'') argued that screen capture technology has improved and 
remains an adequate alternative in some circumstances. Joint Creators 
also argued that the Joint Educators' proposal to expand the exemption 
to ``educators and preparers of online learning materials'' could 
permit circumvention by businesses and threaten the market for licensed 
clips. DVD CCA and AACS LA contended that expanding the exemption to 
cover employees of a qualifying MOOC was unnecessary for online 
educators to prepare materials.
    For the reasons detailed in the Register's Recommendation, the 
Register recommended expanding the exemption to permit employees of 
colleges and universities to circumvent at the direction of a faculty 
member for the purpose of teaching a course, and also to cover similar 
uses by both faculty and employees acting at the direction of faculty 
members of accredited nonprofit educational institutions for the 
purposes of offering MOOCs. The Register further recommended retaining 
the screen capture provision in the exemption to anticipate the 
possibility that screen capture technology could be found to involve 
circumvention. The Register concluded that the exemption should not be 
expanded or amended to cover copying for the purpose of performing 
full-length motion pictures for educational purposes; to replace the 
phrase ``short portions'' with ``reasonable and limited portions''; to 
enable circumvention by for-profit and/or unaccredited educational 
companies and organizations; or to cover the broadly defined 
``educators and preparers of online learning materials'' of ``online 
learning platforms.''
2. Proposed Class 3: Audiovisual Works--Accessibility \61\
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    \61\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.C.
---------------------------------------------------------------------------

    Class 3 proponents sought to expand several provisions of the 
current exemption for adding captions or audio description to motion 
pictures for the benefit of students with disabilities. Proponents 
requested expanding the exemption to include faculty and staff with 
disabilities at educational institutions as beneficiaries, explicitly 
permitting reuse of previously remediated materials, allowing for 
proactive remediation in advance of a

[[Page 59633]]

specific request for accessible material, and clarifying the market-
check requirement to encompass only works on the market that are of 
``sufficient quality.'' Joint Creators and DVD CCA & AACS LA filed 
oppositions. NTIA supported the proposed exemption.
    For the reasons discussed in the Register's Recommendation, the 
Register concluded that expanding the exemption to faculty and staff 
with disabilities, allowing reuse of previously remediated material, 
and permitting proactive remediation are likely fair uses because they 
are directed towards adding captions or audio descriptions in 
compliance with disability law, the same purpose found fair in the 
Register's 2018 Recommendation. Additionally, the Register concluded 
that proponents had provided sufficient evidence that they would be 
adversely affected if the exemption were not expanded.
 3. Proposed Class 5: Audiovisual Works--Preservation and Replacement 
\62\
---------------------------------------------------------------------------

    \62\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.E.
---------------------------------------------------------------------------

    Class 5 proponents sought to permit circumvention of TPMs on motion 
pictures (including television shows and videos) stored on DVDs or Blu-
ray discs that are no longer reasonably available in the marketplace to 
enable libraries, archives, and museums to make preservation and 
replacement copies of those works. The proposed exemption would permit 
qualifying institutions to make copies of discs that are damaged or 
deteriorating, as well as discs that have not yet begun to deteriorate; 
to make physical or digital copies of the motion pictures; and to make 
any digital copies available outside the premises of the institution. 
NTIA supported the proposed exemption.
    Joint Creators and DVD CCA and AACS LA opposed the exemption, 
arguing that it would enable institutions to space-shift \63\ their 
film collections and launch online streaming services. Opponents 
contended that, should an exemption be granted, it should apply only to 
damaged or deteriorating discs; it should prohibit off-premises access 
to the copied works; and the market check should include a requirement 
that institutions determine if the motion picture is available for 
streaming through a licensed source.
---------------------------------------------------------------------------

    \63\ Space-shifting occurs when a work is transferred from one 
storage medium to another, such as from a DVD to a computer hard 
drive. See 2015 Recommendation at 107.
---------------------------------------------------------------------------

    For the reasons detailed in the Register's Recommendation, the 
Register concluded that it was likely to be a fair use for qualifying 
institutions to copy motion pictures from discs that are damaged or 
deteriorating if the motion pictures on those discs are not reasonably 
available in the marketplace for purchase or streaming. The Register 
concluded that proponents had not demonstrated that providing off-
premises access to the replacement copies of motion pictures is likely 
to be noninfringing. The Register concluded that proponents had 
provided substantial evidence that granting the exemption would benefit 
preservation, education, and scholarship by making available motion 
pictures that might otherwise be lost to history and that the exemption 
is unlikely to adversely affect the market for or value of the motion 
pictures.
 4. Proposed Classes 7(a): Motion Pictures and 7(b): Literary Works--
Text and Data Mining \64\
---------------------------------------------------------------------------

    \64\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.G.
---------------------------------------------------------------------------

    Authors Alliance, the American Association of University 
Professors, and LCA jointly filed a petition proposing Classes 7(a) and 
7(b), seeking to permit circumvention of TPMs on motion pictures and 
literary works stored on DVDs or Blu-ray discs or made available for 
digital download to enable researchers to perform text and data mining 
(``TDM'') techniques for the purpose of scholarly research and 
teaching. Proponents argued that copying literary works and motion 
pictures to create large collections on which to perform TDM research 
is a fair use, and that requirements to use security measures to 
protect the corpora from public access or further distribution should 
afford qualifying institutions flexibility to tailor the measures to 
the size and content of the corpus. NTIA supported the proposed 
exemptions.
    Joint Creators and DVD CCA and AACS LA opposed the proposed 
exemption for class 7(a), and the American Association for Publishers 
(``AAP'') and the Software and Information Industry Association opposed 
the proposed exemption for class 7(b). They argued that TDM research 
would interfere with the licensing market for collections of literary 
works and motion pictures and that researchers' ability to view the 
entirety of the works in a corpus would create a risk of substitutional 
use. They also argued that any exemption must require specific, robust 
security measures.
    As discussed in greater detail in the Register's Recommendation, 
the Register found that the prohibition on circumvention adversely 
affects researchers' ability to conduct TDM research projects, which 
are likely to be noninfringing with the addition of several 
limitations. Most importantly, the Register recommended requiring the 
institution of higher education storing or hosting a corpus of 
copyrighted works to implement either security measures that have been 
agreed upon by copyright owners and institutions of higher education, 
or, in the absence of such measures, those measures that the 
institution uses to keep its own highly confidential information 
secure. The Register also recommended adding a limitation that the 
person undertaking the circumvention view or listen to the contents of 
the copyrighted works in the corpus solely for the purpose of 
verification of the research findings, not for the works' expressive 
purposes. The Register concluded that existing alternatives to 
circumvention do not meet researchers' needs.
 5. Proposed Class 8: Literary Works--Accessibility \65\
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    \65\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.H.
---------------------------------------------------------------------------

    Class 8 proponents sought to modify the current exemption for e-
book accessibility to align with recent changes to the Copyright Act as 
a result of the Marrakesh Treaty Implementation Act. Proponents 
requested expanding the class of beneficiaries to ``eligible persons'' 
as defined in section 121 of the Copyright Act, expanding the exemption 
to cover previously published musical works, and replacing references 
to a ``mainstream copy'' in the remuneration requirement with the term 
``inaccessible copy.'' Proponents also sought guidance on whether 
import and export activity under section 121A was implicated by the 
prohibition on circumvention. Joint Creators stated that they did not 
oppose the exemption to the extent it is consistent with sections 121 
and 121A. AAP filed a reply comment in support of this class, and NTIA 
supported the proposed exemption.
    For the reasons discussed in the Register's Recommendation, the 
Register concluded that without the proposed modifications, print-
disabled

[[Page 59634]]

individuals would be adversely affected in their ability to engage in 
the proposed noninfringing uses. The Register also determined that 
replacement of the reference to a ``mainstream copy'' with an 
``inaccessible copy'' is a non-substantive change. Finally, the 
Register declined to recommend language regarding import and export of 
accessible works because the record did not indicate that such activity 
implicates the prohibition on circumvention. Proponents and Joint 
Creators filed a joint post-hearing submission proposing regulatory 
language that excludes sound recordings of performances of musical 
works from the exemption, which the Register recommended including.
 6. Proposed Class 9: Literary Works--Medical Device Data \66\
---------------------------------------------------------------------------

    \66\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.I.
---------------------------------------------------------------------------

    Class 9 proponents sought to expand several provisions of the 
current exemption that permits the circumvention of TPMs on medical 
devices to access their data outputs. Proponents filed a petition 
seeking to eliminate the current limitation of the exemption to 
``wholly or partially implanted'' devices; permit authorized third 
parties to perform the circumvention on behalf of a patient; extend the 
exemption to non-passive monitoring; and remove the condition that 
circumvention not violate other applicable laws. ACT [verbar] The App 
Association opposed the proposed exemption. NTIA supported adopting the 
proposed exemption, with some modification.
    For the reasons detailed in the Register's Recommendation, the 
Register concluded that accessing medical data outputs likely qualifies 
as a fair use and that expanding the exemption to include non-implanted 
medical devices and non-passive monitoring would not alter the fair use 
analysis. Additionally, the Register concluded that proponents set 
forth sufficient evidence that the ``wholly or partially implanted'' 
language and the passive monitoring limitation are causing, or are 
likely to cause, adverse effects on these noninfringing uses. The 
Register also recommended expanding the exemption to permit 
circumvention ``by or on behalf of a patient.'' After consultation with 
the U.S. Food and Drug Administration, the Register recommended 
removing the language requiring compliance with other laws, and 
replacing it with a statement that eligibility for the exemption does 
not preclude liability from other applicable laws.
 7. Proposed Class 10: Computer Programs--Unlocking \67\
---------------------------------------------------------------------------

    \67\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.J.
---------------------------------------------------------------------------

    ISRI petitioned to expand the existing exemption for unlocking to 
either (1) add a new device category for laptop computers or (2) remove 
enumerated device categories from the current exemption and permit 
unlocking of all wireless devices. It argued that the proposed uses are 
noninfringing based on the Register's previous findings that unlocking 
of certain types of devices is a fair use, contending that the legal 
analysis does not differ depending on the type of device that is 
unlocked. The only opposition comment was filed by MEMA, which opposed 
expanding the exemption to permit unlocking cellular-enabled vehicles. 
NTIA supported expanding the exemption to permit unlocking all 
lawfully-acquired devices.
    For the reasons discussed in the Register's Recommendation, the 
Register concluded that proponents established that unlocking is likely 
to be a fair use regardless of the type of device involved. Proponents 
offered unrebutted evidence that many different types of wireless 
devices share the same wireless modem. Because the Register concluded 
that unlocking those modems is likely a fair use, she determined that 
users of these devices experience the same adverse effects from the 
prohibition on circumvention.
 8. Proposed Class 11: Computer Programs--Jailbreaking \68\
---------------------------------------------------------------------------

    \68\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.K.
---------------------------------------------------------------------------

    Two petitions were filed for new or expanded exemptions relating to 
the circumvention of computer programs for jailbreaking purposes. EFF 
filed a petition seeking to clarify and expand the current exemption 
pertaining to jailbreaking smart TVs to include video streaming 
devices. SFC filed a petition for a new exemption to allow jailbreaking 
of routers and other networking devices to enable the installation of 
alternative firmware. ACT [verbar] The App Association, DVD CCA and 
AACS LA, and Joint Creators opposed this proposed class. NTIA supported 
adopting both proposed exemptions.
    In supporting comments, EFF clarified that its proposed exemption 
would cover devices whose primary purpose is to run applications that 
stream video from the internet for display on a screen, and would not 
extend to DVD or Blu-ray players or video game consoles. The Register 
concluded that jailbreaking video streaming devices likely constitutes 
a fair use. Additionally, the Register concluded that the prohibition 
on circumvention is likely to adversely affect proponents' ability to 
engage in such activities. She recommended that the regulatory language 
contain certain limitations to address opponents' concerns over 
potential market harm.
    With respect to SFC's petition, the Register concluded that 
jailbreaking routers and other networking devices is likely to qualify 
as a fair use. Additionally, the Register concluded that the 
prohibition on circumvention is likely to prevent users from installing 
free and open source software (``FOSS'') on routers and other 
networking devices and that there are no viable alternatives to 
circumvention to accomplish that purpose.
 9. Proposed Class 12: Computer Programs--Repair \69\
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    \69\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.L.
---------------------------------------------------------------------------

    Several organizations submitted petitions for new or expanded 
exemptions relating to the diagnosis, maintenance, repair, and 
modification of software-enabled devices. EFF and, jointly, iFixit and 
the Repair Association filed petitions seeking to merge and expand the 
two existing exemptions to cover all devices and vehicles and permit 
``modification'' of all devices. Opponents objected that the proposed 
expansion to cover all devices was overbroad and that proponents failed 
to develop a record demonstrating sufficient commonalities among the 
various types of software-enabled devices. In addition, they argued 
that specific types of devices for which circumvention of TPMs raises 
piracy and safety concerns should be excluded from the proposed class. 
Opponents also contended that the term ``modification'' is so broad 
that it could implicate infringing activities, including violating 
copyright owners' exclusive right to prepare derivative works.
    Separately, Public Knowledge and iFixit jointly petitioned for an 
exemption to repair optical drives in video game consoles and to 
replace damaged hardware in such devices. They asserted that authorized 
repair services are inadequate, particularly for

[[Page 59635]]

certain legacy consoles that manufacturers no longer support. Opponents 
argued that the proposed exemption would create a risk of market harm 
for these devices and that adequate alternatives to circumvention 
exist.
    NTIA recommended expanding the current exemptions by merging them 
into a single exemption that would permit circumvention for the 
diagnosis, maintenance, and repair of all software-enabled devices, 
machines, and systems. In addition, NTIA recommended allowing ``lawful 
modification that is necessary for a repair or maintenance'' and 
software modifications relating to device functionality.
    For the reasons discussed in the Register's Recommendation, the 
Register recommended expanding the existing exemption for diagnosis, 
maintenance, and repair of certain categories of devices to cover any 
software-enabled device that is primarily designed for use by 
consumers. For video game consoles, the Register concluded that an 
exemption is warranted solely for the repair of optical drives.
    The proposals to merge the two existing repair exemptions would 
also effectively broaden the existing vehicle exemption by: (1) No 
longer limiting the class to ``motorized land vehicles''; and (2) 
removing other limitations in the exemption, including that users 
comply with other laws. Opponents did not object to including marine 
vessels in the vehicle exemption, but opposed removing language 
requiring compliance with other laws. For the reasons discussed in the 
Register's Recommendation, the Register recommended that the exemption 
for land vehicles be expanded to cover marine vessels and to remove the 
condition requiring compliance with other laws.
    Finally, Summit Imaging, Inc. and Transtate Equipment Co., Inc. 
petitioned to exempt circumvention of TPMs on software-enabled medical 
devices and systems for purposes of diagnosis, maintenance, and repair. 
Petitioners also sought access to related data files stored on medical 
devices and systems, including manuals and servicing materials. 
Opponents argued that this exemption is unnecessary because adequate 
authorized repair services are available. They also contended that the 
proposed uses are commercial in nature, would harm the market for 
medical devices and systems, may undermine patient safety and create 
cybersecurity risks, and would interfere with manufacturers' regulatory 
compliance obligations. For the reasons discussed in the Register's 
Recommendation, the Register recommended a new exemption allowing 
circumvention of TPMs restricting access to firmware and related data 
files on medical devices and systems for the purposes of diagnosis, 
maintenance, and repair.
10. Proposed Class 13: Computer Programs--Security Research \70\
---------------------------------------------------------------------------

    \70\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.M.
---------------------------------------------------------------------------

    Two petitions sought to expand the current exemption that permits 
circumvention of TPMs on computer programs for good-faith security 
research. Together, the petitions sought to eliminate several 
limitations within the exemption and to explicitly extend the exemption 
to privacy research. Proponents generally argued that the limitations 
have chilled valuable security research, primarily by creating 
uncertainty about whether conducting or reporting security research 
could result in liability under section 1201. Six parties opposed class 
13 at least in part; they argued that the existing exemption has 
sufficiently enabled good-faith security research and that the record 
did not justify removing the limitations. NTIA supported the 
elimination of several limitations, but did not recommend modifying the 
existing exemption to address privacy-related research activities 
explicitly.
    For the reasons discussed in the Register's Recommendation, the 
Register concluded that because the exemption is broadly defined and is 
not limited to specific issues or subjects relating to security flaws 
or vulnerabilities, expanding it to expressly cover privacy research is 
unnecessary. Regarding the specific limitations, the Register 
recommended removing the condition that circumvention not violate 
``other laws'' and instead clarifying that the exemption does not 
provide a safe harbor from liability under other laws. The Department 
of Justice submitted comments supporting this change. The Register 
declined to recommend removal of limitations pertaining to access to 
and use of computer programs, finding a lack of specific evidence 
establishing adverse effects resulting from those provisions. The 
Register also did not recommend removal of the requirement that devices 
be lawfully acquired.
11. Proposed Class 14(a): Computer Programs and 14(b) Video Games--
Preservation \71\
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    \71\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.N.
---------------------------------------------------------------------------

    Proposed Classes 14(a) and 14(b) seek to amend the existing 
exemptions permitting libraries, archives, and museums to circumvent 
TPMs on computer programs and video games, respectively, for the 
purpose of preservation activities. Specifically, proponents seek to 
remove the requirement that the preserved computer program or video 
game must not be distributed or made available outside of the physical 
premises of the institution. Proposed Class 14(b) would also 
incorporate the current eligibility requirements for the software 
preservation exemption into the video game preservation exemption.
    Proponents argued that enabling remote access to the works is 
likely to be a fair use, based in part on a general federal policy 
favoring remote access to preservation materials, as reflected in 
various provisions of the Copyright Act. They also argued that the 
proposed uses would not affect the potential market for or value of the 
copyrighted works because only works that are no longer reasonably 
available in the commercial marketplace would be subject to the 
exemption. NTIA supported the removal of the premises limitation in 
both exemptions.
    Joint Creators and the Entertainment Software Association opposed 
removing the premises limitation, with most arguments directed to the 
video game class. They expressed concern that, because the proposed 
exemption did not limit beneficiaries of the exemption to authenticated 
educators or researchers, if preserved video games were made available 
outside the premises of an institution, they would become accessible to 
the general public, thereby adversely affecting the existing market for 
older video games.
    For the reasons discussed in the Register's Recommendation, the 
Register concluded that off-premises access to software as described in 
the proposal is likely to be noninfringing, with the limitation that 
the work be accessible to only one user at a time and for a limited 
time. With respect to video games, the Register concluded that 
proponents failed to carry their burden to show that the uses are 
likely noninfringing, and noted the greater risk of market harm in this 
context given the market for legacy video games. The Register therefore 
recommends that the Librarian amend

[[Page 59636]]

the exemption for Class 14(a) to address the eligibility requirements 
for libraries, archives, and museums, but not to remove the premises 
limitation. The Register recommends removing the premises limitation in 
the exemption for Class 14(a).
 12. Proposed Class 15: Computer Programs--3D Printing \72\
---------------------------------------------------------------------------

    \72\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.O.
---------------------------------------------------------------------------

    Class 15 seeks to expand two provisions of the current exemption 
that permits the circumvention of access controls on computer programs 
in 3D printers to enable the use of non-manufacturer approved 
feedstock. Michael Weinberg filed a petition to replace the term 
``feedstock'' with the term ``material,'' stating that the latter is 
more commonly used within the industry and that the two terms are 
interchangeable. Additionally, Mr. Weinberg sought to eliminate the 
phrase ``microchip-reliant'' from the exemption, arguing that 3D 
printers may use technology other than microchips to verify 3D printing 
materials. Mr. Weinberg provided evidence that manufacturers are 
increasingly moving beyond microchip-based verification techniques, 
such as using optical scanners. No parties opposed proposed class 15. 
NTIA supported the proposed exemption.
    For the reasons discussed in greater detail in the Register's 
Recommendation, the Register concluded that changing the word 
``feedstock'' to ``material'' is not a substantive change, and found 
that the removal of the term ``microchip-reliant'' does not alter the 
fair use analysis because the expansion is directed at the same uses 
the Office previously concluded were fair.
 13. Proposed Class 16: Computer Programs--Copyright License 
Investigation \73\
---------------------------------------------------------------------------

    \73\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.P.
---------------------------------------------------------------------------

    SFC petitioned for a new exemption that would permit investigating 
whether a particular computer program includes FOSS, and if so, whether 
the use of the program complies with applicable license terms. SFC, 
supported by the Free Software Foundation, subsequently agreed to add 
limitations to require that the circumvention be undertaken on a 
lawfully acquired device or machine; that it be solely for the purpose 
of investigating potential copyright infringement; that it be performed 
by, or at the direction of, a party that has standing to bring a breach 
of license claim; and that it otherwise comply with applicable law. 
NTIA supported the proposed exemption as modified.
    Opponents--DVD CCA and AACS LA; the Equipment Dealers Association, 
and its regional affiliates, and Associated Equipment Distributors; 
Joint Creators; and Marcia Wilbur--argued that FOSS licensors could 
obtain the information they seek by other means. They objected to 
application of the proposed exemption to a broad category of devices, 
and requested exclusion of DVD and Blu-ray players, video game 
consoles, set-top boxes, and vehicles. They argued that any exemption 
should be limited to investigating potential violations of FOSS 
licenses, rather than infringement of any proprietary software, and 
that the investigation must be based on a good-faith, reasonable belief 
that the device may violate FOSS license terms. Finally, opponents 
expressed concerns about devices being left exposed to piracy or 
unauthorized access after circumvention.
    For the reasons discussed in the Register's Recommendation, the 
Register recommended adopting an exemption with several limitations. 
First, the purpose of the investigation must be limited to 
investigating whether a computer program potentially infringes FOSS, 
and the user must have a good-faith, reasonable belief in the need for 
the investigation. Second, circumvention must be undertaken by, or at 
the direction of, a party that would have standing to bring either a 
breach of license claim or a copyright infringement claim. Third, the 
copy of a computer program made pursuant to the exemption, or the 
device or machine on which it operates, cannot be used in a manner that 
facilitates copyright infringement. Finally, video game consoles should 
be excluded from the types of devices on which TPMs may be 
circumvented.
 14. Proposed Class 17: All Works--Accessibility Uses \74\
---------------------------------------------------------------------------

    \74\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.Q.
---------------------------------------------------------------------------

    Petitioners, a coalition of accessibility groups, requested a new 
exemption to create accessible versions of any copyrighted works that 
are inaccessible to individuals with disabilities. They argued that the 
Librarian has the authority to define a class of works that share the 
attribute of being inaccessible to individuals with disabilities and 
that creating accessible versions of inaccessible works is 
unquestionably a fair use. Proponents argued that a broad exemption is 
warranted to prevent individuals with disabilities from being forced to 
make piecemeal requests every three years when new accessibility issues 
arise. NTIA supported the proposed exemption.
    Joint Creators, DVD CCA and AACS LA, and AAP filed comments 
opposing the proposed exemption, focusing primarily on the ground that 
the statute does not give the Librarian the authority to adopt a class 
consisting of ``all works'' sharing a particular attribute. Joint 
Creators also raised concerns about the lack of limitations on the use 
of copies, such as prohibiting further distribution to individuals 
without disabilities.
    As discussed in greater detail in the Register's Recommendation, 
although the Register supports the policy goals that underpin the 
proposed exemption, the statute requires proponents to provide evidence 
of actual or likely adverse effects resulting from the prohibition on 
circumvention with respect to ``particular class[es]'' of works. Here, 
the Register determined that proponents submitted insufficient evidence 
of such adverse effects as to most types of works. Proponents did, 
however, provide evidence to support an exemption to enable individuals 
with disabilities to use alternate input devices to play video games.

C. Classes Considered but Not Recommended

    Based upon the record in this proceeding, the Register recommended 
that the Librarian determine that the following classes of works shall 
not be exempt during the next three-year period from the prohibition 
against circumvention of technological measures set forth in section 
1201(a)(1):
 1. Proposed Class 2: Audiovisual Works--Texting \75\
---------------------------------------------------------------------------

    \75\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.B.
---------------------------------------------------------------------------

    Proposed Class 2 would allow circumvention of technological 
measures protecting motion pictures and other audiovisual works to 
create short audiovisual clips for expressive purposes in text 
messages. Petitioner did not provide legal arguments or evidence in 
support of its petition and did not participate in the public hearings. 
Petitioner failed to explain how the proposed uses were noninfringing 
and why an exemption is

[[Page 59637]]

necessary. NTIA recommended denying the proposed exemption. As 
discussed more fully in the Register's Recommendation, due to the de 
minimis showing provided by proponents, the Register does not recommend 
the adoption of an exemption for proposed Class 2.
 2. Proposed Class 4: Audiovisual Works--Livestream Recording \76\
---------------------------------------------------------------------------

    \76\ The Register's analysis and conclusions for these classes, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.D.
---------------------------------------------------------------------------

    Proposed Class 4 would allow circumvention of HTTP Live Streaming 
technology for the purpose of recording audiovisual works originating 
as livestreams. Petitioner did not provide legal arguments or evidence 
to support its petition and did not participate in the public hearings. 
Petitioner first described the exemption as encompassing sports and 
other competitive events, but elsewhere stated that the class includes 
``any and all works'' where audiovisual recordings may be made, 
including individual school performances. NTIA recommended denying the 
proposed exemption. As discussed more fully in the Register's 
Recommendation, the Register does not recommend the adoption of an 
exemption for proposed Class 4.
 3. Proposed Class 6: Audiovisual Works--Space-Shifting \77\
---------------------------------------------------------------------------

    \77\ The Register's analysis and conclusions for this class, 
including citations to the record and relevant legal authority, can 
be found in the Register's Recommendation at V.F.
---------------------------------------------------------------------------

    Proposed Class 6 would allow circumvention of TPMs protecting 
motion pictures and other audiovisual works to engage in space-
shifting. Petitioner failed to provide legal arguments or evidence to 
demonstrate that space-shifting is a noninfringing use. Additionally, 
petitioner did not participate in the public hearings to support its 
petition or clarify whether the proposed exemption would extend to 
commercial services. Opponents argued that petitioner did not provide 
the evidence necessary to support an exemption, citing several 
substantive and procedural deficiencies. NTIA recommended denying the 
proposed exemption. As discussed more fully in the Register's 
Recommendation, the Register does not recommend the adoption of an 
exemption for proposed Class 6.

D. Conclusion

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

    Dated: October 20, 2021.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.

Determination of the Librarian of Congress

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

List of Subjects in 37 CFR Part 201

    Copyright, Exemptions to prohibition against circumvention.

Final Regulations

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

PART 201--GENERAL PROVISIONS

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

    Authority:  17 U.S.C. 702.

0
2. Section 201.40 is amended by revising paragraph (b) to read as 
follows:


Sec.  201.40  Exemption to prohibition against circumvention.

* * * * *
    (b) Classes of copyrighted works. Pursuant to the authority set 
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation 
of the Register of Copyrights, the Librarian has determined that the 
prohibition against circumvention of technological measures that 
effectively control access to copyrighted works set forth in 17 U.S.C. 
1201(a)(1)(A) shall not apply to persons who engage in noninfringing 
uses of the following classes of copyrighted works:
    (1) Motion pictures (including television shows and videos), as 
defined in 17 U.S.C. 101, where the motion picture is lawfully made and 
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Content System, or via a 
digital transmission protected by a technological measure, and the 
person engaging in circumvention under paragraphs (b)(1)(i) and 
(b)(1)(ii)(A) and (B) of this section reasonably believes that non-
circumventing alternatives are unable to produce the required level of 
high-quality content, or the circumvention is undertaken using screen-
capture technology that appears to be offered to the public as enabling 
the reproduction of motion pictures after content has been lawfully 
acquired and decrypted, where circumvention is undertaken solely in 
order to make use of short portions of the motion pictures in the 
following instances:
    (i) For the purpose of criticism or comment:
    (A) For use in documentary filmmaking, or other films where the 
motion picture clip is used in parody or for its biographical or 
historically significant nature;
    (B) For use in noncommercial videos (including videos produced for 
a paid commission if the commissioning entity's use is noncommercial); 
or
    (C) For use in nonfiction multimedia e-books.
    (ii) For educational purposes:
    (A) By college and university faculty and students or kindergarten 
through twelfth-grade (K-12) educators and students (where the K-12 
student is circumventing under the direct supervision of an educator), 
or employees acting at the direction of faculty of such educational 
institutions for the purpose of teaching a course, including of 
accredited general educational development (GED) programs, for the 
purpose of criticism, comment, teaching, or scholarship;
    (B) By faculty of accredited nonprofit educational institutions and 
employees acting at the direction of faculty members of those 
institutions, for purposes of offering massive open online courses 
(MOOCs) to officially enrolled students through online platforms (which 
platforms themselves may be operated for profit), in film studies or 
other courses requiring close analysis of film and media excerpts, for 
the purpose of criticism or comment, where the MOOC provider through 
the online platform limits transmissions to the extent technologically 
feasible to such officially enrolled students, institutes copyright 
policies and provides copyright informational materials to faculty, 
students, and relevant staff members, and applies technological 
measures that reasonably

[[Page 59638]]

prevent unauthorized further dissemination of a work in accessible form 
to others or retention of the work for longer than the course session 
by recipients of a transmission through the platform, as contemplated 
by 17 U.S.C. 110(2); or
    (C) By educators and participants in nonprofit digital and media 
literacy programs offered by libraries, museums, and other nonprofit 
entities with an educational mission, in the course of face-to-face 
instructional activities, for the purpose of criticism or comment, 
except that such users may only circumvent using screen-capture 
technology that appears to be offered to the public as enabling the 
reproduction of motion pictures after content has been lawfully 
acquired and decrypted.
    (2)(i) Motion 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, on a Blu-ray disc 
protected by the Advanced Access Content System, or via a digital 
transmission protected by a technological measure, where:
    (A) 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 for the purpose of adding 
captions and/or audio description to a motion picture to create an 
accessible version for students, faculty, or staff with disabilities;
    (B) The educational institution unit in paragraph (b)(2)(i)(A) of 
this section has a reasonable belief that the motion picture will be 
used for a specific future activity of the institution and, after a 
reasonable effort, has determined that an accessible version of 
sufficient quality cannot be obtained at a fair market price or in a 
timely manner, including where a copyright holder has not provided an 
accessible version of a motion picture that was included with a 
textbook; and
    (C) 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.
    (ii) For purposes of paragraph (b)(2) of this section,
    (A) ``Audio description'' means an oral narration that provides an 
accurate rendering of the motion picture;
    (B) ``Accessible version of sufficient quality'' means a version 
that in the reasonable judgment of the educational institution unit has 
captions and/or audio description that are sufficient to meet the 
accessibility needs of students, faculty, or staff with disabilities 
and are substantially free of errors that would materially interfere 
with those needs; and
    (C) Accessible materials created pursuant to this exemption and 
stored pursuant to paragraph (b)(2)(i)(C) of this section may be reused 
by the educational institution unit to meet the accessibility needs of 
students, faculty, or staff with disabilities pursuant to paragraphs 
(b)(2)(i)(A) and (B) of this section.
    (3)(i) Motion 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, solely for the purpose 
of lawful preservation or the creation of a replacement copy of the 
motion picture, by an eligible library, archives, or museum, where:
    (A) Such activity is carried out without any purpose of direct or 
indirect commercial advantage;
    (B) The DVD or Blu-ray disc is damaged or deteriorating;
    (C) The eligible institution, after a reasonable effort, has 
determined that an unused and undamaged replacement copy cannot be 
obtained at a fair price and that no streaming service, download 
service, or on-demand cable and satellite service makes the motion 
picture available to libraries, archives, and museums at a fair price; 
and
    (D) The preservation or replacement copies are not distributed or 
made available outside of the physical premises of the eligible 
library, archives, or museum.
    (ii) For purposes of paragraph (b)(3)(i) of this section, a 
library, archives, or museum is considered ``eligible'' if--
    (A) The collections of the library, archives, or museum are open to 
the public and/or are routinely made available to researchers who are 
not affiliated with the library, archives, or museum;
    (B) The library, archives, or museum has a public service mission;
    (C) The library, archives, or museum's trained staff or volunteers 
provide professional services normally associated with libraries, 
archives, or museums;
    (D) The collections of the library, archives, or museum are 
composed of lawfully acquired and/or licensed materials; and
    (E) The library, archives, or museum implements reasonable digital 
security measures as appropriate for the activities permitted by 
paragraph (b)(3)(i) of this section.
    (4)(i) Motion pictures, as defined in 17 U.S.C. 101, where the 
motion picture is on a DVD protected by the Content Scramble System, on 
a Blu-ray disc protected by the Advanced Access Content System, or made 
available for digital download where:
    (A) The circumvention is undertaken by a researcher affiliated with 
a nonprofit institution of higher education, or by a student or 
information technology staff member of the institution at the direction 
of such researcher, solely to deploy text and data mining techniques on 
a corpus of motion pictures for the purpose of scholarly research and 
teaching;
    (B) The copy of each motion picture is lawfully acquired and owned 
by the institution, or licensed to the institution without a time 
limitation on access;
    (C) The person undertaking the circumvention views or listens to 
the contents of the motion pictures in the corpus solely for the 
purpose of verification of the research findings; and
    (D) The institution uses effective security measures to prevent 
further dissemination or downloading of motion pictures in the corpus, 
and to limit access to only the persons identified in paragraph 
(b)(4)(i)(A) of this section or to researchers affiliated with other 
institutions of higher education solely for purposes of collaboration 
or replication of the research.
    (ii) For purposes of paragraph (b)(4)(i) of this section:
    (A) An institution of higher education is defined as one that:
    (1) Admits regular students who have a certificate of graduation 
from a secondary school or the equivalent of such a certificate;
    (2) Is legally authorized to provide a postsecondary education 
program;
    (3) Awards a bachelor's degree or provides not less than a two-year 
program acceptable towards such a degree;
    (4) Is a public or other nonprofit institution; and
    (5) Is accredited by a nationally recognized accrediting agency or 
association.
    (B) The term ``effective security measures'' means security 
measures that have been agreed to by interested copyright owners of 
motion pictures and institutions of higher education; or, in the 
absence of such measures, those measures that the institution uses to 
keep its own highly confidential information secure. If the institution 
uses the security measures it uses to protect its own highly 
confidential

[[Page 59639]]

information, it must, upon a reasonable request from a copyright owner 
whose work is contained in the corpus, provide information to that 
copyright owner regarding the nature of such measures.
    (5)(i) Literary works, excluding computer programs and compilations 
that were compiled specifically for text and data mining purposes, 
distributed electronically where:
    (A) The circumvention is undertaken by a researcher affiliated with 
a nonprofit institution of higher education, or by a student or 
information technology staff member of the institution at the direction 
of such researcher, solely to deploy text and data mining techniques on 
a corpus of literary works for the purpose of scholarly research and 
teaching;
    (B) The copy of each literary work is lawfully acquired and owned 
by the institution, or licensed to the institution without a time 
limitation on access;
    (C) The person undertaking the circumvention views the contents of 
the literary works in the corpus solely for the purpose of verification 
of the research findings; and
    (D) The institution uses effective security measures to prevent 
further dissemination or downloading of literary works in the corpus, 
and to limit access to only the persons identified in paragraph 
(b)(5)(i)(A) of this section or to researchers or to researchers 
affiliated with other institutions of higher education solely for 
purposes of collaboration or replication of the research.
    (ii) For purposes of paragraph (b)(5)(i) of this section:
    (A) An institution of higher education is defined as one that:
    (1) Admits regular students who have a certificate of graduation 
from a secondary school or the equivalent of such a certificate;
    (2) Is legally authorized to provide a postsecondary education 
program;
    (3) Awards a bachelor's degree or provides not less than a two-year 
program acceptable towards such a degree;
    (4) Is a public or other nonprofit institution; and
    (5) Is accredited by a nationally recognized accrediting agency or 
association.
    (B) The term ``effective security measures'' means security 
measures that have been agreed to by interested copyright owners of 
literary works and institutions of higher education; or, in the absence 
of such measures, those measures that the institution uses to keep its 
own highly confidential information secure. If the institution uses the 
security measures it uses to protect its own highly confidential 
information, it must, upon a reasonable request from a copyright owner 
whose work is contained in the corpus, provide information to that 
copyright owner regarding the nature of such measures.
    (6)(i) Literary works or previously published musical works that 
have been fixed in the form of text or notation, 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:
    (A) When a copy or phonorecord of such a work is lawfully obtained 
by an eligible person, as such a person is defined in 17 U.S.C. 121; 
provided, however, that the rights owner is remunerated, as 
appropriate, for the market price of an inaccessible copy of the work 
as made available to the general public through customary channels; or
    (B) When such a work is lawfully obtained and used by an authorized 
entity pursuant to 17 U.S.C. 121.
    (ii) For the purposes of paragraph (b)(6)(i) of this section, a 
``phonorecord of such a work'' does not include a sound recording of a 
performance of a musical work unless and only to the extent the 
recording is included as part of an audiobook or e-book.
    (7) Literary works consisting of compilations of data generated by 
medical devices or by their personal corresponding monitoring systems, 
where such circumvention is undertaken by or on behalf of a patient for 
the sole purpose of lawfully accessing data generated by a patient's 
own medical device or monitoring system. Eligibility for this exemption 
is not a safe harbor from, or defense to, liability under other 
applicable laws, including without limitation the Health Insurance 
Portability and Accountability Act of 1996, the Computer Fraud and 
Abuse Act of 1986, or regulations of the Food and Drug Administration.
    (8) Computer programs that enable wireless devices to connect to a 
wireless telecommunications network, when circumvention is undertaken 
solely in order to connect to a wireless telecommunications network and 
such connection is authorized by the operator of such network.
    (9) Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained software 
applications, where circumvention is accomplished for the sole purpose 
of enabling interoperability of such applications with computer 
programs on the smartphone or device, or to permit removal of software 
from the smartphone or device. For purposes of this paragraph (b)(9), a 
``portable all-purpose mobile computing device'' is a device that is 
primarily designed to run a wide variety of programs rather than for 
consumption of a particular type of media content, is equipped with an 
operating system primarily designed for mobile use, and is intended to 
be carried or worn by an individual.
    (10) Computer programs that enable smart televisions to execute 
lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the smart television, and is not 
accomplished for the purpose of gaining unauthorized access to other 
copyrighted works. For purposes of this paragraph (b)(10), ``smart 
televisions'' includes both internet-enabled televisions, as well as 
devices that are physically separate from a television and whose 
primary purpose is to run software applications that stream authorized 
video from the internet for display on a screen.
    (11) Computer programs that enable voice assistant devices to 
execute lawfully obtained software applications, where circumvention is 
accomplished for the sole purpose of enabling interoperability of such 
applications with computer programs on the device, or to permit removal 
of software from the device, and is not accomplished for the purpose of 
gaining unauthorized access to other copyrighted works. For purposes of 
this paragraph (b)(11), a ``voice assistant device'' is a device that 
is primarily designed to run a wide variety of programs rather than for 
consumption of a particular type of media content, is designed to take 
user input primarily by voice, and is designed to be installed in a 
home or office.
    (12) Computer programs that enable routers and dedicated network 
devices to execute lawfully obtained software applications, where 
circumvention is accomplished for the sole purpose of enabling 
interoperability of such applications with computer programs on the 
router or dedicated network device, and is not accomplished for the 
purpose of gaining unauthorized access to other copyrighted works. For 
the purposes of this paragraph (b)(12), ``dedicated network device'' 
includes switches, hubs, bridges, gateways, modems, repeaters, and 
access points, and excludes devices that are not lawfully owned.
    (13) Computer programs that are contained in and control the 
functioning

[[Page 59640]]

of a lawfully acquired motorized land vehicle or marine vessel such as 
a personal automobile or boat, commercial vehicle or vessel, or 
mechanized agricultural vehicle or vessel, except for programs accessed 
through a separate subscription service, when circumvention is a 
necessary step to allow the diagnosis, repair, or lawful modification 
of a vehicle or vessel function, where such circumvention is not 
accomplished for the purpose of gaining unauthorized access to other 
copyrighted works. Eligibility for this exemption is not a safe harbor 
from, or defense to, liability under other applicable laws, including 
without limitation regulations promulgated by the Department of 
Transportation or the Environmental Protection Agency.
    (14) Computer programs that are contained in and control the 
functioning of a lawfully acquired device that is primarily designed 
for use by consumers, when circumvention is a necessary step to allow 
the diagnosis, maintenance, or repair of such a device, and is not 
accomplished for the purpose of gaining access to other copyrighted 
works. For purposes of this paragraph (b)(14):
    (i) The ``maintenance'' of a device is the servicing of the device 
in order to make it work in accordance with its original specifications 
and any changes to those specifications authorized for that device; and
    (ii) The ``repair'' of a device is the restoring of the device to 
the state of working in accordance with its original specifications and 
any changes to those specifications authorized for that device. For 
video game consoles, ``repair'' is limited to repair or replacement of 
a console's optical drive and requires restoring any technological 
protection measures that were circumvented or disabled.
    (15) Computer programs that are contained in and control the 
functioning of a lawfully acquired medical device or system, and 
related data files, when circumvention is a necessary step to allow the 
diagnosis, maintenance, or repair of such a device or system. For 
purposes of this paragraph (b)(15):
    (i) The ``maintenance'' of a device or system is the servicing of 
the device or system in order to make it work in accordance with its 
original specifications and any changes to those specifications 
authorized for that device or system; and
    (ii) The ``repair'' of a device or system is the restoring of the 
device or system to the state of working in accordance with its 
original specifications and any changes to those specifications 
authorized for that device or system.
    (16)(i) Computer programs, where the circumvention is undertaken on 
a lawfully acquired device or machine on which the computer program 
operates, or is undertaken on a computer, computer system, or computer 
network on which the computer program operates with the authorization 
of the owner or operator of such computer, computer system, or computer 
network, solely for the purpose of good-faith security research.
    (ii) For purposes of paragraph (b)(16)(i) of this section, ``good-
faith security research'' means accessing a computer program solely for 
purposes of good-faith testing, investigation, and/or correction of a 
security flaw or vulnerability, where such activity is carried out in 
an environment designed to avoid any harm to individuals or the public, 
and where the information derived from the activity is used primarily 
to promote the security or safety of the class of devices or machines 
on which the computer program operates, or those who use such devices 
or machines, and is not used or maintained in a manner that facilitates 
copyright infringement.
    (iii) Good-faith security research that qualifies for the exemption 
under paragraph (b)(16)(i) of this section may nevertheless incur 
liability under other applicable laws, including without limitation the 
Computer Fraud and Abuse Act of 1986, as amended and codified in title 
18, United States Code, and eligibility for that exemption is not a 
safe harbor from, or defense to, liability under other applicable laws.
    (17)(i) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, when the copyright owner or its authorized 
representative has ceased to provide access to an external computer 
server necessary to facilitate an authentication process to enable 
gameplay, solely for the purpose of:
    (A) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game for 
personal, local gameplay on a personal computer or video game console; 
or
    (B) Permitting access to the video game to allow copying and 
modification of the computer program to restore access to the game on a 
personal computer or video game console when necessary to allow 
preservation of the game in a playable form by an eligible library, 
archives, or museum, where such activities are carried out without any 
purpose of direct or indirect commercial advantage and the video game 
is not distributed or made available outside of the physical premises 
of the eligible library, archives, or museum.
    (ii) Video games in the form of computer programs embodied in 
physical or downloaded formats that have been lawfully acquired as 
complete games, that do not require access to an external computer 
server for gameplay, and that are no longer reasonably available in the 
commercial marketplace, solely for the purpose of preservation of the 
game in a playable form by an eligible library, archives, or museum, 
where such activities are carried out without any purpose of direct or 
indirect commercial advantage and the video game is not distributed or 
made available outside of the physical premises of the eligible 
library, archives, or museum.
    (iii) Computer programs used to operate video game consoles solely 
to the extent necessary for an eligible library, archives, or museum to 
engage in the preservation activities described in paragraph 
(b)(17)(i)(B) or (b)(17)(ii) of this section.
    (iv) For purposes of this paragraph (b)(17), the following 
definitions shall apply:
    (A) For purposes of paragraphs (b)(17)(i)(A) and (b)(17)(ii) of 
this section, ``complete games'' means video games that can be played 
by users without accessing or reproducing copyrightable content stored 
or previously stored on an external computer server.
    (B) For purposes of paragraph (b)(17)(i)(B) of this section, 
``complete games'' means video games that meet the definition in 
paragraph (b)(17)(iv)(A) of this section, or that consist of both a 
copy of a game intended for a personal computer or video game console 
and a copy of the game's code that was stored or previously stored on 
an external computer server.
    (C) ``Ceased to provide access'' means that the copyright owner or 
its authorized representative has either issued an affirmative 
statement indicating that external server support for the video game 
has ended and such support is in fact no longer available or, 
alternatively, server support has been discontinued for a period of at 
least six months; provided, however, that server support has not since 
been restored.
    (D) ``Local gameplay'' means gameplay conducted on a personal 
computer or video game console, or locally connected personal computers 
or consoles, and not through an online service or facility.
    (E) A library, archives, or museum is considered ``eligible'' if--

[[Page 59641]]

    (1) The collections of the library, archives, or museum are open to 
the public and/or are routinely made available to researchers who are 
not affiliated with the library, archives, or museum;
    (2) The library, archives, or museum has a public service mission;
    (3) The library, archives, or museum's trained staff or volunteers 
provide professional services normally associated with libraries, 
archives, or museums;
    (4) The collections of the library, archives, or museum are 
composed of lawfully acquired and/or licensed materials; and
    (5) The library, archives, or museum implements reasonable digital 
security measures as appropriate for the activities permitted by this 
paragraph (b)(17).
    (18)(i) Computer programs, except video games, that have been 
lawfully acquired and that are no longer reasonably available in the 
commercial marketplace, solely for the purpose of lawful preservation 
of a computer program, or of digital materials dependent upon a 
computer program as a condition of access, by an eligible library, 
archives, or museum, where such activities are carried out without any 
purpose of direct or indirect commercial advantage. Any electronic 
distribution, display, or performance made outside of the physical 
premises of an eligible library, archives, or museum of works preserved 
under this paragraph may be made to only one user at a time, for a 
limited time, and only where the library, archives, or museum has no 
notice that the copy would be used for any purpose other than private 
study, scholarship, or research.
    (ii) For purposes of the exemption in paragraph (b)(18)(i) of this 
section, a library, archives, or museum is considered ``eligible'' if--
    (A) The collections of the library, archives, or museum are open to 
the public and/or are routinely made available to researchers who are 
not affiliated with the library, archives, or museum;
    (B) The library, archives, or museum has a public service mission;
    (C) The library, archives, or museum's trained staff or volunteers 
provide professional services normally associated with libraries, 
archives, or museums;
    (D) The collections of the library, archives, or museum are 
composed of lawfully acquired and/or licensed materials; and
    (E) The library, archives, or museum implements reasonable digital 
security measures as appropriate for the activities permitted by this 
paragraph (b)(18).
    (19) Computer programs that operate 3D printers that employ 
technological measures to limit the use of material, when circumvention 
is accomplished solely for the purpose of using alternative material 
and not for the purpose of accessing design software, design files, or 
proprietary data.
    (20) Computer programs, solely for the purpose of investigating a 
potential infringement of free and open source computer programs where:
    (i) The circumvention is undertaken on a lawfully acquired device 
or machine other than a video game console, on which the computer 
program operates;
    (ii) The circumvention is performed by, or at the direction of, a 
party that has a good-faith, reasonable belief in the need for the 
investigation and has standing to bring a breach of license or 
copyright infringement claim;
    (iii) Such circumvention does not constitute a violation of 
applicable law; and
    (iv) The copy of the computer program, or the device or machine on 
which it operates, is not used or maintained in a manner that 
facilitates copyright infringement.
    (21) Video games in the form of computer programs, embodied in 
lawfully acquired physical or downloaded formats, and operated on a 
general-purpose computer, where circumvention is undertaken solely for 
the purpose of allowing an individual with a physical disability to use 
software or hardware input methods other than a standard keyboard or 
mouse.
* * * * *

    Dated: October 21, 2021.
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2021-23311 Filed 10-27-21; 8:45 am]
BILLING CODE 1410-30-P