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27 November 2006
[Federal Register: November 27, 2006 (Volume 71, Number 227)]
[Rules and Regulations]
[Page 68472-68480]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27no06-10]
=======================================================================
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. RM 2005-11]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: Copyright Office, Library of Congress.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This notice announces that during the next three years, 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: November 27, 2006.
FOR FURTHER INFORMATION CONTACT: Steven Tepp, Principal Legal Advisor,
and David O. Carson, General Counsel, Copyright GC/&, P.O. Box 70400,
Southwest Station, Washington, D.C. 20024-0400. Telephone: (202) 707-
8380; telefax: (202) 707-8366.
SUPPLEMENTARY INFORMATION: In this notice, the Librarian of Congress,
upon the recommendation of the Register of Copyrights, announces that
during the period from the time of this notice through October 27,
2009, 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. This announcement is the culmination of a rulemaking proceeding
commenced by the Register on October 3, 2005. 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 of November 17, 2006, to the Librarian, which
contains the full explanation of the Register's recommendation.\1\ This
notice summarizes the Register's recommendation and publishes the
regulatory text codifying the six exempted classes of works.
---------------------------------------------------------------------------
\1\ A copy of the Register's memorandum may be found at http://www.copyright.gov/1201
.
---------------------------------------------------------------------------
I. Background
A. Legislative Requirements for Rulemaking Proceeding
In 1998, Congress enacted the Digital Millennium Copyright Act
(``DMCA''), which among other things amended title 17, United States
Code, to add section 1201. Section 1201 prohibits circumvention of
technological measures employed by or on behalf of copyright owners to
protect their works (hereinafter ``access controls''). 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, exempting noninfringing uses of any
``particular class of works'' when users are (or in the next 3 years
are likely to be) adversely affected by the prohibition in their
ability to make noninfringing uses of that class of works.
Identification of such classes of works is made in a rulemaking
proceeding 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 3-year period.''\2\
---------------------------------------------------------------------------
\2\ 17 U.S.C. 1201(a)(1)(D).
---------------------------------------------------------------------------
The first section 1201 rulemaking took place in 2000, and on
October 27, 2000, the Librarian determined that noninfringing users of
two classes of works would not be subject to the prohibition on
circumvention of access controls.\3\ Exemptions to the prohibition on
circumvention remain in force for a three-year period and expire at the
end of that period. The Librarian is required to make a determination
on potential new exemptions every three years. The second rulemaking
culminated in the Librarian's October 28, 2003, announcement that
noninfringing users of four classes of works would not be subject to
the prohibition on circumvention of access controls.\4\
---------------------------------------------------------------------------
\3\ Exemption to Prohibition on Circumvention of Copyright
Protection Systems for Access Control Technologies, 65 FR 64555
(October 27, 2000); http://www.copyright.gov/fedreg/2000/65fr64555.pdf.
The Federal Register notice contained the
recommendation of the Register of Copyrights and the determination
of the Librarian.
\4\ The announcement was published in the Federal Register on
October 31, 2003. Exemption to Prohibition on Circumvention of
Copyright Protection Systems for Access Control Technologies, 68 FR
62011 (October 31, 2003); http://www.copyright.gov/fedreg/2003/68fr2011.pdf.
On October 30, 2006, the Librarian announced that the
existing classes of works were being extended, on an interim basis,
pending the conclusion of the current rulemaking proceeding.
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies, 71 FR 63247 (October 30,
2006).
---------------------------------------------------------------------------
B. Responsibilities of Register of Copyrights and Librarian of Congress
The purpose of the rulemaking proceeding conducted by the Register
is to determine whether users of particular classes of copyrighted
works are, or in the next three years are likely to be, adversely
affected by the prohibition in their ability to make noninfringing uses
of copyrighted works. In making her recommendation to the Librarian,
the Register must carefully balance the availability of works for use,
the effect of the prohibition on particular uses and the effect of
circumvention on copyrighted works. Section 1201(a)(1)(C) directs the
Register and the Librarian to examine: ``(i) the availability for use
of copyrighted works; (ii) the availability for use of works for
nonprofit archival, preservation, and educational purposes; (iii) the
impact that the prohibition on the circumvention of technological
measures applied to copyrighted works has on criticism, comment, news
reporting, teaching, scholarship, or research; (iv) the effect of
circumvention of technological measures on the market for or value of
copyrighted works; and (v) such other factors as the Librarian
considers appropriate.''
C. The Purpose and Focus of the Rulemaking
1. Purpose of the Rulemaking
As originally drafted, section 1201(a)(1) provided simply that ``No
person shall circumvent a technological measure that effectively
controls access to a work protected under this title.'' However, in
response to concerns that section 1201, in its original form, might
undermine Congress's commitment to fair use if developments in the
[[Page 68473]]
marketplace relating to use of access controls result in less access to
copyrighted materials that are important to education, scholarship, and
other socially vital endeavors, it was determined that a triennial
rulemaking proceeding should take place to monitor the use of access
controls. If the rulemaking record revealed that access was being
unduly restricted, e.g., by elimination of print or other hard-copy
versions, permanent encryption of all electronic copies or adoption of
business models that restrict distribution and availability of works,
then users of particular classes of works who are engaging in
noninfringing uses of those works would be allowed to circumvent access
controls without running afoul of the prohibition in section
1201(a)(1). The rulemaking proceeding, to be conducted by the Register
of Copyrights, was considered a ``fail-safe'' mechanism, monitoring
developments in the marketplace for copyrighted materials, and would
allow the enforceability of the prohibition against the act of
circumvention to be selectively waived, for limited time periods, if
necessary to prevent a diminution in the availability to individual
users of a particular category of copyrighted materials.
2. The Necessary Showing
Proponents of an exemption have the burden of proof. In order to
make a prima facie case for an exemption, 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 exemptions are reviewed de novo. The existence of a
previous exemption creates no presumption for consideration of a new
exemption, but rather the proponent of such an exemption must make a
prima facie case in each three-year period.
3. Determination of ``Class of Works''
In previous rulemakings, it was determined that 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, but that those categories are only a starting
point and a ``class'' will generally constitute some subset of a
section 102 category. The determination 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 an exemption may have on the market for or value of
copyrighted works.
It was also determined that while starting with a section 102
category of works, or a subcategory thereof, the description of a
``particular class''of 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. But classifying a work solely by reference to
the medium on which the work appears, or the access control measures
applied to the work, would be beyond the scope of what ``particular
class of work'' is intended to be.
In the current proceeding, the Register has concluded that in
certain circumstances, it will also be permissible to refine the
description of a class of works by reference to the type of user who
may take advantage of the exemption or by reference to the type of use
of the work that may be made pursuant to the exemption. The Register
reached this conclusion in reviewing a request to exempt a class of
works consisting of ``audiovisual works included in the educational
library of a college or university's film or media studies department
and that are protected by technological measures that prevent their
educational use.'' Concluding that a ``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, the Register has concluded that given the facts
demonstrated by the film professor proponents of the exemption and the
legitimate concerns expressed by the opponents of the proposed
exemption, it makes sense that a class may, in appropriate cases, be
additionally refined by reference to the particular type of use and/or
user.
D. Consultation with the Assistant Secretary for Communications and
Information
As required by section 1201(a)(1)(C), the Register consulted with
the Assistant Secretary for Communications and Information of the
Department of Commerce, meeting with him at the outset of the
rulemaking proceeding and exchanging information throughout the course
of the proceeding. The Assistant Secretary communicated his views to
the Register in letters dated September 13, 2006, and October 31, 2006.
The letters related to the proposal to designate as a class of works
``Computer programs that operate wireless communications handsets,''
and are discussed below in the discussion of that particular proposal.
II. Solicitation of Public Comments and Hearings
On October 3, 2005, the Register initiated the current rulemaking
proceeding pursuant to section 1201(a)(1)(C) with publication of a
Notice of Inquiry.\5\ The Copyright Office received 74 written comments
proposing a class or classes of works for exemption. Supporters and
opponents of these proposals filed 35 reply comments. Four days of
public hearings were conducted in Spring 2006 in Washington, D.C., and
Palo Alto, California. Following the hearings, the Office sent follow-
up 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.\6\
---------------------------------------------------------------------------
\5\ 70 FR 57526 (October 3, 2005); http://www.copyright.gov/fedreg/2005/70fr57526.html
.
\6\ http://www.copyright.gov/1201/index.html. Some of the
witnesses at the hearing submitted audiovisual materials which are
not available on the website, but are on file with the Copyright
Office.
---------------------------------------------------------------------------
The Register has now carefully reviewed and analyzed the entire
record in this rulemaking proceeding to determine whether any classes
of copyrighted works should be exempt from the prohibition against
circumvention during the next three years. The Register recommends that
noninfringing users of six classes of works be exempt from the
prohibition on circumvention of access controls.
III. Discussion
A.The Six Exempted Classes
Based on the Register's review of the record, the case has been
made for exemptions pertaining to the following six classes of
copyrighted works.
1. Audiovisual works included in the educational library of a
college or
[[Page 68474]]
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.
A number of film and media studies professors proposed a class
consisting of ``Audiovisual works included in the educational library
of a college or university's film or media studies department and that
are protected by technological measures that prevent their educational
use.'' They asserted that in order to teach their classes effectively,
they need to be able to create compilations of portions of motion
pictures distributed on DVDs protected by CSS for purposes of classroom
performance. They also asserted that in order to show pedagogically
necessary, high quality content in a reasonably efficient manner, they
must circumvent CSS in order to extract the portions of motion pictures
or audiovisual works necessary for their pedagogical purposes.
The proponents of this exemption demonstrated that the reproduction
and public performance of short portions of motion pictures or other
audiovisual works in the course of face-to-face teaching activities of
a film or media studies course would generally constitute a
noninfringing use. Moreover, the record did not reveal any alternative
means to meet the pedagogical needs of the professors. The professors
demonstrated that the encrypted DVD versions of motion pictures often
are of higher quality than copies in other available formats and
contain attributes that are extremely important to teaching about film
for a number of reasons. For example, the DVD version of a motion
picture can preserve the original color balance and aspect ratio of
older motion pictures when other available alternatives fail to do so.
The most significant objection to the proposal was the concern
expressed by copyright owners that an exemption for a ``class of
works'' would necessarily exempt a much broader range of uses than
those in which the film professors wished to engage. Copyright owners
noted that in prior rulemakings, the Register had determined that a
class must be based primarily on attributes of the work itself and not
the nature of the use or the user. Therefore, recognizing the class
sought by the film professors would benefit not only persons similarly
situated to the film professors, but others engaging in entirely
different uses. Further, copyright owners believed that such an
exemption would create confusion about the circumstances in which
circumvention was appropriate.
The concerns of the copyright owners were well-founded, but the
Register has concluded that those concerns can be addressed without
denying an exemption that will enable the film professors to engage in
the noninfringing uses they have identified. The facts underlying the
film professors' proposal justify a refinement of the approach that has
been taken in determining what may be a ``particular class of works.''
Even though a ``class'' must begin, as its starting point, by reference
to one of the categories of authorship enumerated in section 102 of the
Copyright Act (or a subset thereof), the ways in which that primary
classification should be further delineated depend on the specific
facts demonstrated in the proceeding. Based on the facts presented with
respect to this proposed class of works and based on a review of the
statutory text and legislative history, the Register has concluded that
given the appropriate factual showing, it is permissible to refine the
definition of a ``class'' of works by reference to particular types of
uses and/or users.
If it had not been possible to define a class of works by reference
to the users or the uses made of those works, it might have been
difficult for the Register to recommend an exemption for this class of
works. The Register would have had to make difficult choices between
(1) recommending an exemption for a particular class of works that
would permit circumvention for a broad ranges of uses, even though the
case had been made for only a narrow noninfringing use, and (2)
refusing to recognize an exemption for a class because the adverse
consequences of a broadly defined class would outweigh the
prohibition's adverse effects to a narrow noninfringing use. Refining
the exempted class by reference to the users and uses for which a case
had been made in this rulemaking proceeding permits the Librarian to
designate a class of works that is tailored to the case that was made
in the rulemaking but avoids adverse consequences that may result from
the recognition of too broad a class. Such an approach is consistent
with Congress's directive that a ```particular class of copyrighted
works' [should] be a narrow and focused subset of the broad categories
of works of authorship identified in section 102.''
In this case, the proposed class should be refined by reference to
both the user and the use, as follows: ``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.''
2. Computer programs and video games distributed in formats that
have become obsolete and that require the original media or hardware
as a condition of access, when circumvention is accomplished for the
purpose of preservation or archival reproduction of published
digital works by a library or archive. A format shall be considered
obsolete if the machine or system necessary to render perceptible a
work stored in that format is no longer manufactured or is no longer
reasonably available in the commercial marketplace.
The Internet Archive, along with some supporting commenters,
proposed an exemption that is identical to the classes of works
exempted in the 2003 Rulemaking proceeding. There was no direct
opposition to this request, apart from a concern by copyright owners
that many old video games and computer programs are being reintroduced
into the market in new ways by their copyright owners, who wished to
exclude from the exemption video games that have been re-released on a
new gaming platform because circumvention of access controls would
cause significant harm to copyright owners in their exploitation of
these re-released works. The copyright owners stated that they
appreciated that the Internet Archive is solely interested in
preservation and archival use, which would not necessarily be harmful
to copyright owners' interests. Yet, they argued, because the exemption
is not limited by reference to the specific use or user, the effect of
the exemption could extend well beyond the specific use that served as
the basis of the exemption, i.e., archival and preservation use.
Because the particular noninfringing use sought by the Internet
Archive that serves as the sole basis for this exemption is
preservation and archival use, and because the Register has determined
that in appropriate cases, the definition of a class of works may be
refined by reference to particular kinds of users and/or uses, the
concerns of copyright owners can be addressed by such a refinement,
which also meets the case presented by the Internet Archive. The
Internet Archive established that its archival and preservation
activities are noninfringing and that computer programs and video games
that were distributed in formats that have become obsolete and that
require the original media or hardware as a condition of access (e.g.,
that the original floppy diskette must be inserted into a computer's
disc drive in order for the program to operate) constitute works
[[Page 68475]]
protected by access controls. Without the ability to circumvent those
``original-only'' access controls, the Internet Archive could not
engage in its preservation and archival activities with respect to
those works. Therefore, the Register recommends renewal of this
exemption.
The Internet Archive also sought an exemption for a second proposed
class: ``Computer programs and video games distributed in formats that
require obsolete operating systems or obsolete hardware as a condition
of access.'' The Register cannot recommend adoption of an exemption for
this proposed class because it does not involve access controls and,
therefore, no exemption is needed. This is, in fact, consistent with
the request of the Internet Archive, which sought designation of the
second class ``only if, and only to the extent that, the Copyright
Office determines that such practical restrictions on access created by
the lack of backward compatibility in new software and hardware
platforms constitute ``technological protection measures' within the
meaning of the Digital Millennium Copyright Act.'' The fact that the
creators of the computer programs and video games in question designed
them to run on particular operating systems or particular hardware does
not make the operating system or hardware `technological measures that
control access to works.'' Section 1201 addresses technological
measures that copyright owners place on works in order to restrict
access to those who are not authorized to gain access. There is no
suggestion in the record that the operating systems and hardware in
question are such technological measures. Because organizations such as
the Internet Archive do not violate Sec. 1201(a)(1)(A) when they take
measures to make such computer programs and video games run on new
operating systems or hardware, there is no need to designate a class
for exemption from the operation of Sec. 1201(a)(1)(A).
3. 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.
A number of commenters proposed the renewal of an existing
exemption from 2003, which in turn was a modified version of one of the
exemptions from the first rulemaking in 2000. As described in the first
rulemaking, ``[the] issue relates to the use of `dongles,' hardware
locks attached to a computer that interact with software to prevent
unauthorized access to that software.'' In both the previous
rulemakings, evidence was presented that damaged or malfunctioning
dongles can prevent authorized access to the protected software.
Because in some instances the software vendors may be unresponsive or
have gone out of business, the evidence painted a compelling picture of
a genuine problem for authorized users of often-expensive computer
programs who lose their ability to gain access to those programs due to
malfunctioning or damaged hardware that cannot be replaced or repaired.
The legal and analytical rationale for this exemption remains
unchanged. Thus, the key question is whether the evidence in this
record supports renewing the exemption for another three years. The
Register concludes that a sufficient factual showing was made at the
public hearing on this proposed exemption. However, for purposes of
clarity and consistency, the description of the class should be refined
to include an explanation of what constitutes an ``obsolete'' dongle.
This is consistent with the existing exemption for ``computer programs
and video games distributed in formats that have become obsolete and
which require the media or hardware as a condition of access.'' That
class of works includes a second sentence describing when a format is
obsolete: ``A format shall be considered obsolete if the machine or
system necessary to render perceptible a work stored in that format is
no longer manufactured or is no longer reasonably available in the
commercial marketplace.'' A similar explanation should be included in
the description of this class.
However, the Register cannot recommend adoption of an expanded
exemption sought by one proponent. At the hearing on the proposed class
of computer programs protected by dongles, that proponent asked, for
the first time, that the class of works be expanded from ``Computer
programs protected by dongles that prevent access due to malfunction or
damage and which are obsolete'' to ``Computer programs protected by
dongles that prevent access due to malfunction or damage or hardware or
software incompatibilities or require obsolete operating systems or
obsolete hardware as a condition of access.'' (Emphasis added.) That
request was untimely. The purpose of the hearing, at a relatively late
stage of the proceedings, is not to accept new proposals for exemptions
or to entertain requests for expanded versions of exemptions that were
proposed in a timely manner, but rather to give proponents and
opponents of exemptions an opportunity to summarize the facts and
arguments that have already been presented in written comments, to draw
attention to those facts and arguments that they believe are most
pertinent in the time allotted for the hearing, to respond to questions
from the Register and her staff, and, if appropriate and applicable, to
demonstrate some of the facts related in the written comments.
4. 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 read-aloud function or of
screen readers that render the text into a specialized format.
A number of commenters, led by the American Foundation for the
Blind, proposed renewal of an existing exemption for ebooks for which
the ``screen readers'' and the ``read-aloud'' function have been
disabled. These functions enable the blind to ``read'' the text of an
ebook by rendering the written text of the book into audible, synthetic
speech. Screen readers also allow the text and layout of a text screen
to be conveyed spatially so that a blind user can perceive the
organization of a page on the screen or even the organization of a work
as a whole and navigate through that ebook.
Some literary works are distributed in ebook form with the read-
aloud and screen reader functions disabled through the use of digital
rights management tools. In order to alter the usage settings of such
ebooks in order to enable read-aloud and screen reader functionality, a
user would have to circumvent access controls.
The proponents of this exemption selected a sample of five titles
and conducted only a limited examination of the options available even
for those five titles -- a minimal showing at best. However, the
Register has concluded that the proponents have met their burden, if
only barely. Especially in light of the fact that nobody, including the
copyright owners whose works would be subject to this exemption, has
urged rejection of the proposed exemption, the Register recommends
renewal of the exemption.
However, proponents of the exemption have made a persuasive
argument for a minor modification of the existing exemption, which
currently is applicable only if there is no ebook edition of the work
that contains access controls that prevent the enabling both of the
ebook's read-aloud function andof screen readers. Because of the
[[Page 68476]]
limited functionality of the read-aloud function on ebooks and the
ability that screen readers offer to the blind to actually navigate
within an ebook, the Register is persuaded that the exemption should be
applicable to a literary work 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 read-aloud function or of screen readers that render the
text into a specialized format. In other words, if there is no screen
reader functionality or no read-aloud functionality, the exemption will
apply.
5. 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.
The Wireless Alliance and Robert Pinkerton proposed an exemption
for ``Computer programs that operate wireless communications
handsets.'' The proponents of this exemption stated that providers of
mobile telecommunications (cellphone) networks are using various types
of software locks in order to control customer access to the
``bootloader'' programs on cellphones and the operating system programs
embedded inside mobile handsets (cellphones). These software locks
prevent customers from using their handsets on a competitor's network
(even after all contractual obligations to the original wireless
carrier have been satisfied) by controlling access to the software that
operates the mobile phones (e.g., the mobile firmware).
Many reply comments were submitted in support of this exemption and
only one reply comment provided any opposition to the proposal. Only
two witnesses testified at the hearing on this issue: a representative
of the principal proponent of the exemption and a representative of
some copyright owners (none of whom operate wireless telecommunication
services, manufacture wireless handsets or make bootloader or operating
system programs for cellphones).
It was undisputed that mobile handset consumers who desire to use
their handsets on a different telecommunications network are often
precluded from doing so unless they can obtain access to the bootloader
or operating system within the handset in order to direct the phone to
a different carrier's network. The evidence demonstrated that most
wireless telecommunications network providers do not allow a consumer
to obtain such access in order to switch a cell phone from one network
to another, and that the consumer could not use the cell phone with
another carrier, even after fulfilling his or her contractual
obligations with the carrier that sold the phone. In order to switch
carriers, the consumer would have to purchase a new phone from a
competing mobile telecommunications carrier.
The obstacle that prevents customers from using lawfully acquired
handsets on different carriers is the software lock. At least one
wireless telecommunications service has filed lawsuits alleging that
circumvention of the software lock is a violation of section
1201(a)(1)(A) and has obtained a permanent injunction (albeit by
stipulation).
The Register has concluded that the software locks are access
controls that adversely affect the ability of consumers to make
noninfringing use of the software on their cellular phones. Moreover, a
review of the four factors enumerated in Sec. 1201(a)(1)(C)(i)-(iv)
supports the conclusion that an exemption is warranted. There is
nothing in the record that suggests that the availability for use of
copyrighted works would be adversely affected by permitting an
exemption for software locks. Nor is there any reason to conclude that
there would be any impact -- positive or negative -- on the
availability for use of works for nonprofit archival, preservation, and
educational purposes or on the ability to engage in criticism, comment,
news reporting, teaching, scholarship, or research. Nor would
circumvention of software locks to connect to alternative mobile
telecommunications networks be likely to have any effect on the market
for or value of copyrighted works. The reason that these four factors
appears to be neutral is that in this case, the access controls do not
appear to actually be deployed in order to protect the interests of the
copyright owner or the value or integrity of the copyrighted work;
rather, they are used by wireless carriers to limit the ability of
subscribers to switch to other carriers, a business decision that has
nothing whatsoever to do with the interests protected by copyright. And
that, in turn, invokes the additional factor set forth in Sec.
1201(a)(1)(C)(v): ``such other factors as the Librarian considers
appropriate.'' When application of the prohibition on circumvention of
access controls would offer no apparent benefit to the author or
copyright owner in relation to the work to which access is controlled,
but simply offers a benefit to a third party who may use Sec. 1201 to
control the use of hardware which, as is increasingly the case, may be
operated in part through the use of computer software or firmware, an
exemption may well be warranted. Such appears to be the case with
respect to the software locks involved in the current proposal.
The copyright owners who did express concern about the proposed
exemption are owners of copyrights in music, sound recordings and
audiovisual works whose works are offered for downloading onto cellular
phones. They expressed concern that the proposed exemption might permit
circumvention of access controls that protect their works when those
works have been downloaded onto cellular phones. The record on this
issue was fairly inconclusive, but in any event the proponents of the
exemption provided assurances that there was no intention that the
exemption be used to permit unauthorized access to those works. Rather,
the exemption is sought for the sole purpose of permitting owners of
cellular phone handsets to switch their handsets to a different
network.
Because the Register has concluded that, in appropriate
circumstances, a class of works may be refined by reference to uses
made of the works, this issue can best be resolved by modifying the
proposed class of works to extend only to ``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.''
On September 18, 2006, long after the comments had been submitted
and the hearings had been conducted in this rulemaking, the Register
received unsolicited submissions from CTIA - The Wireless Association
(a nonprofit trade association that promotes the interests of the
wireless industry, representing both wireless carriers and
manufacturers) and TracFone Wireless, Inc. (which describes itself as
``America's largest prepaid wireless company''). The submissions
included the submitters' responses to written questions that the
Copyright Office had submitted to the two witnesses who had testified
at the March 23, 2006, hearing on the proposed exemption -- witnesses
who had no relationship with Tracfone or CTIA. The submissions also
contained arguments opposing the proposed exemption.
In the course of his consultation with the Register of Copyrights
on this rulemaking, the Acting Assistant Secretary of Commerce for
[[Page 68477]]
Communications and Information shared his concern that the record on
this proposal appeared to be incomplete and stated that he was pleased
that the Register had sought additional information (in the form of the
written questions to the witnesses) to supplement the record.
Subsequently, he expressed to the Register his view that the CTIA and
TracFone comments ``afford you a complete record in which the views of
both users and creators of content are currently represented,'' and
urged the Register to consider those submissions in making her
recommendation.
The Assistant Secretary's concerns are understandable, and the
Register shares his desire that the views of both users and creators of
content be represented in the rulemaking. However, complying with the
Assistant Secretary's request and accepting the last-minute submissions
of CTIA and TracFone would undermine the procedural requirements of
this proceeding and of the rulemaking process in general. While it is
preferable that all interested parties make their views known in the
rulemaking process, they must do so in compliance with the process that
is provided for public comment, or offer a compelling justification for
their failure to do so. In this case, they have failed to offer such
justification. CTIA (which counts TracFone among its members) was aware
of this rulemaking proceeding and this request for an exemption as
early as January or February, 2006. Yet it remained silent until
September 18, long after the opportunities provided for comment and
testimony had expired. Nor did it offer any explanation for its
silence. If these extremely untimely submissions were accepted, it
would be difficult to imagine when it ever would be justified to reject
an untimely comment. Such a precedent would be an invitation to chaos
in future rulemakings. Therefore, the late submissions of CTIA and
TracFone have not been considered.
6. Sound recordings, and audiovisual works associated with those
sound recordings, distributed in compact disc format and protected
by technological protection measures that control access to lawfully
purchased works and 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.
A number of commenters sought an exemption based on facts arising
out of the distribution, by Sony BMG Music Entertainment, of compact
discs (CDs) which employed certain digital rights management (``DRM'')
software that created security vulnerabilities on computers on which
the software was installed. Specifically, they identified SunnComm's
MediaMax content protection software and First4Internet's XCP copy
protection software program. The leading proponents of such an
exemption, Edward W. Felten, Professor of Computer Science and Public
Affairs at Princeton University, and J. Alex Halderman, a graduate
student at Princeton, proposed a class of ``sound recordings and
audiovisual works distributed in compact disc format and protected by
technological measures that impede access to lawfully purchased works
by creating or exploiting security vulnerabilities that compromise the
security of personal computers.''
The evidence in the record demonstrated that MediaMax and XCP
controlled access to the sound recordings (as well as some related
audiovisual works, such as music videos) on a number of CDs distributed
in 2005 and, as a consequence, ended up being installed on perhaps half
a million computer networks worldwide. The evidence also established
that these access controls created security vulnerabilities on the
personal computers on which they were installed. For example, XCP
includes a ``rootkit'' which cloaks the existence of other aspects of
the XCP digital rights management software (a music player application
and a device driver). The rootkit creates security vulnerabilities by
providing a cloak that conceals malicious software, a cloak that, in
fact, was exploited by disseminators of malware within days of the
discovery of the XCP rootkit.
Copyright owners opposed the proposed exemption primarily on the
ground that they believe there already exists a statutory exemption
that permits circumvention of access controls ``for the purpose of good
faith testing, investigating, or correcting, a security flaw or
vulnerability, with the authorization of the owner or operator of such
computer, computer system, or computer network.'' See17 U.S.C. Sec.
1201(j). But while it appears that this statutory exemption may permit
circumvention in cases such as those involving MediaMax and XCP, it is
not clear whether that provision extends to such conduct. In light of
that uncertainty and the seriousness of the problem, the Register
recommends that the Librarian designate a class of works consisting of
sound recordings, and audiovisual works associated with those sound
recordings, distributed in compact disc format and protected by
technological protection measures that control access to lawfully
purchased works and 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.
The restriction of the exemption to cases where the purpose of
circumvention is to engage in good faith testing, investigating, or
correcting of security flaws or vulnerabilities is language taken
directly from Sec. 1201(j), in recognition of Congress's judgment that
in such cases, the privilege to circumvent should extend only to
conduct directed at the security flaws or vulnerabilities that justify
the exemption in the first place.
B. Other Exemptions Considered, But Not Recommended
A number of other proposed exemptions were considered, but
rejected. They are briefly discussed below. Similar proposed exemptions
are discussed together.
1. Compilations consisting of lists of Internet locations
blocked by commercially marketed filtering software applications
that are intended to prevent access to domains, websites or portions
of websites, but not including lists of Internet locations blocked
by software applications that operate exclusively to protect against
damage to a computer or a computer network or lists of Internet
locations blocked by software applications that operate exclusively
to prevent receipt of email.
This proposal is for the renewal of an existing exemption from
2003, which in turn was a modified version of one of the original
exemptions from the 2000 rulemaking. As in the previous two
rulemakings, initial comments proposed an exemption to the prohibition
on circumvention in order to access the lists of blocked websites or
Internet addresses that are used in various filtering software programs
sometimes referred to as ``censorware.'' These programs are intended to
prevent children and other Internet users from viewing objectionable
material while online. It has been alleged that although the software
is intended to serve a useful societal purpose, the emphasis of the
programs is on robust blocking rather than accuracy. Critics contend
that the result of this focus is that this type of filtering software
tends to over-block, thereby preventing access to legitimate
informational resources. Proponents of the exemption (both previously
and again this year) wish to legalize the circumvention of the
technology which controls access to
[[Page 68478]]
lists of blocked Internet locations and thus adversely affects one's
ability to comment on and criticize the lists of sites blocked by the
technological protection measure.
Although the notice of proposed rulemaking made clear that
proponents of renewal of an existing exemption must make their case de
novo, proponents in the current rulemaking proceeding made no attempt
to make any factual showing whatsoever, choosing instead to rest on the
record from three years ago and argue that the existing exemption has
done no harm, that nothing has changed to suggest the exemption is no
longer needed, and that if anything, the use of filtering software is
on the rise. In a rulemaking proceeding that places the burden of
coming forward with facts to justify an exemption for the ensuing
three-year period on proponents, one cannot assume that the elements of
the case that was made three years ago remain true now. Nor is there
any evidence in the record that there has been any use of the exemption
in the past three years, or that there would be likely to be any use of
an exemption during the next three years. While this is not necessarily
fatal, nevertheless a record that reveals no use of an existing
exemption tends to indicate that the exemption is unnecessary.
Together, the absence of any quantification of the current scope of the
problem along with the absence of any demonstration that the existing
exemption has offered any assistance to noninfringing users leaves a
record that provides no basis to justify a recommendation for renewal
of the exemption.
2. Space-shifting.
A number of commenters sought an exemption for an activity that is
referred to by some of those commenters generally as ``space-
shifting.'' In essence, these commenters sought an exemption to permit
circumvention of technological protection measures applied to
audiovisual and musical works in order to copy these works to other
media or devices and to access these works on those alternative media
or devices. In most cases, the comments did not identify the particular
technological measures; indeed, in most cases it was unclear whether
the commenters were referring to access controls or copy controls, or
simply to incompatibility of formats.
Many of the commenters claimed that their space-shifting of the
works and their access to those works on an alternative device were
noninfringing uses and that technological restrictions were impeding
their ability to engage in a noninfringing use. Yet these commenters
uniformly failed to cite legal precedent that establishes that such
space-shifting is, in fact, a noninfringing use. The Register concludes
that the reproduction of those works onto new devices is an
infringement of the exclusive reproduction right unless some exemption
or defense is applicable. In the absence of any persuasive legal
authority for the proposition that making copies of a work onto any
device of the user's choosing is a noninfringing use, there is no basis
for recommending an exemption to the prohibition on circumvention.
3. DVDs that cannot be viewed on Linux operating systems.
Some commenters proposed an exemption to allow circumvention of CSS
in order to use their computers running the Linux operating system to
view motion pictures on DVDs. DVDs protected by CSS may be played only
on authorized DVD players licensed by the DVD Copy Control Association
(DVD-CCA). Proponents of an exemption assert that there is no licensed
player available for the Linux operating system. However, there is
evidence in the record that Linux-based DVD players currently exist.
Moreover, there are many readily available ways in which to view
purchased DVDs. Standard DVD players that can connect to televisions
have become inexpensive and portable DVD players have decreased in
price. Similarly, Linux users can create dual-boot systems on their
computers in order to use DVD software that is compatible with, for
example, the Microsoft operating system. There are also alternative
formats in which to purchase the motion pictures contained on DVDs.
Due to these alternative options for access and use by consumers,
there is no reason to conclude that the availability for use of the
works on DVDs is adversely affected by the prohibition. An exemption is
not warranted simply because some uses are unavailable in the
particular manner that a user seeks to make the use, when other options
are available. If a user may access the DVD in readily-available
alternative ways or may purchase the works in alternative formats, the
need for the exemption becomes simply a matter of convenience or
preference. The proposal by users of the Linux operating system is a
matter of consumer preference or convenience that is unrelated to the
types of uses to which Congress instructed the Librarian to pay
particular attention, such as criticism, comment, news reporting,
teaching, scholarship, and research as well as the availability for use
of works for nonprofit archival, preservation and educational purposes.
The Register cannot recommend an exemption for this class of works.
4. Region Coded DVDs.
Two commenters sought an exemption to permit circumvention in order
to obtain access to motion pictures protected by region coding, a
technological protection measure contained on many commercially
distributed DVDs that limits access to the content on DVDs to players
coded for the same geographical region. On a more extensive record,
such an exemption was denied three and six years ago. The reasoning
behind the denial of the exemption in 2000 and 2003 appears to be
equally valid today: Region coding imposes, at most, an inconvenience
rather than actual or likely harm, because there are numerous options
available to individuals seeking access to content from other regions.
Consumers who wish to view DVDs from other regions have a number of
inexpensive options other than circumvention, including obtaining DVD
players, including portable devices, set to play DVDs from other
regions and obtaining DVD-ROM drives for their computers, and setting
those drives to play DVDs from other regions. Region coding of
audiovisual works on DVDs serves legitimate purposes as an access
control, such as preventing the marketing of DVDs of a motion picture
in a region of the world where the motion picture has not yet been
released in theaters, or is still being exhibited in theaters.
In light of the de minimis showing made in support of the proposed
exemption, the Register recommends rejection of this proposed class.
5. Computer programs protected by mechanisms that restrict their
full operation to a particular platform or operating system.
Two commenters asserted that certain lawfully obtained computer
programs do not work properly when operating systems are upgraded. The
brief comments submitted on this issue failed to present sufficient
evidence from which to conclude that technological measures that
control access to works are interfering with the ability of users of
copyrighted works to make noninfringing uses. No exemption can be
recommended in this case because insufficient information has been
presented to understand the nature of the problem or even the relevance
of Sec. 1201(a)(1).
6. Computer games and software with Copy Protections that
prevent legitimate users from installing and using games and
programs.
[[Page 68479]]
One commenter, in a one-page comment, stated that some copy
protection systems create problems with the installation or using of
computer games or programs, specifically citing SecureRom and StarForce
as examples of such systems. The commenter did not present any evidence
that the adverse effect articulated is the result of an access control.
There is not sufficient evidence in the record to understand the
problem adequately, to know whether the prohibition is the cause of the
problem, or to know whether an exemption is warranted.
7. Literary works distributed in electronic audio format by
libraries.
One commenter stated that an exemption should issue for
circumvention of literary works distributed in electronic audio format
by libraries, because although libraries lend downloadable versions of
audio books, they require special software in order to use the legally
checked-out downloaded books. However, the commenter did not identify
any technological measures that control access to the literary content
of the digital books, nor does it explain how such measures are
creating problems for users. His complaint appeared to be about
software incompatibility.
In any event, it appears that the technology in question is the
type of use-facilitating technology the DMCA was enacted to encourage.
It would appear that the deployment of such technology actually results
in greater access to copyrighted works by enabling libraries to engage
in online lending that they would not otherwise be able to conduct
without infringing the copyrights of the books that they distribute
online. The Register cannot recommend an exemption.
8. All works and fair use works.
Many commenters stated that the DMCA adversely affects consumer
rights and that all works should be exempt for a variety of purposes.
These commenters have not articulated a sufficient class or provided
sufficient evidence of adverse effects by the prohibition on
noninfringing uses that would allow the articulation of a cognizable
class.
9. All works protected by access controls that prevent the
creation of back-up copies.
A number of commenters sought an exemption for a class that, while
described in various ways, can be summarized as ``works protected by
access controls that prevent the creation of back-up copies.''
Proponents made assertions such as that it is common sense to make
back-up copies of expensive media such as CDs and DVDs due to their
alleged fragility.
However, the proponents offered no legal arguments in support of
the proposition that the making of backup copies is noninfringing, and
the Register is aware of no authority (apart from section 117 of the
Copyright Act, which relates to computer programs) in support of that
notion. Nor did proponents offer facts that would warrant a conclusion
that media such as DVDs and CDs are so susceptible to damage and
deterioration that the practice of making preventive backup copies
should be noninfringing.
The unauthorized reproduction of DVDs is already a critical problem
facing the motion picture industry. Creating an exemption to satisfy
the concern that a DVD may become damaged would sanction widespread
circumvention to facilitate reproduction for works that are currently
functioning properly. The Register finds that the record does not
justify the proposed exemption.
10. Audiovisual works and sound recordings protected by a
broadcast flag.
A number of comments assert that broadcast flags for television and
radio broadcasts would interfere with time shifting, format-shifting,
and recording for personal use. However, there is currently no
broadcast flag mandate for either television or radio broadcasts and
whether such a mandate will exist within the next three years is a
matter of speculation. If it does exist, it will be due in whole or in
part to Congressional action. Moreover, even if an audio or television
broadcast flag were to be established, the precise substance of the
requirement is unknown at this time. The Register cannot recommend an
exemption based upon speculation about a legal regime that may or may
not be imposed in the next three years.
11. Miscellaneous Proposals.
A number of individual comments, each of one page or less, were
submitted that do not fall into any of the categories noted above. In
each case, the proponent failed to provide information that would
justify an exemption. These proposals include ``any copyrighted work
which has been available for purchase for more then one year''; ``any
digital work'' for the purpose of overriding End User License
Agreements (``EULAs'') containing terms which prohibit comment and
criticism; access controls used by satellite television services;
``computer games and software''; ``any works in digital or electronic
format which, due to their access controls, prevent the user from being
able to access the user-created content''; and ``Digital Broadcasts
which employ measures that protect `access' to copyrighted works which
disable, prevent, or otherwise make impossible, time-shifting of
programs.'' None of these comments presented sufficient facts or
justification to warrant an exemption.
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 six 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: November 17, 2006
Marybeth Peters,
Register of Copyrights.
Determination of the Librarian of Congress
Having duly considered and accepted the recommendation of the
Register of Copyrights 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
the six classes of copyrighted works designated above, 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) for the period from November
27, 2006 through October 27, 2009.
List of Subjects
37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
Final Regulations
0
For the reasons set forth in the preamble, 37 CFR part 201 is amended
as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: Authority: 17 U.S.C. 702
0
2. Section 201.40 is amended by revising paragraphs (b) and (c) to read
as follows:
[[Page 68480]]
Sec. 201.40 Exemption to prohibition against circumvention.
* * * * *
(b) Classes of copyrighted works. Pursuant to the authority set
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation
of the Register of Copyrights, the Librarian has determined that during
the period from November 27, 2006 through October 27, 2009, 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 six classes of copyrighted works:
(1) Audiovisual 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.
(2) Computer programs and video games distributed in formats that
have become obsolete and which require the original media or hardware
as a condition of access, when circumvention is accomplished for the
purpose of preservation or archival reproduction of published digital
works by a library or archive. A format shall be considered obsolete if
the machine or system necessary to render perceptible a work stored in
that format is no longer manufactured or is no longer reasonably
available in the commercial marketplace.
(3) 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.
(4) 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 read-aloud function or of screen
readers that render the text into a specialized format.
(5) 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.
(6) Sound recordings, and audiovisual works associated with those
sound recordings, distributed in compact disc format and protected by
technological protection measures that control access to lawfully
purchased works and 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.
(c) Definition. ``Specialized format,'' ``digital text'' and
``authorized entities'' shall have the same meaning as in 17 U.S.C.
121.
Dated: November 20, 2006
James H. Billington,
The Librarian of Congress,
[FR Doc. E6-20029 Filed 11-24-06; 8:45 am]
BILLING CODE 1410-30-S
