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Proposed Rule2023-22949

Exemptions To Permit Circumvention of Access Controls on Copyrighted Works

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Published

October 19, 2023

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The United States Copyright Office is conducting the ninth triennial rulemaking proceeding under the Digital Millennium Copyright Act ("DMCA"), concerning possible temporary exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. In this proceeding, the Copyright Office is considering petitions for the renewal of exemptions that were granted during the eighth triennial rulemaking along with petitions for new exemptions to engage in activities not permitted by existing exemptions. On June 8, 2023, the Office published a Notification of Inquiry requesting petitions to renew existing exemptions and comments in response to those petitions, as well as petitions for new exemptions. Having carefully considered the renewal petitions and comments received, in this Notice of Proposed Rulemaking ("NPRM"), the Office announces its intention to recommend all but one of the existing exemptions for renewal. This NPRM also initiates three rounds of public comment on the newly proposed exemptions. Interested parties are invited to make full legal and evidentiary submissions in support of or in opposition to the newly proposed exemptions, in accordance with the requirements set forth below.

Full Text

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[Federal Register Volume 88, Number 201 (Thursday, October 19, 2023)]
[Proposed Rules]
[Pages 72013-72027]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-22949]

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LIBRARY OF CONGRESS

37 CFR Part 201

[Docket No. 2023-5]

Exemptions To Permit Circumvention of Access Controls on
Copyrighted Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is conducting the ninth
triennial rulemaking proceeding under the Digital Millennium Copyright
Act (``DMCA''), concerning possible temporary exemptions to the DMCA's
prohibition against circumvention of technological measures that
control access to copyrighted works. In this proceeding, the Copyright
Office is considering petitions for the renewal of exemptions that were
granted during the eighth triennial rulemaking along with petitions for
new exemptions to engage in activities not permitted by existing
exemptions. On June 8, 2023, the Office published a Notification of
Inquiry requesting petitions to renew existing exemptions and comments
in response to those petitions, as well as petitions for new
exemptions. Having carefully considered the renewal petitions and
comments received, in this Notice of Proposed Rulemaking (``NPRM''),
the Office announces its intention to recommend all but one of the
existing exemptions for renewal. This NPRM also initiates three rounds
of public comment on the newly proposed exemptions. Interested parties
are

[[Page 72014]]

invited to make full legal and evidentiary submissions in support of or
in opposition to the newly proposed exemptions, in accordance with the
requirements set forth below.

DATES: Initial written comments (including documentary evidence) and
multimedia evidence from proponents and other members of the public who
support the adoption of a proposed exemption, as well as parties that
neither support nor oppose an exemption but seek to share pertinent
information, are due December 22, 2023. Written response comments
(including documentary evidence) and multimedia evidence from those who
oppose the adoption of a proposed exemption are due February 20, 2024.
Written reply comments from supporters of particular proposals and
parties that neither support nor oppose a proposal are due March 19,
2024.

ADDRESSES: The Copyright Office is using the <a href="http://regulations.gov">regulations.gov</a> system for
the submission and posting of comments in this proceeding. All comments
are therefore to be submitted electronically through <a href="http://regulations.gov">regulations.gov</a>.
The Office is accepting two types of comments. First, commenters who
wish briefly to express general support for or opposition to a proposed
exemption may submit such comments electronically by typing into the
comment field on <a href="http://regulations.gov">regulations.gov</a>. Second, commenters who wish to
provide a fuller legal and evidentiary basis for their position may
upload a Word or PDF document, but such longer submissions must be
completed using the long-comment form provided on the Office's website
at <a href="https://www.copyright.gov/1201/2024">https://www.copyright.gov/1201/2024</a>. Specific instructions for
submitting comments, including multimedia evidence that cannot be
uploaded through <a href="http://regulations.gov">regulations.gov</a>, are also available on that web page.
If a commenter cannot meet a particular submission requirement, please
contact the Office using the contact information below for special
instructions.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#e08d858694a0838f90999289878894ce878f96"><span class="__cf_email__" data-cfemail="8ae7efecfecae9e5faf3f8e3ede2fea4ede5fc">[email&#160;protected]</span></a> or by telephone at
(202) 707-8350.

SUPPLEMENTARY INFORMATION:
On June 8, 2023, the Office published a Notification of Inquiry
(``NOI'') requesting petitions to renew current exemptions, oppositions
to the renewal petitions, and petitions for newly proposed exemptions
in connection with the ninth triennial section 1201 rulemaking.\1\ In
response, the Office received thirty-eight renewal petitions, six
comments in opposition to renewal of an exemption, and two comments
supporting renewal of an exemption.\2\ In addition, the Office received
eleven petitions for new exemptions or expansion of previously granted
exemptions.
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\1\ Exemptions To Permit Circumvention of Access Controls on
Copyrighted Works, 88 FR 37486 (June 8, 2023) (``2023 NOI''). On
July 5, 2023, the Office issued a Notice of Inquiry extending the
comment submission period for petitions for new exemptions.
Exemptions To Permit Circumvention of Access Controls on Copyrighted
Works: Notice and Request for Public Comment, 88 FR 42891 (July 5,
2023).
\2\ The comments received in response to the Notification of
Inquiry are available at <a href="https://www.regulations.gov/document/COLC-2023-0004-0002/comment">https://www.regulations.gov/document/COLC-2023-0004-0002/comment</a> and on the Copyright Office website. Renewal
petitions are available at <a href="https://www.copyright.gov/1201/2024/petitions/renewal/">https://www.copyright.gov/1201/2024/petitions/renewal/</a>, and petitions for new exemptions are available
at <a href="https://www.copyright.gov/1201/2024/petitions/proposed/">https://www.copyright.gov/1201/2024/petitions/proposed/</a>.
References to renewal petitions and comments are by party name
(abbreviated where appropriate) and a brief identification of the
previously granted exemption, followed by either ``Renewal Pet.,''
``Supp.'' (for comments supporting an exemption), or ``Opp.'' (for
comments opposing an exemption). References to petitions for new
exemptions are by party name (abbreviated where appropriate), the
Office's proposed class number, and ``Pet.''
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This NPRM summarizes the renewal petitions and sets forth which
exemptions the Office intends to recommend for renewal without the need
for petitioners to further develop the administrative record.
Separately, this NPRM outlines the proposed classes for new exemptions
for which the Office is initiating three rounds of public comment.

I. Standard for Evaluating Proposed Exemptions

As the NOI explained, before the Office can recommend a temporary
exemption from the prohibition on circumvention, the record must
establish that ``persons who are users of a copyrighted work are, or
are likely to be in the succeeding 3-year period, adversely affected by
the prohibition . . . in their ability to make noninfringing uses under
[title 17] of a particular class of copyrighted works.'' \3\ When
defining a ``class of copyrighted works,'' the Office generally uses
the categories of works in 17 U.S.C. 102 as a starting point and then
refines the class by other criteria, such as the technological
protection measures (``TPMs'') used, distribution platforms, and/or
types of uses or users.\4\
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\3\ 17 U.S.C. 1201(a)(1)(C).
\4\ See U.S. Copyright Office, Section 1201 Rulemaking: Eighth
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights 8-9
(2021) (``2021 Recommendation''); U.S. Copyright Office, Section
1201 of Title 17, at 26, 108-10 (2017), <a href="https://www.copyright.gov/policy/1201/section-1201-full-report.pdf">https://www.copyright.gov/policy/1201/section-1201-full-report.pdf</a> (``Section 1201 Study'');
see also H.R. Rep. No. 105-551, pt. 2, at 38 (1998) (``Commerce
Comm. Report'') (``The Committee intends that the `particular class
of copyrighted works' be a narrow and focused subset of the broad
categories of works of authorship than is identified in Section 102
of the Copyright Act (17 U.S.C. 102).'').
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In evaluating the evidence, the Office weighs the statutory factors
in section 1201(a)(1)(C): ``(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 [Office] considers appropriate.'' \5\
After developing a comprehensive administrative record, the Register of
Copyrights makes a recommendation to the Librarian of Congress
concerning whether exemptions are warranted based on that record.
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\5\ 17 U.S.C. 1201(a)(1)(C).
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In considering whether to recommend an exemption, the Office
follows the statutory text: ``Are users of a copyrighted work adversely
affected by the prohibition on circumvention in their ability to make
noninfringing uses of a class of copyrighted works, or are users likely
to be so adversely affected in the next three years?'' \6\ This inquiry
breaks down into the following elements:
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\6\ Section 1201 Study at 114.
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<bullet> Does the proposed class include at least some works
protected by copyright?
<bullet> Are the uses at issue likely noninfringing under title 17?
<bullet> Are users currently, or likely to be, adversely affected
in their ability to make such noninfringing uses during the next three
years? \7\
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\7\ This element is analyzed in reference to section
1201(a)(1)(C)'s five statutory factors.
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<bullet> Is the statutory prohibition on circumventing access
controls the cause of the adverse effects? \8\
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\8\ Section 1201 Study at 115-27.
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To determine whether a proposed use is likely to be noninfringing,
the Register considers the Copyright Act and relevant judicial
precedents.\9\ When

[[Page 72015]]

considering whether such uses are being adversely impacted by the
prohibition on circumvention, the rulemaking focuses on ``distinct,
verifiable, and measurable impacts'' compared to ``de minimis
impacts.'' \10\ The Register examines the administrative record as a
whole to consider whether the preponderance of the evidence shows that
the conditions for granting an exemption have been met.\11\
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\9\ Id. at 115-17. While controlling precedent directly on point
is not required to justify an exemption, there is no ``rule of
doubt'' favoring an exemption when it is unclear that a particular
use is fair or otherwise noninfringing. See U.S. Copyright Office,
Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine
Exemptions to the Prohibition on Circumvention, Recommendation of
the Register of Copyrights 15 (2015) (``2015 Recommendation''). The
rulemaking also generally ``is not an appropriate venue for breaking
new ground in fair use jurisprudence.'' 2021 Recommendation at 10-11
(quoting Section 1201 Report at 116-17).
\10\ Commerce Comm. Report at 37; see also Staff of H. Comm. on
the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281
as Passed by the United States House of Representatives on August
4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase
``substantial adverse impact''); see also, e.g., Section 1201 Study
at 119-21 (discussing same and citing application of this standard
in five prior rulemakings).
\11\ See 17 U.S.C. 1201(a)(1)(C) (asking whether users ``are, or
are likely to be in the succeeding 3-year period, adversely affected
by the prohibition [on circumvention] in their ability to make
noninfringing uses'') (emphasis added); Section 1201 Study at 111-
12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C.
Cir. 1980) (noting that ``[t]he use of the `preponderance of
evidence' standard is the traditional standard in civil and
administrative proceedings''); Exemption to Prohibition on
Circumvention of Copyright Protection Systems for Access Control
Technologies, 70 FR 57526, 57528 (Oct. 3, 2005); 2021 Recommendation
at 7-8; U.S. Copyright Office, Section 1201 Rulemaking: Seventh
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Acting Register of Copyrights
13 (2018) (``2018 Recommendation''); 2015 Recommendation at 13-14;
U.S. Copyright Office, Section 1201 Rulemaking: Fifth Triennial
Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights 6 (2012)
(``2012 Recommendation''); U.S. Copyright Office, Section 1201
Rulemaking: Second Triennial Proceeding to Determine Exemptions to
the Prohibition on Circumvention, Recommendation of the Register of
Copyrights 19-20 (2003).
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II. Review of Petitions To Renew Existing Exemptions

In this proceeding, the Office is again using a streamlined process
for recommending the renewal of exemptions previously issued by the
Librarian of Congress. As the Office explained in its 2017 policy
study, the ``Register must apply the same evidentiary standards in
recommending the renewal of exemptions as for first-time exemption
requests,'' and the statute requires that ``a determination must be
made specifically for each triennial period.'' \12\ The Office further
determined that ``the statutory language appears to be broad enough to
permit determinations to be based upon evidence drawn from prior
proceedings, but only upon a conclusion that this evidence remains
reliable to support granting an exemption in the current proceeding.''
\13\ The Office first instituted this streamlined renewal process in
the seventh triennial rulemaking, which concluded in 2018.\14\ In that
rulemaking, the Office received requests to renew each of the
exemptions from the previous proceeding, none of which were
meaningfully contested.\15\ As a result, it was able to recommend
renewal of all previously granted exemptions.\16\ The streamlined
renewal process was praised by participants during the ensuing
rulemaking,\17\ and the Office has employed it in subsequent
rulemakings.
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\12\ Section 1201 Study at 142, 145.
\13\ Id. at 143.
\14\ 2018 Recommendation at 17.
\15\ Id. at 22.
\16\ Id. at 19.
\17\ See, e.g., id. at 19 n.80 (collecting transcript testimony
from 2018 rulemaking).
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The Office is following the same procedure in this rulemaking.
Renewal petitions must be for exemptions as they are currently
formulated, without modification. Petitions should support a
determination by the Office that, due to a lack of legal, marketplace,
or technological changes, the factors that led it to recommend adoption
of the exemption in the prior rulemaking may still be relied on to
renew the exemption.\18\ To the extent that any renewal petition
proposes uses beyond the current exemption, the Office disregards those
portions of the petition for purposes of considering the renewal of the
exemption, and instead focuses on whether the petition provides
sufficient information to warrant renewal of the exemption in its
current form.
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\18\ See Section 1201 Study at 143-44.
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In response to its current NOI, the Office received petitions to
renew each existing exemption, except for one.\19\ Each of the thirty-
eight renewal petitions received included a summary of the continuing
need and justification for the exemption. In each case, petitioners
also signed a declaration stating that, to the best of their personal
knowledge, there has not been any material change in the facts, law, or
other circumstances set forth in the prior rulemaking record such that
renewal of the exemption would not be justified.
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\19\ A renewal petition was not filed for the current exemption
permitting circumvention of video games in the form of computer
programs for the purpose of allowing an individual with a physical
disability to use alternative software or hardware input methods.
See 37 CFR 201.40(b)(21). The Office therefore will not recommend
this exemption to the Librarian for renewal.
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The Office received eight comments in response to the renewal
petitions, two of which support renewal of specific exemptions. Six
comments oppose certain different aspects of the renewal petitions.\20\
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\20\ See, e.g., DVD Copy Control Ass'n (``DVD CCA'') & Advanced
Access Content Sys. Licensing Adm'r (``AACS LA'') Noncom. Videos
Opp.; DVD CCA & AACS LA AV Educ. TDM Opp.; Author Services, Inc.
(``Author Services'') Device Repair Opp.; American Consumer
Institute (``ACI'') Medical Device Repair Opp.; Medical Imaging &
Technology Alliance (``MITA'') Medical Device Repair Opp.; Philips
North America, LLC (``Philips'') Medical Device Repair Opp.
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As detailed below, after reviewing the petitions for renewal and
comments in response, the Office concludes that each petition is
sufficient to renew the corresponding existing exemption, and does not
find sufficient opposition to any existing exemption that supports
refusing renewal. Accordingly, the Office intends to recommend that the
thirty-eight existing exemptions for which renewal petitions were
received be renewed in their current form.\21\
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\21\ Because a renewal petition was not filed for the current
exemption found within 37 CFR 201.40(b)(21), the Office will not
renew or consider this exemption during the rulemaking proceeding.
See Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 82 FR 29804, 29805 (June 30, 2017) (``[T]he
statutory language appears to be broad enough to permit
determinations to be based upon evidence drawn from prior
proceedings, but only upon a conclusion that this evidence remains
reliable to support granting an exemption in the current
proceeding.'' (quoting Section 1201 Study at 142-43)); see also id.
(requiring those seeking renewal to use the Office's form to
summarize the ``existence of a continuing need and justification for
the exemption'' and attest that ``there has not been any material
change in the facts, law, or other circumstances set forth in the
prior rulemaking record . . . that originally demonstrated the need
for the selected exemption, such that renewal of the exemption would
not be justified'').
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A. Audiovisual Works--Criticism and Comment--Filmmaking

Multiple organizations petition to renew the exemption for motion
pictures \22\ for uses in documentary films or other films where the
use is a parody or for a biographical or historically significant
nature (codified at 37 CFR 201.40(b)(1)(i)(A)).\23\ No oppositions were
filed against renewal.
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\22\ Unless otherwise noted, all references to motion pictures
as a category include television programs and videos.
\23\ International Documentary Association and Kartemquin
Educational Films (collectively ``Joint Filmmakers'') Documentary
Films Renewal Pet.; New Media Rights (``NMR'') Documentary Films
Renewal Pet.
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The petitions for renewal summarize the continuing need and
justification for the exemption, and the petitioners demonstrate
personal knowledge of and

[[Page 72016]]

experience with this exemption. For example, the International
Documentary Association and Kartemquin Educational Films (collectively
``Joint Filmmakers'')--which represent thousands of independent
filmmakers across the nation--state that TPMs such as encryption
continue to prevent filmmakers from accessing needed material, and that
this is ``especially true for the kind of high fidelity motion picture
material filmmakers need to satisfy both distributors and viewers.''
\24\ Petitioners state that filmmakers have found it necessary to rely
on this exemption and will continue to do so.\25\
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\24\ Joint Filmmakers Documentary Films Renewal Pet. at 3.
\25\ Id.; NMR Documentary Films Renewal Pet. at 3.
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Based on the information provided in the renewal petitions and the
lack of opposition, the Office believes that the conditions that led to
adoption of this exemption are likely to continue during the next
triennial period. Accordingly, it intends to recommend renewal.

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

Two organizations petition to renew the exemption for motion
pictures for use in noncommercial videos (codified at 37 CFR
201.40(b)(1)(i)(B)).\26\ The petitions argue for the continuing need
and justification for the exemption, and the petitioners demonstrate
personal knowledge of and experience with this exemption. For example,
one of the petitioners, OTW, has advocated for the noncommercial video
exemption in past triennial rulemakings, and has heard from ``a number
of noncommercial remix artists'' who have used the exemption in the
past and anticipate needing to use it in the future.\27\ OTW includes
an account from an academic stating that footage ripped from DVDs and
Blu-ray was preferred for ``vidders'' (noncommercial remix artists)
because ``it is high quality enough to bear up under the
transformations that vidders make to it--which now routinely include
changes of color, speed, cropping and zooming, masking, animations and
other cgi, and even explorations of the z-axis and 3D.'' \28\
Similarly, NMR notes ``a continuing need for the exemption'' and a
purported reliance by filmmakers to make these types of uses in the
next triennial period.\29\ No oppositions were filed to renewal of the
exemption as currently formulated.
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\26\ NMR Noncom. Videos Renewal Pet.; Organization for
Transformative Works (``OTW'') Noncom. Videos Renewal Pet.
\27\ OTW Noncom. Videos Renewal Pet. at 3.
\28\ Id.
\29\ NMR Noncom. Videos Renewal Pet. at 3.
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The Office did, however, receive opposition to OTW's renewal
petition to the extent it seeks to modify the regulatory language of
this exemption. Specifically, in its renewal petition, OTW proposes the
Office ``us[e] the relatively simple language defining the exempted
class from the 2008 rulemaking,'' rather than the language in the
current exemption, which was adopted in the 2021 rulemaking.\30\ DVD
CCA and AACS LA object to the proposed change in the language sought by
OTW, noting that the Office's streamlined proceedings for renewals is
``only'' for exemptions ``as they are currently written in the Code of
Federal Regulations, without modification.'' \31\ The Office agrees.
OTW's proposed modifications must instead be addressed as part of the
full rulemaking proceeding, and therefore this request is included as
one of the proposed new classes discussed below.\32\
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\30\ OTW describes its requested change to the exemption
language as ``not . . . an expansion of the existing exemption, but
a more understandable restatement.'' OTW Noncom. Videos Renewal Pet.
at 4.
\31\ DVD CCA & AACS LA Noncom. Videos Opp. at 2 (emphasis
omitted) (quoting 2023 NOI at 37487).
\32\ See 2023 NOI at 37487. As the Office previously noted, much
of the language that has been added to the exemption since 2008 was
sought by exemption proponents. See 2012 Recommendation at 105, 110.
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Based on the information provided in the renewal petitions and the
lack of opposition to renewal of the exemption as it currently exists,
the Office believes that the conditions that led to adoption of this
exemption are likely to continue during the next triennial period.
Accordingly, it intends to recommend renewal.

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

Authors Alliance, the American Association of University Professors
(``AAUP''), and independent documentary producer and screenwriter,
Bobette Buster, filed a joint petition to renew the exemption for the
use of motion picture excerpts in nonfiction multimedia e-books
(codified at 37 CFR 201.40(b)(1)(i)(C)).\33\ No oppositions were filed
against renewal.
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\33\ Buster, Authors Alliance & AAUP Nonfiction Multimedia E-
Books Renewal Pet.
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The petition states that there is a continuing need and
justification for the exemption by pointing to Professor Buster's
continuing work on an e-book series titled ``Deconstructing Master
Filmmakers,'' where the ``use of high-resolution video is essential''
to the project and would not be available ``without the circumvention
of technological protection measures.'' \34\ The petition notes that
Professor Buster's project has been discussed during the three previous
rulemakings and its continuation justifies renewal of the current
exemption.
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\34\ Id. at 3.
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The Office agrees. Based on the information provided in the renewal
petition and the lack of opposition, the Office believes that the
conditions that led to adoption of this exemption are likely to
continue during the next triennial period.\35\ Accordingly, it intends
to recommend renewal.
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\35\ The Office notes that petitioners have filed highly similar
renewal petitions in the 2018 and 2021 rulemaking proceedings,
testifying generally that Professor Buster has continued to work on
her e-book series without additional specifics about that work or
progress. See 2018 Bobette Buster et al. Nonfiction Multimedia E-
Books Renewal Pet. at 3 (``Ms. Buster continues to work on an e-book
series, based on her lecture series, `Deconstructing Master
Filmmakers: The Uses of Cinematic Enchantment,' that relies on the
availability of high-resolution video not available without
circumvention of technological protection measures''); 2021 Bobette
Buster et al. Nonfiction Multimedia E-Books Renewal Pet. at 3 (``Ms.
Buster continues to work on an e-book series, based on her lecture
series, `Deconstructing Master Filmmakers: The Uses of Cinematic
Enchantment,' that relies on the availability of high-resolution
video not available without circumvention of technological
protection measures.''). If petitioners seek renewal in future
proceedings, the Office suggests that they provide additional
information about Professor Buster's progress or point to other
individuals relying on the exemption.
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D. Audiovisual Works--Criticism and Comment--Universities and K-12
Educational Institutions

Several organizations petition to renew the exemption for motion
pictures for educational purposes by college and university faculty,
students, or employees acting at the direction of faculty, or K-12
educators and students (codified at 37 CFR 201.40(b)(1)(ii)(A)).\36\ No
oppositions were filed against renewal.
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\36\ Decherney, Delli Carpini, Library Copyright Alliance
(``LCA''), and Society for Cinema and Media Studies (``SCMS'')
(collectively ``Joint Educators'') AV Educ. Renewal Pet.; Brigham
Young Univ.--Idaho Intellectual Property Office (``BYU-Idaho'') AV
Educ. Renewal Pet.
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The petitions argue for the continuing need and justification for
the exemption, stating that educators and students continue to rely on
excerpts from digital media for class presentations and coursework.
Peter Decherney, Michael Delli Carpini, Library Copyright Alliance
(``LCA''), and Society for Cinema and Media Studies (``SCMS'')
(collectively ``Joint Educators'') provide several examples of
professors using DVD clips in the classroom. For example, University of

[[Page 72017]]

Pennsylvania Medieval Literature Professor David Wallace ``frequently
uses film and television clips to compare medieval poetry with the
style of popular contemporary film'' and ``uses the clips to focus on
historical detail.'' \37\ In addition, co-petitioner Peter Decherney
declares that he ``continues to rely heavily on this exemption in
teaching his course on Multimedia Criticism'' where his students
``produce short videos analyzing media.'' \38\ Indeed, Joint Educators
broadly suggest that the ``entire field'' of video essays or multimedia
criticism ``could not have existed in the United States without fair
use and the 1201 educational exemption.'' \39\ Similarly, BYU-Idaho
assert that access to films on streaming platforms ``are not available
for institutions due to limited licensing agreements that limit uses to
residential or personal use.'' \40\ Through these submissions,
petitioners demonstrate personal knowledge of and experience with
regard to this exemption based on their representation of thousands of
digital and literacy educators and/or members supporting educators and
students, combined with past participation in the section 1201
triennial rulemaking.
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\37\ Joint Educators AV Educ. Renewal Pet. at 3.
\38\ Id.
\39\ Id.
\40\ BYU-Idaho AV Educ. Renewal Pet. at 3.
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E. Audiovisual Works--Criticism and Comment--Massive Open Online
Courses (``MOOCs'')

Peter Decherney, Michael Delli Carpini, LCA, and SCMS (collectively
``Joint Educators'') jointly petition to renew the exemption for motion
pictures for educational uses in MOOCs (codified at 37 CFR
201.40(b)(1)(ii)(B)).\41\ No oppositions were filed against renewal.
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\41\ Joint Educators AV Educ. MOOCs Renewal Pet.
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The petition cites a continuing need and justification for the
exemption, stating that instructors continue to rely on the exemption
to ``develop, provide, and improve MOOCs,'' as well as increase the
number of (and therefore access to) MOOCs, particularly in the field of
film and media studies.\42\ Specifically, Joint Educators note that
Professor Decherney's History of Hollywood class ``offers close
readings of Hollywood classics like King Kong (1933) and Casablanca
(1942) and analyzes digital special effects, sound design, and other
elements of filmmaking.'' \43\ The petition also states that the
``exemption has become even more vital since the COVID-19 pandemic and
the continuing shift of our education systems to include online
learning,'' highlighting the increase in MOOCs and increased
enrollment.\44\
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\42\ Id. at 3.
\43\ Id.
\44\ Id.
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Based on the information provided in the renewal petition and the
lack of opposition, the Office believes that the conditions that led to
adoption of this exemption are likely to continue during the next
triennial period. Accordingly, it intends to recommend renewal.

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

LCA and Professor Renee Hobbs petition to renew the exemption for
motion pictures for educational uses in nonprofit digital and media
literacy programs offered by libraries, museums, and other nonprofits
(codified at 37 CFR 201.40(b)(1)(ii)(C)).\45\ No oppositions were filed
against renewal.
---------------------------------------------------------------------------

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

The petition provides testimony as to the continuing need and
justification for the exemption, and petitioners demonstrate personal
knowledge of and experience with this exemption. For example, the
petition states that librarians, museums, and other nonprofit entities
across the country have relied on the current exemption and will
continue to do so for their digital and media literacy programs.\46\
The petition also notes that Professor Hobbs has testified in several
previous rulemakings and has personal experience with the relevant
standards and evidence underpinning the current exemption.
---------------------------------------------------------------------------

\46\ Id. at 3.
---------------------------------------------------------------------------

G. Audiovisual Works--Captioning and Audio Description

The Association of Transcribers and Speech-to-Text Providers
(``ATSP'') and LCA jointly petition to renew the exemption for motion
pictures for the provision of captioning and/or audio description by
disability services offices or similar units at educational
institutions for students, faculty, or staff with disabilities
(codified at 37 CFR 201.40(b)(2)).\47\ No oppositions were filed
against renewal.
---------------------------------------------------------------------------

\47\ ATSP & LCA Captioning Renewal Pet.
---------------------------------------------------------------------------

The petition contains testimony that the exemption continues to be
relied on by its beneficiaries. For example, petitioners assert that
they ``have used the exemption to address the requests and concerns of
students with disabilities in attendance at their respective
educational institutions to create equitable educational experiences,''
which ``enables disability services offices and similar units to ensure
that students with disabilities have access to the same advantages as
their peers in the pursuit of education.'' \48\ ``Based on their
regular interaction with those affected by the exemption,'' which
demonstrates personal knowledge of the exemption, petitioners believe
that the circumstances justifying the exemption currently exist and
will persist for the next three years.\49\
---------------------------------------------------------------------------

\48\ Id. at 3.
\49\ Id.
---------------------------------------------------------------------------

H. Audiovisual Works--Preservation or Replacement--Library, Archives,
and Museum

LCA petitions to renew the exemption for motion pictures for
preservation or the creation of a replacement copy by an eligible
library, archives, or museum (codified at 37 CFR 201.40(b)(3)).\50\ No
oppositions were filed against renewal.
---------------------------------------------------------------------------

\50\ LCA Preservation Renewal Pet.
---------------------------------------------------------------------------

The petition provides testimony as to the continuing need and
justification for the exemption. For example, the petition states that
``[c]ultural heritage institutions across the country have relied on
the exemption . . . to make preservation and replacement copies of the
motion pictures in their collections stored on DVDs and Blu-ray
discs,'' as many motion pictures in the collections ``are unavailable
for purchase or streaming'' or ``continue to deteriorate.'' \51\ LCA
also demonstrates personal knowledge of the exemption based on its past
participation with this particular exemption in the previous section
1201 triennial rulemaking.
---------------------------------------------------------------------------

\51\ Id. at 3.

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

[[Page 72018]]

I. Audiovisual Works--Text and Data Mining--Scholarly Research and
Teaching

Authors Alliance, AAUP, and LCA jointly petition to renew the
exemption for text and data mining of motion pictures by researchers
affiliated with a nonprofit institution of higher education, or at the
direction of such researchers, for the purpose of scholarly research
and teaching (codified at 37 CFR 201.40(b)(4)).\52\ As discussed
further below, DVD CCA & AACS LA submitted a comment in opposition.
---------------------------------------------------------------------------

\52\ Authors Alliance, AAUP & LCA AV Text and Data Mining
Renewal Pet.
---------------------------------------------------------------------------

The petition argues that there is a continuing need for the
exemption and includes examples of researchers actively relying on the
exemption. For example, as part of ``researching depictions'' of
climate changes, Professor James Lee at the University of Cincinnati,
is using the exemption ``to build a corpus of . . . films to then
conduct text and data mining, searching for climate change markers
across those materials.'' \53\ According to the petition, there is a
continued need for the exemption because ``this type of research
requires substantial computing resources and institutional
coordination'' and, as a result, ``many of these projects are just now
taking shape'' as ``a wide range of researchers . . . are actively
planning projects that would rely on the TDM exemption.'' \54\ The
petition further states that the Office can rely on the record from the
previous rulemaking because the relevant case law has not changed and
there have been no developments in the market that would allow
petitioners to obtain the works they need without circumvention.\55\
Finally, the petition states that ``[c]ommercially licensed text and
data mining products continue to be made available to research
institutions, as they were at the time of the 2021 exemption and as is
reflected in the existing record, but these licensed products do not
allow researchers to license the full array of texts and films that are
needed to engage in the research they seek to do.'' \56\
---------------------------------------------------------------------------

\53\ Id. at 3. Additionally, the petition described how John
Bell, Director of the Data Experiences and Visualizations Studio and
Digital Humanities Program Manager at Dartmouth Research Computing,
uses the exemption in his ``Deep Screens XR Project,'' which
``extracts video files from 800+ DVDs of commercial narrative films,
stores those videos in a secure compute environment, and processes
them using machine learning-based methods to establish 3D body pose
data on the actors in those films.'' Id.
\54\ Id.
\55\ Id. at 4
\56\ Id.
---------------------------------------------------------------------------

DVD CCA and AACS LA filed an objection to renewal on the grounds
that the previous rulemaking record is no longer reliable. According to
DVD CCA and AACS LA, during the last rulemaking petitioners ``contended
that there was no evidence of the availability of licenses for motion
pictures for their desired use'' and the Office's recommendation of the
exemption was based on the fact that ``there [were] no [existing]
large-scale libraries of digital motion pictures available for text and
data mining.'' \57\ DVD CCA and AACS LA argue that ``because
proponents' own petition indicates they are aware of the emergence of
licensed access to motion pictures for data mining purposes, then such
facts should be developed in the full rulemaking as such licensing
opportunities could be a reasonable alternative to circumvention.''
\58\ DVD CCA and AACS LA did not, however, provide affirmative evidence
of new licensing options for the text and data mining activities
covered by the current exemption.
---------------------------------------------------------------------------

\57\ DVD CCA & AACS LA AV Text and Data Mining Opp. at 2, 3 n.1
(quoting 2021 Recommendation at 119).
\58\ Id. at 3.
---------------------------------------------------------------------------

After reviewing the renewal petition, the opposition comment, and
the record from the previous rulemaking for this exemption, the Office
concludes that the exemption may be renewed by relying on the prior
record. DVD CCA and AACS LA are correct that the Register concluded in
2021 that ``there are no existing large-scale libraries of digital
motion pictures available for text and data mining.'' \59\ Contrary to
the opposition's assertion, however, the Register did not find that
licensed text and data mining products were ``nonexistent.'' \60\
Opponents of the exemption, including from DVD CCA and AACS LA,
asserted in the previous rulemaking that ``[i]n fact, licenses are
available'' for text and data mining.\61\ For example, the Motion
Picture Association, Alliance for Recorded Music, and Entertainment
Software Association, filed a joint submission arguing that an
exemption was unnecessary because ``copyright owners of motion pictures
already license other educational uses, such as remote streaming, and
could potentially license the uses at issue.'' \62\ Ultimately, the
Office concluded that while there may have been a ``nascent, but
growing'' market for licenses,\63\ proponents were unable to obtain the
``large-scale'' licenses they claimed were needed for the quantity of
audiovisual works necessary to engage in text and data mining.\64\ The
statement in the current renewal petition that ``licensed products do
not allow researchers to license the full array of texts and films that
are needed to engage in the research they seek to do'' \65\ is thus a
summary of the previous rulemaking record; not an admission that the
relevant facts have changed. For this reason, the opposition filed by
DVD CCA and AACS LA does not preclude renewal of this exemption.\66\
---------------------------------------------------------------------------

\59\ 2021 Recommendation at 119.
\60\ DVD CCA & AACS LA AV Text and Data Mining Opp. at 2.
\61\ 2021 DVD CCA & AACS LA Class 7 Opp. at 14-15 (pointing to
testimony by Professor Lauren Tilton as ``suggesting research groups
need financial resources to license [ ] works'' for text and data
mining but as ``not say[ing] that licenses are not available, that
rightsholders are unwilling to license the works, or even that the
fees for such licenses are unreasonable'').
\62\ 2021 Joint Creators Class 7 Opp. at 6.
\63\ 2021 Recommendation at 112-13 (quoting 2021 Ass'n of
American Publishers Class 7 Opp. at 9-10).
\64\ See id. at 119 (``For researchers interested in studying
motion pictures, there are no existing large-scale libraries of
digital motion pictures available for text and data mining.''); see
also 2021 Hearing Tr. at 415:22-416:07 (Apr. 7, 2021) (Professor
David Bamman, University of California, Berkeley) (stating that
``licensing for movies'' was a problem for text and data mining
because such activities could not be ``carr[ied] out if there's any
single studio that doesn't allow the licenses for those terms'').
\65\ Authors Alliance, AAUP & LCA AV Text and Data Mining
Renewal Pet. at 4.
\66\ The Office also notes that the opposition did not provide
affirmative evidence of ``new legal or factual developments that
implicate `the reliability of the previously-analyzed administrative
record,' '' as required by the Notice of Inquiry. 2023 NOI at 37488
(quoting Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 85 FR 65293, 65295 (Oct. 15, 2020)). As the
Office explained in June, ``[u]nsupported conclusory opinion and
speculation'' will ``not be enough'' for the Office ``to refuse to
recommend renewing an exemption it would have otherwise recommended
in the absence of any opposition.'' Id. It is not enough to point to
a single sentence offered by renewal petitioners arguing that the
record remains unchanged.
---------------------------------------------------------------------------

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

J. Literary Works--Text and Data Mining--Scholarly Research and
Teaching

Authors Alliance, AAUP, and LCA also jointly petition to renew the

[[Page 72019]]

exemption for text and data mining of literary works that were
distributed electronically by researchers affiliated with a nonprofit
institution of higher education, or at the direction of such
researchers, for the purpose of scholarly research and teaching
(codified at 37 CFR 201.40(b)(5)).\67\ No oppositions were filed
against renewal.
---------------------------------------------------------------------------

\67\ Authors Alliance, AAUP & LCA LW Text and Data Mining
Renewal Pet.
---------------------------------------------------------------------------

The petition largely echoes the same petitioners' joint petition
for text and data mining of audiovisual works. Petitioners state that
they ``have continued to work with researchers, . . . many of whom are
now actively relying on the TDM exemption in their research or
developing plans to do so in the very near future.'' \68\ For example,
they point to Professor Lee's use of the exemption to research
depictions of climate change, where he ``build[s] a corpus of novels .
. . to then conduct text and data mining, searching for climate change
markers across those materials.'' \69\ Because researchers are actively
relying on the current exemption, and because ``there are no material
changes in facts, law, technology, or other circumstances'' from the
previous rulemaking, petitioners seek to renew the exemption in this
cycle.\70\
---------------------------------------------------------------------------

\68\ Id. at 3.
\69\ Id.
\70\ Id. at 4.
---------------------------------------------------------------------------

K. Literary Works--Assistive Technologies

The American Council of the Blind (``ACB''), American Foundation
for the Blind (``AFB''), HathiTrust, and LCA jointly petition to renew
the exemption for literary works or previously published musical works
that have been fixed in the form of text or notation, distributed
electronically, whose technological measures interfere with assistive
technologies (codified at 37 CFR 201.40(b)(6)).\71\ No oppositions were
filed against renewal.
---------------------------------------------------------------------------

\71\ ACB, AFB, HathiTrust & LCA Assistive Technologies Renewal
Pet.
---------------------------------------------------------------------------

The petition provides evidence regarding the continuing need and
justification for the exemption stating that individuals who are blind,
visually impaired, or print disabled are significantly disadvantaged
with respect to obtaining accessible e-book content because TPMs
interfere with the use of assistive technologies.\72\ Specifically,
petitioners assert that ``many e-books have built-in security software
that prevents purchasers and other third parties from utilizing them
outside of publisher-designated e-book reader platforms.'' \73\
Petitioners also note that the record underpinning the exemption ``has
stood and been re-established in the past seven triennial reviews
dating back to 2003'' and that the ``accessibility of e-books is
frequently cited as a top priority'' by its members.\74\ Finally, they
demonstrate personal knowledge of and experience with the assistive
technology exemption, as organizations that have participated in past
rulemaking proceedings regarding this exemption and advocate for
individuals with print disabilities.
---------------------------------------------------------------------------

\72\ Id. at 3.
\73\ Id.
\74\ Id. at 3, 4.
---------------------------------------------------------------------------

L. Literary Works--Medical Device Data

The Coalition of Medical Device Patients and Researchers petition
to renew the exemption covering access to patient data on medical
devices or monitoring systems (codified at 37 CFR 201.40(b)(7)).\75\ No
oppositions were filed against renewal.
---------------------------------------------------------------------------

\75\ Coalition of Medical Device Patients and Researchers
Medical Devices Renewal Pet.
---------------------------------------------------------------------------

The petition states that patients continue to need access to data
output from their medical devices to manage their health and react to
their medical data in real-time, which the current exemption
facilitates.\76\ One member of the Coalition, who has personal
knowledge of and experience with this exemption through participation
in past rulemakings, attests that he needed access to the data output
from his medical device.\77\ Another member describes how an inability
to get her defibrillator interrogated by an authorized representative
within a three-day window ``potentially put[ ] her health at serious
risk.'' \78\
---------------------------------------------------------------------------

\76\ Id. at 3, 4.
\77\ Id. at 3.
\78\ Id.
---------------------------------------------------------------------------

M. Computer Programs--Unlocking

The Institute of Scrap Recycling Industries, Inc. (``ISRI'')
petitions to renew the exemption for computer programs that operate
wireless devices, to allow connection of the device to an alternative
wireless network (``unlocking'') (codified at 37 CFR 201.40(b)(8)).\79\
No oppositions were filed against renewal.
---------------------------------------------------------------------------

\79\ ISRI Unlocking Renewal Pet.
---------------------------------------------------------------------------

The petition offers evidence of the continuing need and
justification for the exemption by explaining that ISRI's members
continue to receive wireless products that are locked to a particular
wireless carrier.\80\ Moreover, ISRI notes that the number of 5G-
enabled devices has continued to grow since the previous rulemaking,
meaning that there are more devices that may require unlocking for the
reasons discussed in previous rulemakings.\81\ For example, ISRI states
that its members continue to purchase or acquire donated cell phones,
tablets, and other wireless devices and try to reuse them, but that
wireless carriers still lock devices to prevent them from being used on
other carriers.\82\ ISRI has personal knowledge of and experience with
this exemption because it represents companies that rely on the ability
to unlock cellphones and has participated in ``several cycles'' of
triennial rulemakings addressing device unlocking.\83\
---------------------------------------------------------------------------

\80\ Id. at 3.
\81\ Id. The petition also notes that the increased number of
devices does not implicate the reliability of the factual record, as
new devices continue to use modems by a single chipset vendor--
Qualcomm--which was the basis for the Office's expansion of this
exemption to all wireless devices in the last rulemaking. See 2021
Recommendation at 161-63 (explaining that ``proponents have provided
sufficient evidence for the Register to conclude that the 2015 fair
use analysis applies with equal force to unlocking all types of
wireless devices'' because most wireless devices in the United
States use modems manufactured by Qualcomm).
\82\ ISRI Unlocking Renewal Pet. at 3.
\83\ Id.
---------------------------------------------------------------------------

N. Computer Programs--Jailbreaking

The Office received multiple petitions to renew the four exemptions
that permit enabling electronic devices to interoperate with or to
remove software applications (``jailbreaking'') (codified at 37 CFR
201.40(b)(9)-(12)).\84\ No oppositions were filed against renewal.
---------------------------------------------------------------------------

\84\ These exemptions permit circumvention for the purpose of
jailbreaking (1) smartphones and other portable all-purpose
computing devices, (2) smart televisions, (3) voice assistant
devices, and (4) routers and dedicated networking devices. See
Electronic Frontier Foundation (``EFF'') Smartphone and Portable
All-Purpose Mobile Computing Device Jailbreaking Renewal Pet.; NMR
Smartphone and Portable All-Purpose Mobile Computing Device
Jailbreaking Renewal Pet.; EFF Smart TVs Jailbreaking Renewal Pet.;
Software Freedom Conservancy (``SFC'') Smart TVs Jailbreaking
Renewal Pet.; EFF Voice Assistant Devices Jailbreaking Renewal Pet.;
SFC Routers and Dedicated Network Devices Jailbreaking Renewal Pet.

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

[[Page 72020]]

The renewal petitions provide evidence of the continuing need and
justification for the four jailbreaking exemptions. Regarding
smartphones and other portable all-purpose mobile computing devices
specifically, EFF asserts that they ``spoke to many device users who
currently rely on the jailbreaking exemption and anticipate continuing
to rely on the exemption in the future'' for uses such as installing an
alternative operating system, keeping older devices functional, and
customizing application functionality.\85\ For smart TVs, SFC asserts
that ``the majority of Smart TV platforms ship to the consumer in
`locked' formats, which prevent users from loading third-party software
to enable interoperability.'' \86\ For voice assistant devices, EFF
points to voice assistant devices, such as the Lenovo smart display,
that are no longer supported but whose users wish to expand their
functionality and install updated software.\87\ And for routers, SFC
states that based on its observations, there is a continued need to
install alternative firmware and security updates to networking
devices.\88\
---------------------------------------------------------------------------

\85\ EFF Smartphone and Portable All-Purpose Mobile Computing
Device Jailbreaking Renewal Pet. at 3.
\86\ SFC Smart TVs Jailbreaking Renewal Pet. at 3.
\87\ EFF Voice Assistant Devices Jailbreaking Renewal Pet. at 3.
\88\ SFC Routers and Dedicated Network Devices Jailbreaking
Renewal Pet. at 3.
---------------------------------------------------------------------------

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

O. Computer Programs--Repair of Motorized Land Vehicles, Marine
Vessels, or Mechanized Agricultural Vehicles or Vessels

Both iFixit and MEMA, The Vehicle Suppliers Association (``MEMA'')
filed petitions to renew the exemption for computer programs that
control motorized land vehicles, marine vessels, or mechanized
agricultural vehicles or vessels for purposes of diagnosis, repair, or
modification of the vehicle or vessel function (codified at 37 CFR
201.40(b)(13)).\89\ No oppositions were filed against renewal.
---------------------------------------------------------------------------

\89\ iFixit Vehicle or Vessel Repair Renewal Pet.; MEMA Vehicle
or Vessel Repair Renewal Pet.
---------------------------------------------------------------------------

Both petitions attest that the current exemption remains necessary.
For example, MEMA states that ``seemingly every year vehicle computer
programs become more important and essential to today's motor
vehicles'' and that its membership ``continues to see firsthand that
the exemption is helping protect consumer choice and a competitive
market, while mitigating risks to intellectual property and vehicle
safety.'' \90\ iFixit states ``the software measures manufacturers
deploy for the purpose of controlling access to vehicle software . . .
prevent[s] consumers and independent repair shops from lawfully
diagnosing, maintaining, repairing, and upgrading their vehicles.''
\91\ Both petitioners have personal knowledge of and experience with
this exemption; both have participated in previous rulemakings and
either represent or have gathered information from individuals or
professionals conducting repairs or businesses that manufacture,
distribute, and sell motor vehicle parts.
---------------------------------------------------------------------------

\90\ MEMA Vehicle or Vessel Repair Renewal Pet. at 3.
\91\ iFixit Vehicle or Vessel Repair Renewal Pet. at 3.
---------------------------------------------------------------------------

P. Computer Programs--Repair of Devices Designed Primarily for Use by
Consumers

EFF petitions to renew the exemption for computer programs that
control devices designed primarily for use by consumers for diagnosis,
maintenance, or repair of the device (codified at 37 CFR
201.40(b)(14)).\92\ The Office received one opposition from Author
Services, discussed further below.
---------------------------------------------------------------------------

\92\ EFF Device Repair Renewal Pet.
---------------------------------------------------------------------------

The petition asserts a for the continuing need and justification
for the exemption, stating that ``[m]anufacturers of these devices
continue to implement technological protection measures that inhibit
lawful repairs, maintenance, and diagnostics, and they show no sign of
changing course.'' \93\ The petition also reports that the Federal
Trade Commission has identified `` `unjustified software locks, digital
rights management, and technological protection measures' as one form
of anticompetitive repair restriction,'' and that the few state laws
pertaining to the right to repair ``have important gaps,'' such as not
encompassing certain devices covered by the current exemption.\94\ EFF
has personal knowledge of and experience with this exemption due to its
prior advocacy for the exemption in past proceedings.
---------------------------------------------------------------------------

\93\ Id. at 3.
\94\ Id. (quoting Federal Trade Commission, Policy Statement of
the Federal Trade Commission on Repair Restrictions Imposed by
Manufacturers and Sellers 1 (2021), <a href="https://www.ftc.gov/legal-library/browse/policy-statement-federal-trade-commission-repair-restrictions-imposed-manufacturers-sellers">https://www.ftc.gov/legal-library/browse/policy-statement-federal-trade-commission-repair-restrictions-imposed-manufacturers-sellers</a>).
---------------------------------------------------------------------------

Author Services, an organization that represents the works of L.
Ron Hubbard, filed an opposition to renewal of this exemption ``in its
present form.'' \95\ While Author Services states that it has ``no
objection'' with consumers repairing products sold ``in the open market
to ordinary consumers,'' it objects to the extent that the exemption
may encompass devices that ``can only be purchased and used by someone
who possess[es] particular qualifications or has been specifically
trained in the use of the device.'' \96\ Author Services asserts that
the Office did not consider these types of devices when granting the
exemption in the previous proceeding, and contends that applying the
exemption to such devices undermines manufacturers' abilities to
control their software and ``directly contradict[s]'' negotiated
licenses.\97\
---------------------------------------------------------------------------

\95\ Author Services Device Repair Opp. at 1.
\96\ Id. at 1-2.
\97\ Id. at 2.
---------------------------------------------------------------------------

After reviewing the renewal petition, the opposition comment, and
the record from the previous rulemaking, the Office concludes that the
exemption may be renewed by relying on the prior record. Author
Services' opposition is limited to devices available ``only'' to
individuals with qualifications and training, and they therefore would
not qualify as ``primarily designed for use by consumers'' within the
scope of the existing exemption.\98\ This exemption was crafted to
cover consumer devices because proponents in the previous rulemaking
had shown ``common characteristics such that users of the proposed
exemption are likely to be similarly situated.'' \99\ In its prior
rulemaking, the Office declined to recommend an exemption covering
commercial and industrial devices because it was ``unclear'' from the
record whether they shared the same common traits.\100\ The devices
described

[[Page 72021]]

by Author Services appear to fall into the latter category, and
therefore the opposition does not show that the previous rulemaking
record is no longer reliable.
---------------------------------------------------------------------------

\98\ 37 CFR 201.40(b)(14) (limiting the exemption to ``a
lawfully acquired device that is primarily designed for use by
consumers'').
\99\ 2021 Recommendation at 197.
\100\ Id.
---------------------------------------------------------------------------

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

Q. Computer Programs--Repair of Medical Devices and Systems

Five organizations filed petitions to renew the exemption to access
computer programs that are contained in and control the functioning of
medical devices or systems, and related data files, for diagnosis,
maintenance, or repair (codified at 37 CFR 201.40(b)(15)).\101\ The
Office received three comments opposing renewal, discussed further
below.
---------------------------------------------------------------------------

\101\ See Avante Health Solutions, Avante Diagnostic Imaging,
Avante Ultrasound (collectively ``Avante'') Medical Device Repair
Renewal Pet.; Crothall Facilities Management, Inc. (``Crothall'')
Medical Device Repair Renewal Pet.; Metropolis Int'l Medical Device
Repair Renewal Pet.; TriMedx Holdings, LLC (``TriMedx'') Medical
Device Repair Renewal Pet.; TTG Imaging Solutions, LLC (``TTG
Imaging Solutions'') Medical Device Repair Renewal Pet.
---------------------------------------------------------------------------

Four of the petitions provide evidence of the continuing need and
justification for the exemption.\102\ For example, Avante states that
``the use of TPMs in medical systems and devices is widespread among
the types of systems and devices'' and that manufacturers ``have
developed new systems that further restrict access to use of necessary
software tools.'' \103\ TTG Imaging Solutions asserts that the
exemption is ``crucial to ensure the availability, affordability, and
timely repair of medical devices, which directly impacts patient care
and healthcare accessibility.'' \104\ And both Metropolis International
and TriMedx testify that they relied on the current exemption to
refurbish and repair medical systems.\105\ The petitioners have
personal knowledge of and experience with this exemption; each either
repairs, maintains, services, or sells medical systems and devices for
entities in the healthcare industry.
---------------------------------------------------------------------------

\102\ A fifth petition, submitted by Crothall, did not meet the
Office's requirements for renewal petitions. While the Office
requires ``a brief explanation summarizing the basis for claiming a
continuing need and justification for the exemption,'' 2023 NOI at
37488, Crothall's petition contains only two brief sentences stating
that is ability to service medical devices ``can be impacted'' by
software restrictions. See Crothall Medical Device Repair Renewal
Pet. at 3 (``Crothall's ability to service a device without using
the installed software and data files can be impacted by software
access. Access to software error logs is a critical function in the
optimal diagnosis, maintenance, and repair of devices.''). Because
other petitioners provide the required information for renewal,
Crothall's petition is not discussed further.
\103\ Avante Medical Device Repair Renewal Pet. at 3. Avante
proposed this exemption in the previous rulemaking and was referred
to as ``Transtate'' in the Register's Recommendation. See 2021
Register's Recommendation at 190.
\104\ TTG Imaging Solutions Medical Device Repair Renewal Pet.
at 3.
\105\ See Metropolis Int'l Medical Device Repair Renewal Pet. at
3 (testifying that it is a dealer of refurbished medical imaging
systems and has faced legal threats for its repair activities);
TriMedx Medical Device Repair Renewal Pet. at 3 (testifying that the
current exemption ``allows TRIMEDX and other third-party servicers
to overcome, and in some cases, avoid the anti-competitive tactics
of the [original equipment manufacturers], while ensuring third-
party service organizations have the necessary access to medical
devices and information to repair and maintain the equipment on
behalf of hospital customers'').
---------------------------------------------------------------------------

The Office received opposition comments from the nonprofit American
Consumer Institute (``ACI''), the Medical Imaging & Technology Alliance
(``MITA''),\106\ and Philips North America, LLC (``Philips'').\107\
Opponents assert that the repair exemption ``undermines the maintenance
and repair standards laid out by the U.S. Food Drug Administration
(FDA) for the equipment employed in patient care'' because independent
servicers conducting repairs are ``neither regulated nor monitored'' by
the FDA.\108\ MITA further asserts that ``Congress and the FDA have
announced new policies on medical device cybersecurity that directly
conflict with the 2021 Exemption.'' \109\ In addition, MITA and Philips
both argue that the Supreme Court's recent decision in Andy Warhol
Found. for the Visual Arts v. Goldsmith (Warhol) \110\ constitutes a
new legal development that undermines the validity of the previous
rulemaking's analysis due to the Court's holding that commercial, non-
transformative uses are, in general, less likely to qualify as
fair.\111\ As applied to medical device repair, MITA and Philips
contend that because the repair services at issue can be and are
commercialized, with petitioners and others similarly situated
profiting from the use of manufacturers' software to repair devices,
this weighs against fair use.\112\ We address each of these arguments
below.
---------------------------------------------------------------------------

\106\ MITA is currently challenging the original adoption of
exemption for medical devices and systems repair. See MITA v.
Library of Congress, 2023 WL 2387760 (D.D.C. Mar. 7, 2023). The
district court granted summary judgment in favor of the Library of
Congress, and the case is now on appeal before the D.C. Circuit.
\107\ ACI Medical Device Repair Opp.; MITA Medical Device Repair
Opp.; Philips Medical Device Repair Opp.
\108\ ACI Medical Device Repair Opp. at 1-2.
\109\ MITA Medical Device Repair. Opp. at 6 (citing U.S. Food &
Drug Admin., Cybersecurity in Medical Devices: Quality System
Considerations and Content of Premarket Submissions (Sept. 2023),
<a href="https://www.fda.gov/media/119933/download">https://www.fda.gov/media/119933/download</a>; Consolidated
Appropriations Act, 2023, sec. 3305, 136 Stat. 4459, 5832-34).
\110\ 143 S. Ct. 1258 (2023).
\111\ MITA Medical Device Repair Opp. at 2-6; Philips Medical
Device Repair Opp. at 5-8.
\112\ MITA Medical Device Repair Opp. at 5-6; Philips Medical
Device Repair Opp. at 6-8; Warhol, 143 S. Ct. at 1275 (explaining
that while ``the commercial nature of the use is not dispositive,''
``it is relevant'' and ``is to be weighed against the degree to
which the use has a further purpose or different character'').
---------------------------------------------------------------------------

Opponents' arguments concerning FDA regulation of medical devices
were raised and addressed in the last rulemaking, and therefore are not
evidence that the factual or legal situation justifying the exemption
has changed.\113\ During the last rulemaking, the FDA submitted
comments in which the agency expressed no objection to the proposed
exemption to allow circumvention of TPMs on medical devices for repair-
related purposes.\114\ In its comments, the FDA pointed to its 2018
report on independent medical device repair in which it ``concluded
that the continued availability of ISOs to service and repair medical
devices is critical to the functioning of the healthcare system in the
United States.\115\ Similarly, the FDA indicated that it ``does not
share [opponents'] view that an exemption from liability under 17
U.S.C. 1201 for circumvention conducted solely for the purpose of
diagnosis, maintenance, or repair of medical devices would necessarily
and materially jeopardize the safety and effectiveness of medical
devices in the United States with respect to cybersecurity.'' \116\
Although the FDA

[[Page 72022]]

indicated that it was ``evaluating [its] approach to cybersecurity and
medical device servicing'' and, as MITA points out, has since issued
updated cybersecurity guidance, and although Congress has imposed
additional cybersecurity requirements on medical device manufacturers,
these developments do not change the Office's 1201 analysis.
---------------------------------------------------------------------------

\113\ See 2021 Recommendation at 228-29 (noting that opponents
argued ``that the potential consequences of unauthorized
circumvention on patient safety should factor into if not decisively
tilt the analysis against an exemption'' and concluding that those
concerns ``while significant, do not provide a basis for denying the
requested exemption'').
\114\ See id. at 229 (citing Letter from Suzanne B. Schwartz,
Dir., Office of Strategic P'ships & Tech. Innovation, FDA, to Kevin
R. Amer, Acting Gen. Counsel & Assoc. Register of Copyrights, U.S.
Copyright Office (Aug. 13, 2021)).
\115\ Letter from Suzanne B. Schwartz, Dir., Office of Strategic
P'ships & Tech. Innovation, FDA, to Kevin R. Amer, Acting Gen.
Counsel & Assoc. Register of Copyrights, U.S. Copyright Office at 3
(Aug. 13, 2021) (citing U.S. Food & Drug Admin., FDA Report on the
Quality, Safety, and Effectiveness of Servicing of Medical Devices
23 (May 2018), <a href="https://www.fda.gov/media/113431/download">https://www.fda.gov/media/113431/download</a>).
\116\ Letter from Suzanne B. Schwartz, Dir., Office of Strategic
P'ships & Tech. Innovation, FDA, to Kevin R. Amer, Acting Gen.
Counsel & Assoc. Register of Copyrights, U.S. Copyright Office at 3
(Aug. 13, 2021) (citing U.S. Food & Drug Admin., Cybersecurity in
Medical Devices: Challenges and Opportunities (June 2021), <a href="https://www.fda.gov/media/150144/download">https://www.fda.gov/media/150144/download</a>).
---------------------------------------------------------------------------

The Office addressed these same concerns in the last rulemaking,
stating that ``the Register generally does not consider other
regulatory schemes as part of the adverse effects analysis because the
focus of this proceeding is on copyright-related considerations.''
\117\ Further, a user availing themselves of the temporary exemption
for medical device repair is not absolved from noncompliance with other
laws and regulations, including any promulgated by the FDA.
Accordingly, the Office concludes that opponents' renewed safety and
cybersecurity arguments do not demonstrate that the relevant legal or
factual circumstances justifying the exemption have changed.
---------------------------------------------------------------------------

\117\ See 2021 Recommendation at 229; see also id. at 228-29
(noting that opponents argued ``that the potential consequences of
unauthorized circumvention on patient safety should factor into if
not decisively tilt the analysis against an exemption'' and
concluding that those concerns ``while significant, do not provide a
basis for denying the requested exemption'').
---------------------------------------------------------------------------

As to the argument that the decision in Warhol constitutes a change
in the law that supports refusal of the renewal petition, MITA and
Philips point to the Court's analysis of the first fair use factor, in
which it explained that the ``central'' question is ``whether and to
what extent the use at issue has a purpose or character different from
the original.'' \118\ They argue that medical device repair is not
transformative under the first factor because the device's software is
``not transformed--at all--during or after the maintenance or repair
work'' and thus has the ``the exact same purpose--to enable the device
to function.'' \119\
---------------------------------------------------------------------------

\118\ MITA Medical Device Repair Opp. at 3-4 (quoting Warhol,
143 S. Ct. at 1274-75); see also Philips Medical Device Repair Opp.
at 5-6 (quoting Warhol, 143 S. Ct. at 1273, where the Court held the
first fair use factor focuses on ``whether an allegedly infringing
use has a further purpose or different character, which is a matter
of degree, and the degree of difference must be weighed against
other considerations, like commercialism'').
\119\ MITA Medical Device Repair Opp. at 4 (emphasis omitted).
---------------------------------------------------------------------------

These fair use arguments assert are largely identical to those
raised by opponents, including MITA and Philips, in the prior
rulemaking.\120\ They were rejected in the 2021 Register's
Recommendation, which found that ``opponents overstate the significance
of the commercial purpose element to the fair use analysis'' and that
repair of medical devices and equipment, like other forms of repair,
was likely transformative under the first fair use factor.\121\ The
Recommendation explained that repair ``supports--rather than
displaces--the purpose of the embedded programs that control the
device.'' \122\ In other words, the purpose of the use of software in
repair is to render a non-functional device functional again, while the
original purpose of the software is to operate a device that functions
as designed. Because this analysis is part of the record that justified
recommending the exemption in 2021, opponents must show that the
decision in Warhol constitutes intervening legal precedent that renders
the Office's prior fair use analysis no longer valid.
---------------------------------------------------------------------------

\120\ In the 2021 rulemaking, MITA argued there was ``nothing
transformative about an unregulated [Independent Service
Organization] accessing and copying medical imaging device software
and materials for a commercial purpose'' (2021 MITA Class 12 Opp. at
9), and Philips argued that repair of medical devices and equipment
was not fair use because it is ``commercial--and thus, presumptively
unfair'' and because repair does ``not transform the copyrighted
material,'' such as by modifying the software contained in medical
devices and systems (2021 Philips Class 12 Opp. at 8).
\121\ See 2021 Recommendation at 208-09 (citing 2015
Recommendation at 234-35 (concluding that repair of vehicles was
likely to be transformative because ``proposed uses for diagnosis
and repair would presumably enhance the intended use of [the
embedded] computer programs'')).
\122\ Id. at 201 (quoting U.S. Copyright Office, Software-
Enabled Consumer Products 40 (2016), <a href="https://www.copyright.gov/policy/software/software-full-report.pdf">https://www.copyright.gov/policy/software/software-full-report.pdf</a>). And the Office's previous
fair use analyses of repair explained, ``a finding of fair use is
not necessarily precluded when the new use coincides generally with
the original use of a work.'' 2015 Recommendation at 234.
---------------------------------------------------------------------------

After reviewing the opposition comments, the record from the
previous rulemaking, and the Supreme Court's decision, the Office
concludes that its fair use analysis for repair of medical devices and
systems remains sound. The Warhol decision does not, as MITA and
Philips suggest, substantially change how the Office would analyze the
particular uses at issue--diagnosis, maintenance, and repair of medical
devices and systems--under the first factor. The opposition comments
point to language in the Court's decision explaining that uses that
``share the same or highly similar purposes'' as the copyrighted work
weigh against fair use.\123\ But this statement echoes the Court's
earlier finding in Campbell v. Acuff-Rose Music, Inc. that the first
factor focuses on whether a use ``supplant[s] the original'' or
``instead add something new, with a further purpose or different
character.'' \124\ It also mirrors the Court's discussion in Google LLC
v. Oracle America, Inc., where it cited Campbell and explained that the
first factor asks whether the use ``add[s] something new, with a
further purpose or different character,'' and that ``the word
`transformative' [ ] describe[s] a copying use that adds something new
and important'' and is therefore more likely to be fair.\125\ The
Warhol opinion did not overrule these prior decisions, but rather built
upon them.\126\ Nothing in the opinion changes the Office's evaluation
of the differences in purpose between the uses covered by the exemption
and the intended use of the software. Accordingly, the decision is not
a basis to question the reliability of the 2021 rulemaking record that
resulted in the exemption for repair of medical devices and systems.
---------------------------------------------------------------------------

\123\ MITA Medical Device Repair Opp. at 4 (quoting Warhol, 143
S. Ct. at 1277).
\124\ 510 U.S. 569, 579 (1994). Further, to the extent to which
opponents read Campbell to require that a new use add ``new
expression, meaning or message'' to be considered fair, see MITA
Medical Device Repair Opp. at 4, the Court in Warhol clarified that
``meaning or message [i]s simply relevant to whether the new use
serve[s] a purpose distinct from the original, or instead
supersede[s] its objects,'' not determinative or required. Warhol,
143 S. Ct. at 1282-83 (citing Campbell, 510 U.S. at 579).
\125\ 141 S. Ct. 1183, 1202-03 (2021) (quoting Campbell, 510
U.S. at 579).
\126\ For this reason, the Eleventh Circuit recently denied a
motion for rehearing in a case involving fair use decided prior to
the Warhol opinion--that court concluded that the intervening
Supreme Court opinion did not affect its analysis of
transformativeness under the first fair use factor or the ``balance
of the four factors.'' Apple Inc. v. Corellium, Inc., No. 21-12835,
2023 U.S. App. LEXIS 22252, at *3 (11th Cir. Aug. 23, 2023) (denying
petition for rehearing and rehearing en banc).
---------------------------------------------------------------------------

Based on the information provided in the renewal petitions and the
lack of evidence in the opposition comments that the factual or legal
record has changed in relevant ways, the Office believes that the
conditions that led to adoption of this exemption are likely to
continue during the next triennial period. Accordingly, it intends to
recommend renewal.

R. Computer Programs--Security Research

Multiple organizations and security researchers submitted four
petitions to renew the exemption permitting circumvention for purposes
of good-faith security research (codified at 37 CFR
201.40(b)(16)).\127\ No oppositions

[[Page 72023]]

were filed against renewal, and one comment was received in support
filed by ``A Group of Hackers at DEF CON.'' \128\
---------------------------------------------------------------------------

\127\ Blaze & Bellovin Security Research Renewal Pet.; Halderman
& Green Security Research Renewal Pet.; MEMA Security Research
Renewal Pet.; SFC Security Research Renewal Pet.
\128\ A Group of Hackers at DEFCON Security Research Supp.
(noting that the exemption has led to ``the creation of software to
fix vulnerabilities, as well as papers and presentations on security
research'').
---------------------------------------------------------------------------

The petitions include statements regarding the continuing need and
justification for the exemption based on personal knowledge. For
example, a petition from Professor J. Alex Halderman and Associate
Professor Matthew D. Green states that security research ``play[s] a
vital role in [cybersecurity],'' as ``vulnerability disclosure and
remediation are key to securing existing infrastructure.'' \129\ The
petition from Professors Matt Blaze and Steven Bellovin asserts that
the exemption remains necessary because in the past three years ``one
of us has continued to receive threats of prospective litigation from
copyright holders in connection with his security research on software
in voting systems.'' \130\ Additionally, the vehicle suppliers
association MEMA states that its membership ``has seen firsthand that
the exemption is helping encourage innovation in the automotive
industry while mitigating risks to intellectual property and vehicle
safety.'' \131\ Finally, SFC asserts that the exemption continues to be
used by ``privacy and security researchers who investigate and publish
information about privacy flaws in computing devices; and individual
consumers and hobbyists who wish to prevent their private data from
being disclosed by the devices they own.'' \132\
---------------------------------------------------------------------------

\129\ Halderman & Green Security Research Renewal Pet. at 3.
\130\ Blaze & Bellovin Security Research Renewal Pet. at 3.
\131\ MEMA Security Research Renewal Pet. at 3.
\132\ SFC Security Research Renewal Pet. at 3.
---------------------------------------------------------------------------

S. Computer Programs--Video Game Preservation

The Software Preservation Network (``SPN'') and LCA jointly
petition to renew the exemption for individual play by gamers and
preservation of video games by a library, archives, or museum for which
outside server support has been discontinued, and preservation by a
library, archives, and museum, of discontinued video games that never
required server support (codified at 37 CFR 201.40(b)(17)).\133\ No
oppositions were filed against renewal, and one individual filed a
comment in support of the petition.\134\
---------------------------------------------------------------------------

\133\ SPN & LCA Abandoned Video Game Renewal Pet.
\134\ Burt Abandoned Video Game Supp.
---------------------------------------------------------------------------

The petition states that libraries, archives, and museums continue
to need the exemption to preserve video games, which is ``an ongoing
[and] iterative process.'' \135\ For example, it cites The Strong
National Museum of Play, which has a ``substantial number of TPM-
encumbered video games in its collections that will need preservation
treatment that requires circumvention in the coming years.'' \136\ In
addition, the petition asserts that video game collection librarians
``report a similar ongoing need,'' which ``has become a crucial tool in
their ongoing efforts to save digital game culture before it
disappears.'' \137\ The petitioners have personal knowledge of and
experience with this exemption through their past participation in the
triennial rulemaking proceedings, as well as through their
representation of members that have relied on this exemption.
---------------------------------------------------------------------------

\135\ SPN & LCA Abandoned Video Games Renewal Pet. at 3.
\136\ Id.
\137\ Id.
---------------------------------------------------------------------------

T. Computer Programs--Software Preservation

SPN and LCA jointly petition to renew the exemption for computer
programs, other than video games, for the preservation of computer
programs and computer program-dependent materials by libraries,
archives, and museums (codified at 37 CFR 201.40(b)(18)).\138\ No
oppositions were filed against renewal, and one individual supported
the petition.\139\
---------------------------------------------------------------------------

\138\ SPN & LCA Software Preservation Renewal Pet.
\139\ Burt Software Preservation Supp.
---------------------------------------------------------------------------

Petitioners state that libraries, archives, and museums continue to
need the exemption to preserve and curate software and materials
dependent on software, which is ``an ongoing [and] iterative process.''
\140\ For example, a software preservation analyst found ``remote
access to digital collections [a]s an increasingly explicit directive
to fulfill cultural heritage institutions' missions to support
research, analysis, and other scholarly re-use of the historical record
(and to do so equitably and inclusively).'' \141\ The petition also
asserts that SPN's members are providing an off-site researcher with
``access to born-digital materials using remote access to legacy
software.'' \142\ The petitioners have personal knowledge of and
experience with this exemption through their past participation in the
triennial rulemaking proceedings, as well as through their
representation of members that have relied on this exemption.
---------------------------------------------------------------------------

\140\ SPN & LCA Software Preservation Renewal Pet. at 3.
\141\ Id.
\142\ Id.
---------------------------------------------------------------------------

U. Computer Programs--3D Printing

Michael Weinberg petitions to renew the exemption for computer
programs that operate 3D printers to allow use of alternative material
(codified at 37 CFR 201.40(b)(19)).\143\ No oppositions were filed
against renewal.
---------------------------------------------------------------------------

\143\ Weinberg 3D Printers Renewal Pet.
---------------------------------------------------------------------------

The petition states that there is a continuing need and
justification for the exemption, and the petitioner has personal
knowledge of and experience with this exemption as the individual who
participated in previous rulemakings. Mr. Weinberg declares that he is
a member of the 3D printing community and has been involved with this
exemption request during each cycle it has been considered by the
Office.\144\ In addition, he states that while 3D printers ``continue
to use TPMs to limit the types of materials used in printers,'' since
the last rulemaking proceeding, there has been ``an expansion of third-
party materials available for 3D printers'' due to the current
exemption.\145\
---------------------------------------------------------------------------

\144\ Id. at 3.
\145\ Id.
---------------------------------------------------------------------------

V. Computer Programs--Copyright License Investigation

SFC petitions to renew the exemption for computer programs, for the
purpose of investigating potential infringement of free and open source
computer

[[Page 72024]]

programs (codified at 37 CFR 201.40(b)(20)).\146\ No oppositions were
filed against renewal.
---------------------------------------------------------------------------

\146\ SFC Copyright License Investigation Renewal Pet.
---------------------------------------------------------------------------

The petition argues that there is a continuing need and
justification for the exemption, including by discussing how
technological protection measures, such as encryption, ``prevent[ ] the
investigation of computer programs'' within various devices that use
free and open source software (``FOSS'') to operate.\147\ The petition
also evidences personal knowledge of the exemption. For example, it
describes how SFC is informed of suspected non-compliance with the FOSS
license, which it investigates on behalf of its members. Due to the
``pervasive[ness]'' of infringement through license non-compliance,
however, ``SFC can only pursue a fraction of the suspected
infringements reported to it.'' \148\ SFC also participated in the
previous rulemaking and provided the rulemaking record that led to the
Office recommending the exemption.
---------------------------------------------------------------------------

\147\ Id. at 3.
\148\ Id.
---------------------------------------------------------------------------

III. Analysis and Classification of Proposed New or Expanded Exemptions

In addition to petitions to renew existing exemptions, the Office
received eleven petitions for new or expanded exemptions.\149\ The
Office has reviewed and consolidated related and/or overlapping
proposed exemptions to simplify the rulemaking process and encourage
joint participation among parties with common interests (although
collaboration is not required).\150\ This has resulted in seven
proposed classes of works.
---------------------------------------------------------------------------

\149\ The Office received ten petitions for new classes. As
discussed above, the Office has treated OTW's renewal petition
proposing amended regulatory language as the eleventh petition.
\150\ 2023 NOI at 37489.
---------------------------------------------------------------------------

Each proposed class is briefly described below, and additional
information can be found in the underlying petitions posted on the
Office website. As explained in the NOI, the proposed classes represent
`` `only a starting point for further consideration in the rulemaking
proceeding,' and will be subject to `further refinement based on the
record.' '' \151\ The description of each class also includes
preliminary legal and factual areas of interest that the Office hopes
commenters will address in their submissions. These early observations
are offered without prejudice to the Office's ability to raise other
questions or concerns at later stages of the proceeding, and commenters
should offer all legal arguments and evidence they believe necessary to
create a complete record. Finally, the Office reminds exemption
proponents that ``where an exemption request resurrects legal or
factual arguments that have been previously rejected, the Office will
continue to rely on past reasoning to dismiss such arguments in the
absence of new information.'' \152\
---------------------------------------------------------------------------

\151\ Id. (quoting Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 85 FR 37399, 37402 (June 22, 2020).
\152\ Section 1201 Study at 147; see also Exemption to
Prohibition on Circumvention of Copyright Protection Systems for
Access Control Technologies, 79 FR 55687, 55690 (Sept. 17, 2014).
---------------------------------------------------------------------------

Proposed Class 1: Audiovisual Works--Noncommercial Videos

OTW filed a renewal petition requesting that the exemption for
circumvention of access controls protecting motion pictures on DVDs,
Blu-ray discs, and digitally transmitted video for purposes of
criticism and comment, for use in noncommercial videos be amended to
align with the language of the 2010 exemption for clarity.\153\ OTW
contends that ``[t]he complexity of the current [exemption] provisions
substantially increases the difficulty of communicating and
implementing the exemptions in practice,'' and that reverting to the
2010 language would not expand the scope of the existing exemption, but
merely help ``clarify [it] for ordinary users.'' \154\ Since 2010, the
exemption has been expanded to encompass works on a Blu-ray disc or
received via a digital transmission, and to clarify it includes
``videos produced for a paid commission if the commissioning entity's
use is noncommercial.'' \155\
---------------------------------------------------------------------------

\153\ OTW Class 1 Pet. at 4 (discussing rulemaking cycle that
began in 2008 and concluded in 2010).
\154\ Id.
\155\ 37 CFR 201.40(b)(1). See 2015 Recommendation at 103-06
(expanding the exemption to include Blu-ray and digital
transmission).
---------------------------------------------------------------------------

OTW made the same request to amend the language of the exemption in
the previous rulemaking.\156\ The Office ultimately concluded that
modification of the language was unnecessary,\157\ based on statements
by OTW to that effect.\158\ The Office seeks comment on whether there
are legal or factual circumstances that have changed and warrant
altering the determination from the prior rulemaking.
---------------------------------------------------------------------------

\156\ See 2021 OTW Class 1 Pet.
\157\ See 2021 Recommendation at 40-42.
\158\ See id. at 42 (``[W]e actually don't think that any change
is necessary'' to the exemption requirement that motion pictures
used under the exemption be ``lawfully made and acquired.'' (quoting
2021 Hearing Tr. at 245:21-24 (Apr. 6, 2021) (Betsy Rosenblatt,
OTW))).
---------------------------------------------------------------------------

Proposed Class 2: Audiovisual Works--Online Learning

Peter Decherney, Sarah Banet-Weiser, Shiv Gaglani, and SCMS
(collectively ``Joint Educators'') petition to expand the existing
exemption for circumvention of access controls protecting motion
pictures on DVDs, Blu-ray discs, and digitally transmitted video for
educational purposes in massive open online courses (``MOOCs'') by
faculty and employees acting at the direction of faculty of accredited
nonprofit educational institutions.\159\ In their petition, Joint
Educators request that the exemption be extended to cover other online
learning platforms that offer ``supplemental education, upskilling,
retraining and lifelong learning,'' such as Khan Academy, LinkedIn
Learning, <a href="http://Osmosis.org">Osmosis.org</a>, and <a href="http://Code.org">Code.org</a>.\160\ Joint Educators propose
allowing ``educators and preparers of online learning materials offered
by educational entities to use short excerpts of motion pictures
(including television shows and videos) for the purpose of criticism,
comment, illustration and explanation in offerings to registered
learners of online learning platforms when use of the excerpts will
contribute significantly to learning.'' \161\ Joint Educators contend
that, since the last proceeding, the demand for online learning has
``continued to skyrocket,'' with educational institutions using a
variety of online learning platforms to supplement their
curricula.\162\ They note that the current exemption for online
learning only applies to a limited scope of learning settings (i.e.,
MOOCs developed at accredited educational institutions).
---------------------------------------------------------------------------

\159\ Joint Educators Class 2 Pet.
\160\ Id. at 2.
\161\ Id.
\162\ Id.
---------------------------------------------------------------------------

The Office notes, that in the last two rulemakings, it received
proposals to expand the existing exemption for online learning to for-
profit entities (including ``online learning platforms'') and
unaccredited educational institutions. During those rulemakings, the
Office considered and ultimately recommended against these
proposals.\163\ The Office seeks comment on whether any changed legal
or factual circumstances warrant altering that

[[Page 72025]]

determination and whether, or to what extent, commenters believe the
proposed language should be adopted. As part of this analysis,
commenters should discuss the extent to which the evidence submitted in
prior rulemakings may be relied upon to support the expansion.
---------------------------------------------------------------------------

\163\ See 2021 Recommendation at 49-52; 2018 Recommendation at
53-55.
---------------------------------------------------------------------------

Proposed Classes 3(a): Motion Pictures and 3(b): Literary Works--Text
and Data Mining

Authors Alliance, AAUP, and LCA filed two petitions to expand the
exemptions for text and data mining on a corpora of motion pictures and
literary works for the purpose of scholarly research and teaching.\164\
Petitioners propose expanding each exemption to permit ``researchers to
share corpora with researchers affiliated with different nonprofit
institutions of higher education for purposes of conducting independent
text data mining research and teaching, where those researchers are in
compliance with the [current] exemption.'' \165\ Petitioners explain
that, under their petitions, all provisions of the current exemptions
would remain the same with the only change being the expansion of the
types of users who would have access to motion pictures and literary
works.\166\
---------------------------------------------------------------------------

\164\ Authors Alliance, AAUP & LCA Class 3(a) Pet.; Authors
Alliance, AAUP & LCA Class 3(b) Pet.
\165\ Authors Alliance, AAUP & LCA Class 3(a) Pet. at 2; Authors
Alliance, AAUP & LCA Class 3(b) Pet. at 2.
\166\ Authors Alliance, AAUP & LCA Class 3(a) Pet. at 2-3;
Authors Alliance, AAUP & LCA Class 3(b) Pet. at 2-3.
---------------------------------------------------------------------------

For reasons of administrative efficiency, the Office has grouped
these proposals into one category that encompasses two proposed classes
pertaining to motion pictures and literary works, respectively (i.e.,
Classes 3(a) and 3(b)). Commenters addressing these proposals may
submit a single comment addressing both motion pictures and literary
works, but the supporting evidence must be sufficient to establish an
adverse effect on noninfringing uses with respect to each. To the
extent commenters believe the relevant factual and legal issues are
similar as to the two classes of works, the supporting comments should
describe them in detail. For example, commenters may wish to address
the extent to which there is overlap with respect to the types of TPMs
applied to these works, the nature of the proposed research activities,
the relevant markets for the works, and the availability of potential
alternatives to circumvention. Commenters may also wish to discuss
whether this exemption should be analyzed as a request to engage in new
circumvention activities not permitted by the current exemption or as a
modification to post-circumvention limitations, and to what extent the
Office's previous analysis of noninfringement and adverse effects apply
to this class.

Proposed Class 4: Computer Programs--Generative AI Research

Jonathan Weiss proposes a new exemption to circumvent technological
measures that control access to ``copyrighted generative AI models,
solely for the purpose of researching biases'' within the models.\167\
The proposed exemption would permit sharing the research, techniques,
and methodologies that ``expose and address biases,'' and ensure, among
other reasons, fairness and transparency within AI models and their
development.\168\ The petition does not cabin the proposed exemption to
a specific set of users, only describing them as ``researchers'' and
does not discuss how TPMs prohibit, or are likely to prohibit,
researchers from accessing the software within the generative AI
models.\169\ Instead, Weiss submits three guardrails to prevent misuse
of the proposed exemption: the exemption applies only where the
``primary intention is to identify and address biases, and not to
exploit them;'' any research ``prioritize[s] data privacy, ensuring
that no personal or sensitive data is compromised;'' and researchers
should ``actively engage with AI developers and stakeholders to address
discovered biases.'' \170\
---------------------------------------------------------------------------

\167\ Weiss Class 4 Pet.
\168\ Id. at 2.
\169\ Id.
\170\ Id. at 3.
---------------------------------------------------------------------------

In general, the Office seeks comment on whether the proposed
exemption should be adopted, including any proposed regulatory
language. Commenters should describe with specificity the relevant TPMs
and whether their presence is adversely affecting noninfringing uses,
including identifying whether eligible users may access the software
through alternate channels that do not require circumvention and the
legal basis for concluding that the proposed uses are likely to be
noninfringing.

Proposed Class 5: Computer Programs--Repair

Two organizations jointly petition for an expanded exemption
relating to the diagnosis, maintenance, and repair of computer programs
that control devices designed primarily for use by consumers.\171\
Public Knowledge and iFixit petition for an expansion to ``include
commercial industrial equipment such as automated building management
systems and industrial equipment (i.e., soft serve ice cream machines
and other industrial kitchen equipment).'' \172\ The petition includes
examples of how ``service passwords and digital locks'' are preventing
diagnosing, maintaining, and repairing the software within the
devices.\173\
---------------------------------------------------------------------------

\171\ Public Knowledge and iFixit Class 5 Pet.
\172\ Id. at 2.
\173\ Id.
---------------------------------------------------------------------------

The Office notes that in the last rulemaking, it declined to
include commercial and industrial devices and systems within the scope
of the proposed repair class due to a lack of evidence of adverse
effects for such uses and because ``it [was] not apparent from the
record that users of commercial and industrial systems are similarly
situated to users of consumer products.'' \174\ The Office invites
comment on whether users of commercial and industrial equipment are
similarly situated to or distinct from users of software-enabled
consumer devices; whether commercial and industrial devices and systems
can be the basis of an exemption for a single ``class of works;''
whether diagnosis, maintenance, and repair of such devices and systems
are likely to be noninfringing uses of their firmware; and whether TPMs
are adversely affecting those uses.
---------------------------------------------------------------------------

\174\ 2021 Recommendation at 194-98 (``Without a more developed
record concerning devices designed primarily for commercial and
industrial use, the Register cannot properly evaluate the purported
similarities to consumer devices or analyze the claimed adverse
effects.'' (citing FTC, Nixing the Fix: An FTC Report to Congress on
Repair Restrictions 51 (May 2021), <a href="https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf">https://www.ftc.gov/system/files/documents/reports/nixing-fix-ftc-report-congress-repair-restrictions/nixing_the_fix_report_final_5521_630pm-508_002.pdf</a>)).
---------------------------------------------------------------------------

Proposed Classes 6(a): Computer Programs and 6(b): Video Games--
Preservation

Three petitions seek to expand the current exemptions for
preservation of software and video games, and one petition seeks a new
exemption for preservation of video games.\175\ As with the proposed
text and data mining exemptions, the Office has grouped these petitions
into a single category encompassing two proposed classes. Commenters
addressing these proposals may submit a single comment addressing both
computer programs and video games, but the supporting evidence must be
sufficient to establish

[[Page 72026]]

the statutory requirements with respect to each category of works.
---------------------------------------------------------------------------

\175\ SPN & LCA Class 6(a) Pet.; Austin Class 6(b) Pet.; SPN &
LCA Class 6(b) Pet.; Sullivan Class 6(b) Pet.
---------------------------------------------------------------------------

SPN and LCA filed a petition to expand the current exemption for
preservation of software by eligible libraries, archives, and museums
by removing the current requirement that electronic distribution,
display, or performance of software be made to ``only . . . one
eligible user at a time.'' \176\ SPN and LCA and Thomas Sullivan filed
petitions to expand the current exemption for preservation of video
games by eligible libraries, archives, and museums by removing the
current requirement that video games ``not be distributed or made
available outside of the physical premises of an eligible [library,
archives, or museum].'' \177\ Finally, Ken Austin petitions for a new
exemption that would permit circumvention by ``individual owners of
video games which have DRM (digital rights management) that no longer
function[ ] due to incompatibility'' with modern computers' operating
systems.\178\ Mr. Austin provides an example of the Windows 10
operating system preventing individuals from playing an old video game
because the game's technological protection measures are flagged as a
security threat.\179\
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\176\ SPN & LCA Class 6(a) Pet. at 2; 37 CFR 201.40(b)(18).
\177\ SPN & LCA Class 6(b) Pet.; Sullivan Class 6(b) Pet.; 37
CFR 201.40(b)(17). Sullivan's petition also proposes an expansion of
those permitted to engage in preservation, such as ``[c]olleges,
[u]niversities, . . . and any institution dedicated to the
preservation of video games.'' Sullivan Class 6(b) Pet. at 2.
\178\ Austin Class 6(b) Pet at 2.
\179\ Id.
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The Office notes that it has previously considered and rejected
many of these requests. In the last rulemaking, it rejected removing
the one-user limit on software preservation out of concern with
substitution risk,\180\ and declined to recommend removing the on-
premises limitation for video game preservation.\181\ The Office
therefore seeks comment on whether there have been new factual or legal
developments since the last rulemaking that would support a new
recommendation for the preservation exemptions. Separately, it invites
comment on the proposed exemption for individuals whose video games are
no longer functional due to incompatibility with their computer's
operating systems. Specifically, the Office seeks comment on the
relevant TPMs and whether their presence is adversely affecting
noninfringing uses, including identifying whether eligible users may
access the software through alternate channels that do not require
circumvention and the legal basis for concluding that the proposed uses
are likely to be noninfringing.
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\180\ 2021 Recommendation at 268-73, 279 (``[T]he inclusion of
single user and limited time restrictions will minimize the risk of
substitutional use of the software.'' (citing U.S. Copyright Office,
Section 108 of Title 17: A Discussion Document of the Register of
Copyrights 38-39 (2017), <a href="https://www.copyright.gov/policy/section108/discussion-document.pdf">https://www.copyright.gov/policy/section108/discussion-document.pdf</a>)).
\181\ See id. at 271-275, 279; see also 2018 Recommendation at
271-75, 278; 2015 Recommendation at 340-44, 351-52.
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Proposed Class 7: Computer Programs--Vehicle Operational Data

MEMA petitions for a new exemption to ``access, store, and share
vehicle operational data, including diagnostic and telematics data''
from ``a lawfully acquired motorized land vehicle or marine vessel such
as a personal automobile or boat, commercial vehicle or vessel, or
mechanized agricultural vehicle or vessel.'' \182\ The petition limits
circumvention to ``lawful vehicle owners and lessees, or those acting
on their behalf.'' \183\
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\182\ MEMA Class 7 Pet.
\183\ Id. at 2.
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The Office encourages proponents to develop the legal and factual
administrative record in their initial submissions, including
describing with specificity the relevant TPMs and whether their
presence is adversely affecting noninfringing uses, whether eligible
users may access such data through alternate channels that do not
require circumvention, and the legal basis for concluding that the
proposed uses are likely to be noninfringing. In general, the Office
seeks comment on whether the proposed exemption should be adopted,
including any proposed regulatory language.

IV. Future Phases of the Ninth Triennial Rulemaking

As in prior rulemakings, the Office will solicit public engagement
to create a comprehensive record through receipt of written comments,
public hearings, post-hearing questions, and ex parte meetings. Each
future phase of the administrative process is described below.

A. Submission of Written Comments

Parties wishing to address proposed exemptions in written comments
should familiarize themselves with the substantive legal and
evidentiary standards for the granting of an exemption under section
1201(a)(1), which are described in more detail on the Office's form for
submissions of longer comments, available on its website. In addressing
factual matters, commenters should be aware that the Office favors
specific, ``real-world'' examples supported by evidence over
hypothetical observations. In cases where the technology at issue is
not apparent from the requested exemption, it is helpful for commenters
to describe the TPM(s) that control access to the work and the method
of circumvention.
Commenters' legal analysis should explain why the proposal meets or
fails to meet the criteria for an exemption under section 1201(a)(1),
including, without limitation, why the uses sought are or are not
noninfringing as a matter of law. The legal analysis should also
discuss statutory or other legal provisions that could impact the
necessity for or scope of the proposed exemption. Legal assertions
should be supported by statutory citations, relevant case law, and
other pertinent authority. In cases where a class proposes to expand an
existing exemption, participants should focus their comments on the
legal and evidentiary bases for modifying the exemption, rather than
the underlying exemption. As discussed above, the Office currently is
inclined to recommend all but one current temporary exemption for
renewal.\184\
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\184\ The Office will not recommend renewal of the current
exemption permitting circumvention of video games in the form of
computer programs for the purpose of allowing an individual with a
physical disability to use alternative software or hardware input
methods within 37 CFR 201.40(b)(21).
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To ensure a clear and definite record for each of the proposals,
separate submissions must be submitted for each proposed class and not
combined. Accordingly, the same party may submit multiple written
comments on different proposals. The Office acknowledges that the
requirement of separate submissions may require commenters to repeat
certain information across multiple submissions, but the Office
believes that the administrative benefits of creating a self-contained,
separate record for each proposal justify the modest amount of added
effort.
The first round of public comment is limited to submissions from
proponents (i.e., those parties who proposed new exemptions during the
petition phase) and other members of the public who support the
adoption of a proposed exemption, as well as any members of the public
who neither support nor oppose an exemption but seek only to share
pertinent information. Proponents of exemptions should present their
complete affirmative case for an exemption during the initial round of
public comment, including all legal and evidentiary support.

[[Page 72027]]

The second round of public comment seeks comments from members of
the public who oppose an exemption. As with the first round, commenters
during the second round should present the full legal and evidentiary
basis for their opposition. Finally, the third round of public comment
will be limited to supporters of particular proposals and those who
neither support nor oppose a proposal, who seek to reply to points made
in the earlier rounds of comments. Reply comments should not raise new
issues, but should instead be limited to addressing arguments and
evidence presented by others during prior rounds.

B. Public Hearings

After the three rounds of comments are completed, the Copyright
Office will hold virtual public hearings in spring 2024. The hearings
will allow for participation by videoconference and will be streamed
online. A separate notice providing details about the hearings and how
to participate will be published in the Federal Register at a later
date. The Office will identify specific items of inquiry to be
addressed during the hearings.

C. Post-Hearing Questions

As with previous rulemakings, following the hearings, the Office
may request additional information with respect to particular classes
from rulemaking participants, to supply missing information for the
record or otherwise resolve issues that it believes are material to
particular exemptions. Such requests for information will take the form
of a letter from the Office, will be addressed to individual parties
involved in the proposal as to which more information is sought, and
will provide a deadline for submission. Responding to such a request
will be voluntary. After the receipt of all responses, the Office will
post the questions and responses on the Office's website as part of the
public record.

D. Ex Parte Communication

In the last two proceedings, in response to stakeholder requests,
the Office provided written guidelines under which interested non-
governmental participants could request informal communications with
the Office during the post-hearing phase of the proceeding. In this
proceeding, the Office will permit ex parte communications, but
participating parties will be required to follow its regulations on ex
parte communications, codified at 37 CFR 201.1(d) and 205.24.\185\ In
accordance with the regulations, and similar to the last two
proceedings, no ex parte communications with the Office regarding this
proceeding will be permitted prior to the post-hearing phase.
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\185\ See 37 CFR 201.1(d), 205.24.

Dated: October 12, 2023,
Suzanne V. Wilson,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2023-22949 Filed 10-18-23; 8:45 am]
BILLING CODE 1410-30-P

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