Rule2024-24563
Exemption to Prohibition on Circumvention of Copyright Protection Systems for Access Control Technologies
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 28, 2024
Effective
October 28, 2024
Issuing agencies
Library of CongressCopyright Office, Library of Congress
Abstract
In this final rule, the Librarian of Congress adopts exemptions to the provision of the Digital Millennium Copyright Act ("DMCA") that prohibits circumvention of technological measures that control access to copyrighted works. As required under the statute, the Register of Copyrights, following a public proceeding, submitted a recommendation to the Librarian of Congress ("Register's Recommendation") regarding proposed exemptions. After careful consideration, the Librarian adopts final regulations based on the Register's Recommendation.
Full Text
<html>
<head>
<title>Federal Register, Volume 89 Issue 208 (Monday, October 28, 2024)</title>
</head>
<body><pre>
[Federal Register Volume 89, Number 208 (Monday, October 28, 2024)]
[Rules and Regulations]
[Pages 85437-85450]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-24563]
=======================================================================
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 201
[Docket No. 2023-5]
Exemption to Prohibition on Circumvention of Copyright Protection
Systems for Access Control Technologies
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: In this final rule, the Librarian of Congress adopts
exemptions to the provision of the Digital Millennium Copyright Act
(``DMCA'') that prohibits circumvention of technological measures that
control access to copyrighted works. As required under the statute, the
Register of Copyrights, following a public proceeding, submitted a
recommendation to the Librarian of Congress (``Register's
Recommendation'') regarding proposed exemptions. After careful
consideration, the Librarian adopts final regulations based on the
Register's Recommendation.
DATE: Effective October 28, 2024.
FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#6a070f0c1e2a09051a1318030d021e440d051c"><span class="__cf_email__" data-cfemail="701d15160430131f000902191718045e171f06">[email protected]</span></a> or telephone at 202-
707-8350.
SUPPLEMENTARY INFORMATION: The Librarian of Congress, pursuant to
section 1201(a)(1) of title 17, United States Code, has determined in
this ninth triennial rulemaking proceeding that the prohibition against
circumvention of technological measures that effectively control access
to copyrighted works shall not apply for the next three years to
persons who engage in certain noninfringing uses of specified classes
of such works. This determination is based on the Register's
Recommendation.
The discussion below summarizes the rulemaking proceeding and the
Register's recommendations, states the Librarian's determination, and
adopts the regulatory text specifying the exempted classes of works. A
more complete discussion of the rulemaking process, the evidentiary
record, and the Register's analysis with respect to each proposed
exemption can be found in the Register's Recommendation at
<a href="http://www.copyright.gov/1201/2024/">www.copyright.gov/1201/2024/</a>.
I. Background
A. Statutory Requirements
In 1998, as part of the Digital Millenium Copyright Act (``DMCA''),
Congress added section 1201 to title 17 to provide greater legal
protection for copyright owners in the emerging digital environment.
Section 1201 generally makes it unlawful to ``circumvent a
technological measure that effectively controls access to'' a
copyrighted work.\1\
---------------------------------------------------------------------------
\1\ 17 U.S.C. 1201(a)(1)(A).
---------------------------------------------------------------------------
Congress established a set of permanent exemptions to the
prohibition on circumvention, as well a procedure to put in place
limited temporary exemptions. Every three years, the Librarian of
Congress, upon the recommendation of the Register of Copyrights, is
authorized to adopt temporary exemptions, with respect to certain
classes of copyrighted works, to remain in effect for the ensuing
three[hyphen]year period. Congress established this rulemaking as a
```fail[hyphen]safe' mechanism'' to ensure that the prohibition on
circumvention would not adversely affect the public's ability to make
lawful uses of copyrighted works, including activities protected by the
fair use doctrine.\2\
---------------------------------------------------------------------------
\2\ Id. at 1201(a)(1)(B)-(D).
---------------------------------------------------------------------------
The triennial rulemaking occurs through a formal public process
administered by the Register, who consults with the Assistant Secretary
for Communications and Information of the Department of Commerce.\3\
Participants must meet specific legal and evidentiary requirements in
order to qualify for a temporary exemption. The Register's
recommendations are based on her conclusions as to whether each
proposed exemption meets those statutory requirements.\4\ As prescribed
by the statute, she considers whether the prohibition on circumvention
is having, or is likely to have, adverse effects on users' ability to
make noninfringing uses of a particular class of copyrighted works.
Petitioners must provide evidence sufficient to allow the Register to
draw such a conclusion.
---------------------------------------------------------------------------
\3\ Id. at 1201(a)(1)(C).
\4\ The Office has provided detailed analyses of the statutory
requirements in its 2017 policy study on section 1201 and elsewhere.
See U.S. Copyright Office, Section 1201 of Title 17 at 105-127
(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 Report'').
---------------------------------------------------------------------------
B. Rulemaking Standards
Congress has specified the legal and evidentiary requirements for
the section 1201 rulemaking proceeding; these standards are discussed
in greater detail in the Register's Recommendation \5\ and the
Copyright Office's 2017 policy study on section 1201.\6\ The Register
will recommend granting an exemption only ``when the preponderance of
the evidence in the record shows that the conditions for granting an
exemption have been met.'' \7\ The evidence must
[[Page 85438]]
show ``that it is more likely than not that users of a copyrighted work
will, in the succeeding three-year period, be adversely affected by the
prohibition on circumvention in their ability to make noninfringing
uses of a particular class of copyrighted works.'' \8\ The Register
develops a comprehensive administrative record to support her
recommendation.
---------------------------------------------------------------------------
\5\ Register of Copyrights, Section 1201 Rulemaking: Ninth
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights (Oct.
2024), <a href="https://cdn.loc.gov/copyright/1201/2024/2024_Section_1201_Registers_Recommendation.pdf">https://cdn.loc.gov/copyright/1201/2024/2024_Section_1201_Registers_Recommendation.pdf</a> (``Register's
Recommendation'').
\6\ Section 1201 Report at 111-12.
\7\ Id.; accord Register of Copyrights, Section 1201 Rulemaking:
Seventh Triennial Proceeding to Determine Exemptions to the
Prohibition on Circumvention, Recommendation of the Register of
Copyrights 12-13 (Oct. 2018). References to the Register's
recommendations in prior rulemakings are cited by the year of
publication followed by ``Recommendation'' (e.g., ``2018
Recommendation''). Prior Recommendations are available on the
Copyright Office website at <a href="https://www.copyright.gov/1201/">https://www.copyright.gov/1201/</a>.
\8\ Section 1201 Report at 112.
---------------------------------------------------------------------------
Section 1201(a)(1) enumerates five factors that guide the
Register's Recommendation and the Librarian's determination regarding
proposed exemptions: (1) the availability for use of copyrighted works;
(2) the availability for use of works for nonprofit archival,
preservation, and educational purposes; (3) the impact that the
prohibition on the circumvention of technological measures applied to
copyrighted works has on criticism, comment, news reporting, teaching,
scholarship, or research; (4) the effect of circumvention of
technological measures on the market for or value of copyrighted works;
and (5) such other factors as the Librarian considers appropriate. The
statute mandates that any exemption to be defined based on ``a
particular class of works.'' \9\ Among other things, the determination
of the appropriate scope of a ``class of works'' recommended for
exemption can take into account the adverse effects an exemption may
have on the market for or value of copyrighted works. Accordingly, ``it
can be appropriate to refine a class by reference to the use or user in
order to remedy the adverse effect of the prohibition and to limit the
adverse consequences of an exemption.'' \10\
---------------------------------------------------------------------------
\9\ 17 U.S.C. 1201(a)(1)(B).
\10\ 2006 Recommendation at 19.
---------------------------------------------------------------------------
II. History of the Ninth Triennial Proceeding
The Copyright Office initiated the ninth triennial rulemaking
proceeding by issuing a notice of inquiry (``NOI'') on June 8,
2023.\11\ The NOI requested petitions for renewal, comments in response
to petitions for renewal, and petitions for new exemptions, including
proposals to expand current exemptions.\12\ These public submissions
were due between July 7, 2023 and August 25, 2023.\13\ The Office
received thirty-eight petitions for renewal of existing exemptions and
eleven petitions for new and expanded exemptions. It grouped the
petitions for new and expanded exemptions into seven classes.
---------------------------------------------------------------------------
\11\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 88 FR 37486, 37487 (June 8, 2023).
\12\ Id. See Exemptions to Permit Circumvention of Access
Controls on Copyrighted Works, 82 FR 29804, 29806 (June 30, 2017)
(petitions to expand a current exemption are treated as petitions
for new exemptions) (``Renewal may only be sought for current
exemptions as they are currently formulated, without modification.
This means that if a proponent seeks to engage in any activities not
currently permitted by an existing exemption, a petition for a new
exemption must be submitted.'').
\13\ 88 FR 37486, 37486; Exemptions to Permit Circumvention of
Access Controls on Copyrighted Works: Notice and Request for Public
Comment, 88 FR 42891 (July 5, 2023). References to renewal petitions
and comments in response are by party and class name (abbreviated
where appropriate) followed by ``Renewal Pet.,'' ``Renewal Opp'n,''
and ``Renewal Supp.'' References to petitions for new exemptions and
comments in response are by party name and class number followed by
``Pet.,'' ``Initial,'' ``Opp'n,'' or ``Reply'' for comments
submitted in the first, second, or third round, as applicable.
---------------------------------------------------------------------------
On October 19, 2023, the Office issued a notice of proposed
rulemaking (``NPRM'') identifying the existing exemptions that the
Register intended to recommend for renewal, and providing a description
of the proposed classes for new and expanded exemptions.\14\ Public
submissions were due between December 22, 2023 and March 19, 2024. The
Office received approximately 50 submissions in response to the
NPRM.\15\
---------------------------------------------------------------------------
\14\ Exemptions to Permit Circumvention of Access Controls on
Copyrighted Works, 88 FR 72013 (Oct. 19, 2023).
\15\ Comments received in this rulemaking are available on the
Office's website. See Ninth Triennial Section 1201 Proceeding, 2024
Cycle, U.S. Copyright Office, <a href="https://www.copyright.gov/1201/2024/">https://www.copyright.gov/1201/2024/</a>
(last visited Oct. 17, 2024); see also Late Filed Comments, U.S.
Copyright Office, <a href="https://www.copyright.gov/1201/2024/late-filings/">https://www.copyright.gov/1201/2024/late-filings/</a>
(last visited Oct. 17, 2024).
---------------------------------------------------------------------------
After analyzing the written comments regarding proposed new and
expanded exemptions, the Office held three days of public hearings from
April 16-18, 2024, via Zoom.\16\ Forty-one individuals representing
nineteen stakeholder groups offered their views on specific proposed
exemptions, and an additional four individuals took part in an audience
participation session. After the hearings, the Office issued written
questions to participants regarding two of the proposed classes and
received seven responses.\17\ It then held three ex parte meetings with
participants concerning three proposed classes.\18\ In addition, it
received three letters about the rulemaking from other federal agencies
and government officials.\19\
---------------------------------------------------------------------------
\16\ Video recordings of these hearings are available on the
Office's website and YouTube pages. See Ninth Triennial Section 1201
Rulemaking Public Hearings, U.S. Copyright Office, <a href="https://www.copyright.gov/1201/2024/hearings.html">https://www.copyright.gov/1201/2024/hearings.html</a> (last visited Oct. 17,
2024); U.S. Copyright Office, Youtube, <a href="https://www.youtube.com/uscopyrightoffice/">https://www.youtube.com/uscopyrightoffice/</a> (last visited Oct. 17, 2024). Under each proposed
class, citations to hearing transcripts refer to that particular
class. Hearing transcripts for each individual class are available
on the Office's web page. Transcripts of Public Hearings in the
Ninth Triennial Section 1201 Rulemaking, U.S. Copyright Office,
<a href="https://www.copyright.gov/1201/2024/hearing-transcripts/">https://www.copyright.gov/1201/2024/hearing-transcripts/</a> (last
visited Oct. 17, 2024).
\17\ Participants' post-hearing letter responses are available
on the Office's website. Post-Hearing Questions, U.S. Copyright
Office, <a href="https://www.copyright.gov/1201/2024/post-hearing/">https://www.copyright.gov/1201/2024/post-hearing/</a> (last
visited Oct. 17, 2024).
\18\ Ex Parte Communications, U.S. Copyright Office, <a href="https://www.copyright.gov/1201/2024/ex-parte-communications/">https://www.copyright.gov/1201/2024/ex-parte-communications/</a> (last visited
Oct.17, 2024). The Office required participants to comply with its
ex parte regulation, codified at 37 CFR 205.24. This regulation
requires that parties submit a meeting request and summary to the
Office after an ex parte meeting, which is substantially the same
process employed in prior section 1201 rulemakings. Exemptions to
Permit Circumvention of Access Controls on Copyrighted Works, 85 FR
65293, 65310 (Oct. 15, 2020).
\19\ The letters are available on the Office's website. Letters
Between the U.S. Copyright Office, Other Agencies, and Other
Government Officials, U.S. Copyright Office, <a href="https://www.copyright.gov/1201/2024/USCO-letters/">https://www.copyright.gov/1201/2024/USCO-letters/</a> (last visited Oct. 17,
2024).
---------------------------------------------------------------------------
The Register consulted with the National Telecommunications and
Information Administration (``NTIA''), in the Department of Commerce,
as required by section 1201(a)(1). NTIA actively participated in the
rulemaking process, providing input at key stages in meetings convened
by the Office, and participated in the virtual public hearings where it
engaged directly by asking questions. NTIA communicated its views on
each of the proposed exemptions in writing to the Register on September
24, 2024.\20\ The Office summarizes NTIA's views below. NTIA's full
recommendation is available at <a href="https://cdn.loc.gov/copyright/1201/2024/2024_NTIA_DMCA_Letter.pdf">https://cdn.loc.gov/copyright/1201/2024/2024_NTIA_DMCA_Letter.pdf</a>.
---------------------------------------------------------------------------
\20\ Letter from Alan Davidson, Assistant Sec'y for Commc'ns &
Info. Adm'r, Nat'l Telecomms. & Info. Admin., U.S. Dep't of
Commerce, to Shira Perlmutter, Register of Copyrights and Dir., U.S.
Copyright Office (Sept. 24, 2024) (``NTIA Letter'').
---------------------------------------------------------------------------
III. Summary of Register's Recommendation
A. Renewal Recommendations
The Register received petitions to renew all but one of the
exemptions adopted pursuant to the eighth triennial rulemaking,\21\ and
recommends renewal of all exemptions for which petitions were
filed.\22\ She finds that the reasons
[[Page 85439]]
for the Librarian's prior adoption of the exemptions are likely to
continue during the next three-year period. The existing exemptions,
and the bases for the recommendation to renew each exemption in
accordance with the streamlined renewal process, are summarized below.
---------------------------------------------------------------------------
\21\ A renewal petition was not filed for the 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) (2023); 88 FR 72013, 72015 n.19.
\22\ See 85 FR 65293, 65295 (describing that there was no
``meaningful opposition'' to renewing exemptions when the Office had
``not received comments actually disputing whether there [wa]s a
continued basis for any exemptions''); see also Exemptions to Permit
Circumvention of Access Controls on Copyrighted Works, 85 FR 37399,
37402 (June 22, 2020) (describing ``meaningful opposition''
standard).
---------------------------------------------------------------------------
1. Audiovisual Works--Educational and Derivative Uses
Multiple individuals and organizations petitioned to renew the
exemption covering the use of short portions of motion pictures for
various educational and derivative uses.\23\ The Office did not receive
meaningful opposition to renewal. Renewal of each of this exemption's
subparts was unopposed, except for noncommercial videos, as discussed
below. The existing exemption and its various subparts collectively
serve as the baseline in assessing whether to recommend any expansion
to Classes 1 and 2.
---------------------------------------------------------------------------
\23\ See 37 CFR 201.40(b)(1).
---------------------------------------------------------------------------
a. Audiovisual Works--Criticism and Comment--Filmmaking \24\
---------------------------------------------------------------------------
\24\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.1.
---------------------------------------------------------------------------
Two organizations petitioned to renew the exemption for motion
pictures for uses in documentary films or other films where the use is
in a parody or for the work's biographical or historically significant
nature. No oppositions to the renewal were filed. Petitioners stated
that they personally know many filmmakers who have found it necessary
to rely on this exemption and will continue to do so. The petitions
summarized the continuing need and justification for the exemption.
b. Audiovisual Works-Criticism and Comment-Noncommercial Videos \25\
---------------------------------------------------------------------------
\25\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.2.
---------------------------------------------------------------------------
Two organizations petitioned to renew the exemption for motion
pictures for uses in noncommercial videos. The Office did not receive
meaningful opposition to renewal of this exemption.\26\ Petitioners
stated that they had personal knowledge that video creators have relied
on this exemption and anticipate needing to do so in the future. The
Organization for Transformative Works (``OTW'') included an account
from an academic who stated that footage ripped from DVDs and Blu-ray
is preferred for ``vidders'' (noncommercial remix artists) because ``it
is high quality enough to bear up under the transformations that
vidders make to it.'' \27\ The petitioners demonstrated the continuing
need and justification for the exemption.
---------------------------------------------------------------------------
\26\ Opposition to the Organization for Transformative Works'
(``OTW') requested changes is addressed as Class 1 below. Commenters
objected only to OTW's request for changes to the exemption, not to
renewal of the exemption as-is.
\27\ OTW Noncom. Videos Renewal Pet. at 3.
---------------------------------------------------------------------------
c. Audiovisual Works--Criticism and Comment--Multimedia E-books \28\
---------------------------------------------------------------------------
\28\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.3.
---------------------------------------------------------------------------
Petitioners also sought renewal of the exemption for the use of
motion picture excerpts in nonfiction multimedia e-books. No
oppositions were filed against renewal. The petition demonstrated the
continuing need and justification for the exemption. In addition, the
petitioners demonstrated personal knowledge that high-resolution video
is not available without circumvention of technological protection
measures (``TPMs''). They provided, as an example, Bobette Buster's
continued work on an e-book series based on her lecture series,
``Deconstructing Master Filmmakers: The Uses of Cinematic
Enchantment.'' \29\
---------------------------------------------------------------------------
\29\ Buster, Authors All. & Am. Ass'n of Univ. Professors
(``AAUP'') Nonfiction Multimedia E-Books Renewal Pet. at 3.
---------------------------------------------------------------------------
d. Audiovisual Works--Criticism, Comment, Teaching, or Scholarship--
Universities and K-12 Educational Institutions \30\
---------------------------------------------------------------------------
\30\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.4.
---------------------------------------------------------------------------
Multiple individuals and organizations petitioned to renew the
exemption for motion pictures for educational purposes by college and
university or K-12 faculty and students. No oppositions were filed
against renewal. The petitions demonstrated the continuing need and
justification for the exemption, indicating that educators and students
continue to rely on excerpts from digital media for class presentations
and coursework. For instance, a collective of individuals and
organizations provided several examples of professors using DVD clips
in the classroom. A group of individual educators and educational
organizations \31\ broadly suggested that the ``entire field'' of video
essays or multimedia criticism ``could not have existed in the United
States without fair use and the 1201 educational exemption.'' \32\
Petitioners demonstrated personal knowledge and experience with this
exemption based on their past participation in the section 1201
triennial rulemaking and the experience of their members--thousands of
digital and literacy educators and other members supporting educators
and students. The Register finds that petitioners demonstrated a
continuing need and justification for the exemption.
---------------------------------------------------------------------------
\31\ The individuals and organizations include Peter Decherney,
Michael Delli Carpini, Library Copyright Alliance (``LCA''), and the
Society for Cinema and Media Studies (``SCMS'') (collectively,
``Joint Educators I'').
\32\ Joint Educators I AV Educ. Renewal Pet. at 3.
---------------------------------------------------------------------------
e. Audiovisual Works--Criticism and Comment--Massive Open Online
Courses (``MOOCs'') \33\
---------------------------------------------------------------------------
\33\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.5.
---------------------------------------------------------------------------
A collective of individuals and organizations petitioned to renew
the exemption for educational uses of motion pictures in Massive Open
Online Courses (``MOOCs''). No oppositions were filed against renewal.
The petitions demonstrated the continuing need and justification for
the exemption, stating that instructors continue to rely on the
exemption to develop, provide, and improve MOOCs, as well as to
increase the number of (and therefore access to) MOOCs in the field of
film and media studies. As teachers and proponents of MOOCs--most of
whom have advocated for this exemption in prior rulemakings--
petitioners demonstrated personal experience with and knowledge of this
exemption.
f. Audiovisual Works--Criticism and Comment--Digital and Media Literacy
Programs \34\
---------------------------------------------------------------------------
\34\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.A.6.
---------------------------------------------------------------------------
The Library Copyright Alliance (``LCA'') and Renee Hobbs petitioned
to renew the exemption for motion pictures for educational uses in
nonprofit digital and media literacy programs offered by libraries,
museums, and other organizations. No oppositions were filed against
renewal. The petition stated that librarians across the country have
relied on the current exemption and will continue to do so for their
digital and media literacy programs, thereby demonstrating the
continuing need and justification for the exemption. Petitioners have
personal experience with this exemption, as they engage with
institutions and individuals offering these programs.
[[Page 85440]]
2. Audiovisual Works--Accessibility \35\
---------------------------------------------------------------------------
\35\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.B.
---------------------------------------------------------------------------
The Association of Transcribers and Speech-to-Text Providers
(``ATSP'') and LCA petitioned to renew the exemption for motion
pictures for the provision of captioning and/or audio description by
disability services offices or similar units at educational
institutions for students, faculty, or staff with disabilities. No
oppositions were filed against renewal. The petitioners demonstrated
the continuing need and justification for the exemption, and, as
``represent[atives of] disability services professionals and supporting
entities collectively responsible for the regular provision of
captioning and audio description services for thousands of students,''
personal knowledge and experience with the exemption.\36\ Petitioners
stated that the ``exemption 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.'' \37\
---------------------------------------------------------------------------
\36\ ATSP & LCA Captioning Renewal Pet. at 3.
\37\ Id.
---------------------------------------------------------------------------
3. Audiovisual works--Preservation or Replacement--Library, Archives,
and Museum \38\
---------------------------------------------------------------------------
\38\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.C.
---------------------------------------------------------------------------
LCA petitioned to renew the exemption for motion pictures for
preservation or the creation of a replacement copy by an eligible
library, archives, or museum. No oppositions were filed against
renewal. LCA petitioned for the exemption's adoption in the eighth
triennial rulemaking and demonstrated the continuing need and
justification for the exemption.\39\ For example, it asserted that
institutions across the country have relied on the exemption to make
preservation and replacement copies of movies in their collections,
many of which are not available for purchase or streaming. LCA
indicated that as DVD and Blu-ray discs deteriorate, institutions like
libraries and museums will continue to need to circumvent technological
protections to make such copies. LCA also demonstrated its personal
knowledge of the exemption.
---------------------------------------------------------------------------
\39\ LCA Preservation Renewal Pet. at 3.
---------------------------------------------------------------------------
4. Audiovisual Works--Text and Data Mining--Scholarly Research and
Teaching \40\
---------------------------------------------------------------------------
\40\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.D.
---------------------------------------------------------------------------
Multiple organizations jointly petitioned 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. Petitioners demonstrated the continuing need for this
exemption, citing researchers who rely on it, such as professors using
DVD clips in their classrooms and in their research. They also
demonstrated their personal experience with this exemption, having
advocated for its adoption in the eighth triennial rulemaking
proceeding. Although two organizations jointly objected to renewal of
this exemption, the comments seemed to have misunderstood the
Register's prior findings and did not demonstrate that the previous
rulemaking record was no longer reliable. Petitioners asserted that
there have not been any legal changes or market developments that would
disturb the Office's previous analysis or materially impact the record
on which the Register had relied. This existing exemption serves as the
baseline in assessing whether to recommend any expansions in Class
3(a).
5. Literary Works--Text and Data Mining--Scholarly Research and
Teaching \41\
---------------------------------------------------------------------------
\41\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.E.
---------------------------------------------------------------------------
Multiple organizations jointly petitioned to renew the 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. No oppositions were filed
against renewal. The petitions demonstrated the continuing need and
justification for the exemption, highlighting various professors'
ongoing and developing research projects dependent on it. Petitioners
also demonstrated personal knowledge of the exemption based on their
ongoing relationships with researchers using it. This existing
exemption serves as the baseline in assessing whether to recommend any
expansions in Class 3(b).
6. Literary Works--Text and Data Mining--Assistive Technologies \42\
---------------------------------------------------------------------------
\42\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.F.
---------------------------------------------------------------------------
Multiple organizations jointly petitioned 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, and
include access controls that interfere with assistive technologies. No
oppositions were filed against renewal. The petitioners demonstrated
the continuing need and justification for the exemption, stating that
individuals who are blind, visually impaired, or print-disabled are
significantly disadvantaged with respect to obtaining accessible e-book
content because TPMs interfere with the use of assistive technologies.
Additionally, they demonstrated personal knowledge and extensive
experience with the assistive technology exemption, as they are all
organizations that advocate for the blind, visually impaired, and
print-disabled.
7. Literary Works--Medical Device Data \43\
---------------------------------------------------------------------------
\43\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.G.
---------------------------------------------------------------------------
The Coalition of Medical Device Patients and Researchers (``the
Coalition'') petitioned to renew the exemption covering access to
patient data on medical devices or monitoring systems. No oppositions
were filed against renewal. The Coalition demonstrated the continuing
need and justification for the exemption, stating that ``the exemption
is vital to patients' ability to monitor the data output of medical
devices that monitor and maintain their health'' and to medical
research.\44\ It also demonstrated personal knowledge and experience
with this exemption, citing member Hugo Campos's experiences as a
patient who has needed access data from his implanted defibrillator,
and its research regarding medical devices.
---------------------------------------------------------------------------
\44\ Coalition Medical Devices Renewal Pet. at 3.
---------------------------------------------------------------------------
8. Computer Programs--Unlocking \45\
---------------------------------------------------------------------------
\45\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.H.
---------------------------------------------------------------------------
The Institute of Scrap Recycling Industries, Inc. (``ISRI'')
petitioned to renew the exemption for computer programs that operate
wireless devices, to allow connection of a new or used device to an
alternative wireless network (``unlocking''). No oppositions
[[Page 85441]]
were filed against renewal. The petition demonstrated the continuing
need and justification for the exemption, stating that users ``continue
to purchase or acquire donated cell phones, tablets, laptops, and a
variety of other wireless devices no longer needed by their original
owners and try to make the best possible use of them through resale or
recycling,'' which requires unlocking the devices so they may be used
on other carriers.\46\ ISRI demonstrated personal knowledge and
experience with the exemption based on its involvement in previous
triennial rulemakings and its representation of nearly 1,600 companies
that process, broker, and consume scrap commodities.
---------------------------------------------------------------------------
\46\ ISRI Unlocking Renewal Pet. at 3.
---------------------------------------------------------------------------
9. Computer Programs--Jailbreaking \47\
---------------------------------------------------------------------------
\47\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.I.
---------------------------------------------------------------------------
Multiple organizations petitioned to renew the four exemptions for
computer programs that enable electronic devices to interoperate with
or to remove software applications (``jailbreaking''). 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. No oppositions were filed against renewal. The
petitions demonstrated the continuing need and justification for the
exemption and that petitioners have personal knowledge and experience
with regard to this exemption. Petitioners described how users of a
variety products in each of these categories rely on this exemption to
maintain functionality and security of older devices, to install
alternative operation systems, and to customize software applications
on electronic devices. Collectively, the petitions demonstrated that
without this exemption, TPMs installed on the enumerated products would
have an adverse effect on various noninfringing uses.
10. Computer Programs--Repair of Motorized Land Vehicles, Marine
Vessels, or Mechanized Agricultural Vehicles or Vessels \48\
---------------------------------------------------------------------------
\48\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.J.
---------------------------------------------------------------------------
iFixit and MEMA, The Vehicle Suppliers Association (``MEMA''),
petitioned 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 a vehicle or vessel function. No oppositions were filed against
renewal. The petitioners each represent or advise individuals and
businesses that perform vehicle service and repair and have personal
experience with this exemption through those activities. They
demonstrated the continuing need and justification for the exemption.
For example, MEMA stated 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''--particularly as ``every year vehicle computer
programs become more important and essential to today's motor
vehicles.'' \49\ In the 2021 rulemaking, the Register concluded that
the ``prohibition against circumvention . . . [was] likely to adversely
affect diagnosis, repair, and lawful modification of a vessel function
for marine vessels,'' as well as functions for land vehicles, including
agricultural land vehicles such as tractors.\50\ The Office did not
receive any evidence indicating that these categories of vehicles and
vessels should be treated differently in this proceeding.
---------------------------------------------------------------------------
\49\ MEMA Vehicle Repair Renewal Pet. at 3.
\50\ 2021 Recommendation at 223.
---------------------------------------------------------------------------
11. Computer Programs--Repairs of Devices Designed Primarily for Use by
Consumers \51\
---------------------------------------------------------------------------
\51\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.K.
---------------------------------------------------------------------------
The Electronic Frontier Foundation (``EFF'') petitioned to renew
the exemption for computer programs that control devices designed
primarily for use by consumers for diagnosis, maintenance, or repair of
the device. The Office did not receive meaningful opposition to
renewal.\52\ The petitioners demonstrated the continuing need and
justification for the exemption. For example, EFF asserted that
``[m]anufacturers of these devices continue to implement technological
protection measures that inhibit lawful repairs, maintenance, and
diagnostics, and they show no sign of changing course.'' \53\ EFF has
personal knowledge of this exemption, as it has been involved with the
section 1201 rulemaking process since its inception and has
specifically advocated for device repair exemptions.
---------------------------------------------------------------------------
\52\ Although Author Services filed a comment opposing renewal
of the exemption ``in its present form,'' the comment only addressed
devices outside the scope of the existing exemption. See 88 FR
72013, 72020-21.
\53\ EFF Device Repair Renewal Pet. at 3.
---------------------------------------------------------------------------
12. Computer Programs--Repair of Medical Devices and Systems \54\
---------------------------------------------------------------------------
\54\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.L.
---------------------------------------------------------------------------
Multiple organizations petitioned 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 purposes of
diagnosis, maintenance, or repair. The petitioners repair, maintain,
service, or sell medical systems and devices and thus have personal
experience with this exemption. The petitions demonstrated the
continuing need and justification for the exemption, for example
stating that ``the use of TPMs in medical systems and devices is
widespread'' and that manufacturers ``have developed new systems that
further restrict access to use of necessary software tools.'' \55\
Petitioners also emphasized that this exemption makes possible device
repair and maintenance services that ensure continuity and efficiency
of patient care.
---------------------------------------------------------------------------
\55\ Avante Health Sols., Avante Diagnostic Imaging, and Avante
Ultrasound Medical Device Repair Renewal Pet. at 5.
---------------------------------------------------------------------------
Three organizations submitted timely opposition comments. Opponents
asserted that the exemption undermines the U.S. Food and Drug
Administration's (``FDA'') maintenance and repair standards for the
intricate equipment used in patient care and conflicts with other
congressional policies. They also argued that the Supreme Court's
decision in Andy Warhol Found. for the Visual Arts v. Goldsmith \56\
undermined the validity of the previous rulemaking's analysis. As in
the Register's 2021 Recommendation, in this rulemaking the Register
again emphasizes that the Office ``generally does not consider other
regulatory schemes as part of the . . . analysis because the focus of
this proceeding is on copyright-related considerations,'' \57\ and
notes that granting an exemption under section 1201 does not absolve
any user from compliance with other relevant laws and regulations. The
Register further concludes that the Warhol decision does not
substantially change the Office's analysis of the uses at issue in this
exemption.
---------------------------------------------------------------------------
\56\ 598 U.S. 508 (2023).
\57\ 2021 Recommendation at 229.
---------------------------------------------------------------------------
[[Page 85442]]
13. Computer Programs--Security Research \58\
---------------------------------------------------------------------------
\58\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.M.
---------------------------------------------------------------------------
Multiple organizations and security researchers petitioned to renew
the exemption permitting circumvention for purposes of good-faith
security research. No oppositions were filed against renewal, and one
group of security and policy professionals submitted a comment in
support of the petition. The petitioners demonstrated the continuing
need and justification for the exemption, as well as personal knowledge
of and experience with this exemption. They highlighted professors'
critical research regarding vulnerabilities in voting machines, devices
underpinning the financial industry, smart phones, and other devices.
They also stated that this exemption enables security testing that is
vital to ensure device users' privacy is protected and security issues
are corrected.
14. Video Games--Preservation and Abandoned Video Games \59\
---------------------------------------------------------------------------
\59\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.N.
---------------------------------------------------------------------------
The Software Preservation Network (``SPN'') and LCA jointly
petitioned 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, or museum, of discontinued video games that never
required server support. No oppositions were filed against renewal, and
one individual filed a comment in support. Petitioners demonstrated
that there is a continuing need and justification for the exemption.
They stated that video game collection librarians report an ongoing
need to preserve TPM-encumbered video games in their collections and
that the ``[section] 1201 exemption has become a crucial tool in their
ongoing efforts to save digital game culture before it disappears.''
\60\ They demonstrated personal knowledge and experience through past
participation in section 1201 rulemakings and through their
representation of members who have relied on this exemption.
---------------------------------------------------------------------------
\60\ SPN and LCA Abandoned Video Game Renewal Pet. at 3.
---------------------------------------------------------------------------
This existing exemption serves as the baseline in assessing whether
to recommend any expansions in Class 6(b).
15. Computer Programs--Preservation \61\
---------------------------------------------------------------------------
\61\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.O.
---------------------------------------------------------------------------
SPN and LCA jointly petitioned to renew the exemption for the
preservation of computer programs other than video games, and computer
program-dependent materials, by libraries, archives, and museums. No
oppositions were filed against renewal, and one individual filed a
comment in support. Petitioners demonstrated that there is a continuing
need and justification for this exemption. For example, they asserted
that remotely accessing preserved computer programs ``fulfill[s]
cultural heritage institutions' missions to support research, analysis,
and other scholarly re-use of the historical record (and to do so
equitably and inclusively).'' \62\ In addition, they demonstrated
personal knowledge and experience through past participation in section
1201 rulemakings relating to access controls on software and through
representing major library associations with members who have relied on
this exemption.\63\
---------------------------------------------------------------------------
\62\ SPN & LCA Software Preservation Renewal Pet. at 3.
\63\ Id.
---------------------------------------------------------------------------
This existing exemption serves as the baseline in assessing whether
to recommend any expansions in Class 6(a).
16. Computer Programs--3D Printers \64\
---------------------------------------------------------------------------
\64\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.P.
---------------------------------------------------------------------------
Michael Weinberg petitioned to renew the exemption for computer
programs that operate 3D printers to allow use of alternative material.
No oppositions were filed against renewal. The petition demonstrated
the continuing need and justification for the exemption, and the
petitioner demonstrated personal knowledge and experience.
Specifically, Mr. Weinberg declared that he is a member of the 3D
printing community and has been involved with this exemption's renewal
and modification in each section 1201 rulemaking it has been
considered. Additionally, he stated that while 3D printer manufacturers
``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, which has assured manufacturers and users that
their uses would not violate section 1201.\65\
---------------------------------------------------------------------------
\65\ Weinberg 3D Printers Renewal Pet. at 3.
---------------------------------------------------------------------------
17. Computer Programs--Copyright License Investigation \66\
---------------------------------------------------------------------------
\66\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.Q.
---------------------------------------------------------------------------
The Software Freedom Conservancy (``SFC'') petitioned to renew the
exemption for computer programs, for the purpose of investigating
potential infringement of free and open-source computer programs. No
oppositions were filed against renewal. The petition demonstrated the
continuing need and justification for the exemption, including through
discussion of how TPMs, such as encryption, ``prevent[ ] the
investigation of computer programs'' within various devices, such as
laptops, IP-enabled doorbells, baby monitors, and thermostats, that use
free and open source software (``FOSS'') to operate.\67\ SFC indicated
that barriers to investigating FOSS will ``continue to exist . . . [and
would] prevent . . . users from obtaining access to the relevant
copyrighted works'' without the exemption.\68\ As a participant in the
previous rulemaking and ``the nonprofit home for dozens of FOSS
projects representing well over a thousand volunteer contributors,''
SFC demonstrated personal knowledge and experience regarding the
exemption.\69\
---------------------------------------------------------------------------
\67\ SFC Copyright License Investigation Renewal Pet. at 3.
\68\ Id.
\69\ Id.
---------------------------------------------------------------------------
18. Computer Programs--Videogame Accessibility \70\
---------------------------------------------------------------------------
\70\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at IV.R.
---------------------------------------------------------------------------
In 2021, the Register found that the record ``support[ed] an
exemption to enable individuals with disabilities to use alternate
input devices to play video games.'' \71\ The Office previously noted
the strong justifications for the exemption and recommended that
Congress enact a permanent exemption to enable such accessibility. It
did not, however, receive a petition to renew this exemption and, given
the constraints of the rulemaking process, the Register is not able to
recommend renewal.
---------------------------------------------------------------------------
\71\ 2021 Recommendation at 315.
---------------------------------------------------------------------------
B. New or Expanded Designations of Classes
Based upon the record in this proceeding regarding proposed
expansions to existing exemptions or newly proposed exemptions, the
Register recommends that the Librarian grant the following additional
[[Page 85443]]
exemptions from the prohibition against circumvention of technological
measures set forth in section 1201(a)(1):
1. Proposed Classes 3(a) and 3(b): Audiovisual Works and Literary
Works--Text and Data Mining \72\
---------------------------------------------------------------------------
\72\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.C.
---------------------------------------------------------------------------
Authors Alliance, the American Association of University Professors
(``AAUP''), and LCA petitioned to expand the existing exemptions that
permit circumvention of technological protection measures on copies of
copyrighted audiovisual and literary works that were lawfully acquired,
to enable researchers to perform text and data mining for the purpose
of scholarly research and teaching. The current exemptions permit
access to the corpora to outside researchers ``solely for purposes of
collaboration or replication of the research.'' \73\ Petitioners stated
that additional research based on text and data mining techniques is
stymied by uncertainty surrounding whether and when the corpora at
issue may be used by researchers at outside institutions. Proposed
Classes 3(a) and 3(b) would provide an exemption to allow academic
researchers to share copies of corpora with researchers affiliated with
other nonprofit institutions of higher education ``for purposes of
conducting independent text [and] data mining research and teaching,
where those researchers are in compliance with the exemption.'' \74\
---------------------------------------------------------------------------
\73\ 37 CFR 201.40(b)(4)-(5).
\74\ Authors All., AAUP & LCA Class 3(a) Pet. at 2; Authors
All., AAUP & LCA Class 3(b) Pet. at 2.
---------------------------------------------------------------------------
Association of American Publishers (``AAP''); Motion Picture
Association (``MPA''), News Media Alliance, and the Recording Industry
Association of America (``RIAA'') (collectively, ``Joint Creators
III''); DVD Copy Control Association (``DVD CCA'') and the Advanced
Access Content System Licensing Administrator, LLC (``AACS LA''); and
the International Association of Scientific, Technical and Medical
Publishers opposed the proposed expansions for classes 3(a) and 3(b).
They argued that the ``proposed new language would dramatically enlarge
the scope of the exemptions adopted in 2021'' and could lead to ``a
wide range of potentially infringing uses'' of copyrighted works.\75\
They also raised issues with the existing exemptions' security measures
and viewing provisions.
---------------------------------------------------------------------------
\75\ Motion Picture Association (``MPA''), News Media Alliance,
and the Recording Industry Association of America (``RIAA'')
(collectively, ``Joint Creators III'') Class 3(a) Opp'n at 5; see
Ass'n of Am. Publishers (``AAP'') Class 3(b) Opp'n at 2-3; DVD Copy
Control Ass'n (``DVD CCA'') and Advanced Access Content Sys.
Licensing Adm'r, LLC (``AACS LA'') Class 3(a) Opp'n at 12-13, 19-20.
---------------------------------------------------------------------------
As discussed in the Register's Recommendation, absent modifications
to the current exemptions for text and data mining, researchers at
other academic institutions will face adverse effects in their ability
to make noninfringing use of copyrighted audiovisual and literary
works. The Register recommends that the current exemptions be modified
to permit researchers affiliated with other nonprofit institutions of
higher education to access corpora solely for the purposes of text and
data mining research or teaching. ``Access'' in this context means that
an institution may provide outside researchers with credentials for
security and authentication to use a corpus that is hosted on its
servers; it does not mean that an institution or a researcher may
disseminate a copy of a corpus (or copyrighted works included therein)
to outside researchers or give outside researchers the ability to
download, make copies of, or distribute any copyrighted works.
The Register also recommends amending the existing exemptions to
clarify the security measures provisions and the viewing provisions to
bring the regulatory text in line with the fair use analysis in the
2021 Recommendation. These amendments do not require a new fair use
analysis. Specifically, she recommends amending the security measures
provisions to: (1) include reasonable requests from trade associations;
(2) permit inquiries into security measures regardless of whether they
are based on individual agreements or the institution's own standards;
and (3) allow those inquiries when the copyright owners reasonably
believe that their works are in the corpus. The Register also
recommends amending the viewing provision to permit researchers to view
the contents of copyrighted works as part of their research, provided
that viewing takes place in furtherance of research objectives (e.g.,
processing or annotating works to prepare them for analysis) and not
for the works' expressive value.
2. Proposed Class 5: Computer Programs--Repair of Commercial Industrial
Equipment \76\
---------------------------------------------------------------------------
\76\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.E.
---------------------------------------------------------------------------
Public Knowledge and iFixit jointly petitioned for an expanded
repair exemption that would permit circumvention for the purposes of
diagnosis, maintenance, and repair of commercial and industrial
equipment. The U.S. Department of Justice Antitrust Division and the
Federal Trade Commission filed comments in support of the petition.
Proponents asserted that that there were sufficient commonalities to
support a broad class by providing four representative examples,
including commercial food preparation equipment. Opponents ACT
<radical> The App Association; Associated Equipment Distributors;
Entertainment Software Association (``ESA''), MPA, and RIAA
(``collectively, ``Joint Creators I''); Philips North America, LLC; and
the Association of Home Appliance Manufacturers primarily argued that
the scope of the class was overly broad and unsupported by the record.
NTIA supported the proposed exemption.
The Register recommends adopting a new exemption covering
diagnosis, maintenance, and repair of retail-level commercial food
preparation equipment because proponents sufficiently showed, by a
preponderance of the evidence, adverse effects on the proposed
noninfringing uses of such equipment. However, she declines to
recommend an exemption for a broader class of software-enabled
commercial and industrial devices in the absence of a sufficient
showing of adverse effects on the record presented in this rulemaking.
3. Proposed Class 7: Computer Programs--Vehicle Operational Data \77\
---------------------------------------------------------------------------
\77\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.G.
---------------------------------------------------------------------------
Class 7 proponents sought a new exemption to permit lawful owners
and lessees, or those acting on their behalf, to access, store, and
share vehicle operational and telematics data generated by motorized
land vehicles and marine vessels. They argued that the proposed
exemption would allow vehicle owners and lessees to make productive,
noninfringing uses of that data, such as monitoring vehicle use and
streamlining the vehicle repair process. In subsequent comments and at
the public hearing, proponents agreed that any exemption should include
limitations, such as the continued applicability of other laws.
Alliance for Automotive Innovation, Association of Equipment
Manufacturers, National Association of Manufacturers, and the Joint
Creators I opposed the exemption. They argued that consumers already
have sufficient
[[Page 85444]]
access under current laws and market practices, particularly the
existing vehicle repair exemption found in section 37 CFR 201.40(b)(13)
(``Repair Exemption''). They further contended that the proposed
exemption was overbroad and would raise issues related to safety,
privacy, and trade secrets.
NTIA supported the proposed exemption and recommended that it
operate as a ``standalone'' exemption, separate from the Repair
Exemption. In addition, NTIA recommended including the term ``analyze''
within the proposed regulatory language, as furthering the intended
goals of the exemption.
For the reasons detailed in the Register's Recommendation, the
Register concludes that the prohibition on circumvention adversely
affects the ability of lawful owners and lessees, or those acting on
their behalf, to access, store, and share operational and telematics
data, which are likely to be noninfringing. She further finds that such
uses would not adversely affect the market for or value of computer
programs integrated into vehicles and vessels and that the purported
alternatives do not sufficiently mitigate any adverse effects. She also
recommends adopting regulatory provisions mirroring those within the
Repair Exemption regarding the applicability of the exemption to other
laws, separate subscription services, and unauthorized access to other
copyrighted works.
C. Classes Considered but Not Recommended
Based upon the record in this proceeding, the Register recommends
that the Librarian determine that the following classes of works shall
not be exempt during the next three-year period from the prohibition
against circumvention of technological measures set forth in section
1201(a)(1):
1. Proposed Class 1: Audiovisual Works--Noncommercial Videos \78\
---------------------------------------------------------------------------
\78\ The Register's analysis and conclusions for this subpart,
including citations to the record and relevant legal authority, can
be found in the Register's Recommendation at V.A.
---------------------------------------------------------------------------
Proposed Class 1 proponents sought to expand the existing exemption
that permits circumvention of access controls protecting excerpts of
motion pictures on DVDs, Blu-ray discs, and digitally transmitted video
for the purposes of criticism and comment, including for educational
purposes by certain users. The Office received one petition from OTW
seeking an amendment to the language of the existing exemption.\79\
Specifically, OTW proposed rewriting the text of the current exemption
related to noncommercial videos, which is being renewed, by reverting
to language used in the 2010 rulemaking, when the exemption was
initially adopted. OTW maintained that its proposed changes would not
substantively alter the exemption but would render it more
understandable to users. It made essentially the same request in the
2021 proceeding, which the Register did not recommend adopting.
---------------------------------------------------------------------------
\79\ OTW submitted a petition for renewal, which the Office
construed as a request for expansion since petitioner requested
alterations to the existing exemption.
---------------------------------------------------------------------------
The Office received no comments in support of the proposal, no
requests from OTW or other parties to participate in the public
hearings, and no other evidence in support of the proposal. Two groups,
however, filed opposition comments. These groups opposed the language
changes that OTW proposed, but did not oppose renewal of the exemption
as currently written. Opponents highlighted the Register's previous
findings in the 2021 rulemaking that OTW's proposed changes were not
warranted, as well as OTW's failure in this proceeding to submit any
evidence supporting its petition. NTIA acknowledged that petitioner did
not submit its request in a procedurally proper manner, but supported
petitioner's proposed modifications to the class and structural
alterations to the way exemptions are written in general. The Register
does not recommend the expansion proposed as Class 1, which does not
include substantive changes.
2. Proposed Class 2: Audiovisual Works--Online Learning \80\
---------------------------------------------------------------------------
\80\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Recommendation at V.B.
---------------------------------------------------------------------------
Proposed Class 2 would 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. Petitioner sought to expand the scope of the exemption
for ``educators . . . and preparers of online learning materials acting
at the direction of educators'' of ``qualified online educational
entities,'' including for-profit entities and unaccredited educational
institutions, to use short portions of motion pictures ``for the
purpose of teaching registered learners . . . in courses requiring
close analysis of film and media excerpts when the transformative fair
use of the excerpts contributes significantly to learning, for the
purpose of criticism, comment, illustration, or explanation.'' \81\
Proponents argued that these entities should have free and efficient
ways of accessing high-quality motion picture excerpts to educate
nontraditional learners. Opponents argued against the proposed
expansion, contending that proponents failed to meet their evidentiary
burden, including that the conduct at issue would be noninfringing.
Finally, AACS LA argued that screen capture technology has improved and
remains an adequate alternative in some circumstances.
---------------------------------------------------------------------------
\81\ Peter Decherney, Sarah Banet-Weiser, Shiv Gaglani & SCMS
(collectively, ``Joint Educators II'') Class 2 Reply at 2-3.
---------------------------------------------------------------------------
NTIA supported the proposed exemption with some modifications to
address opponents' concerns.
The Register finds that the record lacks support to expand the
existing exemption to for-profit and/or unaccredited educational
entities. She therefore does not recommend adopting the proposed
exemption.
3. Proposed Class 4: Computer Programs--Generative AI Research \82\
---------------------------------------------------------------------------
\82\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Recommendation at V.D.
---------------------------------------------------------------------------
Class 4 proponents sought an exemption for the purpose of
conducting ``trustworthiness'' research on AI systems. Specifically,
they sought to conduct research on harmful or undesirable outputs from
generative AI systems, including content that is biased, is sexually
explicit, or infringes copyrights. They asserted that section 1201
inhibits this research by prohibiting the circumvention of various
safeguards on online platforms, including account authentication
systems.
Opponents asserted that the proposed language was overbroad,
arguing that a broad exemption could damage all software markets and
sweep in a variety of systems and products, such as Blu-ray disc
players. They also contended that proponents failed to provide
sufficient information about the TPMs at issue and whether they would
be circumvented for the proposed research. Finally, they argued that an
exemption would be premature, and that the rulemaking was not the
appropriate venue to establish new law, given the nascent technology
involved and
[[Page 85445]]
ongoing legislative and policy work on generative AI.
NTIA supported an exemption modeled after the current security
research exemption,\83\ but without the requirement that research be
conducted on lawfully acquired devices, or with the authorization of
the system owner or operator. Although NTIA concluded that section 1201
would not apply to most of the activities identified by proponents, it
believed that the use of certain prompts could implicate the
prohibition on circumvention. NTIA also found sufficient evidence of
adverse effects, crediting statements from academic researchers
describing the ``chilling effect'' of section 1201 on their work.
---------------------------------------------------------------------------
\83\ 37 CFR 201.40(b)(16) (2023). The current security research
exemption is being renewed during this rulemaking proceeding.
---------------------------------------------------------------------------
The Register recommends denying the proposed exemption. She
acknowledges the importance of AI trustworthiness research as a policy
matter and notes that Congress and other agencies may be best
positioned to act on this emerging issue. She narrowed the proposed
class to generative AI systems made available via software as a service
based on the rulemaking record. She finds, however, that the adverse
effects identified by proponents arise from third-party control of
online platforms rather than the operation of section 1201, so that an
exemption would not ameliorate their concerns.
4. Proposed Classes 6(a) and 6(b): Computer Programs and Video Games--
Preservation \84\
---------------------------------------------------------------------------
\84\ The Register's analysis and conclusions for this class,
including citations to the record and relevant legal authority, can
be found in the Recommendation at V.F.
---------------------------------------------------------------------------
Proposed Classes 6(a) and 6(b) would amend the existing exemptions
permitting libraries, archives, and museums to circumvent TPMs on
computer programs and video games, respectively, for the purpose of
preservation activities. The proposed amendment to Class 6(a) would
remove the limitation that a preserved computer program must be
accessible to only one user at a time (the ``single-user limitation'').
Petitioners sought clarification of the single-user limitation, arguing
that it is currently open to two different interpretations. The
existing exemption, they contended, could be read to allow multiple
users to access circumvented copies at once, so long as the number of
users does not exceed the number of copies the institution owns; or to
mean that only one user at a time may access a copy of the circumvented
work regardless of how many copies the institution owns. Proposed Class
6(b) would also remove the current exemption's limitation that a video
game must not be distributed or made available outside of the physical
premises of the institution (the ``premises limitation'').
Proponents argued that researchers could make noninfringing uses of
the exemption even if the single-user limitation and the premises
limitation were removed. This position was based in part on their view
that proposed uses would be transformative, and would not affect the
potential market for or value of the copyrighted works because only
works that are no longer reasonably available in the commercial
marketplace would be subject to the exemption.
DVD CCA and AACS LA and Joint Creators I opposed removing the
single-user limitation. They argued if a preservation institution were
to allow multiple simultaneous uses of a preserved program, users'
conduct would not be fair use and would cause market harm.
DVD CCA and AACS LA, Joint Creators I, and ESA opposed removing the
premises limitation. They contended that there would be a significant
risk that preserved video games would be used for recreational
purposes. They further argued that the expanded exemption would give
preservation institutions too much discretion regarding how they
provide remote users access to preserved works; and that it did not
contain appropriately tailored restrictions to ensure that uses would
be limited to teaching, research, or scholarship uses. They believe
that removing the premises limitation would also adversely affect the
existing market for older video games.
NTIA supported the removal of each limitation.
The Register concludes that proponents did not show that removing
the single-user limitation for preserved computer programs or
permitting off-premises access to video games are likely to be
noninfringing. She also notes the greater risk of market harm with
removing the video game exemption's premises limitation, given the
market for legacy video games. She recommends clarifying the single
copy restriction language to reflect that preservation institutions can
allow a copy of a computer program to be accessed by as many
individuals as there are circumvented copies legally owned. This
clarifying text will address the perceived ambiguity in the current
exemption, while maintaining the single-user limitation's intended
purpose to minimize the risk of substitutional uses of preserved
computer programs.
D. Conclusion
Having considered the evidence in the record, the comments of
proponents and opponents of the exemptions, and the objectives of
section 1201, the Register recommends that the Librarian of Congress
exempt for the next three years certain classes of works, as described
above, from the prohibition against circumvention of technological
measures that effectively control access to copyrighted works.
Dated: October 18, 2024.
Shira Perlmutter,
Register of Copyrights and Director of the U.S. Copyright Office.
Determination of the Librarian of Congress
Having duly considered the recommendation of the Register of
Copyrights as summarized above, which recommendation is hereby
incorporated by reference, the Librarian of Congress accepts that
recommendation with respect to all the classes of works under
consideration. The Librarian, exercising her authority pursuant to 17
U.S.C. 1201(a)(1)(C) and (D), hereby publishes as a new rule the
classes of copyrighted works that shall for a three-year period be
subject to the exemption found in 17 U.S.C. 1201(a)(1)(B) from the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A).
The Librarian is aware that the Register and her legal staff have
invested a great deal of time over the past two years in analyzing the
many issues underlying the 1201 process and proposed exemptions.
Through this work, the Register has come to believe that the issue
of research on artificial intelligence security and trustworthiness
warrants more general Congressional and regulatory attention. The
Librarian agrees with the Register in this assessment. As a regulatory
process focused on technological protection measures for copyrighted
content, section 1201 is ill-suited to address fundamental policy
issues with new technologies.
The Librarian is further aware of the policy and legal issues
involving a generalized ``right to repair'' equipment with embedded
software. These issues have now occupied the White House, Congress,
state legislatures, federal agencies, the Copyright Office, and the
general public through multiple rounds of 1201 rulemaking.
[[Page 85446]]
Copyright is but one piece in a national framework for ensuring the
security, trustworthiness, and reliability of embedded software, and
other copyright-protected technology that affects our daily lives.
Issues such as these extend beyond the reach of 1201 and may require a
broader solution, as noted by the NTIA.
The Librarian fully supports the Register in her examination of
these issues and urges Congress to work with the Copyright Office and
other federal agencies to consider these issues beyond the contours of
this 1201 rulemaking.
List of Subjects in 37 CFR Part 201
Copyright, Exemptions to prohibition against circumvention.
Final Regulations
For the reasons set forth in the preamble, 37 CFR part 201 is
amended as follows:
PART 201--GENERAL PROVISIONS
0
1. The authority citation for part 201 continues to read as follows:
Authority: 17 U.S.C. 702.
0
2. Section 201.40 is amended by revising paragraph (b) to read as
follows:
Sec. 201.40 Exemption to prohibition against circumvention.
* * * * *
(b) Classes of copyrighted works. Pursuant to the authority set
forth in 17 U.S.C. 1201(a)(1)(C) and (D), and upon the recommendation
of the Register of Copyrights, the Librarian has determined that the
prohibition against circumvention of technological measures that
effectively control access to copyrighted works set forth in 17 U.S.C.
1201(a)(1)(A) shall not apply to persons who engage in noninfringing
uses of the following classes of copyrighted works:
(1) Motion pictures (including television shows and videos), as
defined in 17 U.S.C. 101, where the motion picture is lawfully made and
acquired on a DVD protected by the Content Scramble System, on a Blu-
ray disc protected by the Advanced Access Content System, or via a
digital transmission protected by a technological measure, and the
person engaging in circumvention under paragraphs (b)(1)(i) and
(b)(1)(ii)(A) and (B) of this section reasonably believes that non-
circumventing alternatives are unable to produce the required level of
high-quality content, or the circumvention is undertaken using screen-
capture technology that appears to be offered to the public as enabling
the reproduction of motion pictures after content has been lawfully
acquired and decrypted, where circumvention is undertaken solely in
order to make use of short portions of the motion pictures in the
following instances:
(i) For the purpose of criticism or comment:
(A) For use in documentary filmmaking, or other films where the
motion picture clip is used in parody or for its biographical or
historically significant nature;
(B) For use in noncommercial videos (including videos produced for
a paid commission if the commissioning entity's use is noncommercial);
or
(C) For use in nonfiction multimedia e-books.
(ii) For educational purposes:
(A) By college and university faculty and students or kindergarten
through twelfth-grade (K-12) educators and students (where the K-12
student is circumventing under the direct supervision of an educator),
or employees acting at the direction of faculty of such educational
institutions for the purpose of teaching a course, including of
accredited general educational development (GED) programs, for the
purpose of criticism, comment, teaching, or scholarship;
(B) By faculty of accredited nonprofit educational institutions and
employees acting at the direction of faculty members of those
institutions, for purposes of offering massive open online courses
(MOOCs) to officially enrolled students through online platforms (which
platforms themselves may be operated for profit), in film studies or
other courses requiring close analysis of film and media excerpts, for
the purpose of criticism or comment, where the MOOC provider through
the online platform limits transmissions to the extent technologically
feasible to such officially enrolled students, institutes copyright
policies and provides copyright informational materials to faculty,
students, and relevant staff members, and applies technological
measures that reasonably prevent unauthorized further dissemination of
a work in accessible form to others or retention of the work for longer
than the course session by recipients of a transmission through the
platform, as contemplated by 17 U.S.C. 110(2); or
(C) By educators and participants in nonprofit digital and media
literacy programs offered by libraries, museums, and other nonprofit
entities with an educational mission, in the course of face-to-face
instructional activities, for the purpose of criticism or comment,
except that such users may only circumvent using screen-capture
technology that appears to be offered to the public as enabling the
reproduction of motion pictures after content has been lawfully
acquired and decrypted.
(2)(i) Motion pictures (including television shows and videos), as
defined in 17 U.S.C. 101, where the motion picture is lawfully acquired
on a DVD protected by the Content Scramble System, on a Blu-ray disc
protected by the Advanced Access Content System, or via a digital
transmission protected by a technological measure, where:
(A) Circumvention is undertaken by a disability services office or
other unit of a kindergarten through twelfth-grade educational
institution, college, or university engaged in and/or responsible for
the provision of accessibility services for the purpose of adding
captions and/or audio description to a motion picture to create an
accessible version for students, faculty, or staff with disabilities;
(B) The educational institution unit in paragraph (b)(2)(i)(A) of
this section has a reasonable belief that the motion picture will be
used for a specific future activity of the institution and, after a
reasonable effort, has determined that an accessible version of
sufficient quality cannot be obtained at a fair market price or in a
timely manner, including where a copyright holder has not provided an
accessible version of a motion picture that was included with a
textbook; and
(C) The accessible versions are provided to students or educators
and stored by the educational institution in a manner intended to
reasonably prevent unauthorized further dissemination of a work.
(ii) For purposes of this paragraph (b)(2):
(A) ``Audio description'' means an oral narration that provides an
accurate rendering of the motion picture;
(B) ``Accessible version of sufficient quality'' means a version
that in the reasonable judgment of the educational institution unit has
captions and/or audio description that are sufficient to meet the
accessibility needs of students, faculty, or staff with disabilities
and are substantially free of errors that would materially interfere
with those needs; and
(C) Accessible materials created pursuant to this exemption and
stored pursuant to paragraph (b)(2)(i)(C) of this section may be reused
by the educational institution unit to meet the accessibility needs of
students, faculty, or staff with disabilities pursuant to paragraphs
(b)(2)(i)(A) and (B) of this section.
(3)(i) Motion pictures (including television shows and videos), as
defined
[[Page 85447]]
in 17 U.S.C. 101, where the motion picture is lawfully acquired on a
DVD protected by the Content Scramble System, or on a Blu-ray disc
protected by the Advanced Access Content System, solely for the purpose
of lawful preservation or the creation of a replacement copy of the
motion picture, by an eligible library, archives, or museum, where:
(A) Such activity is carried out without any purpose of direct or
indirect commercial advantage;
(B) The DVD or Blu-ray disc is damaged or deteriorating;
(C) The eligible institution, after a reasonable effort, has
determined that an unused and undamaged replacement copy cannot be
obtained at a fair price and that no streaming service, download
service, or on-demand cable and satellite service makes the motion
picture available to libraries, archives, and museums at a fair price;
and
(D) The preservation or replacement copies are not distributed or
made available outside of the physical premises of the eligible
library, archives, or museum.
(ii) For purposes of paragraph (b)(3)(i) of this section, a
library, archives, or museum is considered ``eligible'' if--
(A) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(B) The library, archives, or museum has a public service mission;
(C) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(D) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(E) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by
paragraph (b)(3)(i) of this section.
(4)(i) Motion pictures, as defined in 17 U.S.C. 101, where the
motion picture is on a DVD protected by the Content Scramble System, on
a Blu-ray disc protected by the Advanced Access Content System, or made
available for digital download where:
(A) The circumvention is undertaken by a researcher affiliated with
a nonprofit institution of higher education, or by a student or
information technology staff member of the institution at the direction
of such researcher, solely to deploy text and data mining techniques on
a corpus of motion pictures for the purpose of scholarly research and
teaching;
(B) The copy of each motion picture is lawfully acquired and owned
by the institution, or licensed to the institution without a time
limitation on access;
(C) The person undertaking the circumvention or conducting research
or teaching under this exemption views or listens to the contents of
the motion pictures in the corpus solely to conduct text and data
mining research or teaching;
(D) The institution uses effective security measures to prevent
dissemination or downloading of motion pictures in the corpus, and upon
a reasonable request from a copyright owner who reasonably believes
that their work is contained in the corpus, or a trade association
representing such author, provide information to that copyright owner
or trade association regarding the nature of such measures; and
(E) The institution limits access to the corpus to only the persons
identified in paragraph (b)(4)(i)(A) of this section or to researchers
affiliated with other nonprofit institutions of higher education, with
all access provided only through secure connections and on the
condition of authenticated credentials, solely for purposes of text and
data mining research or teaching.
(ii) For purposes of paragraph (b)(4)(i) of this section:
(A) An institution of higher education is defined as one that:
(1) Admits regular students who have a certificate of graduation
from a secondary school or the equivalent of such a certificate;
(2) Is legally authorized to provide a postsecondary education
program;
(3) Awards a bachelor's degree or provides not less than a two-year
program acceptable towards such a degree;
(4) Is a public or other nonprofit institution; and
(5) Is accredited by a nationally recognized accrediting agency or
association.
(B) The term ``effective security measures'' is defined as:
(1) Security measures that have been agreed to by all interested
copyright owners of motion pictures and institutions of higher
education; or
(2) Security measures that the institution uses to keep its own
highly confidential information secure.
(5)(i) Literary works, excluding computer programs and compilations
that were compiled specifically for text and data mining purposes,
distributed electronically where:
(A) The circumvention is undertaken by a researcher affiliated with
a nonprofit institution of higher education, or by a student or
information technology staff member of the institution at the direction
of such researcher, solely to deploy text and data mining techniques on
a corpus of literary works for the purpose of scholarly research and
teaching;
(B) The copy of each literary work is lawfully acquired and owned
by the institution, or licensed to the institution without a time
limitation on access;
(C) The person undertaking the circumvention or conducting research
or teaching under this exemption views the contents of the literary
works in the corpus solely to conduct text and data mining research or
teaching;
(D) The institution uses effective security measures to prevent
dissemination or downloading of literary works in the corpus, and upon
a reasonable request from a copyright owner who reasonably believes
that their work is contained in the corpus, or a trade association
representing such author, provide information to that copyright owner
or trade association regarding the nature of such measures; and
(E) The institution limits access to the corpus to only the persons
identified in paragraph (b)(5)(i)(A) of this section or to researchers
affiliated with other nonprofit institutions of higher education, with
all access provided only through secure connections and on the
condition of authenticated credentials, solely for purposes of text and
data mining research or teaching.
(ii) For purposes of paragraph (b)(5)(i) of this section:
(A) An institution of higher education is defined as one that:
(1) Admits regular students who have a certificate of graduation
from a secondary school or the equivalent of such a certificate;
(2) Is legally authorized to provide a post secondary education
program;
(3) Awards a bachelor's degree or provides not less than a two-year
program acceptable towards such a degree;
(4) Is a public or other nonprofit institution; and
(5) Is accredited by a nationally recognized accrediting agency or
association.
(B) The term ``effective security measures'' is defined as:
(1) Security measures that have been agreed to by all interested
copyright owners of literary works and institutions of higher
education; or
(2) Security measures that the institution uses to keep its own
highly confidential information secure.
[[Page 85448]]
(6)(i) Literary works or previously published musical works that
have been fixed in the form of text or notation, distributed
electronically, that are protected by technological measures that
either prevent the enabling of read-aloud functionality or interfere
with screen readers or other applications or assistive technologies:
(A) When a copy or phonorecord of such a work is lawfully obtained
by an eligible person, as such a person is defined in 17 U.S.C. 121;
provided, however, that the rights owner is remunerated, as
appropriate, for the market price of an inaccessible copy of the work
as made available to the general public through customary channels; or
(B) When such a work is lawfully obtained and used by an authorized
entity pursuant to 17 U.S.C. 121.
(ii) For the purposes of paragraph (b)(6)(i) of this section, a
``phonorecord of such a work'' does not include a sound recording of a
performance of a musical work unless and only to the extent the
recording is included as part of an audiobook or e-book.
(7) Literary works consisting of compilations of data generated by
medical devices or by their personal corresponding monitoring systems,
where such circumvention is undertaken by or on behalf of a patient for
the sole purpose of lawfully accessing data generated by a patient's
own medical device or monitoring system. Eligibility for this exemption
is not a safe harbor from, or defense to, liability under other
applicable laws, including without limitation the Health Insurance
Portability and Accountability Act of 1996, the Computer Fraud and
Abuse Act of 1986, or regulations of the Food and Drug Administration.
(8) Computer programs that enable wireless devices to connect to a
wireless telecommunications network, when circumvention is undertaken
solely in order to connect to a wireless telecommunications network and
such connection is authorized by the operator of such network.
(9) Computer programs that enable smartphones and portable all-
purpose mobile computing devices to execute lawfully obtained software
applications, where circumvention is accomplished for the sole purpose
of enabling interoperability of such applications with computer
programs on the smartphone or device, or to permit removal of software
from the smartphone or device. For purposes of this paragraph (b)(9), a
``portable all-purpose mobile computing device'' is a device that is
primarily designed to run a wide variety of programs rather than for
consumption of a particular type of media content, is equipped with an
operating system primarily designed for mobile use, and is intended to
be carried or worn by an individual.
(10) Computer programs that enable smart televisions to execute
lawfully obtained software applications, where circumvention is
accomplished for the sole purpose of enabling interoperability of such
applications with computer programs on the smart television, and is not
accomplished for the purpose of gaining unauthorized access to other
copyrighted works. For purposes of this paragraph (b)(10), ``smart
televisions'' includes both internet-enabled televisions, as well as
devices that are physically separate from a television and whose
primary purpose is to run software applications that stream authorized
video from the internet for display on a screen.
(11) Computer programs that enable voice assistant devices to
execute lawfully obtained software applications, where circumvention is
accomplished for the sole purpose of enabling interoperability of such
applications with computer programs on the device, or to permit removal
of software from the device, and is not accomplished for the purpose of
gaining unauthorized access to other copyrighted works. For purposes of
this paragraph (b)(11), a ``voice assistant device'' is a device that
is primarily designed to run a wide variety of programs rather than for
consumption of a particular type of media content, is designed to take
user input primarily by voice, and is designed to be installed in a
home or office.
(12) Computer programs that enable routers and dedicated network
devices to execute lawfully obtained software applications, where
circumvention is accomplished for the sole purpose of enabling
interoperability of such applications with computer programs on the
router or dedicated network device, and is not accomplished for the
purpose of gaining unauthorized access to other copyrighted works. For
the purposes of this paragraph (b)(12), ``dedicated network device''
includes switches, hubs, bridges, gateways, modems, repeaters, and
access points, and excludes devices that are not lawfully owned.
(13) Computer programs that are contained in and control the
functioning of a lawfully acquired motorized land vehicle or marine
vessel such as a personal automobile or boat, commercial vehicle or
vessel, or mechanized agricultural vehicle or vessel, except for
programs accessed through a separate subscription service, when
circumvention is a necessary step to allow the diagnosis, repair, or
lawful modification of a vehicle or vessel function, where such
circumvention is not accomplished for the purpose of gaining
unauthorized access to other copyrighted works. Eligibility for this
exemption is not a safe harbor from, or defense to, liability under
other applicable laws, including without limitation regulations
promulgated by the Department of Transportation or the Environmental
Protection Agency.
(14) Computer programs that are contained in and control the
functioning of a lawfully acquired motorized land vehicle or marine
vessel such as a personal automobile or boat, commercial vehicle or
vessel, or mechanized agricultural vehicle or vessel, except for
programs accessed through a separate subscription service, to allow
vehicle or vessel owners and lessees, or those acting on their behalf,
to access, store, and share operational data, including diagnostic and
telematics data, where such circumvention is not accomplished for the
purpose of gaining unauthorized access to other copyrighted works.
Eligibility for this exemption is not a safe harbor from, or defense
to, liability under other applicable laws, including without limitation
regulations promulgated by the Department of Transportation or the
Environmental Protection Agency.
(15) Computer programs that are contained in and control the
functioning of a lawfully acquired device that is primarily designed
for use by consumers, when circumvention is a necessary step to allow
the diagnosis, maintenance, or repair of such a device, and is not
accomplished for the purpose of gaining access to other copyrighted
works. For purposes of this paragraph (b)(15):
(i) The ``maintenance'' of a device is the servicing of the device
in order to make it work in accordance with its original specifications
and any changes to those specifications authorized for that device; and
(ii) The ``repair'' of a device is the restoring of the device to
the state of working in accordance with its original specifications and
any changes to those specifications authorized for that device. For
video game consoles, ``repair'' is limited to repair or replacement of
a console's optical drive and requires restoring any technological
protection measures that were circumvented or disabled.
(16) Computer programs that are contained in and control the
functioning of lawfully acquired equipment that is
[[Page 85449]]
primarily designed for use in retail-level commercial food preparation
when circumvention is a necessary step to allow the diagnosis,
maintenance, or repair of such a device, and is not accomplished for
the purpose of gaining access to other copyrighted works. For purposes
of this paragraph (b)(16):
(i) The ``maintenance'' of a device is the servicing of the device
in order to make it work in accordance with its original specifications
and any changes to those specifications authorized for that device; and
(ii) The ``repair'' of a device is the restoring of the device to
the state of working in accordance with its original specifications and
any changes to those specifications authorized for that device.
(17) Computer programs that are contained in and control the
functioning of a lawfully acquired medical device or system, and
related data files, when circumvention is a necessary step to allow the
diagnosis, maintenance, or repair of such a device or system. For
purposes of this paragraph (b)(17):
(i) The ``maintenance'' of a device or system is the servicing of
the device or system in order to make it work in accordance with its
original specifications and any changes to those specifications
authorized for that device or system; and
(ii) The ``repair'' of a device or system is the restoring of the
device or system to the state of working in accordance with its
original specifications and any changes to those specifications
authorized for that device or system.
(18)(i) Computer programs, where the circumvention is undertaken on
a lawfully acquired device or machine on which the computer program
operates, or is undertaken on a computer, computer system, or computer
network on which the computer program operates with the authorization
of the owner or operator of such computer, computer system, or computer
network, solely for the purpose of good-faith security research.
(ii) For purposes of paragraph (b)(18)(i) of this section, ``good-
faith security research'' means accessing a computer program solely for
purposes of good-faith testing, investigation, and/or correction of a
security flaw or vulnerability, where such activity is carried out in
an environment designed to avoid any harm to individuals or the public,
and where the information derived from the activity is used primarily
to promote the security or safety of the class of devices or machines
on which the computer program operates, or those who use such devices
or machines, and is not used or maintained in a manner that facilitates
copyright infringement.
(iii) Good-faith security research that qualifies for the exemption
under paragraph (b)(18)(i) of this section may nevertheless incur
liability under other applicable laws, including without limitation the
Computer Fraud and Abuse Act of 1986, as amended and codified in title
18, United States Code, and eligibility for that exemption is not a
safe harbor from, or defense to, liability under other applicable laws.
(19)(i) Video games in the form of computer programs embodied in
physical or downloaded formats that have been lawfully acquired as
complete games, when the copyright owner or its authorized
representative has ceased to provide access to an external computer
server necessary to facilitate an authentication process to enable
gameplay, solely for the purpose of:
(A) Permitting access to the video game to allow copying and
modification of the computer program to restore access to the game for
personal, local gameplay on a personal computer or video game console;
or
(B) Permitting access to the video game to allow copying and
modification of the computer program to restore access to the game on a
personal computer or video game console when necessary to allow
preservation of the game in a playable form by an eligible library,
archives, or museum, where such activities are carried out without any
purpose of direct or indirect commercial advantage and the video game
is not distributed or made available outside of the physical premises
of the eligible library, archives, or museum.
(ii) Video games in the form of computer programs embodied in
physical or downloaded formats that have been lawfully acquired as
complete games, that do not require access to an external computer
server for gameplay, and that are no longer reasonably available in the
commercial marketplace, solely for the purpose of preservation of the
game in a playable form by an eligible library, archives, or museum,
where such activities are carried out without any purpose of direct or
indirect commercial advantage and the video game is not distributed or
made available outside of the physical premises of the eligible
library, archives, or museum.
(iii) Computer programs used to operate video game consoles solely
to the extent necessary for an eligible library, archives, or museum to
engage in the preservation activities described in paragraph
(b)(19)(i)(B) or (b)(19)(ii) of this section.
(iv) For purposes of this paragraph (b)(19), the following
definitions shall apply:
(A) For purposes of paragraphs (b)(19)(i)(A) and (b)(19)(ii) of
this section, ``complete games'' means video games that can be played
by users without accessing or reproducing copyrightable content stored
or previously stored on an external computer server.
(B) For purposes of paragraph (b)(19)(i)(B) of this section,
``complete games'' means video games that meet the definition in
paragraph (b)(19)(iv)(A) of this section, or that consist of both a
copy of a game intended for a personal computer or video game console
and a copy of the game's code that was stored or previously stored on
an external computer server.
(C) ``Ceased to provide access'' means that the copyright owner or
its authorized representative has either issued an affirmative
statement indicating that external server support for the video game
has ended and such support is in fact no longer available or,
alternatively, server support has been discontinued for a period of at
least six months; provided, however, that server support has not since
been restored.
(D) ``Local gameplay'' means gameplay conducted on a personal
computer or video game console, or locally connected personal computers
or consoles, and not through an online service or facility.
(E) A library, archives, or museum is considered ``eligible'' if--
(1) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(2) The library, archives, or museum has a public service mission;
(3) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(4) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(5) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by this
paragraph (b)(19).
(20)(i) Computer programs, except video games, that have been
lawfully acquired and that are no longer reasonably available in the
commercial marketplace, solely for the purpose of
[[Page 85450]]
lawful preservation of a computer program, or of digital materials
dependent upon a computer program as a condition of access, by an
eligible library, archives, or museum, where such activities are
carried out without any purpose of direct or indirect commercial
advantage. Any electronic distribution, display, or performance made
outside of the physical premises of an eligible library, archives, or
museum of works preserved under this paragraph may be made to only one
user at a time, for a limited time, and only where the library,
archives, or museum has no notice that the copy would be used for any
purpose other than private study, scholarship, or research.
(ii) For purposes of the exemption in paragraph (b)(20)(i) of this
section, a library, archives, or museum is considered ``eligible'' if--
(A) The collections of the library, archives, or museum are open to
the public and/or are routinely made available to researchers who are
not affiliated with the library, archives, or museum;
(B) The library, archives, or museum has a public service mission;
(C) The library, archives, or museum's trained staff or volunteers
provide professional services normally associated with libraries,
archives, or museums;
(D) The collections of the library, archives, or museum are
composed of lawfully acquired and/or licensed materials; and
(E) The library, archives, or museum implements reasonable digital
security measures as appropriate for the activities permitted by this
paragraph (b)(20).
(iii) For purposes of paragraph (b)(20) of this section, the phrase
``one user at a time'' means that for each copy of a work lawfully
owned by an eligible library, archives, or museum and preserved under
paragraph (b)(20)(i) of this section, such library, archives, or museum
may make an electronic distribution, display, or performance of that
work outside of its physical premises. An eligible library, archives,
or museum may make each copy of such lawfully owned and preserved work
available to different users simultaneously. This provision does not
permit an eligible library, archives, or museum to make multiple,
simultaneous copies of the same copy of a work for the purposes of
providing users access to the work.
(21) Computer programs that operate 3D printers that employ
technological measures to limit the use of material, when circumvention
is accomplished solely for the purpose of using alternative material
and not for the purpose of accessing design software, design files, or
proprietary data.
(22) Computer programs, solely for the purpose of investigating a
potential infringement of free and open source computer programs where:
(i) The circumvention is undertaken on a lawfully acquired device
or machine other than a video game console, on which the computer
program operates;
(ii) The circumvention is performed by, or at the direction of, a
party that has a good-faith, reasonable belief in the need for the
investigation and has standing to bring a breach of license or
copyright infringement claim;
(iii) Such circumvention does not constitute a violation of
applicable law; and
(iv) The copy of the computer program, or the device or machine on
which it operates, is not used or maintained in a manner that
facilitates copyright infringement.
* * * * *
Dated: October 18, 2024.
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2024-24563 Filed 10-25-24; 8:45 am]
BILLING CODE 1410-30-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on October 28, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.