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[FR Doc. 2010-18339 Filed 07/26/2010 at 8:45 am; Publication Date: 07/27/2010]
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 20088]
Exemption to Prohibition on Circumvention of Copyright Protection Systems for
Access Control Technologies
AGENCY:
Copyright Office, Library of Congress.
ACTION:
Final rule.
SUMMARY:
The Librarian of Congress announces that the prohibition against circumvention
of technological measures that effectively control access to copyrighted works
shall not apply to persons who engage in noninfringing uses of six classes of
copyrighted works.
EFFECTIVE DATE:
[date of publication in the Federal Register]
FOR FURTHER INFORMATION CONTACT:
Robert Kasunic, Assistant General Counsel, and David O. Carson, General Counsel,
Copyright GC/I&R, P.O. Box 70400, Washington, D.C. 20024. Telephone: (202)
7078380. Telefax: (202) 7078366.
SUPPLEMENTARY INFORMATION:
In this notice, the Librarian of Congress, upon the recommendation of the
Register of Copyrights, announces that the prohibition against circumvention of
technological measures that effectively control access to copyrighted works
shall not apply to persons who engage in noninfringing uses of six classes of
works. This announcement is the culmination of a rulemaking proceeding commenced
by the Register on October 6, 2008. A more comprehensive statement of the
background and legal requirements of the rulemaking, a discussion of the record
and the Register's analysis may be found in the Register's
memorandum to the Librarian of Congress dated June 11, 2010, which contains the
full explanation of the Register's recommendation. A copy of the
Register's memorandum may be found at http://www.copyright.gov/1201. This
notice summarizes the Register's recommendation, announces the
Librarian's determination, and publishes the regulatory text codifying the
six exempted classes of works.
I. Background
A. Legislative Requirements for Rulemaking Proceeding
The Digital Millennium Copyright Act (DMCA) was enacted to implement certain
provisions of the WIPO Copyright Treaty and WIPO Performances and Phonograms
Treaty. It established a wide range of rules that govern not only copyright
owners in the marketplace for electronic commerce, but also consumers,
manufacturers, distributors, libraries, educators, and online service providers.
It defined whether consumers and businesses may engage in certain conduct, or
use certain devices, in the course of transacting electronic commerce.
Chapter 12 of title 17 of the United States Code prohibits circumvention of
certain technological measures employed by or on behalf of copyright owners to
protect their works (i.e., access controls). Specifically, Section 1201(a)(1)(A)
provides, in part, that no person shall circumvent a technological measure that
effectively controls access to a work protected under this title. In order to
ensure that the public will have continued ability to engage in noninfringing
uses of copyrighted works, such as fair use, subparagraph (B) limits this
prohibition. It provides that the prohibition against circumvention shall not
apply to persons who are users of a copyrighted work which is in a particular
class of works, if such persons are, or are likely to be in the succeeding
threeyear period, adversely affected by virtue of such prohibition in their
ability to make noninfringing uses of that particular class of works under this
title as determined in a rulemaking. The proceeding is conducted by the Register
of Copyrights, who is to provide notice of the rulemaking, seek comments from
the public, consult with the Assistant Secretary for Communications and
Information of the Department of Commerce, and recommend final regulations to
the Librarian of Congress. The regulations, to be issued by the Librarian of
Congress, announce any class of copyrighted works for which the Librarian has
determined, pursuant to the rulemaking conducted under subparagraph (c), that
noninfringing uses by persons who are users of a copyrighted work are, or are
likely to be, adversely affected, and the prohibition contained in subparagraph
(A) shall not apply to such users with respect to such class of works for the
ensuing 3year period. This is the fourth Section 1201 rulemaking.
B. Responsibilities of Register of Copyrights and Librarian of Congress
The primary responsibility of the Register and the Librarian in this rulemaking
proceeding was to assess whether the implementation of access control measures
is diminishing the ability of individuals to use copyrighted works in ways that
are not infringing and to designate any classes of works with respect to which
users have been adversely affected in their ability to make noninfringing uses.
Congress intended that the Register solicit input that would enable
consideration of a broad range of current or likely future adverse impacts. The
statute directs that in conducting the rulemaking, the Register and the
Librarian shall examine:
(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.
These factors to be considered in the rulemaking process require the Register
and the Librarian to carefully balance the availability of works for use, the
effect of the prohibition on particular uses, and the effect of circumvention on
copyrighted works.
C. The Purpose and Focus of the Rulemaking
1. Purpose of the Rulemaking
The task of this rulemaking is to determine whether the availability and use of
access control measures has already diminished or is about to diminish the
ability of the users of any particular classes of copyrighted works to engage in
noninfringing uses of those works similar or analogous to those that the public
had traditionally been able to make prior to the enactment of the DMCA. In
examining the factors set forth in Section 1201(a)(1)(C), the focus is on
whether the implementation of technological protection measures has had an
adverse impact on the ability of users to make lawful uses.
2. The Necessary Showing
Proponents of a class of works have the burden of proof. In order to make a
prima facie case for designation of a class of works, proponents must show by a
preponderance of the evidence that there has been or is likely to be a
substantial adverse effect on noninfringing uses by users of copyrighted works.
De minimis problems, isolated harm or mere inconveniences are insufficient to
provide the necessary showing. Similarly, for proof of likely adverse effects on
noninfringing uses, a proponent must prove by a preponderance of the evidence
that the harm alleged is more likely than not; a proponent may not rely on
speculation alone to sustain a prima facie case of likely adverse effects on
noninfringing uses. It is also necessary to show a causal nexus between the
prohibition on circumvention and the alleged harm.
Proposed classes are reviewed de novo. The existence of a previously designated
class creates no presumption for consideration of a new class, but rather the
proponent of such a class of works must make a prima facie case in each
threeyear period.
3. Determination of Class of Works
The starting point for any definition of a particular class of works in this
rulemaking must be one of the categories of works set forth in section 102 of
the Copyright Act. However, those categories are only a starting point and a
class will generally constitute some subset of a section 102 category. The
determnation of the appropriate scope of a class of works; recommended for
exemption will also take into account the likely adverse effects on
noninfringing uses and the adverse effects that designation of the class may
have on the market for or value of copyrighted works.
While starting with a section 102 category of works, or a subcategory thereof,
the description of a particular classof works ordinarily should be further
refined by reference to other factors that assist in ensuring that the scope of
the class addresses the scope of the harm to noninfringing uses. For example,
the class might be defined in part by reference to the medium on which the works
are distributed, or even to the access control measures applied to them. The
description of a class of works may also be refined, in appropriate cases, by
reference to the type of user who may take advantage of the designation of the
class of works or by reference to the type of use of the work that may be made
pursuant to the designation. The class must be properly tailored not only to
address the harm demonstrated, but also to limit the adverse consequences that
may result from the creation of an exempted class. In every case, the contours
of a class will depend on the unique factual circumstances established in the
rulemaking record on a casebycase basis.
D. Consultation with the Assistant Secretary for Communications and Information
Section 1201(a)(1)(C) requires the Register of Copyrights to consult with the
Assistant Secretary for Communications and Information of the Department of
Commerce (who is also the Administrator of the National Telecommunications and
Information Administration) and report and comment on the views of the Assistant
Secretary (NTIA) when she makes her recommendation to the Librarian of Congress.
In addition to informal consultations throughout the course of the rulemaking
proceeding, NTIA formally communicated its views in letters to the Register on
November 4, 2009, and April 16, 2010. NTIA's views were considered by the
Register in forming her recommendation. A discussion of NTIA's substantive
analysis of particular proposals is presented in the relevant sections of the
Register's recommendation.
II. Solicitation of Public Comments and Hearings
On October 6, 2008, the Register initiated this rulemaking proceeding pursuant
to Section 1201(a)(1)(C) with publication of a Notice of Inquiry. The NOI
requested written comments from all interested parties, including
representatives of copyright owners, educational institutions, libraries and
archives, scholars, researchers, and members of the public.
During the initial comment period that ended on December 2, 2008, the Copyright
Office received nineteen written comments proposing twentyfive classes of works,
all of which were posted on the Office's website. Because some of the
initial comments contained similar or overlapping proposals, the Copyright
Office arranged related classes into groups, and set forth and summarized all
proposed classes in a Notice of Proposed Rulemaking (NPRM) published on December
29, 2008. This NPRM did not present the initial classes in the form of proposed
rule, but merely as a starting point for further consideration.
The NPRM asked interested parties to submit comments providing support,
opposition, clarification, or correction regarding the proposals, and to provide
factual and/or legal arguments in support of their positions. The Copyright
Office received a total of fiftysix responsive comments before the comment
period closed on February 2, 2009, all of which were posted on the Copyright
Office website.
Four days of public hearings were conducted by the Register in May 2009 at
Stanford University and the Library of Congress. Thirtyseven witnesses,
representing proponents and opponents of proposed classes of works, testified on
twentyone proposed classes. Following the hearings, the Copyright Office sent
followup questions to some of the hearing witnesses, and responses were received
during the summer. The entire record in this and the previous section
1201(a)(1)(C) rulemakings are available on the Office's website,
http://www.copyright.gov/1201/index.html.
On October 27, 2009, the Librarian of Congress published in the Federal Register
a Notice of an interim rule, extending the existing classes of works exempted
from the prohibition until the conclusion of the current rulemaking proceeding
and the designation of any classes of works to be exempt from the prohibition
for the ensuing threeyear period by the Librarian of Congress.
III. The Designated Classes
A.Motion pictures on DVDs that are lawfully made and acquired and that are
protected by the Content Scrambling System when circumvention is accomplished
solely in order to accomplish the incorporation of short portions of motion
pictures into new works for the purpose of criticism or comment, and where the
person engaging in circumvention believes and has reasonable grounds for
believing that circumvention is necessary to fulfill the purpose of the use in
the following instances:
&sbull;Educational uses by college and university professors and by college and
university film and media studies students;
* Documentary filmmaking;
* Noncommercial videos.
DVDs protected by the Content Scrambling System (CSS) have been an issue in this
rulemaking proceeding since its inception in 2000. In the 2006 rulemaking
proceeding, the Librarian designated a class of [a]udiovisual works included in
the educational library of a college or university's film or media studies
department, when circumvention is accomplished for the purpose of making
compilations of portions of those works for educational use in the classroom by
media studies or film professors.
In the current rulemaking, educators sought to renew and, in a number of ways,
to expand the existing class of works designated in the last proceeding. The
proposed expansions of the class involved extending the class to include all of
the motion pictures on CSSprotected DVDs contained in a college or university
library (rather than just a film or media studies department) and to encompass
classroom use by all college and university professors and students as well as
elementary and secondary school teachers and students.
Apart from educators, others sought designation of similar classes of works to
address what they contended are adverse impacts on their ability to engage in
noninfringing uses of copyrighted works. Documentary filmmakers argued that the
prohibition on circumvention adversely affects their ability to use portions of
motion pictures in documentary films, many of which would qualify as
noninfringing uses for the purposes of criticism or comment. Creators of
noncommercial videos that incorporate portions of motion pictures contained on
CSSprotected DVDs also alleged that the prohibition on circumvention adversely
affected their ability to engage in noninfringing criticism or comment.
Based on the record in this proceeding, the Register determines that CSS is a
technological measure that protects access to copyrighted motion pictures. She
also determined that a substantial number of uses in the record with respect to
education, documentary filmmaking, and noncommercial videos qualify as
noninfringing uses.
NTIA supports expansion of the existing class of audiovisual works to include
all college and university level instructors and students but does not believe
the record justifies an expansion that would include elementary and secondary
school teachers and students. NTIA also recommended limiting the class to
address the use of DVDs included in the educational library or departments of
the academic institutions. It also supported the proposal to designate a class
of works for the benefit of documentary filmmakers. Finally, it expressed
general support for the request to designate a class that would permit
extraction of film clips for use in noncommercial videos, but suggested a
requirement that the clips from the audiovisual work must be for remix videos
that are used for social comment or criticism, or that are used in
transformativetype works according to established fair use principles.
Given that all of these proposed classes at issue involved motion pictures on
CSSprotected DVDs, the Register recommends that the Librarian designate a single
class addressing all of these adversely affected uses of DVDs. However, the
Register concludes that the record does not support all of the proposed
expansions of the existing class of audiovisual works and that in at least one
respect, the record supported a contraction of that class.
What the record does demonstrate is that college and university educators,
college and university film and media studies students, documentary filmmakers,
and creators of noncommercial videos frequently make and use short film clips
from motion pictures to engage in criticism or commentary about those motion
pictures, and that in many cases it is necessary to be able to make and
incorporate highquality film clips in order effectively to engage in such
criticism or commentary. In such cases, it will be difficult or impossible to
engage in the noninfringing use without circumventing CSS in order to make
highquality copies of short portions of the motion pictures. Because not all
uses by educators, documentary filmmakers or makers of noncommerical videos will
be noninfringing or will require such highquality copies, the class of works
recommended by the Register is not as extensive as what was requested by some
proponents, and the class contains some limitations. First, proponents for
educators failed to demonstrate that highquality resolution film clips are
necessary for K12 teachers and students, or for college and university students
other than film and media studies students. Because other means, such as the use
of screen capture software, exist that permit the making of lowerquality film
clips without circumventing access controls, the Register finds no justification
in the record for expanding the class of works to include such persons as
express beneficiaries of the designation of this class of works.
Second, the circumvention of access controls must be accomplished solely in
order to enable incorporation of short portions of motion pictures into new
works for purposes of criticism of comment. The justification offered by
proponents for designating a class of audiovisual works, and a key element of
the Register's conclusion that the intended uses will frequently be
noninfringing fair uses, was that the uses that justify designation of the class
were for purposes of criticism and commentary, which are classic fair use
purposes. Moreover, all of the evidence in the rulemaking demonstrating
noninfringing uses involved the use of short portions of motion pictures. While
the Register is persuaded that it would be difficult and imprudent to quantify
the precise contours of what constitutes a short portion, there was no evidence
in the record to support the conclusion that anything more than incorporating
relatively short portions of motion pictures into a new work for purposes of
criticism or commentary would be a fair use. Similarly, in order to meet the
requirements of the designated class of works, a new work must be created,
whether that work is a compilation of clips for use in the classroom, or a
documentary or video incorporating a clip or clips from a copyrighted motion
picture.
The final requirement of the recommended class is that the person engaging in
the circumvention must reasonably believe that the circumvention is necessary in
order to fulfill the purpose of the use i.e., the noninfringing criticism or
commentary. Because alternatives to circumvention such as video capture may
suffice in many, and perhaps the vast majority of situations, users must make a
reasonable determination that heightened quality is necessary to achieve the
desired goal. The justification for designating this class of works is that some
criticism and/or commentary requires the use of highquality portions of motion
pictures in order to adequately present the speechrelated purpose of the use.
Where alternatives to circumvention can be used to achieve the noninfringing
purpose, such noncircumventing alternatives should be used. Thus, this
limitation seeks to avoid an overly broad class of works given the limited
number of uses that may require circumvention to achieve the intended
noninfringing end.
The class has also been limited to include only motion pictures rather than all
audiovisual works. Because there was no evidence presented that addressed any
audiovisual works other than motion pictures, there was no basis for including
the somewhat broader class of audiovisual works (which includes not only motion
pictures, but also works such as video games and slide presentations).
B. Computer programs that enable wireless telephone handsets to execute software
applications, where circumvention is accomplished for the sole purpose of
enabling interoperability of such applications, when they have been lawfully
obtained, with computer programs on the telephone handset.
The Electronic Frontier Foundation (EFF) proposed a class that would allow
circumvention of the technological measures contained on certain wireless phone
handsets (known as smartphones) that prevent thirdparty software applications
from being installed and run on such phones. This circumvention activity is
colloquially referred to as jailbreaking a phone.
The factual record with respect to this proposed class focused primarily on
Apple's iPhone, although there are allegations in the record involving
other mobile phone manufacturers as well. EFF asserted, and Apple's
testimony confirmed, that any software or application to be used on the iPhone
must be validated with the firmware that controls the iPhone's operation.
This validation process is intended to make it impossible for an owner of an
iPhone to install and use thirdparty applications on the iPhone that have not
been approved for distribution through Apple's iTunes App Store.
EFF argued that jailbreaking is a noninfringing activity for three reasons.
First, it alleged that at least in some cases, jailbreaking can be done within
the scope of what is authorized under the license Apple grants to every iPhone
user. It stated that [t]o the extent a jailbreaking technique does not modify
any of the individual software programs that comprise the iPhone firmware
collection, but instead simply adds additional software components to the
collection, the practice may not exceed the scope of the license to `use the
iPhone software' or constitute a `modification' of any Apple
software components, any more than the addition of a new printer driver to a
computer constitutes a `modification' of the operating system already
installed on the computer.
Second, EFF asserted that to the extent a jailbreak technique requires the
reproduction or adaptation of existing firmware beyond the scope of any license
or other authorization by the copyright owner, it would fall within the ambit of
17 U.S.C. 1l7(a). EFF contended that the iPhone owner is also the owner of the
copy of the firmware on the iPhone and that jailbreaking falls within the
owner's privilege to adapt those copies to add new capabilities, so long
as the changes do not harm the interests of the copyright proprietor.
Finally, EFF contended that in any event, jailbreaking constitutes fair use of
the firmware because jailbreaking is a purely noncommercial, private use of
computer software, a largely functional work that operates the phone, and that
the phone owner must reuse the vast majority of the original firmware in order
for the phone to operate. Because the phone owner is simply modifying the
firmware for her own use on the phone, there is no harm to the market for the
firmware.
Apple responded that jailbreaking by purchasers of the iPhone is a violation of
the prohibition against circumvention of access controls. It stated that its
validation system is necessary to protect consumers and Apple from harm. Apple
further contended that modifying Apple's operating system constituted the
creation of an infringing derivative work. Specifically, Apple argued that
because purchasers of an iPhone are licensees, not owners, of the computer
programs contained on the iPhone, Section 117 of the Copyright Act is
inapplicable as an exemption to the adaptation right. Apple further argued that
the fair use defense codified in 107 would not apply to jailbreaking activity
under the statutory factors.
Based on the record, the Register has determined that the encryption and
authentication processes on the iPhone's computer programs are
technological measures that control access to the copyrighted work (the
firmware) for purposes of 1201(a)(1). Moreover, the Register finds that the
evidence supports the contention that a technological protection measure is
adversely affecting adding applications to the iPhone. The critical question is
whether jailbreaking an iPhone in order to add applications to the phone
constitutes a noninfringing use.
The Register does not find that the contract between Apple and purchasers of the
iPhone authorize modification of the iPhone. Moreover, the Register cannot
clearly determine whether the various versions of the iPhone contracts with
consumers constituted a sale or license of a copy of the computer programs
contained on the iPhone. The contractual language is unclear with respect to
particular copies of the computer programs. Although Apple retains ownership of
the computer programs, the contracts also expressly grant users ownership of the
device. Since the copy of the computer program is fixed in hardware of the
device, it is unclear what ownership status is to be given to the particular
copy of the computer program contained in the device. Apple unquestionably has
retained ownership of the intangible works, but the ownership of the particular
copies of those works is unclear.
Moreover, the state of the law with respect to the determination of ownership is
in a state of flux in the courts. Both proponents and opponents cited case law
in support of their respective positions, but the Register finds it impossible
to determine how a court would resolve the issue of ownership on the facts
presented here. While both parties agreed that the Second Circuit's
decision in Krause v. Titleserv, 402 F.3d 119 (2d Cir. 2005) is good law, that
case dealt with a situation that is distinguishable in many respects from the
present situation. The Register finds that the Krause case does not provide
clear guidance as to how resolve the current issue.
However, the Register does find that the proponent's fair use argument is
compelling and consistent with the congressional interest in interoperability.
The four fair use factors tend to weigh in favor of a finding of fair use.
Under the first factor in Section 107, it appears fair to say that the purpose
and character of the modification of the operating system is to engage in a
private, noncommercial use intended to add functionality to a device owned by
the person making the modification, albeit beyond what Apple has determined to
be acceptable. The user is not engaging in any commercial exploitation of the
firmware, at least not when the jailbreaking is done for the user's own
private use of the device.
The fact that the person engaging in jailbreaking is doing so in order to use
Apple's firmware on the device that it was designed to operate, which the
jailbreaking user owns, and to use it for precisely the purpose for which it was
designed (but for the fact that it has been modified to run applications not
approved by Apple) favors a finding that the purpose and character of the use is
innocuous at worst and beneficial at best. Apple's objections to the
installation and use of unapproved applications appears to have nothing to do
with its interests as the owner of copyrights in the computer programs embodied
in the iPhone, and running the unapproved applications has no adverse effect on
those interests. Rather, Apple's objections relate to its interests as a
manufacturer and distributor of a device, the iPhone.
Moreover, Congress has determined that reverse engineering for the purpose of
making computer programs interoperable is desirable when certain conditions are
met, and has crafted a specific exemption from Section 1201(a)'s
prohibition on circumvention in such cases. While an iPhone owner who jailbreaks
does not fall within the four corners of the statutory exemption in Section
1201(f), the fact that he or she is engaging in jailbreaking in order to make
the iPhone's firmware interoperable with an application specially created
for the iPhone suggests that the purpose and character of the use are favored.
Turning to the second fair use factor, it is customary for operating systems
functional works to enable third party programs to interoperate with them. It
does not and should not infringe any of the exclusive rights of the copyright
owner to run an application program on a computer over the objections of the
owner of the copyright in the computer's operating system. Thus, if Apple
sought to restrict the computer programs that could be run on its computers,
there would be no basis for copyright law to assist Apple in protecting its
restrictive business model. The second factor decisively favors a finding of
fair use.
Turning to the third factor, the amount and substantiality of the portion used
in relation to the copyrighted work as a whole, EFF admitted that because the
Apple firmware is necessary in order to operate the iPhone, it is necessary for
individuals who jailbreak their phones to reuse the vast majority of the
original firmware. However, the amount of the copyrighted work modified in a
typical jailbreaking scenario is fewer than 50 bytes of code out of more than 8
million bytes, or approximately 1/160,000 of the copyrighted work as a whole.
Where the alleged infringement consists of the making of an unauthorized
derivative work, and the only modifications are so de minimis, the fact that
iPhone users are using almost the entire iPhone firmware for the purpose for
which it was provided to them by Apple undermines the significance of this
factor. While the third factor arguably disfavors a fair use finding, the weight
to be given to it under the circumstances is slight.
Addressing the fourth factor, the effect of the use upon the potential market
for or value of the copyrighted work, EFF asserted that the firmware has no
independent economic value, pointing out that the iPhone firmware is not sold
separately, but is simply included when one purchases an iPhone. EFF also argued
that the ability to lawfully jailbreak a phone will increase, not decrease,
overall sales of the phones because users will know that by jailbreaking, they
can take advantage of a wider array of third party applications.
Apple responded that unauthorized uses diminish the value of the copyrighted
works to Apple. However, Apple is not concerned that the practice of
jailbreaking will displace sales of its firmware or of iPhones; indeed, since
one cannot engage in that practice unless one has acquired an iPhone, it would
be difficult to make that argument. Rather, the harm that Apple fears is harm to
its reputation. Apple is concerned that jailbreaking will breach the integrity
of the iPhone's ecosystem. The Register concludes that such alleged
adverse effects are not in the nature of the harm that the fourth fair use
factor is intended to address.
NTIA does not support designating the proposed class. While acknowledging that
permitting iPhone jailbreaking could facilitate innovation, better serve
customers, and encourage the market to utilize open platforms, NTIA believes it
might just as likely deter innovation by not allowing the developer to recoup
its development costs and to be rewarded for its innovation. NTIA also believes
that the proponents' public policy arguments should properly be considered
by expert regulatory agencies, the Department of Justice, and the Congress. It
concludes that the Register ought only to consider recommending the proposed
class if she concludes that the access control measure would be a bar to actions
that the above bodies might take in response to policy judgments made at those
agencies.
The Register appreciates that many regulatory and policy issues pertaining to
jailbreaking and smartphones fall within the competence of other agencies, and
the Register has no desire to interfere with those agencies' jurisdiction.
However, the only question before the Register and the Librarian is whether
Section 1201(a)(1)'s prohibition on circumvention is adversely affecting
the ability of users of smartphones from engaging in noninfringing uses of the
firmware on their devices. No other agency has the power to limit the
application of the prohibition on circumvention in this (or any other) context.
Any future action by a federal agency to permit jailbreaking will be futile
without an exemption from liability under Section 1201(a)(1), but if a class is
not designated in this rulemaking, all that it will mean is that Section 1201
cannot be used to prevent jailbreaking, without prejudice to any other legal or
regulatory authority that might limit or prohibit jailbreaking.
On balance, the Register concludes that when one jailbreaks a smartphone in
order to make the operating system on that phone interoperable with an
independently created application that has not been approved by the maker of the
smartphone or the maker of its operating system, the modifications that are made
purely for the purpose of such interoperability are fair uses. Case law and
Congressional enactments reflect a judgment that interoperability is favored.
The Register also finds that designating a class of works that would permit
jailbreaking for purposes of interoperability will not adversely affect the
market for or value of the copyrighted works to the copyright owner.
Accordingly, the Register recommends that the Librarian designate the following
class of works:
Computer programs that enable wireless communication handsets to
execute software applications, where circumvention is accomplished for the sole
purpose of enabling interoperability of such applications, when they have been
lawfully obtained, with computer programs on the telephone handset.
C. Computer programs, in the form of firmware or software, that enable used
wireless telephone handsets to connect to a wireless telecommunications network,
when circumvention is initiated by the owner of the copy of the computer program
solely in order to connect to a wireless telecommunications network and access
to the network is authorized by the operator of the network.
In 2006, the Librarian designated a class of Computer programs in the form of
firmware that enable wireless telephone handsets to connect to a wireless
telephone communication network, when circumvention is accomplished for the sole
purpose of lawfully connecting to a wireless telephone communication network, in
order to permit the circumvention of access controls that prevent the owner of a
cellphone from switching service on that cellphone to another wireless
communication network. The access controls in question are embedded in the
mobile phone's firmware or software and prevent the mobile phone owner
from gaining access to the settings that connect the mobile phone to a network
(e.g., Verizon's) other than the original network (e.g.,
AT&T's). Beneficiaries of that designation have now requested that the
Librarian again designate a similar class of works. Representatives of wireless
communication networks have opposed the request.
As she did three years ago, the Register recognizes that the requests fall
within the zone of interest subject to this rulemaking. That is, circumventing a
mobile phone lock, without the authority of the copyright owner, to gain access
to the protected work (i.e., the firmware) is likely actionable under Section
1201(a)(1) of the Act. Further, a wireless carrier who is harmed by the
circumvention of the software lock may bring an action for violation of Section
1201(a)(1) against anyone who circumvents such a technological protection
measure.
The proponents of this class have presented a prima facie case that the
prohibition on circumvention has had an adverse effect on noninfringing uses of
firmware on wireless telephone handsets. Proponents have shown that mobile phone
locks prevent consumers from legally accessing alternative wireless networks
with the phone of their choice. This is the same type of activity that was at
issue when the existing class of works was being considered in 2006.
The wireless networks asserted that by using a cellphone on another network, an
act that is not authorized under their contracts, the customers infringe the
exclusive right to reproduce copies of the computer software, because use of the
mobile phones necessarily involves the making of copies in the random access
memory of the mobile phone. Moreover, they asserted that the alteration of the
computer programs in order enable the mobile phones to connect to another
network constituted the unlawful making of derivative works, in violation of the
copyright owner's exclusive right to prepare derivative works.
Proponents of the class asserted that the owners of mobile phones are also the
owners of the copies of the computer programs on those phones and that as owners
they are entitled to exercise their privileges under Section 117 of the
Copyright Act, which gives the owner of a copy of a computer program the
privilege to make or authorize the making of another copy or adaptation of that
computer program under certain circumstances. The wireless networks responded
that their contracts with their customers restrict the uses of the
customers' mobile phones and retain ownership of the copies of the
computer programs that are loaded onto the mobile phones and enable the phones
to operate. They also asserted those contractual restrictions make the networks
and not the customers the owners of the copies of the computer programs, and
therefore the privilege under Section 117 to make copies and adaptations of
computer programs does not apply because that privilege is enjoyed only by the
owner of the copy of the computer program. They also argued that the privilege
does not extend to the customers' conduct because the making of a new copy
or adaptation in order to use the mobile phone on a network other than the
original network is not, as the statute requires, an essential step in the
utilization of the computer program in conjunction with a machine.
The Register has reviewed the appropriate case law with respect to who is the
owner of a copy of a computer program for purposes of Section 117 when a license
or agreement imposes restrictions on the use of the computer program and has
concluded that the state of the law is unclear. The Register cannot determine
whether most mobile phone owners are also the owners of the copies of the
computer programs on their mobile phones. However, based on the record in this
proceeding, the Register finds that the proponents of the class have made a
prima facie case that mobile phone owners are the owners of those copies. While
the wireless networks have made a case that many mobile phone owners may not own
the computer program copies because the wireless network's contract with
the consumer retains ownership of the copies, they have not presented evidence
that this is always the case even if their interpretation of the law governing
ownership is correct. The record therefore leads to the conclusion that a
substantial portion of mobile phone owners also own the copies of the software
on their phones.
The Register also concludes that when the owner of a mobile makes RAM copies of
the software in order to operate the phone even if she is operating it on
another network she is making a noninfringing use of the software under Section
117 because the making of that copy is an essential step in the utilization of
that software in conjunction with a machine.
Similarly, the making of modifications in the computer program in order to
enable the mobile phone to operate on another network would be a noninfringing
act under Section 117. As a general rule, anyone who wishes to switch her mobile
phone from one network to another must alter some information embedded in the
device. However, in a substantial number of cases those alterations do not
appear to implicate Section 117 because the elimination and insertion of codes
or digits, or completely reflashing a phone, cannot be considered an
infringement of the computer program controlling the device. When specific codes
or digits are altered to identify the new network to which the phone will
connect, those minor alterations of data also do not implicate any of the
exclusive rights of copyright owners. And complete reflashing does not even
constitute circumvention of an access control because it actually deletes the
copy of the entire work that had been protected by the access control, thereby
permanently denying access to that work.
In those cases where more substantial changes must be made to the computer
program in order to enable use of the mobile phone on another network, those
changes might implicate the exclusive right to prepare derivative works.
However, those changes would be privileged under Section 117, which permits the
making of a new copy or adaptation that is created as an essential step in the
utilization of the computer program in conjunction with a machine.
Section 1201(a)(1)(C) factors. As was the case in 2006, the Register finds that
the four factors enumerated in Section 1201(a)(1)(C)(i)(iv) do not weigh either
in favor of or against designation of the proposed class of works. Moreover,
because it appears that the opposition to designating the proposed class is
based primarily on the desires of wireless carriers to preserve an existing
business model that has little if anything to do with protecting works of
authorship, it is appropriate to address the additional factor (such other
factors as the Librarian considers appropriate) set forth in Section
1201(a)(1)(C)(v). It seems clear that the primary purpose of the locks is to
keep consumers bound to their existing networks, rather than to protect the
rights of copyright owners in their capacity as copyright owners. This
observation is not a criticism of the mobile phone industry's business
plans and practices, which may well be justified for reasons having nothing to
do with copyright law and policy, but simply a recognition of existing
circumstances. Because there appear to be no copyrightbased reasons why
circumvention under these circumstances should not be permitted, the Register
recommends that the Librarian designate a class of works similar to the class
designated in 2006.
The Register notes that the 2006 class, and the new one designated herein, are
both narrow, apply only to claims under Section 1201(a)(1), and do not establish
a general federal policy of ensuring that customers have the freedom to switch
wireless communications service providers. The designated classes, both new and
old, simply reflect a conclusion that unlocking a mobile phone to be used on
another wireless network does not ordinarily constitute copyright infringement
and that Section 1201(a)(1), a statute intended to protect copyright interests,
should not be used to prevent mobile phone owners from engaging in such
noninfringing activity.
NTIA supported designation of a class similar to the class designated in 2006,
but proposed that while nonprofit entities should be permitted to take advantage
of the exemption, commercial users should not. The Register's
recommendation, in contrast, would permit some commercial activity, so long as
it (1) involves only used handsets, (2) is done by the owner of the copy of the
computer program, and (3) is done solely in order to access such a wireless
telecommunications network and access to the network is authorized by the
operator of the network. The Register believes that these limitations ensure
that the designation of this class will not benefit those who engage in the type
of commercial activity that is at the heart of the objections of opponents of
the proposed class: the bulk resellers who purchase new mobile phone handsets at
subsidized prices and, without actually using them on the networks of the
carriers who market those handsets, resell them for profit. The type of
commercial activity that would be permitted would be the resale of used handsets
after the owners of the handsets have used them and then given or sold them to
somebody else, who then resells them just as a used bookstore sells used books.
The Register acknowledges that NTIA's general view that the class should
not extend to any commercial activity is inconsistent with aspects of the
Register's recommendation, but believes that to the extent her
recommendation goes beyond what NTIA was willing to endorse, it does so in a way
that, in NTIA's words, prevents unlawful use by those that would misuse
the exemption for commercial purposes.
However, the applicability of the proposed class to commercial recyclers, such
as the ones who had proposed the original class of works, is limited. When the
commercial recycler has made a derivative work that is within Section
117's privilege for making adaptations, the recycler is subject to a
significant limitation contained within Section 117: such adaptations may be
transferred only with the authorization of the copyright owner. Thus, a recycler
who prepares such an adaptation may not transfer ownership of the copy of the
adapted computer program to anybody else without the authorization of the
copyright owner. On the other hand, a recycler who has not prepared an
adaptation is free to resell the mobile phone along with the copy of the
computer program contained within it.
The new class is also cabined by existing law in two important respects. First,
as with any regulation under Section 1201(a)(1)(C) and (D), the designation of
this class offers no safe harbor from liability under Section 1201(a)(2) which
strictly prohibits an entity from offering a circumvention service. Second, a
wireless carrier's Terms of Purchase and Terms of Service, which are
binding contracts, still impose use restrictions on consumers notwithstanding
the designation of this class. However, the wireless carrier must seek a remedy
by asserting a claim of breach of contract, and not a claim under Section
1201(a)(1).
D.Video games accessible on personal computers and protected by technological
protection measures that control access to lawfully obtained works, when
circumvention is accomplished solely for the purpose of good faith testing for,
investigating, or correcting security flaws or vulnerabilities, if:
&sbull;The information derived from the security testing is used primarily to
promote the security of the owner or operator of a computer, computer system, or
computer network; and
&sbull;The information derived from the security testing is used or maintained
in a manner that does not facilitate copyright infringement or a violation of
applicable law.
Professor J. Alex Halderman proposed two classes of works relating to
investigating and correcting security flaws or vulnerabilities created or
exploited by technological measures protecting certain kinds of works. The
Register concludes that Halderman has made the case for a class pertaining to
video games, but has not made the case for a broader class pertaining to
literary works, sound recordings and audiovisual works.
In each case, Halderman qualified the scope of the proposed class by restricting
it to (1) lawfully obtained works protected by access control measures that
create or exploit security flaws or vulnerabilities that compromise the security
of personal computers, and (2) cases where circumvention is accomplished solely
for the purpose of good faith testing, investigating, or correcting such
security flaws or vulnerabilities.
In the current proceeding, Halderman did not present any evidence that the
prohibition on circumvention is adversely affecting or is likely, in the next
three years, to adversely affect the ability to engage in noninfringing uses of
sound recordings or audiovisual works, or of literary works except to the extent
that video games may be considered, in part, to constitute audiovisual works
associated with such sound recordings. There is no information in the record
that would justify again exempting the class designated three years ago.
However, Halderman did present evidence and legal analysis in support of a class
of works limited to video games. Under Section 102(a) of the Copyright Act,
video games are hybrid in that they fall within two statutory classes of works.
Video games typically are, in part, computer programs, which are a subset of the
statutory category of literary works. The evidence related to two types of
access controls applied to video games: Macrovision's SafeDisc software
and Sony's SecuRom software. Halderman asserted that the measures
constitute access controls because, in both cases, the measures authenticate
discs and enforce access policies.
The alleged underlying noninfringing use involved is twofold. First, purchasers
of video games (including researchers) are engaged in noninfringing use when
they install, access, and play authorized copies of such video games while
further seeking to protect the security of their computers. Second, researchers
in lawful possession of copies of games are engaged in noninfringing uses when
they seek solely to research and investigate whether a video game, or the
technological measure protecting it, creates security vulnerabilities or flaws.
Professor Halderman asserted that such good faith research that does not cause
or promote infringement generally constitutes fair use.
Halderman alleged that SecuROM may create security flaws or vulnerabilities. He
referred to a number of articles and class action lawsuits suggesting that
SecuROM may contain flaws or cause vulnerabilities. He further stated that a
single definitive scientific study might quell the panic, protests, and
litigation to what may turn out to be nonexistent or easily reparable faults.
Halderman also alleged that harm is caused by Macrovision's SafeDisc. He
alleged that SafeDisc was preinstalled on nearly every copy of the Microsoft
Windows XP and Windows 2003 operating systems, [and that] the vulnerability
affected nearly one billion PCs, two thousand times more than the [Sony]
rootkit, the security vulnerability that serviced as the factual basis for
designating a class in the last rulemaking. He claimed that the security flaw
created by SafeDisc was much more dangerous than the Sony rootkit flaw involved
in the previous rulemaking that concluded in 2006, because this flaw allowed
attackers to execute unrestricted `kernellevel' code and read or write to
any area of the hard disk or memory of the PC, thus facilitating the complete
compromise of the security of the PC.
Opponents raised three principal arguments against Halderman's proposal.
First, they argued that he provided little concrete or documented evidence that
any security flaws or vulnerabilities associated with access control mechanisms
used in connection with video games exist. Second, they argued that there is no
evidence that research has been chilled, pointing to what they called a robust
ecosystem within which security experts routinely identify such flaws,
collaborate on remedies, and disseminate information to alert computer users of
the problems and them to solutions. Third, they argued that Professor Halderman
failed to establish that the conduct at issue is prohibited by Section
1201(a)(1), since a statutory exemption (in particular, 17 U.S.C. 1201(j) might
apply to the security research.
NTIA has advised the Register that he believes the record supports designating
the requested class relating to video games and other works accessible on
personal computers. NTIA believed that the proponents have persuasively argued
that without a research exemption, research into all current and future
vulnerabilities will be and is chilled now, and concurred with the
Librarian's conclusion in 2006 that the research may not be covered
completely by the existing statutory exemptions. NTIA further believes that
although the Sony Rootkit vulnerability no longer exists, it seems to be a
certainty that new vulnerabilities will emerge in the next three years.
Overall, the Register has concluded that the factors set forth in 17 U.S.C. 107
tend to strongly support a finding that such good faith research constitutes
fair use. The socially productive purpose of investigating computer security and
informing the public do not involve use of the creative aspects of the work and
are unlikely to have an adverse effect on the market for or value of the
copyrighted work itself. The proponents established an underlying noninfringing
use.
The next question is whether the prohibition is causing an adverse effect on
such noninfringing uses. The record is essentially limited to SecuRom and
SafeDisc. The evidence relating to SecuRom tends to be highly speculative, but
Professor Halderman asserted that this situation has been crying out for an
investigation by reputable security researchers in order to rigorously determine
the nature of the problem that this system cause[s], and dispel this uncertainty
about exactly what's going on. He believed that the prohibition on
circumvention is at least in part to blame for the lack of rigorous, independent
analysis.
In contrast to SecuROM, SafeDisc has created a verifiable security vulnerability
on a large number of computers. Opponents of the proposed class did not dispute
that SafeDisc created a security vulnerability, but they argued that the
security flaw was patched by Microsoft in 2007, without the need of an
exemption. However, SafeDisc was preloaded on nearly every copy of
Microsoft's Windows XP and Windows 2003 operating systems and was on the
market for over six years before a security researcher discovered malware
exploiting the security. The vulnerability had the capacity to affect nearly one
billion PCs.
The record supports the conclusion that since the 2006 rulemaking, substantial
vulnerabilities have existed with respect to video games certainly with respect
to SafeDisc and possibly with respect to SecuROM. Within the same class of
works, security researchers have proposed investigation of unconfirmed
allegations of security vulnerabilities on another technological protection
measure (SecureROM) that protects access, but have expressed unwillingness to do
so without clear legal authority. Aggregating the evidentiary record, the
proponents have shown that they need to be able to fix flaws that are identified
in this class of works and they need to be able to investigate other alleged
security vulnerabilities in this class.
Opponents argued that there may be no need to designate a class in this
proceeding because circumvention may already be excused pursuant to Section
1201(j), which provides an exemption for security testing. However, the Register
has concluded, as she did three years ago, that it is unclear whether Section
1201(j) applies in cases where the person engaging in security testing is not
seeking to gain access to, in the words of Section 1201(j), a computer, computer
system, or computer network. Therefore, it is appropriate to designate a class
of works in this proceeding.
Section 1201(j) does, however, influence both the decision to recommend
designation of a class and the decision on how to fashion the class. Section
1201(j) is evidence of Congress's general concern to permit circumvention
under appropriate circumstances for purposes of security testing, and it also is
evidence of the conditions Congress believes should be imposed on those who take
advantage of an exemption for security testing. Accordingly the Register
recommends that the Librarian designate a class of video games protected by
access controls, when circumvention is done for the purpose of good faith
testing for, investigating, or correcting security flaws or vulnerabilities.
Further refinements to the class include a requirement that the information
derived from the testing be used primarily to promote the security of the owner
or operator of a computer, computer system, or computer network; and a
requirement that that information be used or maintained in a manner that does
not facilitate copyright infringement or a violation of applicable law.
E.Computer programs protected by dongles that prevent access due to malfunction
or damage and which are obsolete. A dongle shall be considered obsolete if it is
no longer manufactured or if a replacement or repair is no longer reasonably
available in the commercial marketplace.
Three years ago, the Librarian designated the abovereferenced class of works,
which is similar to classes of works designated in each of the previous
rulemakings. In the current proceeding the proponent of that class, Joseph V.
Montoro, Jr., on behalf of Spectrum Software, Inc., has proposed an expanded
class of works related to dongles. Dongles are a type of hardware that attach to
either the printer port or the USB port of a computer in order to make secured
software function. Montoro stated that dongles are sold along with certain types
of software and are necessary for the user to access that software on a
computer. He further explained that in order for the dongle to operate properly,
the operating system must support the hardware and the required device driver
must be installed. Montoro submitted that there are four situations where an
exemption is necessary to rectify actual harm: (1) when dongles become obsolete;
(2) when dongles fail; (3) where there are incompatibilities between the dongle
and the operating system, and (4) where there are incompatibilities between the
dongle and certain hardware. Montoro had stressed that his proposal is as much
about the computer ecosystem as it is about dongles, in particular. He said that
it is important to realize that the dongle, the operating system software and
the computer hardware work in tandem and that the proposed class necessarily
covers all of these parts.
Representatives of the computer software industry stated that they do not oppose
renewing the existing class of works, but object to expanding it beyond its
current terms.
As in 2006, the Register finds that the case has been made for designation of a
class of works protected by dongles. Montoro has effectively met his burden of
proof for a class relating to dongles that are malfunctioning or damaged and
that are obsolete, a point on which there is no disagreement in the record. When
the dongle no longer functions and is obsolete, there is a substantial adverse
effect on noninfringing uses because there is no other means to access the
lawfully acquired software. When a dongle malfunctions or becomes obsolete, a
person lawfully entitled to access the software should be able to rely on
selfhelp if remedial measures are not reasonably available in the commercial
marketplace. Moreover, the record reveals no evidence of harm to the market for,
or value of, copyrighted works protected by dongles since the designation of the
original class of works in 2000.
The class, however, should not include cases where a replacement dongle is
reasonably available or can be easily repaired. Some copyright owners
legitimately use dongles to control access to a computer program by unauthorized
users and are entitled to the full benefit of the prohibition as long as
reasonable accommodations are offered for malfunctioning or damaged dongles.
Montoro has not demonstrated that the standard previously applied reasonably
available in the marketplace is insufficient to meet the needs of users of
copyrighted works whose dongles malfunction or are damaged.
Montoro also argues that the current class should be expanded to reach
situations involving incompatibility between the dongle and a new or upgraded
version of an operating system. The Register finds that he has failed to submit
cogent evidence to support an expanded class in this context. A sufficient
record would require more detail about the precise cause of the problems, the
scope of the problem, and the noninfringing means available to resolve the
problem.
The evidence presented in the record also does not support Montoro's
request to expand the class in relation to obsolete hardware, specifically
parallel ports on computers. While it appears to be the case that parallel ports
may be obsolescent, there is insufficient evidence in the record to support the
conclusion that parallel ports are currently, or in the next three years will
be, obsolete. In order to make a case for an expanded class in relation to
obsolete hardware, Montoro would have to demonstrate that the hardware is, or is
likely to be, obsolete in the next three year period (either as a preinstalled
item or as an optional configuration), that the unavailability of this obsolete
hardware would adversely affect noninfringing uses, and that copyright owners
are not meeting the legitimate needs of existing users.
IV. Other Classes Considered but Not Recommended
A.Subscription based services that offer DRMprotected streaming video where the
provider has only made available players for a limited number of platforms,
effectively creating an access control that requires a specific operating system
version and/or set of hardware to view purchased material; and Motion pictures
protected by antiaccess measures, such that access to the motion picture content
requires use of a certain platform.
Two proposals sought designation of classes of works that would allow
circumvention of technological protection measures in order to provide access to
motion pictures on platforms other than those authorized by content providers or
their licensees.
Megan Carney proposed a class of works in order to allow circumvention of
DRMprotected streaming videos offered by subscription based services, where the
provider has made players available only for a limited number of platforms. She
argued that this restriction of viewing options effectively constitutes an
access control by requiring a specific operating system version and/or set of
hardware to view purchased material. She sought to use Netflix's Watch
Instantly streaming video feature, which installs digital rights management and
runs only on certain platforms of computer software and hardware. Watch
Instantly is included, at no charge, in the monthly Netflix membership, but
Carney said that she is unable to use it because she does not own a computer
that operates on a compatible platform (PCs running Windows or Apple computers
with Intel chips). Carney proposed that the Librarian designate a class or works
in order to allow a user in her situation to create a separate program to
circumvent the DRM on the streaming service system in order to view streaming
video content made available by Netflix.
Another proponent, Mark Rizik, proposed a class of works to allow the
circumvention of motion pictures on DVDs protected by the CSS access control
system, which requires the use of a certain platform for access. Specifically,
Rizik would like to view, on a Linuxbased computer that does not have a
CSSlicensed video player, DVDs that are only viewable on CSSlicensed players.
Rizik sought designation of a class in order to permit the creation of an
unencrypted digital copy of the DVD by decrypting and extracting contents of
DVDs for personal viewing purposes on Linux operating systems.
The Motion Picture Association of America, Time Warner, and a coalition of
copyright industry trade associations (the Joint Creators) opposed these
requests. NTIA has advised that it believes that the record does not support
granting the requests.
The proponents of both classes of works sought to circumvent the access controls
because, they contended, it is too expensive to acquire the hardware and
software with the minimum requirements necessary to view motion pictures on the
distribution mechanism of their choice. They also argued that there are no
reasonable, noninfringing alternatives to circumvention for those wishing to
engage in the activity affected by these platform requirements.
Similar classes to those proposed by Carney and Rizik have been requested and
denied in the past three rulemakings. Although the streaming video proposal
presents a new factual situation, the Register concludes that the legal
arguments are fundamentally similar to the proposals relating to the viewing of
DVDs on computers with Linux operating systems that were advanced in the
previous three rulemakings, when those proposals were rejected. Likewise,
arguments for the streaming video and Linux classes fail for fundamentally the
same reasons as the earlier Linux proposals, and the Register cannot recommend
that the Librarian designate either of these proposed classes of works.
In these rulemakings, proposed classes have regularly been rejected in cases
where a user who wished to engage in a noninfringing use of a work using a
particular device already had the ability lawfully to engage in the same
noninfringing use of the work using a different device. The same principle
applies here. Alternative means exist to gain access to and view the motion
pictures that Carney and Rizik wish to view after circumventing access controls.
In any event, it is unclear from the record regarding streaming videos what is
actually prohibiting Carney from being able to access the Netflix Watch
Instantly feature and, in particular, whether the technological issue is
centered around an access control. It cannot be discerned from the record
whether Carney cannot gain access due to digital rights management or due to
software and/or hardware incompatibility.
Regarding DVD circumvention, many operating systems on the market enable
authorized access to the works contained on CSSprotected DVDs. Moreover,
CSScompatible DVD players are in fact available for some Linux systems.
Further, many alternatives exist for both Carney and Rizik, including other
streaming video alternatives and online content download sites. There are many
reasonablypriced alternatives that may fulfill consumers' wants and needs,
including purchasing a DVD player. Mere consumer inconvenience is not sufficient
to support the designation of a class of works. The statute does not provide
that this rulemaking is to enable the most convenient method of consuming video
content. The proponents have merely advanced requests in order to satisfy their
convenience and preferences as to how they would like to access media and have
failed to demonstrate a need for remedial action. Accordingly, the Register
cannot recommend the Librarian designate either proposed class in light of the
alternatives that exist in the marketplace today.
B. Lawfully purchased sound recordings, audiovisual works, and software programs
distributed commercially in digital format by online music and media stores and
protected by technological measures that depend on the continued availability of
authenticating servers, when such authenticating servers cease functioning
because the store fails or for other reasons; and
Lawfully purchased sound recordings, audiovisual works, and software programs
distributed commercially in digital format by online music and media stores and
protected by technological measures that depend on the continued availability of
authenticating servers, prior to the failure of the servers for technologists
and researchers studying and documenting how the authenticating servers that
effectuate the technological measures function.
Christopher Soghoian of the Berkman Center for Internet & Society at Harvard
University has proposed two classes of works to allow the circumvention of
technological measures that depend on the continued availability of
authenticating servers (or DRM servers) for the following uses: (1) by
consumers, for access to and ordinary enjoyment of purchased works, and (2) by
technologists and researchers, documenting the function of the technological
measures. The technological measures in question regulate user access to
copyrighted works via connections to remote online authenticating servers, and
therefore always require that the server be operational; if the server is shut
down, the authentication process cannot take place and access for the user will
be denied.
Joint Creators and Time Warner opposed Soghoian's requests, and NTIA has
advised the Register that it believes that the record does not support them.
Soghoian's first proposal, regarding DRM servers that control access to
lawfully purchased sound recordings, audiovisual works and software programs,
was based upon several recent instances where online music and media stores that
tethered their commercial distribution of digital works to DRM servers ceased
operations. The proposal would not permit circumvention of operational DRM
servers, but would cover only situations in which the particular authentication
server has ceased to function. Soghoian argued that when the DRM servers
malfunction or are shut down by their operators, consumers lose the ability to
engage in the legitimate, noninfringing usage of content that they lawfully
purchased and reasonably expected to continue using. However, there is no
evidence that such a loss of rights has actually occurred thus far.
Soghoian argued that, given the record he presents of digital media stores
shutting down their DRM servers, and given the increased migration of customers
from physical CDs to downloads, it is likely that in the next three years at
least one DRM media store and/or its authenticating servers will shut down,
adversely affecting the ability to engage in noninfringing use of the protected
works by those who purchased them. He proposed that exempting circumvention of
DRM server technology after a server has stopped functioning is a reasonable
remedy for these adverse effects under three of the four Section 1201(a)(1)(C)
factors.
The Register cannot recommend this proposed class for the simple reason that the
proponent has not sustained his burden of demonstrating that the prohibition on
circumvention of access controls either has produced, or is likely to produce,
any adverse effects on noninfringing uses of the proposed class of works. Here,
no such instances of adverse effects have been shown. If, in the absence of
current adverse effect, designation of a class of works is to be based solely
upon anticipated harm, the evidence of likelihood of future adverse impact
during that time period [must be] highly specific, strong and persuasive.
Evidence of such a compelling nature is lacking here as well.
The fundamental question in evaluating this proposal is whether the adverse
effects complained of by the proponent, DRMbased stores that cease to operate or
abandon their authenticating server system cause their customers to lose full,
and often any, access to, and thus use of, their lawfully purchased works, are
real, verifiable and reasonably likely to recur. There are several persuasive
reasons in the record to answer this question in the negative.
Regarding the three categories of copyrighted works that Soghoian identified in
his proposal, he presented no information that one of them, software in this
instance, is even being sold by online retailers using authentication servers.
Thus, the Register's review of adverse effects must be restricted to sound
recordings and audiovisual works. Soghain asserts that such works were sold by
two entities, Circuit City and Google, who, upon deciding to withdraw from the
market, fully refunded their customers' purchase costs. In his testimony,
Soghoian stated that he was willing to narrow the proposed class to permit
circumvention only in the event that the service does not provide any remedy for
consumers. He further stated that a refund is a totally appropriate and
satisfactory remedy. Since the record of DRMprotected audiovisual works reveal
only two defunct services and reveals that both provided acceptable remedies,
there is no reason for the Register to consider this category of works in her
determination.
With regard to sound recordings, of the three retailers who stopped selling
DRMprotected works, Yahoo Music has provided full refunds. The two others, MSN
Music and Walmart, announced in response to consumer backlash that they would
keep their servers operational. The record demonstrates that, thus far, there
have been no adverse effects on the noninfringing use of DRMprotected sound
recording downloads since purchasers retain identical access and use abilities.
Soghoian's proposed class focused more on future harm, arguing that there
is no reason to believe that other companies or services that fail or are shut
down in the future will provide similar corrective steps. He predicted that
companies smaller than Microsoft and Walmart will not have the resources to
provide refunds or keep authentication servers operating and that given the
state of the economy, more companies will be jettisoning their DRMprotected
music businesses and may decide simply to deactivate their authentication
servers without advance warning. This appears to be pure conjecture. Soghoian
presented no evidence supporting his claim that if another online retailer
decides to disable its authentication server, it will leave affected consumers
without a remedy. To the contrary, the record shows that the two companies (MSN
Music and Walmart) that have discontinued their services are still keeping the
servers operational. Thus, the prediction that, within the next three years,
consumers will be prevented from accessing and using DRMprotected works due to
the cessation of operations by an authentication server is purely hypothetical.
The Register therefore recommends rejection of this proposed class.
Soghoian's second proposal relates to circumvention of the same DRM
servers controlling access to the same categories of works as his first
proposal. However, instead of being for the direct benefit of consumers, it
would aid technologists and researchers studying and documenting how the
authenticating servers that effectuate the technological measures function. Such
study and documentation, the proposal states, would take place prior to the
failure of the servers. This is intended to support Soghoian's first
proposed user class by providing consumers with documentation about how DRM
servers function, so that they can actually understand how to engage in
circumvention of works in his first proposed class.
Soghoian's legal argument in support of the researcher class rested upon a
comparison with a similar class relating to rootkits that was designated in the
2006 rulemaking, where the Librarian designated a class to permit circumvention
technological measures that (1) control access to lawfully purchased sound
recordings and associated audiovisual works on CDs and (2) create or exploit
security flaws or vulnerabilities that compromise the security of personal
computers, when circumvention is accomplished solely for the purpose of good
faith testing, investigating, or correcting such security flaws or
vulnerabilities. Soghoian's proposal focused on the purpose of the
existing rootkit class, contending that because his researcher class is also
intended solely for good faith testing, investigation, and correction, it too
meets the requirements for exemption from the anticircumvention statute. He did
point out, however, that the cases of failed DRM and copy protection systems do
not easily fit into the category of security flaw or vulnerability.
Soghoian's proposed research class of works ultimately rests upon the same
speculative argument as his user class. Since the record makes clear that the
purpose of designating the research class is to facilitate circumvention of
works in the user class, the arguments supporting the research class fail on the
same basis as those supporting the user class. Accordingly, the Register
recommends the rejection of this proposed class.
C. Software and information recorded, produced, stored, manipulated or delivered
by the software, that a forensic investigator seeks to copy, activate, or
reverse engineer in order to obtain evidence in a court proceeding.
Glenn Pannenborg proposed designating a class of works for the benefit of
forensic investigators (i.e., courtappointed evidence examiners) seeking
evidence in a court proceeding. According to Pannenborg, forensic examiners
practicing in the fields of financial or information technology may be faced
with evidence that is recorded, produced, stored, manipulated or delivered by
software covered under 17 U.S.C. 1201, or evidence that may be the software
itself, as in a patent or licensing dispute. He asserted that in order to obtain
access to such evidence, a forensic investigator may have to circumvent a
technological protection measure in violation of Section 1201(a)(1)(A).
Joint Creators opposed Pannenborg's proposal, and NTIA has advised the
Register that it believes the record does not support granting the request.
The Register finds that the proponent in this case has not met the statutory
burden of proof. Pannenborg failed to intelligibly describe the nature of
authorship of the proposed class of works. Moreover, he presented no compelling
evidence, and provides no concrete examples, that noninfringing uses of works in
the proposed class have been or will be affected by the circumvention ban.
Indeed, he provided little information about the works to which he has
apparently been denied access. Because of the lack of such information in the
record, an evaluation of whether and the extent to which the prohibition on
circumvention caused an adverse effect on noninfringing uses was not possible.
The Register, therefore, declines to recommend that the Librarian designate this
proposed class of works.
D. Audiovisual works delivered by digital television (DTV) transmission intended
for free, overtheair reception by anyone, which are marked with a broadcast flag
indicator that prevents, restricts, or inhibits the ability of recipients to
access the work at a time of the recipient's choosing and subsequent to
the time of transmission, or using a machine owned by the recipient but which is
not the same machine that originally acquired the transmission.
In the 2006 rulemaking, a number of commenters sought the designation of classes
of works that target broadcast flags for television and radio broadcasts, noting
that such restrictions could possibly interfere with the personal recording of
digital broadcast content for timeshifting and formatshifting purposes. The
Register rejected those requests, stating that there was no broadcast flag
mandate in effect for either television or radio at that time and concluding
that no relief could be granted based upon nonexistent regulations. The
broadcast flag can be described as a digital code embedded in a digital
television (DTV) broadcasting stream, which prevents digital television
reception equipment from redistributing broadcast content. The FCC had broadcast
flag restrictions, but they were overturned by the United States Court of
Appeals for the District of Columbia Circuit.
In the current proceeding, Matt Perkins proposed a new broadcast flag class
based upon the belief that broadcasters and copyright owners will experiment
with copy protection measures to restrict the recording of broadcast television
content after the completion of the transition to DTV. He asserted that
consumers will experience frustration if their television recording privileges
are in any way restricted.
The National Association of Broadcasters (NAB) opposed this request, and NTIA
advised the Register that it believes the record does not support the request.
Perkins has failed to make his case for designating the proposed class. He has
generally stated that a broadcast flag would interfere with the recording of
digital television programming for personal use. However, he has not met his
burden of proof in showing that regulatory action by the Librarian is warranted.
There is no broadcast flag mandate for digital television broadcasts in effect,
and it is highly speculative as to whether broadcasters and copyright owners
will work to implement measures to restrict consumer recording privileges in the
new DTV era.
In addition, the record does not indicate that there currently are any devices
that include broadcast flags. Furthermore, Perkins' theory in support of
his request lacks any explanation or justification as to what noninfringing use
would be prevented by the prohibition on circumvention with respect to the
broadcast flag and fails to provide evidence that actual harm exists or that it
is likely to occur in the ensuing three year period. The proposed class is also
misguided because it affects redistribution of content and does not appear to be
related to an access control technology measure for purposes of Section
1201(a)(1). For the reasons stated above, the Register cannot recommend that the
proposed request be granted.
E. Audiovisual works embedded in a physical medium (such as Bluray discs) which
are marked for downconversion or downresolutioning (such as by the presence of
an Image Constraint Token ICT) when the work is to be conveyed through any of a
playback machine's existing audio or visual output connectors, and
therefore restricts the literal quantity of the embedded work available to the
user (measured by visual resolution, temporal resolution, and color fidelity).
Matt Perkins proposed a class of works based on audiovisual works embedded in
Bluray discs. He stated that the Bluray disc's data structure allows a
disc publisher to assign an image constraint token to an audiovisual work. He
further explained that a licensed Bluray disc player responds to that token by
downrezzing the electronic video signal when conveyed over an untrusted analog
connection (i.e., a trio of RCA cables). He asserted that no such constraints
occur when the signal is conveyed over the preferred, trusted digital pathway
(HighDefinition Multimedia Interface [HDMI] incorporating Highbandwidth Digital
Content Protection [HDCP]). He argued that ICT denies access to discarded video
details until a condition is satisfied (HDMI connectivity), and therefore that
ICT qualifies as an access control measure under Section 1201. He admitted that
there is little evidence that ICTs are currently embedded in available Bluray
discs, but nevertheless asserted that the possible inclusion of an image
constraint token will cause user frustration because program content will not be
seen in the promised high definition format.
Advanced Access Content System Licensing Administrator, LLC (AACS LA) opposed
the request, and NTIA has advised the Register that it believes the record does
not support granting the request.
Perkins' request cannot withstand scrutiny. He has failed to meet his
burden of proof demonstrating that relief is warranted with regard to the
willful downconversion of high definition programming recorded on Bluray discs.
He has not shown that the prohibition on circumvention has had or is likely to
have a substantial adverse effect on a clearly identifiable noninfringing use.
Similarly, he has not demonstrated the existence of actual harm, or the
likelihood of future harm that designation of the proposed class would
necessarily rectify. Specifically, he has not provided evidence that ICTs are
currently being used on Bluray discs to restrict users from accessing the
highest resolution format offered by Bluray discs. Further, the request is
unnecessary because the potential problem described by Perkins is a rapidly
disappearing legacy issue related to early generation high definition
televisions. The Register recommends that the proposed class of works be
rejected.
F. Literary works distributed in ebook format when all existing ebook editions of
the work (including digital text editions made available by authorized entities)
contain access controls that prevent the enabling either of the book's
readaloud function or of screen readers that render the text into a specialized
format.
In 2006, the Librarian designated a class consisting of Literary works
distributed in ebook format when all existing electronic book (ebook) editions
of the work (including digital text editions made available by authorized
entities) contain access controls that prevent the enabling either of the
book's readaloud function or of screen readers that render the text into a
specialized format. The American Foundation for the Blind (AFB), which was the
principal proponent of ebook exemptions in 2003 and 2006, has proposed that the
Librarian redesignate the existing class to ensure that people who are blind or
visually impaired are not excluded from the digital revolution in education,
information and entertainment.
In support of its proposal, AFB offered an examination of five ebooks, two which
it tested in the PDF format and three which it tested in the Microsoft Lit
format. AFB stated that of these five books, only oneor twenty percent of the
samplewas accessible. In order to make its case, the AFB had to demonstrate that
the prohibition on circumvention has adversely affected, or is likely to
adversely affect, users' ability to make noninfringing uses of a
particular class of works. There was no dispute that making an ebook accessible
to blind and visually impaired persons is a noninfringing use. Therefore, the
main question is whether the prohibition on circumvention of technological
measures that control access has adversely affected the ability of blind and
visually impaired persons to gain access to the literary content in ebooks.
In short, the proponents surveyed five ebook titles and found that three
(Brian's Hunt, The Bridges of Madison County, and The Einstein Theory of
Relativity) were not accessible in editions published in the Microsoft Lit
format, one (The Sign of the Fish) was not accessible in an edition published in
the Adobe PDF format, and one (The Complete Works of Edgar Alan Poe Volume 1)
was accessible in the Adobe PDF format. Thus, four out of the five titles
sampled were available in formats that were not accessible.
Proponents of the class presented no other factual information relating to
whether (and the extent to which) the prohibition on circumvention actually has
had an adverse effect on the ability of blind and visually impaired persons to
engage in the noninfringing use of reading ebooks by using screen readers and
the readaloud function offered in many ebooks.
Joint Creators did not oppose the request, but did question whether the
prohibition on circumvention of access controls was to blame for the discrepancy
between access for the fully sighted and access for the visually impaired. NTIA
has advised the Register that it believes that an exemption based on this
proposals should be renewed. NTIA did not state that the record supports
granting the requested exemption; in fact, it observed that the case made by
proponents is weak. Nevertheless, NTIA concluded that despite the limited level
of information provided, it is persuaded that harm to these uses and users is
likely to exist.
In reviewing the evidence presented in support of designating the proposed
class, the first issue that is readily apparent is that two of the five works
examined by AFB (The Einstein Theory of Relativity and The Complete Works of
Edgar Alan Poe Volume 1) are in the public domain. Section 1201 does not
prohibit circumvention of a technological protection measure when it simply
controls access to a public domain work; in such a case, it is lawful to
circumvent the technological protection measure and there is no need for an
exemption. Thus, the two works in the public domain included in the tiny sample
forty percent of the entire sample are irrelevant to the case for an exemption.
Even though one of these two public domain works was found to be inaccessible,
the prohibition on circumvention cannot be said to be adversely affecting uses
of that work given that the prohibition does not apply to public domain works.
Two of the other ebooks cited in support of designating the class Brian's
Hunt and The Bridges of Madison County, are alleged to be inaccessible in
Microsoft Lit format. However, the proponents did not state whether those titles
are accessible and available in other formats, such as the widelyused PDF
format. Because the proposed class, like the classes approved in 2003 and 2006,
requires that all existing ebook editions of the work (including digital text
editions made available by authorized entities) contain access controls that
prevent the enabling either of the book's readaloud function or of screen
readers that render the text into a specialized format, the evidence relating to
these two titles is insufficient to justify the designation of the proposed
class. If Brian's Hunt and The Bridges of Madison County are available in
other editions that provide readaloud and screen reader accessibility, then they
are not examples of works justifying redesignation of the class. In failing to
even check to see whether Brian's Hunt and The Bridges of Madison County
are available in an accessible format, the proponents failed to meet their
burden of proof with respect to those two titles.
The final book offered as an example of inaccessibility was The Sign of the
Fish, by Joann Klusmeyer. The proponents of the class stated that the book
opened in Acrobat, but content was not accessible. Nothing was said about
whether the book was also available in other formats (and, if so, whether those
formats were accessible). Again, the proponents presented insufficient evidence
to evaluate whether yet another of the limited number of titles in their sample
was inaccessible in all ebook formats.
Although the Register could recommend against designation of the proposed class
based simply upon the proponents' failure to provide sufficient evidence
to evaluate whether any of the three nonpublic domain books cited by the
proponents are inaccessable in all ebook formats, the Register's staff
conducted some additional research to determine whether the case could be made
that any or all of those books are inaccessible in all formats. With respect to
Brian's Hunt and The Bridges of Madison County, a quick review of the
market revealed that both of these works are available as digital texts through
Bookshare.org. However, The Sign of the Fish is not available in any edition
that permits the enabling of the ebook readaloud function or of screen readers.
However, the Register cannot conclude that the prohibition on circumvention has
had an adverse effect on the noninfringing use of reading ebooks with screen
readers or the readaloud function when the evidence reveals the case is built
upon a single obscure book.
The Register fully supports universal accessibility to ebooks for the blind and
visually impaired. However, the rulemaking established by Congress requires
proponents to demonstrate, de novo, in each rulemaking proceeding, that relief
relating to a particular class of works is warranted for the ensuing threeyear
period. The Register is sympathetic to the needs of the blind and visually
impaired, and agrees that as a matter of policy, access to ebooks for the
visually impaired should be encouraged and that, when there is evidence that the
prohibition on circumvention is having an adverse impact on that goal, an
appropriate class of works should be designated in this rulemaking. The Register
has not hesitated to recommend such classes when the record has supported such a
recommendation. However, unless the burden of presenting a prima facie case is
met, the statutory standard established for this rulemaking does not permit the
designation of a class of works. Presenting strong policy arguments in favor of
exempting a class of works from the prohibition on circumvention is only part of
the battle that a proponent must wage; it is also necessary to provide
sufficient facts to justify a finding that the prohibition actually is having or
is likely to have an adverse effect on noninfringing uses.
For all of the reasons set forth above, the Register finds no factual basis for
designating the proposed class of works. While the Register's
recommendations in previous rulemakings made clear that the Register understands
and accepts the legal and policy reasons for such an exemption, the constraints
established by Congress in this rulemaking proceeding do not permit the
designation of a class of works in the absence of a factual record that supports
the need for the designation. No such showing has been made in this proceeding.
IV. Conclusion
Having considered the evidence in the record, the contentions of the parties,
and the statutory objectives, the Register of Copyrights recommends that the
Librarian of Congress publish the five classes of copyrighted works designated
above, so that the prohibition against circumvention of technological measures
that effectively control access to copyrighted works shall not apply to persons
who engage in noninfringing uses of those particular classes of works.
Dated: July 19, 2010
Marybeth Peters,
Register of Copyrights.
Determination of the Librarian of Congress
Having duly considered the recommendation of the Register of Copyrights as
summarized above and having accepted that recommendation with respect to all but
one of the classes of works under consideration, the Librarian of Congress is
exercising his authority under 17 U.S.C. 1201(a)(1)(C) and (D) and is publishing
as a new rule the six classes of copyrighted works that shall be subject to the
exemption found 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).
The Librarian has considered but rejected the Register's recommendation
with respect to the proposed class of works consisting of literary works
distributed in ebook format. This class of works was proposed by the American
Foundation for the Blind (AFB) and is identical to that for which an exemption
was granted in 2006 and similar to the class for which an exemption was granted
in 2003.
The Librarian understands, and agrees with, the Register regarding the
requirement that a decision on a proposed class of works be made based on the
record developed in the rulemaking proceeding. In the view of the Librarian, the
proposed exemption should be granted because: (1) the record includes statements
on the likelihood of access not being available to blind individuals, (2) no one
opposed the exemption, and (3) there are broad benefits to society in making
works accessible to the visually impaired. The Librarian notes that, in contrast
with its actions in both 2003 and 2006, the Copyright Office did not submit any
posthearing questions on this proposed exemption. Such development of the record
would have been helpful. The Librarian also notes that the Assistant Secretary
for Communications and Information of the Department of Commerce, with whom the
Register is required by Section 1201(a)(l)(C) to consult when she makes her
recommendation, supports granting the exemption.
Accordingly, the Librarian is designating the class of works relating to
literary works distributed in ebook format.
Notwithstanding the above, the Librarian is aware that, in the past two years,
the Register and her legal staff have invested a great deal of time in analyzing
the myriad of issues that combine to make it difficult for blind and
printdisabled persons to obtain access to certain ebooks. The Copyright Office
has hosted comprehensive meetings with stakeholders, solicited public comment on
the application of domestic and international law to accessibility, participated
in interagency and intergovernmental meetings in Washington, DC and Geneva, and,
with the World Intellectual Property Organization, cosponsored a major
international training program for experts from developing countries. Through
this work, the Register has come to believe that more general Congressional
attention on the issue of accessibility is merited. I agree with the Register in
this determination.
The section 1201 process is a regulatory process that is at best illsuited to
address the larger challenges of access for blind and printdisabled persons. The
exemption that the Librarian is approving here offers a solution to specific
concerns that were raised in the narrow context of the rulemaking. Moreover, it
is a temporary solution, as the 1201 process begins anew every three years.
Outside of section 1201 and the issue of technological protection measures, the
Register has been examining whether copyright law, and to some extent related
disabilities and education laws, adequately serve the blind and printdisabled
population in the digital age. In particular, the Register has learned that,
even where books are published electronically for the general public, the
digital format used or licensed may be employed in a way that is incompatible
with Braille readers and other assistive technologies on which blind and print-
disabled persons rely. In the long run, this incompatibility may lead to delays,
cost challenges and standards issues that may off-set the long-awaited benefits
of digital media. Copyright and content issues cannot be divorced from the
general goal of ensuring that hardware devices are designed with accessibility
in mind. The Librarian fully supports the Register in her examination of these
issues and urges Congress to work with the Copyright Office to consider
accessibility beyond the contours of this 1201 rulemaking.
List of Subjects in 37 CFR 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 five classes of
copyrighted works:
(1) Motion pictures on DVDs that are lawfully made and acquired and that are
protected by the Content Scrambling System when circumvention is accomplished
solely in order to accomplish the incorporation of short portions of motion
pictures into new works for the purpose of criticism or comment, and where the
person engaging in circumvention believes and has reasonable grounds for
believing that circumvention is necessary to fulfill the purpose of the use in
the following instances:
(i) Educational uses by college and university professors and by college and
university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.
(2) Computer programs that enable wireless telephone handsets to execute software
applications, where circumvention is accomplished for the sole purpose of
enabling interoperability of such applications, when they have been lawfully
obtained, with computer programs on the telephone handset.
(3) Computer programs, in the form of firmware or software, that enable used
wireless telephone handsets to connect to a wireless telecommunications network,
when circumvention is initiated by the owner of the copy of the computer program
solely in order to connect to a wireless telecommunications network and access
to the network is authorized by the operator of the network.
(4) Video games accessible on personal computers and protected by technological
protection measures that control access to lawfully obtained works, when
circumvention is accomplished solely for the purpose of good faith testing for,
investigating, or correcting security flaws or vulnerabilities, if:
(i) The information derived from the security testing is used primarily to
promote the security of the owner or operator of a computer, computer system, or
computer network; and
(ii) The information derived from the security testing is used or maintained in a
manner that does not facilitate copyright infringement or a violation of
applicable law.
(5) Computer programs protected by dongles that prevent access due to malfunction
or damage and which are obsolete. A dongle shall be considered obsolete if it is
no longer manufactured or if a replacement or repair is no longer reasonably
available in the commercial marketplace.
(6) Literary works distributed in ebook format when all existing ebook editions
of the work (including digital text editions made available by authorized
entities) contain access controls that prevent the enabling either of the
book's readaloud function or of screen readers that render the text into a
specialized format.
Dated: July 20, 2010
James H. Billington,
The Librarian of Congress.
[FR Doc. 04????? Filed ????04; 8:45 am]BILLING CODE 141030S