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Proposed Rule2026-21939

Exemptions To Permit Circumvention of Access Controls on Copyrighted Works

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Published

October 28, 2026

Issuing agencies

Library of CongressCopyright Office, Library of Congress

Abstract

The United States Copyright Office is conducting the tenth triennial rulemaking proceeding under the Digital Millennium Copyright Act ("DMCA"), concerning temporary exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. Having carefully considered the petitions for new and renewal exemptions and comments received in response to the June 9, 2026 Notification of Inquiry, the Office announces the Register's intention to recommend all but one of the existing exemptions for renewal, and initiates three rounds of public comment on newly proposed exemptions. Comments submitted may not exceed twenty-five pages per class, excluding documentary evidence.

Full Text

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<title>Federal Register, Volume 91 Issue 207 (Wednesday, October 28, 2026)</title>
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[Federal Register Volume 91, Number 207 (Wednesday, October 28, 2026)]
[Proposed Rules]
[Pages 67788-67808]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21939]

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LIBRARY OF CONGRESS

37 CFR Part 201

[Docket No. 2026-4]

Exemptions To Permit Circumvention of Access Controls on
Copyrighted Works

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The United States Copyright Office is conducting the tenth
triennial rulemaking proceeding under the Digital Millennium Copyright
Act (``DMCA''), concerning temporary exemptions to the DMCA's
prohibition against circumvention of technological measures that
control access to copyrighted works. Having carefully considered the
petitions for new and renewal exemptions and comments received in
response to the June 9, 2026 Notification of Inquiry, the Office
announces the Register's intention to recommend all but one of the
existing exemptions for renewal, and initiates three rounds of public
comment on newly proposed exemptions. Comments submitted may not exceed
twenty-five pages per class, excluding documentary evidence.

DATES: Initial written comments, along with any documentary or
multimedia evidence, from proponents and other members of the public
who support the adoption of a proposed exemption, as well as those that
neither support nor oppose an exemption but seek to share pertinent
information, are due December 7, 2026. Written response comments, along
with any documentary or multimedia evidence, from those who oppose the
adoption of a proposed exemption are due February 22, 2027. Written
reply comments from supporters of a proposal and parties that neither
support nor oppose a proposal are due March 22, 2027.

ADDRESSES: The Copyright Office is using the <a href="http://regulations.gov">regulations.gov</a> system for
the submission and posting of comments in this proceeding. All comments
are to be submitted electronically through <a href="http://regulations.gov">regulations.gov</a>. The Office
is accepting two types of comments. First, commenters who wish briefly
to express general support for or opposition to a proposed exemption
may submit such comments electronically by typing into the comment
field on <a href="http://regulations.gov">regulations.gov</a>. Second, commenters who wish to provide a
fuller legal and evidentiary basis for their position may upload a Word
or PDF document, but such longer submissions must be completed using
the long comment form provided on the Office's website at <a href="https://www.copyright.gov/1201/2027">https://www.copyright.gov/1201/2027</a>. Specific instructions for submitting
comments, including multimedia evidence that cannot be uploaded through
<a href="http://regulations.gov">regulations.gov</a>, are available at <a href="https://www.copyright.gov/1201/2027/comment-submission/">https://www.copyright.gov/1201/2027/comment-submission/</a>. If a commenter cannot meet a particular submission
requirement, please contact the Office using the contact information
below for special instructions.

FOR FURTHER INFORMATION CONTACT: Rhea Efthimiadis, Assistant to the
General Counsel, by email at <a href="/cdn-cgi/l/email-protection#27727464686042494255464b6448524954424b674448575e554e404f5309404851"><span class="__cf_email__" data-cfemail="81d4d2c2cec6e4efe4f3e0edc2eef4eff2e4edc1e2eef1f8f3e8e6e9f5afe6eef7">[email&#160;protected]</span></a> or by
telephone at (202) 707-8350.

SUPPLEMENTARY INFORMATION: On June 9, 2026, the U.S. Copyright Office
(``Office'') initiated the tenth triennial section 1201 rulemaking by
publishing a Notification of Inquiry (``NOI'') and requesting petitions
to renew current exemptions, comments responding to the renewal
petitions, and petitions for newly proposed exemptions.\1\ In response,
the Office received 43 renewal petitions, three comments supporting
renewal of an exemption, and eight comments opposing renewal of an
exemption.\2\ In addition, the Office received 25 petitions for new
exemptions or for expansion of current exemptions.
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\1\ 91 FR 34795 (June 9, 2026) (``NOI'').
\2\ Renewal petitions, comments in response to renewal
petitions, and petitions for new exemptions are available at <a href="https://www.copyright.gov/1201/2027/">https://www.copyright.gov/1201/2027/</a>. References to renewal petitions and
comments are by party name (abbreviated where appropriate) and a
brief identification of the previously granted exemption, followed
by either ``Renewal Pet.,'' ``Supp.'' (for comments supporting an
exemption), or ``Opp.'' (for comments opposing an exemption).
References to petitions for new exemptions are by party name
(abbreviated where appropriate), the Office's proposed class number,
and ``Pet.''
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This Notice of Proposed Rulemaking (``NPRM'') summarizes the
renewal petitions and states which exemptions the Register of
Copyrights (``Register'') intends to recommend for renewal without
requiring petitioners to further develop the administrative record.
Separately, this NPRM outlines the proposed classes for new exemptions
for which the Office is initiating three rounds of public comment,
including the one meaningfully opposed renewal petition that the Office
will consider as a new petition.

I. Standard for Evaluating Proposed Exemptions

As the NOI explained, before the Register can recommend a temporary

[[Page 67789]]

exemption from the prohibition on circumvention, the record must
establish that ``persons who are users of a copyrighted work are, or
are likely to be in the succeeding 3-year period, adversely affected by
the [anti-circumvention] prohibition . . . in their ability to make
noninfringing uses under [title 17] of a particular class of
copyrighted works.'' \3\ When defining a ``class of copyrighted
works,'' the Office generally uses the categories of works in 17 U.S.C.
102 as a starting point and then refines the class by other criteria,
such as the technological protection measures (``TPMs'') used,
distribution platforms, and types of uses or users.\4\
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\3\ 17 U.S.C. 1201(a)(1)(C).
\4\ See U.S. Copyright Office, Section 1201 Rulemaking: Ninth
Triennial Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights 13-14
(2024) (``2024 Recommendation''), <a href="https://www.copyright.gov/1201/2024/2024_Section_1201_Registers_Recommendation.pdf">https://www.copyright.gov/1201/2024/2024_Section_1201_Registers_Recommendation.pdf</a>; U.S. Copyright
Office, Section 1201 of Title 17, at 26, 108-10 (2017) (``Section
1201 Study''), <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>; see also H.R. Rep. No. 105-551, pt. 2, at 38 (1998)
(``Commerce Comm. Report'') (``The Committee intends that the
`particular class of copyrighted works' be a narrow and focused
subset of the broad categories of works of authorship than is
identified in Section 102 of the Copyright Act (17 U.S.C. [section]
102).'').
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In evaluating the evidence, the Register weighs the statutory
factors in section 1201(a)(1)(C): ``(i) the availability for use of
copyrighted works; (ii) the availability for use of works for nonprofit
archival, preservation, and educational purposes; (iii) the impact that
the prohibition on the circumvention of technological measures applied
to copyrighted works has on criticism, comment, news reporting,
teaching, scholarship, or research; (iv) the effect of circumvention of
technological measures on the market for or value of copyrighted works;
and (v) such other factors as the [Register] considers appropriate.''
\5\ After the Office develops a comprehensive administrative record,
the Register makes a recommendation to the Librarian of Congress
(``Librarian'') concerning whether exemptions are warranted based on
that record.
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\5\ 17 U.S.C. 1201(a)(1)(C).
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In considering whether to recommend an exemption consistent with
the statutory text, the Register considers the question: ``Are users of
a copyrighted work adversely affected by the prohibition on
circumvention in their ability to make noninfringing uses of a class of
copyrighted works, or are users likely to be so adversely affected in
the next three years?'' \6\ This inquiry breaks down into the following
elements:
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\6\ Section 1201 Study at 114.
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<bullet> Does the proposed class include at least some works
protected by copyright?
<bullet> Are the uses at issue likely noninfringing under title 17?
<bullet> Are users currently, or likely to be, adversely affected
in their ability to make such noninfringing uses during the next three
years? \7\
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\7\ This element is analyzed in reference to section
1201(a)(1)(C)'s five statutory factors.
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<bullet> Is the statutory prohibition on circumventing access
controls the cause of the adverse effects? \8\
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\8\ Section 1201 Study at 115-27.
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To determine whether a proposed use is likely to be noninfringing,
the Register considers the Copyright Act and relevant judicial
precedents.\9\ When considering whether such uses are being adversely
impacted by the prohibition on circumvention, the rulemaking focuses on
``distinct, verifiable, and measurable impacts'' compared to ``de
minimis impacts.'' \10\ The Register examines the administrative record
as a whole to consider whether the preponderance of the evidence shows
that the conditions for granting an exemption have been met.\11\
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\9\ Id. at 115-17. While controlling precedent directly on point
is not required to justify an exemption, there is no ``rule of
doubt'' favoring an exemption when it is unclear that a particular
use is fair or otherwise noninfringing. See U.S. Copyright Office,
Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine
Exemptions to the Prohibition on Circumvention, Recommendation of
the Register of Copyrights 15 (2015) (``2015 Recommendation''),
<a href="https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf">https://cdn.loc.gov/copyright/1201/2015/registers-recommendation.pdf</a>. The rulemaking also generally ``is not an
appropriate venue for breaking new ground in fair use
jurisprudence.'' U.S. Copyright Office, Section 1201 Rulemaking:
Eighth Triennial Proceeding to Determine Exemptions to the
Prohibition on Circumvention, Recommendation of the Register of
Copyrights 10-11 (2021) (``2021 Recommendation''), <a href="https://cdn.loc.gov/copyright/1201/2021/2021_Section_1201_Registers_Recommendation.pdf">https://cdn.loc.gov/copyright/1201/2021/2021_Section_1201_Registers_Recommendation.pdf</a> (quoting Section 1201
Study at 116-17).
\10\ Commerce Comm. Report at 37; see also Staff of H. Comm. on
the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281
as Passed by the United States House of Representatives on August
4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase
``substantial adverse impact''); see also, e.g., Section 1201 Study
at 119-21 (discussing same and citing application of this standard
in five prior rulemakings).
\11\ See 17 U.S.C. 1201(a)(1)(C) (asking whether users ``are, or
are likely to be in the succeeding 3-year period, adversely affected
by the prohibition [on circumvention] in their ability to make
noninfringing uses'' (emphasis added)); Section 1201 Study at 111-
12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C.
Cir. 1980) (noting that ``[t]he use of the `preponderance of
evidence' standard is the traditional standard in civil and
administrative proceedings''); 70 FR 57526, 57528 (Oct. 3, 2005);
2021 Recommendation at 7-8; U.S. Copyright Office, Section 1201
Rulemaking: Seventh Triennial Proceeding to Determine Exemptions to
the Prohibition on Circumvention, Recommendation of the Acting
Register of Copyrights 13 (2018) (``2018 Recommendation''), <a href="https://cdn.loc.gov/copyright/1201/2018/2018_Section_1201_Acting_Registers_Recommendation.pdf">https://cdn.loc.gov/copyright/1201/2018/2018_Section_1201_Acting_Registers_Recommendation.pdf</a>; 2015
Recommendation at 13-14; U.S. Copyright Office, Section 1201
Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to
the Prohibition on Circumvention, Recommendation of the Register of
Copyrights 6 (2012) (``2012 Recommendation''), <a href="https://cdn.loc.gov/copyright/1201/2012/Section_1201_Rulemaking_Recommendation.pdf">https://cdn.loc.gov/copyright/1201/2012/Section_1201_Rulemaking_Recommendation.pdf</a>; U.S.
Copyright Office, Section 1201 Rulemaking: Second Triennial
Proceeding to Determine Exemptions to the Prohibition on
Circumvention, Recommendation of the Register of Copyrights 19-20
(2003) (``2003 Recommendation''), <a href="https://cdn.loc.gov/copyright/1201/docs/registers-recommendation.pdf">https://cdn.loc.gov/copyright/1201/docs/registers-recommendation.pdf</a>.
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II. Review of Petitions To Renew Existing Exemptions

In this proceeding, the Office is again using the streamlined
process, first adopted in the seventh triennial rulemaking, for the
Register's recommendations of renewal of exemptions previously issued
by the Librarian.\12\ As the Office explained in its 2017 policy study,
the ``Register must apply the same evidentiary standards in
recommending the renewal of exemptions as for first-time exemption
requests,'' and the statute requires that ``a determination must be
made specifically for each triennial period.'' \13\ The Office further
determined that ``the statutory language appears to be broad enough to
permit determinations to be based upon evidence drawn from prior
proceedings, but only upon a conclusion that this evidence remains
reliable to support granting an exemption in the current proceeding.''
\14\ The Office has employed this process in each subsequent triennial
rulemaking.
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\12\ 2018 Recommendation at 17, 19, 22 (explaining the
streamlined renewal process and how the Office was able to recommend
renewal of all previously granted exemptions, since each then-
current exemption was renewed and not meaningfully contested).
\13\ Section 1201 Study at 142, 145.
\14\ Id. at 143.
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Renewal petitions must request readoption of exemptions as
currently formulated, without modification. Petitions should support a
determination by the Register that, due to a lack of legal,
marketplace, or technological changes, the factors that led her to
recommend adoption of the exemption in the prior rulemaking remain a
reliable basis for the adoption of the exemption.\15\ To the extent
that a renewal petition proposes uses beyond the current exemption or
language that varies from the exemption as currently enacted, the
Office disregards those portions of the petition for purposes of
considering the renewal of the exemption, and asks only whether the
petition provides sufficient information

[[Page 67790]]

to warrant renewal of the exemption in its current form.
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\15\ See id. at 143-44.
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In response to its current NOI, the Office received petitions to
renew every existing exemption. Each of the forty-three renewal
petitions included a summary of the basis for the continuing need and
justification for the exemption. Each petitioner also signed a
declaration stating that, to the best of their personal knowledge,
there has not been any material change in the facts, law, or other
circumstances set forth in the prior rulemaking record such that
renewal of the exemption would not be justified. This sworn declaration
also includes a statement that, based on their personal knowledge and
experience, petitioners believe that if the exemption were not renewed,
users would be diminished in their ability to make use of the works at
issue.\16\
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\16\ 82 FR 29804, 29806 (June 30, 2017).
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The Office received eleven comments in response to the renewal
petitions, three of which support renewal of specific exemptions. Eight
comments oppose certain aspects of the renewal petitions.\17\
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\17\ See, e.g., Entertainment Software Association, Motion
Picture Association & Recording Industry Association of America
(collectively ``Joint Creators'') Noncom. Videos Opp.; Association
of American Publishers (``AAP'') TDM Opp.; Alliance for Automotive
Innovation (``Auto Innovators'') Vehicle Repair Opp.; Auto
Innovators Vehicle Data Opp.; Advance Medical Technology Association
(``AdvaMed'') Medical Device Repair Opp. #1; AdvaMed Medical Device
Repair Opp. #2; Joint Creators Medical Device Repair Opp.; Philips
North America, LLC (``Philips'') Medical Device Repair Opp.
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As detailed below, after reviewing the petitions for renewal and
comments in response, the Office finds that it has received a
sufficient petition for each of the existing exemptions. The Office
finds meaningful opposition to renewal of one exemption (the current
medical device repair exemption); it will not grant this exemption
through the streamlined renewal process but will instead allow
interested parties to develop the record further so that it can be
considered as a new proposed exemption in the regular rulemaking
process. The Register intends to recommend readoption of each of the
other existing exemptions in their current forms.

A. Audiovisual Works--Criticism and Comment--Filmmaking

International Documentary Association and Kartemquin Educational
Films (collectively ``Joint Filmmakers'') jointly petition to renew the
exemption for motion pictures \18\ for uses in documentary films or
other films where the use is a parody or for a biographical or
historically significant nature (codified at 37 CFR
201.40(b)(1)(i)(A)).\19\ No comments were filed opposing renewal.
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\18\ Unless otherwise noted, all references to motion pictures
as a category include television programs and videos.
\19\ Joint Filmmakers Documentary Films Renewal Pet.
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Joint Filmmakers represent thousands of independent filmmakers
across the nation and have participated in every triennial rulemaking
since 2008. They state that TPMs such as encryption continue to prevent
filmmakers from accessing needed material, and that this is
``especially true for the kind of high fidelity motion picture material
filmmakers need to satisfy both distributors and viewers.'' \20\
Petitioners state their firsthand knowledge that filmmakers have found
it necessary to rely on this exemption and will continue to do so.\21\
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\20\ Id. at 4.
\21\ Id.
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Based on the information provided in the renewal petition and the
lack of opposition, the Office concludes that the conditions that led
to the adoption of this exemption are likely to continue during the
next triennial period. Accordingly, the Register intends to recommend
renewal.

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

The Organization for Transformative Works (``OTW'') petitions to
renew the exemption for motion pictures for use in noncommercial videos
(codified at 37 CFR 201.40(b)(1)(i)(B)).\22\ OTW, which has advocated
for the noncommercial video exemption in past triennial rulemakings,
states it has heard from ``a number of noncommercial remix artists''
who have used the exemption in the past and anticipate needing to use
it in the future as well as the increasing cultural and political
importance of ``fan edits.'' \23\
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\22\ OTW Noncom. Videos Renewal Pet.
\23\ Id. at 4-5.
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OTW states that ``creators continue to make video remixes using DVD
and Blu-Ray source[s]'' for several reasons, such as engaging in
``valuable commentary'' and that the ``fundamental conditions
surrounding video remix have not changed'' in the preceding three-year
period.\24\ No comments were filed opposing renewal of the exemption as
currently formulated.
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\24\ Id.
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The Office did, however, receive opposition to OTW's renewal
petition to the extent it seeks to modify the regulatory language of
this exemption. As in the previous proceeding, OTW's renewal petition
proposes the Office ``us[e] the relatively simple language defining the
exempted class from the 2008 rulemaking,'' rather than the exact
language in the current exemption, which was adopted in the 2021
rulemaking.\25\ The Entertainment Software Association, Motion Picture
Association, and Recording Industry Association of America
(collectively ``Joint Creators'') jointly oppose OTW's petition to the
extent that it requests modification of the exemption's language,
arguing the request constitutes an expansion and should therefore be
properly submitted as a petition for a new exemption.\26\ The Office
agrees. Such a modification cannot be granted via the streamlined
exemption renewal procedure and must instead be petitioned for as a new
exemption.\27\ OTW did not submit a separate new exemption petition for
its proposed modifications. Therefore, OTW's renewal petition will be
considered only to the extent that it requests readoption of the
current exemption; its proposed modifications cannot be considered in
this triennial proceeding.
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\25\ Id. at 6. OTW describes its requested change to the
exemption language as ``not . . . an expansion of the existing
exemption, but a more understandable restatement.'' Id.
\26\ Joint Creators Noncom. Videos Opp. at 1-2.
\27\ See NOI at 34797 (``Only petitions requesting renewal of
current exemptions as currently written in the Code of Federal
Regulations, without modification, may be considered under the
streamlined renewal procedure.'').
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Based on the information provided in the renewal petition and the
lack of meaningful opposition, the Office concludes that the conditions
that led to the adoption of this exemption are likely to continue
during the next triennial period. Accordingly, the Register intends to
recommend renewal.

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

Authors Alliance and independent film producer and author, Bobette
Buster, filed a joint petition to renew the exemption for the use of
motion picture excerpts in nonfiction multimedia e-books (codified at
37 CFR 201.40(b)(1)(i)(C)).\28\ No comments were filed opposing
renewal.
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\28\ Buster & Authors Alliance Nonfiction Multimedia E-Books
Renewal Pet.
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Petitioners point to Professor Buster's continuing work authoring
film education e-books, which rely on the ``essential'' use of high-
resolution video that would not be available ``without the
circumvention of technological protection measures.'' \29\ In addition
to the e-book series titled ``Deconstructing Master Filmmakers''
discussed in previous rulemakings, Professor Buster

[[Page 67791]]

newly references her lecture series titled ``How to Tell Your Story
Well,'' ``What's the Big Idea,'' and ``Satire and the Shaping of
American Culture'' and states that she uses the lectures' source
material--``particularly film clips that are the subject of this
exemption''--in e-book projects that are part of this ``broader work in
deconstructing feature-length films in-depth.'' \30\ Such contemporary
evidence of the ongoing need for the exemption combined with
petitioners' participation in the last four triennial rulemakings,
provide a sufficient basis for renewal of the current exemption.\31\
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\29\ Id. at 4.
\30\ Id. (explaining that Professor Buster ``uses extracts of
[her popular] lecture[ ] [series] as the basis of digital
publications, which include[ ] projects to create ebooks featuring
source materials from [those] lectures, particularly film clips that
are the subject of this exemption'').
\31\ See NOI at 34797 n.19; see also 88 FR 72013, 72016 n.35
(Oct. 19, 2023) (same).
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D. Audiovisual Works--Criticism and Comment--Universities and K-12
Educational Institutions

Peter Decherney, John Jackson, Sarah Banet-Weiser, Library
Copyright Alliance (``LCA''), and Society for Cinema and Media Studies
(``SCMS'') (collectively ``Joint Educators'') jointly petition to renew
the exemption for the use of motion picture excerpts for educational
purposes by college and university faculty, students, or employees, or
K-12 educators and students (codified at 37 CFR
201.40(b)(1)(ii)(A)).\32\ Brigham Young University-Idaho (``BYU-
Idaho'') filed a comment in support of renewal,\33\ and no comments
opposing renewal were filed.
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\32\ Joint Educators AV Educ. Renewal Pet.
\33\ BYU-Idaho AV Educ. Supp. BYU-Idaho filed a single comment
in support of ``renewal of the current exemption in 37 [CFR section]
201.40(b)(1) for audiovisual works used for educational purposes by
college and university faculty and students.'' Id. at 1. The Office
understands this comment to support the three exemptions codified at
37 CFR 201.40(b)(1)(ii). See id. (referencing 37 CFR
201.40(b)(1)(ii)(A)-(C)). BYU-Idaho's comment also requests that the
Office replace portions of the text of the current exemption for the
purpose of clarification. Id. at 2-3. Such a request is properly
submitted as a petition for a new exemption during the petition
phase of the rulemaking process and is therefore not considered
here. See NOI at 34797.
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Joint Educators provide several contemporary examples of educators
and students using film clips for educational purposes including class
presentations and coursework. Co-petitioner Decherney declares that he
``continues to teach courses every semester that require[s] students to
create video essay[s],'' which are ``piece[s] of video-based criticism
or scholarship that makes an argument through the audiovisual medium
itself'' that are subsequently presented for comment and
discussion.\34\ Joint Educators also point to an increase of multimedia
criticism in the classroom, with educators ``treating film clips and
other media not as illustrations of a written argument but as evidence
and analytic tools in their own right,'' and ``build[ing] a lecture or
seminar around close analysis of scenes from documentaries, news
footage, or television dramas.'' \35\ In this rulemaking and through
their participation in previous triennial rulemakings, petitioners have
represented thousands of digital and literacy educators and/or members
supporting educators and students. Joint Educators again suggest that
the ``entire field'' of video essays or multimedia criticism ``could
not have existed in the United States without fair use and the 1201
educational exemption.'' \36\
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\34\ Joint Educators AV Educ. Renewal Pet. at 4.
\35\ Id.
\36\ Id.; see 2024 Joint Educators AV Educ. Renewal Pet. at 3
(same).
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E. Audiovisual Works--Criticism and Comment--Massive Open Online
Courses (``MOOCs'')

Joint Educators also petition to renew the exemption for motion
pictures for educational uses in MOOCs (codified at 37 CFR
201.40(b)(1)(ii)(B)).\37\ No comments opposing renewal were filed, and
BYU-Idaho filed a comment in support of renewal.\38\
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\37\ Joint Educators AV Educ. MOOCs Renewal Pet.
\38\ BYU-Idaho AV Educ. Supp.
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The petition states that instructors continue to rely on the
exemption to ``develop, provide, and improve MOOCs,'' as well as
increase the number of (and therefore access to) MOOCs, particularly in
the field of film and media studies.\39\ Joint Educators note the
impact of Professor Decherney's History of Hollywood class, which
``offers close readings of Hollywood classics like'' King Kong and
Casablanca and ``analyzes digital special effects, sound design, and
other elements of filmmaking''--reaching almost 80,000 students.\40\
The petition also states that the exemption's relevance and use has
flourished since the COVID-19 pandemic and the ``universal continuing
shift of our education systems to online learning,'' which has resulted
in increased MOOCs offerings and enrollment.\41\
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\39\ Joint Educators AV Educ. MOOCs Renewal Pet. at 4.
\40\ Id.
\41\ Id.
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F. Audiovisual Works--Criticism and Comment--Digital and Media Literacy
Programs

LCA petitions to renew the exemption for motion pictures for
educational uses in nonprofit digital and media literacy programs
offered by libraries, museums, and other nonprofits (codified at 37 CFR
201.40(b)(1)(ii)(C)).\42\ No comments opposing renewal were filed, and
BYU-Idaho filed a comment in support of renewal.\43\
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\42\ LCA AV Educ. Nonprofits Renewal Pet.
\43\ BYU-Idaho AV Educ. Supp.
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LCA, whose member associations comprise ``over 100,000 libraries in
the United States,'' states in its petition that librarians, museums,
and other nonprofit entities across the country have relied on the
current exemption and will continue to do so for their digital and
media literacy programs.\44\ Noting that LCA has participated in every
previous triennial rulemaking, including several related to this
particular exemption, the petition states that LCA has a high degree of
familiarity with the relevant standards.\45\ It states that libraries,
museums, and other nonprofit entities ``will continue to need to
circumvent technological protections so as to enable noninfringing uses
of motion pictures in their digital and literacy programs.'' \46\
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\44\ LCA AV Educ. Nonprofits Renewal Pet. at 4.
\45\ Id.
\46\ Id.
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[[Page 67792]]

G. Audiovisual Works--Captioning and Audio Description

The Association on Higher Education and Disability (``AHEAD''),
LCA, and KeriAnn Hollerud jointly petition to renew the exemption for
motion pictures for the provision of captioning and/or audio
description by disability services offices or similar units at
educational institutions for students, faculty, or staff with
disabilities (codified at 37 CFR 201.40(b)(2)).\47\ No comments were
filed opposing renewal.
---------------------------------------------------------------------------

\47\ AHEAD, LCA & Hollerud Captioning Renewal Pet.
---------------------------------------------------------------------------

Petitioners assert that students with disabilities continue to rely
on the exemption, stating that disability services professionals and
supporting entities, such as libraries, ``have used the exemption to
address the requests and concerns of students with disabilities in
attendance at their respective educational institutions to create
equitable educational experiences,'' ``ensur[ing] that students with
disabilities have access to the same advantages as their peers in the
pursuit of education.'' \48\ ``Based on their regular interaction with
those affected by the exemption,'' petitioners believe that the
circumstances justifying the exemption currently exist and will persist
for the next three years.\49\
---------------------------------------------------------------------------

\48\ Id. at 4.
\49\ Id.
---------------------------------------------------------------------------

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

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

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

LCA, which participated in the triennial rulemakings that granted
the initial and renewal exemptions, states in its petition that
``[c]ultural heritage institutions across the country have relied on
the exemption . . . to make preservation and replacement copies of the
motion pictures in their collections stored on DVDs and Blu-ray
discs.'' \51\ The petition further notes that many motion pictures in
its over 100,000 member libraries' collections ``are unavailable for
purchase or streaming'' or ``continue to deteriorate,'' demonstrating
the need to engage in such preservation efforts.\52\
---------------------------------------------------------------------------

\51\ Id. at 4.
\52\ Id.
---------------------------------------------------------------------------

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

Authors Alliance and LCA jointly petition to renew the exemption
for text and data mining (``TDM'') of motion pictures by researchers
affiliated with a nonprofit institution of higher education, or at the
direction of such researchers, for the purpose of scholarly research
and teaching (codified at 37 CFR 201.40(b)(4)).\53\ No comments were
filed opposing renewal.
---------------------------------------------------------------------------

\53\ Authors Alliance & LCA AV Text and Data Mining Renewal Pet.
---------------------------------------------------------------------------

The petition reports that this ``exemption has enabled ambitious
research agendas that have resulted in published scholarship,'' citing
a study published in PNAS analyzing diversity in Hollywood and other
ongoing projects.\54\ ``Many researchers are now actively relying on''
the exemption for their research, including those at ``large research-
intensive institutions, such as Stanford University, UC Berkeley, the
University of Chicago, [and] Dartmouth.'' \55\ Authors Alliance and LCA
claim ``an increasingly broad group of researchers from smaller and
less research-intensive institutions'' like Haverford College and
Hofstra University ``have expressed interest in using the new
exemption.'' \56\
---------------------------------------------------------------------------

\54\ Id. at 4 (citing David Bamman et al., Measuring Diversity
in Hollywood Through the Large-Scale Computational Analysis of Film,
121 Proc. Nat'l Acad. Sciences, no. 46 (Nov. 4, 2024), <a href="https://doi.org/10.1073/pnas.2409770121">https://doi.org/10.1073/pnas.2409770121</a>).
\55\ Id.
\56\ Id.
---------------------------------------------------------------------------

According to the petition, ``academic researchers need to assemble
and annotate their own research corpora,'' and will continue to need to
do so.\57\ The petition further states that the relevant case law has
not changed and although ``[c]ommercially licensed text and data mining
products continue to be made available to research institutions,'' such
products ``do not allow researchers to license the full array of films
needed to engage in the research they seek to do, and those works
remain protected from copying by'' TPMs.\58\ Finally, the petition
notes that the exemption excludes compilations licensed for
institutional TDM research.\59\
---------------------------------------------------------------------------

\57\ Id.
\58\ Id.
\59\ Id.
---------------------------------------------------------------------------

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

Authors Alliance and LCA also jointly petition to renew the
exemption for text and data mining of literary works distributed
electronically, conducted by researchers affiliated with a nonprofit
institution of higher education, for the purpose of scholarly research
and teaching (codified at 37 CFR 201.40(b)(5)).\60\ The Association of
American Publishers (``AAP'') submitted a comment in opposition.
---------------------------------------------------------------------------

\60\ Authors Alliance & LCA LW Text and Data Mining Renewal Pet.
---------------------------------------------------------------------------

This petition parallels the petition for text and data mining of
audiovisual works, submitted by the same joint petitioners.
Petitioners, who have communicated with ``well over a thousand
researchers, librarians, and other academic faculty'' as part of their
outreach to digital humanities research communities, state these
researchers are ``now actively relying on the TDM exemption in their
research.'' \61\ Petitioners assert ``[t]he exemption has contributed
to the growing field of the digital humanities . . . [and] has enabled
discrete research projects as well as the development of new research
methods.'' \62\ Acknowledging that ``[c]ommercially licensed [TDM]
products continue to be made available to research institutions,''
petitioners nonetheless state that these products do not provide
researchers access to the ``full array of texts needed'' to conduct
their research.\63\ Because researchers actively rely on the current
exemption, and because ``there are no material changes in facts, law,
technology, or other circumstances that would justify failing to renew
it,'' petitioners seek to renew the exemption in this cycle.\64\
---------------------------------------------------------------------------

\61\ Id. at 4.
\62\ Id. (citing Digital Humanities 2025: Book of Abstracts
(Gimena Riande et al. eds., 2025), <a href="https://zenodo.org/records/19494802">https://zenodo.org/records/19494802</a>).
\63\ Id.
\64\ Id.
---------------------------------------------------------------------------

AAP's comment opposing renewal contends that the previous
rulemaking

[[Page 67793]]

record has become unreliable due to factual developments.\65\ AAP first
argues that market solutions for researchers to access large corpora of
rights-cleared works have emerged in recent years, obviating the need
for circumvention and undermining the finding in past rulemakings that
researchers lack alternatives to circumvention.\66\ AAP lists several
services through which publishers offer their works for use in TDM
research, stating that a ``wide array of prominent nonprofit research
institutions of higher education have already adopted [these services]
as a library service to facilitate TDM research, including Columbia
University, University of Washington, University of Chicago, Brown
University, and University of Oxford.'' \67\ AAP also argues that the
exemption has had the unintended consequence of contributing to the use
of unlawfully acquired works for TDM, asserting that some researchers
have scraped pirate sites for TDM research, and that ``concerns that
unprotected corpora created under the exemption will be siphoned off to
train generative [artificial intelligence (`]AI[')] models'' have been
heightened.\68\
---------------------------------------------------------------------------

\65\ AAP LW Text and Data Mining Opp. at 1-2.
\66\ Id. at 2-5.
\67\ Id. at 3.
\68\ Id. at 5-8.
---------------------------------------------------------------------------

The growth in licensed options for text and data mining that AAP
describes is an important consideration to the extent that it obviates
the need for the exemption.\69\ While petitioners and opponents agree
that such growth has occurred since the last triennial rulemaking
proceeding, the evidence AAP provides relates only to a small subset of
the works used for TDM research. Even with access to the new options
AAP describes, researchers would not have access to the full array of
works currently covered by the exemption in the absence of renewal.
Accordingly, these developments do not show that the prior rulemaking
record no longer reliably supports renewal. For instance, the record
does not show that contemporary, in-copyright literary works (like mass
market fiction) are now available for licensed TDM use. In 2021, the
Register found that the research and teaching the TDM exemption
supports can require this type of works: ``But for the prohibition on
circumvention, researchers would be able to perform TDM techniques on
contemporary literary works . . . and teach those techniques in their
courses.'' \70\ Proponents explained that TDM research on literary
works had ``typically only been done on works that are in the public
domain,'' \71\ and that the inability to conduct TDM apart from public
domain texts contributed to existing biases within the field.\72\ The
Register also found that the offerings of digital libraries like
HathiTrust ``are insufficient to allow researchers to conduct [this]
type of research'' in part because of ``substantial gaps in its
collection,'' which ``contains a greater proportion of academic
monographs than mass-market fiction.'' \73\ The inability to use
contemporary literary works to teach engaging lessons on TDM was an
issue that many academics raised.\74\ The Register found that the new
exemption would ``enable professors to teach TDM techniques to students
using contemporary, diverse, and inclusive works.'' \75\ In 2024, the
Register found that the Copyright Clearance Center's RightFind service,
which licenses journal articles for text and data mining, was not a
``serious alternative to circumvention . . . due to the relatively
limited scope of the materials it licenses.'' \76\
---------------------------------------------------------------------------

\69\ The exemption excludes from its scope compilations that
were compiled specifically for TDM purposes. 37 CFR 201.40(b)(5)(i)
(stating that the exemption involves ``[l]iterary works, excluding .
. . compilations that were compiled specifically for text and data
mining purposes'').
\70\ 2021 Recommendation at 117.
\71\ Id. at 104.
\72\ 2021 Authors Alliance/American Association of University
Professors (``AAUP'')/LCA Class 7 Initial at 9 (quoting App. O at 2
(letter from Melanie Walsh)).
\73\ 2021 Recommendation at 117-18 (citing evidence that
HathiTrust has proportionally fewer romance and science fiction).
\74\ See 2021 Authors Alliance/AAUP/LCA Class 7 Initial at 31,
Apps. B-P.
\75\ 2021 Recommendation at 120.
\76\ 2024 Recommendation at 88.
---------------------------------------------------------------------------

AAP does not identify the works that the publisher and platform
offerings it cites make available for TDM research. The services it
describes--API access from Wiley, Springer Nature, and Elsevier--are
offered by scholarly and scientific publishers. Their offerings are of
the same nature as the journal article licensing the Register found
inadequate for these TDM research uses in 2024,\77\ although no doubt
enormously powerful for mining the scientific, technical, and medical
literature those publishers produce. The collection AAP describes most
specifically, the twenty-five million pages of historical archival
materials in History Vault that ProQuest recently added to its TDM
Studio product,\78\ does not supply what the prior record documented
researchers could not obtain. The valuable addition of vast amounts of
archival materials to the scholarly and scientific platforms detailed
by AAP still do not make these platforms adequate alternatives for
large swaths of the research being conducted under this exemption.\79\
---------------------------------------------------------------------------

\77\ AAP LW Text and Data Mining Opp. at 3; see 2024
Recommendation at 88.
\78\ AAP LW Text and Data Mining Opp. at 3.
\79\ See 2024 Recommendation at 88 (``credit[ing] proponents'
explanation that the licensing options identified by AAP are not
suitable for the type of research at issue'').
---------------------------------------------------------------------------

AAP's other arguments raise concerns about conduct that is outside
of the scope of the exemption. While the Office understands the
seriousness of unlawful acquisition and use of copyrighted works--and
shares in AAP's concern about such risks--the exemption is written to
specifically exclude such conduct. To the extent there is any doubt, we
reaffirm here that the exception does not permit or sanction these
types of acts.
AAP's comment does not provide support for its contention that the
exemption is ``providing inadvertent cover'' for the use of unlawfully
acquired literary works.\80\ AAP's single example, a project in which
researchers in France downloaded millions of e-books from pirate sites,
does not involve circumvention let alone rely on a 1201 exemption. The
catalog the researchers released ``reproduces no textual content from
the underlying books.'' \81\ Additionally, this project does not appear
to satisfy the exemption's requirement that works be ``lawfully
acquired and owned by the institution, or licensed to the institution
without a time limitation on access,'' \82\ as the researchers
themselves describe their work as ``harvesting and computing data from
shadow libraries.'' \83\ AAP does not argue otherwise, and it does not
contend that the project qualified for the exemption.\84\
---------------------------------------------------------------------------

\80\ AAP LW Text and Data Mining Opp. at 6.
\81\ Antoine Mazi[egrave]res & Thierry Poibeau, MajinBook: An
Open Catalogue of Digitally Mediated World Literature, 11 J.
Cultural Analytics 2, 17 (2026), <a href="https://culturalanalytics.org/article/id/1164/">https://culturalanalytics.org/article/id/1164/</a>. The researchers converted pirated e-books to text,
matched them to Goodreads records, and released a catalog listing
the matched books (not the text of the works). Additionally, the
researchers state that they did not circumvent the only
technological measures referenced--those on the Goodreads website.
See id. at 18.
\82\ 37 CFR 201.40(b)(5)(i)(B).
\83\ AAP LW Text and Data Mining Opp. at 6 (quoting
Mazi[egrave]res & Poibeau, supra note 81 at 18).
\84\ Id. & n.27. Nor do the French researchers suggest that the
1201 exemption applies to their work. Instead, they generally
reference the exemption as one of several possible lenses through
which to consider projects similar to their own. See id. (quoting
Mazi[egrave]res & Poibeau, supra note 81 at 18) (asserting that
``harvesting and computing data from shadow libraries as [they] did
can be considered through the lens of several legal frameworks: In
the EU, the above-mentioned `TDM exception', and in the U.S., the
fair use doctrine incorporated into the Copyright Act of 1976
complemented by the recent Text and Data Mining exemption to the
Digital Millennium Copyright Act (1998).''). The researchers, who
describe themselves as ``nonlegal scholars,'' go on to concede that
the application of the cited frameworks was ``beyond the scope'' of
their work. Id. at 18.

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

[[Page 67794]]

AAP's suggestion that ``unprotected corpora created under the
exemption will be siphoned off to train generative AI models,'' also
refers to risks outside the scope of the exemption.\85\ As AAP
acknowledges, circumventing TPMs to compile AI model training data sets
is permitted by the exemption. The exemption requires research
institutions to implement ``effective security measures'' to prevent
non-exempted uses and to ``limit[] access to the corpus to only''
researchers at nonprofit institutions.\86\ AAP does not identify any
instances of the security measures protecting a corpus compiled under
the exemption being breached or a corpus being used for training
generative AI. This serious but unsubstantiated possibility therefore
does not provide a basis for the Register to refuse to recommend
renewing the exemption.
---------------------------------------------------------------------------

\85\ Id. at 7.
\86\ 37 CFR 201.40(b)(5)(i)(D)-(E).
---------------------------------------------------------------------------

After reviewing the renewal petition, the opposition comment, and
the record from the previous rulemakings, the Register concludes that
the prior record provides a sufficient basis for renewal. Contrary to
AAP's assertion, Authors Alliance and LCA state in their petition that
``[c]ommercially licensed [TDM] products continue to be made available
to research institutions'' but ``these licensed products do not allow
researchers to license the full array of texts needed to engage in the
research they seek to do.'' \87\ Because the conditions that led to the
adoption of this exemption are likely to continue during the next
triennial period, the Register intends to recommend renewal.
---------------------------------------------------------------------------

\87\ Authors Alliance & LCA LW Text and Data Mining Renewal Pet.
at 4.
---------------------------------------------------------------------------

K. Literary Works--Assistive Technologies

The American Council of the Blind (``ACB''), American Foundation
for the Blind (``AFB''), and LCA (collectively ``Accessibility
Petitioners'') jointly petition to renew the exemption for literary
works or previously published musical works that have been fixed in the
form of text or notation whose technological measures interfere with
assistive technologies (codified at 37 CFR 201.40(b)(6)).\88\ No
comments were filed opposing renewal.
---------------------------------------------------------------------------

\88\ Accessibility Petitioners Assistive Technologies Renewal
Pet.
---------------------------------------------------------------------------

Petitioners advocate for individuals with print disabilities and
have direct experience with the assistive technology exemption, as they
have participated in every proceeding in which this exemption has been
considered. The petition asserts 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.\89\ Specifically,
petitioners state that ``many e-books have built-in security software
that prevents purchasers and other third parties from utilizing them
outside of publisher-designated e-book reader platforms'' and that
``[t]he availability of non-circumventing alternatives, such as
audiobook and Braille versions provided by publishers, remains
limited.'' \90\ Petitioners also note that the record underpinning the
exemption ``has stood and been re-established in the past eight
triennial reviews dating back to 2003'' and that the ``accessibility of
e-books is frequently cited as a top priority'' by its members.\91\
---------------------------------------------------------------------------

\89\ Id. at 4.
\90\ Id.
\91\ Id.
---------------------------------------------------------------------------

L. Literary Works--Medical Device Data

The Coalition of Medical Device Patients and Researchers
(``Coalition'') petition to renew the exemption covering access to
patient data on medical devices or monitoring systems (codified at 37
CFR 201.40(b)(7)).\92\ No comments were filed opposing renewal.
---------------------------------------------------------------------------

\92\ Coalition Medical Devices Renewal Pet.
---------------------------------------------------------------------------

The petition states that patients continue to need access to data
output from their medical devices to manage their health and react to
their medical data in real-time, which the current exemption
facilitates.\93\ In addition to noting their experience with the
exemption through participation in past rulemakings, petitioners
provided contemporary examples of the barriers to and need for
obtaining access to their medical devices' data outputs.\94\ One member
attests that, without the exemption, he would be unable to access
personal data recorded by his home life-support ventilator.\95\ Another
member describes how the manufacturer of her implanted defibrillator
has significantly reduced its U.S. presence over time, making it
difficult to access representatives with the expertise required to
retrieve health information from the device or to modify the device's
operation to address her changing medical needs.\96\
---------------------------------------------------------------------------

\93\ Id. at 4.
\94\ Id.
\95\ Id.
\96\ Id.
---------------------------------------------------------------------------

M. Computer Programs--Unlocking

The Recycled Materials Association (``ReMA'') petitions to renew
the exemption for computer programs that operate wireless devices, to
allow connection of the device to an alternative wireless network
(``unlocking'') (codified at 37 CFR 201.40(b)(8)).\97\ No comments were
filed opposing renewal.
---------------------------------------------------------------------------

\97\ ReMA Unlocking Renewal Pet. In 2024, the Institute of Scrap
Recycling Industries, Inc. (``ISRI'') ``rebranded itself and began
operating under a new dba, the Recycled Materials Association
(ReMA).'' Id. at 4.
---------------------------------------------------------------------------

ReMA, with over 1,700 member companies that recycle, refurbish and
repair electronic products, reports its members, who rely on the
ability to unlock cellphones for re-purposing them, continue to receive
wireless products locked to a particular wireless carrier.\98\
Moreover, ReMA notes that the number of 5G-enabled device types has
continued to grow--nearly tripling since the previous rulemaking; this
means that there are many more types of devices that may require
unlocking.\99\ ReMA states that its members continue to acquire cell
phones, tablets, and other wireless devices for reuse, but that
wireless carriers still lock devices to prevent them from being used on
other carriers.\100\
---------------------------------------------------------------------------

\98\ Id. at 4-5.
\99\ Id. at 4. ReMA has participated in these rulemaking
proceedings ``over multiple cycles.'' Id.
\100\ Id. at 4-5.
---------------------------------------------------------------------------

N. Computer Programs--Jailbreaking

The Office received multiple petitions to renew the four exemptions
that permit enabling electronic devices to interoperate with or to
remove software

[[Page 67795]]

applications (``jailbreaking'') (codified at 37 CFR 201.40(b)(9)-
(12)).\101\ No comments opposing renewal were filed.
---------------------------------------------------------------------------

\101\ These exemptions permit circumvention for the purpose of
jailbreaking (1) smartphones and other portable all-purpose
computing devices, (2) smart televisions, (3) voice assistant
devices, and (4) routers and dedicated networking devices. See
Electronic Frontier Foundation (``EFF'') Smartphone and Portable
All-Purpose Mobile Computing Device Jailbreaking Renewal Pet.; EFF
Smart TVs Jailbreaking Renewal Pet.; Software Freedom Conservancy
(``SFC'') Smart TVs Jailbreaking Renewal Pet.; EFF Voice Assistant
Devices Jailbreaking Renewal Pet.; SFC Routers and Dedicated Network
Devices Jailbreaking Renewal Pet.
---------------------------------------------------------------------------

The renewal petitions provide evidence of the continuing need and
justification for the four jailbreaking exemptions. Regarding
smartphones and other portable mobile computing devices, EFF asserts
that it ``heard from many device users who currently rely on the
jailbreaking exemption and anticipate continuing to rely on the
exemption in the future'' for uses such as installing an alternative
operating system, maintaining functionality of older devices, and
installing custom applications developed outside of official app store
processes.\102\ As to smart televisions, SFC states that ``at least one
Smart TV platform (SmartCast) ship[s] to the consumer in a `locked'
format, which prevent[s] users from loading third-party software to
enable interoperability.'' \103\ As to voice assistant devices, EFF
explains some users of voice assistant devices wish to expand the
devices' functionality by installing updated software, or by installing
``privacy-first'' software alternatives to limit personal data
collection.\104\ Lastly as to routers, SFC states that based on its
observations, there is a continued need to install alternative firmware
and security updates to improve reliability, enable new functionality,
and install licensed software on networking devices.\105\
---------------------------------------------------------------------------

\102\ EFF Smartphone and Portable All-Purpose Mobile Computing
Device Jailbreaking Renewal Pet. at 4.
\103\ SFC Smart TVs Jailbreaking Renewal Pet. at 4. The Office
notes that SFC filed a highly similar renewal petition in the 2024
rulemaking proceeding. See 2024 SFC Smart TVs Jailbreaking Renewal
Pet. If petitioner seeks renewal in future proceedings, the Office
suggests that they provide additional information on current
consumer interests as stated in the petition. See SFC Smart TVs
Jailbreaking Renewal Pet. at 4 (citing to a now defunct SamyGO forum
dedicated to ``custom Samsung TV firmware''); see also NOI at 34797
n.19.
\104\ EFF Voice Assistant Devices Jailbreaking Renewal Pet. at
4.
\105\ SFC Routers and Dedicated Network Devices Jailbreaking
Renewal Pet. at 4.
---------------------------------------------------------------------------

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

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

Both MEMA, The Vehicle Suppliers Association (``MEMA'') and the
Specialty Equipment Market Association (``SEMA'') file petitions to
renew the exemption for computer programs that control motorized land
vehicles, marine vessels, or mechanized agricultural vehicles or
vessels for purposes of diagnosis, repair, or modification of the
vehicle or vessel function (codified at 37 CFR 201.40(b)(13)).\106\
---------------------------------------------------------------------------

\106\ MEMA Vehicle or Vessel Repair Renewal Pet.; SEMA Vehicle
or Vessel Repair Renewal Pet.
---------------------------------------------------------------------------

MEMA, representing manufacturers of replacement vehicle parts,
tools, diagnostics, and technologies, states that ``completing a repair
increasingly requires re-programming or configuring a replacement part
so that it can communicate with the vehicle's electronic systems,''
which cannot be accomplished without circumventing a TPM.\107\ SEMA,
representing businesses that manufacture, distribute, supply, and sell
specialty motor vehicle parts, states that the continued yearly
technological advancements in vehicles makes the exemption ``even more
critical for vehicle owners who work on their own vehicles and the
service professionals they hire to diagnose, repair, customize, and
modify their vehicles.'' \108\ Both petitioners have participated in
prior proceedings concerning this exemption.
---------------------------------------------------------------------------

\107\ MEMA Vehicle or Vessel Repair Renewal Pet. at 4.
\108\ SEMA Vehicle or Vessel Repair Renewal Pet. at 4.
---------------------------------------------------------------------------

The Alliance for Automotive Innovation (``Auto Innovators'')
submitted a comment that does not oppose renewal of the exemption but
raises concerns with the MEMA and SEMA petitions. Auto Innovators
comments that MEMA and SEMA ``mischaracterize the scope of the existing
exemption and appear to argue for an expanded exemption'' that would
apply to activities that are prohibited by section 1201's anti-
trafficking provisions.\109\ Petitioners' ``suggestions that the
existing exemption permits third-party repair shops to circumvent
access controls on vehicle software in order to provide commercial
repair services are incorrect,'' Auto Innovators asserts, because such
activity is ``indisputably trafficking in an unlawful service under
[s]ections 1201(a)(2) and (b).'' \110\
---------------------------------------------------------------------------

\109\ Auto Innovators Vehicle or Vessel Repair Opp. at 1.
\110\ Id. at 2.
---------------------------------------------------------------------------

The Register has addressed the relationship between this exemption
and the anti-trafficking provisions, including issues with third-party
assistance, in previous rulemaking cycles.\111\ In 2018, the Acting
Register declined to express any ``view as to whether particular
examples of assistance do or do not constitute unlawful circumvention
services''--specifically, ``whether vehicle or other repair services
may run afoul of the anti-trafficking provisions when engaging in
circumvention on behalf of customers.'' \112\ The Register reaffirmed
this position in subsequent rulemakings.\113\ As she observed then, the
Librarian's authority under section 1201(a)(1) to grant exemptions to
the anti-circumvention provisions ``does not extend to the anti-
trafficking provisions.'' \114\ Only Congress may expressly exempt
activities that might constitute trafficking.\115\ Because the legal
circumstances have not materially changed since she last considered
these issues, and cognizant of the scope of the Librarian's rulemaking
authority, the Register finds no reason to revisit the relationship
between third-party assistance and the anti-trafficking provisions.
Moreover, reconsidering these issues would fall outside the scope of
the streamlined renewal procedure, in which ``[o]nly petitions
requesting renewal of current exemptions as currently written in the
Code of Federal Regulations, without modification, may be considered.''
\116\
---------------------------------------------------------------------------

\111\ See 2018 Recommendation at 222-25; 2021 Recommendation at
230.
\112\ 2018 Recommendation at 225.
\113\ See 2021 Recommendation at 230 (adhering to the Office's
2018 position on third-party assistance); 85 FR 65293, 65299-300
(Oct. 15, 2020) (same); cf. 2024 Recommendation at 201-03
(recommending the Librarian adopt an exemption to allow lawful
owners or lessees, or those acting on their behalf, to access,
store, and share vehicle operational and telematics data while
``tak[ing] no position as to whether any particular act of
circumvention by third parties on an owner's or lessee's behalf
would implicate the section 1201(b) prohibition on trafficking'').
\114\ 2021 Recommendation at 230.
\115\ To this end, members have introduced legislation that
would permit third-party assistance (as well as provision of tools)
for particular uses, like farm equipment repair. See FARM Act, H.R.
5857, 119th Cong. (2025); FARM Act, S.3068, 119th Cong. (2025). The
Office has expressed support for a statutory change to facilitate
the provision of assistance to exemption beneficiaries in
appropriate circumstances. See Section 1201 Study at 59-60.
\116\ 2026 NOI at 34797.
---------------------------------------------------------------------------

Based on the information provided in the renewal petitions
pertaining to the

[[Page 67796]]

current exemption and the lack of meaningful opposition to its renewal,
the Office concludes that the conditions that led to the adoption of
this exemption are likely to continue during the next triennial period.
Accordingly, the Register intends to recommend renewal.

P. Computer Programs--Vehicle or Vessel Operational Data

Multiple organizations petition to renew the exemption for computer
programs that control motorized land vehicles, marine vessels,
commercial vehicles or vessels, or mechanized agricultural vehicles or
vessels for purposes of accessing, storing, and sharing operational
data (codified at 37 CFR 201.40(b)(14)).\117\ ReMA submitted a comment
in support of renewal \118\ and the Auto Innovators submitted a comment
opposing renewal.\119\
---------------------------------------------------------------------------

\117\ Auto Care Association (``ACA'') Vehicle or Vessel Data
Renewal Pet.; iFixit Vehicle or Vessel Data Renewal Pet.; MEMA
Vehicle or Vessel Data Renewal Pet.; SEMA Vehicle or Vessel Data
Renewal Pet.
\118\ ReMA Vehicle or Vessel Data Supp.
\119\ Auto Innovators Vehicle or Vessel Data Opp.
---------------------------------------------------------------------------

Auto Care Association (``ACA'') states that ``[n]ew vehicles
increasingly rely on access to operational data that may be stored on
the vehicle or accessible electronically.'' \120\ iFixit explains that
exemption beneficiaries need access to vehicles' operational data for
several reasons, including ``to understand equipment condition,
anticipate service needs, compare performance, and share information
with independent repair providers.'' \121\ Likewise, MEMA states that
TPMs ``restrict access to electronic control units,'' preventing
``vehicle owners and lessees from accessing non-copyrightable data that
they themselves generate when driving,'' leaving drivers unable to
``share service alerts, vehicle performance metrics, or driving records
with their preferred service provider, aftermarket parts manufacturer,
or insurance company.'' \122\ SEMA similarly asserts that as vehicles
are increasingly integrated with software that ``controls the parts and
operation of the vehicle,'' ``[t]elematics data is increasingly
important to automotive parts manufacturers, including aftermarket
parts suppliers and developers of aftermarket technologies that rely on
[this] data to troubleshoot issues, support repairs, validate component
performance, develop predictive maintenance solutions, and offer fleet
optimization services.'' \123\
---------------------------------------------------------------------------

\120\ ACA Vehicle or Vessel Data Renewal Pet. at 4.
\121\ iFixit Vehicle or Vessel Data Renewal Pet. at 4.
\122\ MEMA Vehicle or Vessel Data Renewal Pet. at 4.
\123\ SEMA Vehicle or Vessel Data Renewal Pet. at 4.
---------------------------------------------------------------------------

Petitioners participated in the previous rulemaking regarding this
exemption or represent or have gathered information from individuals,
professionals, or organizations in the vehicle repair industry or that
manufacture, distribute, supply, and sell motor vehicle parts.\124\
---------------------------------------------------------------------------

\124\ MEMA Vehicle or Vessel Data Renewal Pet. at 4; SEMA
Vehicle or Vessel Data Renewal Pet. at 4.
---------------------------------------------------------------------------

Auto Innovators does not oppose renewal of the existing exemption,
but commented to express concerns that ACA, MEMA, and SEMA misstate the
exemption's scope in their renewal petitions.\125\ Specifically, Auto
Innovators object to petitioners' suggestions that the current
exemption extends to ``unlawful trafficking in circumvention tools or
the unlawful provision of circumvention services by third-party
servicers.'' \126\ As explained in Section O above, the Office declines
to reconsider the relationship between third-party assistance and the
anti-trafficking provisions in the context of the streamlined renewal
procedure. The same applies to the provision on circumvention tools,
which the Office has also previously addressed. In prior rulemakings,
the Register declined to exempt the distribution or dissemination of
circumvention tools in furtherance of uses found to be noninfringing;
\127\ and the law has not materially changed since. In any event,
irrespective of how an exemption may be characterized in the renewal
petitions or in comments in support or opposition, for purposes of
renewal, its scope is defined by the text currently codified in the
Code of Federal Regulations.
---------------------------------------------------------------------------

\125\ Auto Innovators Vehicle or Vessel Data Opp. at 1-3.
\126\ Id. at 2-3.
\127\ See, e.g., 2024 Recommendation at 154; 2021 Recommendation
at 230; 2018 Recommendation at 225-26.
---------------------------------------------------------------------------

Based on the information provided in the renewal petitions and the
lack of meaningful opposition to the current exemption, the Office
concludes that the conditions that led to the adoption of this
exemption are likely to continue during the next triennial period.
Accordingly, the Register intends to recommend renewal.

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

iFixit petitions to renew the exemption for computer programs that
control devices designed primarily for use by consumers for diagnosis,
maintenance, or repair of the device (codified at 37 CFR
201.40(b)(15)).\128\ No comments were filed opposing renewal.
---------------------------------------------------------------------------

\128\ iFixit Device Repair Renewal Pet. ImageOne Medical Group,
LLC (``ImageOne'') submitted a renewal petition, selecting the radio
button for the current consumer device repair exemption. See
ImageOne Device Repair Renewal Pet. at 3. However, its petition
explicitly states that it intended to renew the medical device
repair exemption, discussed below. See id. at 4; infra Section II.S
(discussing renewal petitions pertaining to the repair of medical
devices and systems).
---------------------------------------------------------------------------

iFixit, based on its repair work and information-gathering from
device owners and independent technicians, asserts that the need for
the exemption continues, as ``[s]oftware and access controls remain
integral to smartphones, computers, home appliances, game consoles, and
other devices.'' \129\ For example, iFixit explains that diagnosis and
repair of appliances may ``require entering a restricted service mode
to read fault codes, test components, or clear an error after a
physical repair.'' \130\
---------------------------------------------------------------------------

\129\ iFixit Device Repair Renewal Pet. at 4.
\130\ Id.
---------------------------------------------------------------------------

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

R. Computer Programs--Repair of Retail-Level Commercial Food
Preparation Equipment

Public Knowledge and iFixit jointly petition to renew the exemption
for computer programs that control retail-level commercial food
preparation equipment for purposes of diagnosis, maintenance, or repair
of the device (codified at 37 CFR 201.40(b)(16)).\131\ No comments were
filed opposing renewal.
---------------------------------------------------------------------------

\131\ Public Knowledge & iFixit Retail-Level Commercial Food
Preparation Equipment Repair Pet.
---------------------------------------------------------------------------

Petitioners, proponents of the exemption in the last proceeding,
state that regulatory trends have ``spurred growth of `smart' food
preparation equipment'' and contend that this trend will continue in
the coming years.\132\ Petitioners, based on ``regular consultation
with those impacted by the exemption,'' contend that manufacturers can
adversely affect device owners and independent repair technicians by
preventing them from engaging in repair of commercial food preparation
equipment.\133\
---------------------------------------------------------------------------

\132\ Id. at 4.
\133\ Id.
---------------------------------------------------------------------------

Based on the information provided in the renewal petition and the
lack of opposition, the Office concludes that

[[Page 67797]]

the conditions that led to the adoption of this exemption are likely to
continue during the next triennial period. Accordingly, the Register
intends to recommend renewal.

S. Repair of Medical Devices and Systems

The Office received multiple petitions to renew the exemption to
access computer programs that are contained in and control the
functioning of medical devices or systems, and related data files, for
diagnosis, maintenance, or repair (codified at 37 CFR
201.40(b)(17)).\134\ One comment was filed in support of the renewal
petitions; \135\ four comments were filed in opposition.\136\
---------------------------------------------------------------------------

\134\ See Brown's Medical Imaging (``BMI'') Medical Device
Repair Renewal Pet.; Caylor Equipment Services (``Caylor'') Medical
Device Repair Renewal Pet.; Crothall Facilities Management, Inc.
(``Crothall'') Medical Device Repair Renewal Pet.; East Coast
Medical Systems (``ECMS'') Medical Device Repair Renewal Pet.;
iFixit Medical Device Repair Renewal Pet.; ImageOne Medical Device
Repair Renewal Pet. (On its renewal petition, ImageOne selected the
radio button for the current consumer device repair exemption; this
selection appears to be in error as the narrative portion of the
petition explicitly refers to the medical device repair exemption.
Accordingly, the Office treats ImageOne's petition as a renewal of
the medical device repair exemption.); Shannon Medical Device Repair
Renewal Pet.; Trimedx Holdings, LLC (``Trimedx'') Medical Device
Repair Renewal Pet. Marshall Shannon, after experiencing technical
issues with submitting the petition forms provided by the Office,
timely submitted a ``Petition to Renew and Supporting Statement and
Petition for a New or Modified Exemption for Medical-Device
Diagnosis, Installation, Maintenance, Repair, Calibration, and
Return to Service.'' To the extent that Shannon's submission seeks
to renew the existing exemption as currently written in the Code of
Federal Regulations, without modification, the Office considers it
as a renewal petition. See NOI at 34797. The Office will consider
portions of Shannon's submission that seek ``clarification or a
modified exemption'' as a petition for an expanded exemption. In
addition, Trimedx lists ``regulatory compliance'' among the purposes
covered by the existing exemption. Trimedx Medical Device Repair
Renewal Pet. at 4. Because that use is not expressly covered by the
exemption, however, the Office will not evaluate it under the
renewal procedure and instead will consider it as a proposed
expansion. See infra Section III.H (discussing Proposed Class 8:
Computer Programs--Repair).
\135\ AMT Imaging Solutions LLC Medical Device Repair Supp.
\136\ AdvaMed Medical Device Repair Opp. #1; Joint Creators
Medical Device Repair Opp.; Philips Medical Device Repair Opp.
AdvaMed submitted an additional comment opposing the proposed
expansion of the medical device repair exemption in Shannon's
medical device repair petition. See AdvaMed Medical Device Repair
Opp. #2.
---------------------------------------------------------------------------

Seven of the eight petitions assert a continuing need and
justification for the exemption.\137\ For example, BMI, Caylor, and
ECMS assert that the exemption is both ``critical'' and essential to
timely diagnosing and completing the necessary maintenance and repairs
of medical devices.\138\ ECMS explains that ``[a]ccess to software
functions, diagnostic information, system logs, error logs, and other
related data files is often necessary to identify the cause of
equipment failures and to perform appropriate maintenance and
repairs.'' \139\ iFixit asserts that ``[l]awfully acquired medical
devices and systems remain dependent on embedded software, diagnostic
programs, calibration functions, configuration data, and related data
files'' that must be accessed to complete the required diagnosis
maintenance and repair.\140\ ImageOne states that ``[p]assword-
protected diagnostic software and restricted access to error logs and
service data files routinely interfere with timely diagnosis and
repair,'' noting certain types of repairs ``require direct access to
software-generated error logs to accurately isolate the failure and
complete repair without unnecessary downtime.'' \141\ According to
Marshall Shannon, ``[m]odern medical devices cannot be safely installed
or serviced without interacting with embedded software, service modes,
configuration files, logs, certificates, credentials, and diagnostic
utilities.'' \142\ Trimedx reports that it relies on the current
exemption to repair medical systems and describes a recent incident
where TPMs ``prevented access to [the] necessary software keys
required'' to repair a device, which left it ``to choose between
accepting [manufacturer]-only servicing at inflated costs or leaving
the device inoperable''; resolution only occurred after ``extended
negotiations'' between Trimedx and the manufacturer.\143\ Petitioners
have personal knowledge of and experience with this exemption; each
either repairs, maintains, services, or sells medical systems and
devices, or represents or consults with entities or individuals that
repair, maintain, service, or sell medical systems and devices.
---------------------------------------------------------------------------

\137\ An eighth petition, submitted by Crothall, did not meet
the Office's requirements for renewal petitions. While the Office
requires ``a brief explanation summarizing the basis for claiming a
continuing need and justification for the exemption,'' NOI at 34797,
Crothall's petition, which is substantively identical to its renewal
petition submitted in the last cycle, see 2024 Crothall Medical
Device Repair Renewal Pet., contains only two brief sentences
stating that its ability to service medical devices ``can be
impacted'' by software restrictions. See Crothall Medical Device
Repair Renewal Pet. at 4 (``[Crothall's] ability to service a device
without using the installed software and data files can be impacted
by software access. Access to software error logs is a critical
function in the optimal diagnosis, maintenance, and repair of
devices.''). Similarly to the last cycle, because other petitioners
provide the required information for renewal to be considered,
Crothall's petition is not discussed further.
\138\ BMI Medical Device Repair Renewal Pet. at 4; Caylor
Medical Device Repair Renewal Pet. at 4; ECMS Medical Device Repair
Renewal Pet. at 4.
\139\ ECMS Medical Device Repair Renewal Pet. at 4.
\140\ iFixit Medical Device Repair Renewal at 4.
\141\ ImageOne Medical Device Repair Renewal at 4.
\142\ Shannon Medical Device Repair Renewal at 3.
\143\ Trimedx Medical Device Repair Renewal Pet. at 4.
---------------------------------------------------------------------------

AMT Imaging Solutions, an independent service organization that
services medical equipment, concurs with petitioners that the need for
the exemption continues. It comments that ``[w]ithout the ability to
lawfully access [embedded medical device software] programs and files
for diagnosis, maintenance, and repair, hospitals and imaging centers
lose a competitive service option, and patients face longer downtime
when equipment fails.'' \144\ In addition, AMT Imaging Solutions cites
the D.C. Circuit's recent decision in Medical Imaging & Technology
Alliance v. Library of Congress (``MITA'') as ``confirm[ation] that the
exemption was lawfully adopted.'' \145\
---------------------------------------------------------------------------

\144\ AMT Imaging Solutions Medical Device Repair Supp.
\145\ Id. (citing Med. Imaging and Tech. All. v. Libr. of Cong.
(``MITA''), No. 25-5328, slip op. at 12 (D.C. Cir. Sep. 1, 2026)).
---------------------------------------------------------------------------

Comments opposing renewal of the medical device repair exemption
assert that, contrary to petitioners' statements, the rulemaking record
from prior proceedings no longer serves as a valid or reliable basis
for readopting the current exemption.\146\ AdvaMed and Philips present
legal and factual developments as evidence supporting ``meaningful
opposition'' to renewal.
---------------------------------------------------------------------------

\146\ AdvaMed Medical Device Repair Opp. #1 at 2-4; Philips
Medical Device Repair Opp. at 1-2.
---------------------------------------------------------------------------

AdvaMed and Philips both cite the recent D.C. Circuit opinion in
MITA as a new legal development affecting the scope of the current
exemption and the fair use analysis.\147\ Although the court affirmed
dismissal of their challenge to the exemption, AdvaMed notes that the
D.C. Circuit, like the Library of Congress and the Office, declined to
address any alleged distinction between ``repair software'' and
``clinical-operation software'' because ``[a]ppellants did not
demonstrate before the agency the existence of this distinction that it
now presses.'' \148\ The court observed that, based on its review of
the administrative record, opponents of the exemption addressed this
``possible distinction only in vague terms and provide[d] no

[[Page 67798]]

supporting evidence.'' \149\ Philips also stresses this distinction and
claims that MITA ``established the disputed scope of the exemption'' as
covering ``clinical operational software'' but not ``separately
protected service software.'' \150\ Philips further contends that
arguments made in the case ``highlighted the night-and-day difference
between the fair use analysis for clinical operational software on the
one hand and service software on the other.'' \151\
---------------------------------------------------------------------------

\147\ AdvaMed Medical Device Repair Opp. #1 at 3, 5-7; Philips
Medical Device Repair Opp. at 5.
\148\ AdvaMed Medical Device Repair Opp. #1 at 3 (citing MITA,
slip op. at 13-15).
\149\ Id. (citing MITA, slip op. at 15).
\150\ Philips Medical Device Repair Opp. at 1.
\151\ Id.; see AdvaMed Medical Device Repair Opp. #1 at 5-7
(commenting that the MITA court analyzed fair use only with respect
to ``Clinical Operating Software'' and that this analysis is
different for ``Servicing Works'').
---------------------------------------------------------------------------

These commenters also offer factual evidence that was not presented
in prior rulemakings to argue that the administrative record, for
purposes of streamlined renewal, is no longer sufficient. AdvaMed's
submission includes ``first-hand evidence from medical device
manufacturers'' in the form of sworn declarations from executives with
``expert knowledge and operational responsibility for the servicing of
their company's medical devices.'' \152\ These declarations, AdvaMed
asserts, establish three facts absent from the administrative record
from prior rulemakings. Specifically, they allege: (1) there are three
categories of copyrighted works at issue and that ``System Servicing/
Diagnostic Software'' and ``Maintenance-Related Documentation'' are
works distinct from ``Clinical Operation Software''; (2) different TPMs
protect these categories of works; and (3) manufacturers license and
commercially exploit servicing materials separately from the sale or
lease of a medical device.\153\ Philips, in describing its own
products, similarly states that there are distinct types of medical
device software that are protected by different TPMs.\154\
---------------------------------------------------------------------------

\152\ AdvaMed Medical Device Repair Opp. #1 at 3-5, 7-17, Exs.
A-E.
\153\ Id.
\154\ Philips Medical Device Repair Opp. at 3, Ex. A (Jacqueline
Dickson Decl.).
---------------------------------------------------------------------------

In addition to providing evidence to challenge the basis for re-
adopting the current exemption, AdvaMed and Philips assert that the
petitions fall short of the standard for renewal. AdvaMed details
specific deficiencies with each petition, both procedural (e.g.,
missing a legible name or signature, wrong exemption selected on
petition form) and substantive (e.g., failure to show personal
knowledge or experience of adverse effects).\155\ Philips faults all of
the petitions for ``describing a need for service works as opposed to
clinical operational software'' because they ``seek to renew an
exemption that was never intended to cover the precise works they wish
to access.'' \156\
---------------------------------------------------------------------------

\155\ AdvaMed Medical Device Repair Opp. #1 at 20-24.
\156\ Philips Medical Device Repair Opp. at 6-7.
---------------------------------------------------------------------------

Finally, all four comments opposing renewal object to the
consideration of proposals that would expand the current exemption
under the streamlined renewal procedure. As noted above, Shannon seeks
``clarification or a modified exemption'' and Trimedx's petition
includes ``regulatory compliance of [medical] devices'' among the
proposed uses. Opponents state that, to the extent that these petitions
propose activity that exceeds the scope of the current exemption, it is
inappropriate for the Office to evaluate such uses without affording
affected persons the opportunity to provide notice and comment.\157\
---------------------------------------------------------------------------

\157\ AdvaMed Medical Device Repair Opp. #1 at 24-28; AdvaMed
Medical Device Repair Opp. #2; Joint Creators Medical Device Repair
Opp. at 2; Philips Medical Device Repair Opp. at 7-8.
---------------------------------------------------------------------------

The Office may recommend renewal of a current exemption under the
streamlined process where it determines that a petitioner has made a
minimal showing that the record supporting the exemption remains
representative of current legal and factual circumstances. This minimal
showing, however, can be overcome by ``meaningful opposition.'' \158\
Meaningful opposition may be established with ``evidence that the prior
rulemaking record is no longer a valid basis to support recommending
renewal of an exemption.'' \159\ Specifically, evidence should consist
of new legal or factual developments that address ``the reliability of
the previously[ ]analyzed administrative record.'' \160\
---------------------------------------------------------------------------

\158\ NOI at 34797.
\159\ Id. (quoting 88 FR 37486, 37488 (June 8, 2023)).
\160\ Id. at 34797-98 (quoting 85 FR at 65295).
---------------------------------------------------------------------------

The Office has reviewed participants' submissions and finds that
the new evidence and arguments provided in the opposition comments
collectively amount to meaningful opposition. While petitioners
provided evidence that diagnosis, maintenance, and repair of medical
devices and systems continue to be adversely affected by the
prohibition against circumvention, the opposition comments include new
evidence and arguments that may cast uncertainty on the current
reliability of the existing administrative record. They provide
evidence of different types of medical device software that are
configured differently depending on the purpose of the software and, in
some cases, may not be stored on the device. That evidence raises
questions about whether the scope of the current exemption, which
permits circumvention to access ``[c]omputer programs that are
contained in and control the functioning of'' those devices, is defined
with sufficient specificity.\161\
---------------------------------------------------------------------------

\161\ 37 CFR 201.40(b)(17).
---------------------------------------------------------------------------

Further, opponents' new evidence bears on the fact-specific fair
use analysis and the statutory factors for adverse effects
determinations. Although opponents cite the MITA decision as a ``new
legal development,'' the D.C. Circuit's opinion, like the Supreme
Court's decision in Andy Warhol Found. for the Visual Arts v. Goldsmith
(``Warhol''), did not change the legal framework for analyzing the
proposed uses.\162\ Indeed, after considering the legal analysis in
prior rulemakings, the court concluded that ``the Librarian's adoption
of the medical device repair exemption was lawful, reasonable, and
supported by `thorough and well-reasoned explanations from the Eighth
and Ninth Triennial Rulemaking procedures.' '' \163\ Nevertheless, the
opinion highlighted a disputed factual issue that could affect the
section 1201 analysis, i.e., opponents' contention ``that there is a
distinct body of repair software independent from the clinical-
operation software and that it occupies its own standalone market.''
\164\ While the court rightly rejected this assertion because
appellants ``made no such record in the rulemaking process or before
the district court,'' \165\ opponents have appropriately raised it
here. The comments outlining these factual developments and their legal
significance therefore constitute meaningful opposition.\166\
---------------------------------------------------------------------------

\162\ See 2024 Recommendation at 38 (rejecting arguments that
Warhol amounted to an intervening change in the law that undermined
the validity of the medical device repair exemption).
\163\ MITA, slip op. at 12.
\164\ Id. at 13.
\165\ Id.
\166\ Because the Office has determined that medical device
repair is ineligible for the streamlined renewal procedure and will
instead evaluate the exemption after seeking notice and comment, the
Office need not determine whether any renewal petitions would
inappropriately expand the exemption. NOI at 34797-98; see also 88
FR at 37487 (explaining that when current exemptions are not
recommended for renewal, the petition ``automatically convert[s]
into a petition for a new exemption,'' that proceeds through three
rounds of public comment). All medical device repair petitions and
comments, pertaining to both the existing exemption and proposed
expansions, will be considered together as part of a single proposed
class.

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

[[Page 67799]]

In light of this finding, to fully consider whether the basis for
the current medical device repair exemption remains sound, as well as
whether it should be modified or expanded, the Office will evaluate all
the proposed repair-related uses of copyrighted works on medical
devices and systems together as a potential new exemption in the public
comment phase.\167\ This process will allow participants to develop a
new administrative record for medical device repair by submitting
comments and participating in a public hearing.\168\ It will also
promote administrative efficiency in considering the scope of the
proposed exemption as both opponents and some petitioners seek
clarification about its breadth. The Office has therefore included the
current exemption in its analysis and classification of proposed new or
expanded exemptions as Proposed Class 8: Computer Programs--Repair,
below.\169\
---------------------------------------------------------------------------

\167\ NOI at 34797.
\168\ See AdvaMed Medical Device Repair Opp. #1 at 3 (proposing
that the Office deny streamlined renewal of the exemption as written
and instead ``carry the question forward into the public comment
phase where a record can be built''); Philips Medical Device Repair
Opp. at 2, 8 (``[T]he Copyright Office should decline to renew the
exemption under the streamlined procedure and require proponents to
develop a disaggregated record in a full rulemaking that provides
particularized fair use analysis for each distinct category of
copyrighted work residing on medical devices.'').
\169\ See infra Section III.H (discussing Proposed Class 8:
Computer Programs--Repair).
---------------------------------------------------------------------------

T. Computer Programs--Security Research

Multiple organizations and security researchers petition to renew
the exemption permitting circumvention for purposes of good-faith
security research (codified at 37 CFR 201.40(b)(18)).\170\ No comments
were filed opposing renewal.
---------------------------------------------------------------------------

\170\ Blaze & Bellovin Security Research Renewal Pet.; MEMA
Security Research Renewal Pet.; Specter Security Research Renewal
Pet.; SFC Security Research Renewal Pet.
---------------------------------------------------------------------------

Professor Michael Specter states that security researchers ``play a
vital role'' in cybersecurity, as ``vulnerability disclosure and
remediation are key to securing existing infrastructure.'' \171\
Professors Matt Blaze and Steven Bellovin assert that an exemption is
necessary not only because they have personal knowledge of security
researchers who rely on the exemption but that ``during the last three
years, one of us has continued to be impacted by threats of prospective
litigation from copyright holders in connection with his security
research on software in voting systems.'' \172\ Additionally, MEMA
explains that the exemption is needed because it enables its members
and other beneficiaries ``to develop and test aftermarket parts,
diagnostic tools, and service equipment with full knowledge of
potential security implications'' that may otherwise go undetected,
putting vehicle owners and the public at risk.\173\ SFC states that the
exemption continues to be used by ``privacy and security researchers
who investigate and publish information about privacy [ ] flaws in
computing devices'' and ``individual consumers and hobbyists who wish
to prevent their private data from being disclosed by the devices they
own.'' \174\
---------------------------------------------------------------------------

\171\ Specter Security Research Renewal Pet. at 4.
\172\ Blaze & Bellovin Security Research Renewal Pet. at 4.
\173\ MEMA Security Research Renewal Pet. at 4.
\174\ SFC Security Research Renewal Pet. at 4.
---------------------------------------------------------------------------

U. Computer Programs--Video Game Preservation

LCA, Dan Elkins, and Ken Austin petition to renew the exemption for
individual play by gamers and preservation of video games by a library,
archives, or museum for which outside server support has been
discontinued, and preservation by a library, archives, or museum of
discontinued video games that never required server support (codified
at 37 CFR 201.40(b)(19)).\175\ No comments were filed opposing renewal.
---------------------------------------------------------------------------

\175\ LCA Abandoned Video Games Renewal Pet.; Elkins Abandoned
Video Games Renewal Pet.; Austin Abandoned Video Games Renewal Pet.
---------------------------------------------------------------------------

According to the LCA petition, the exemption ``has had continuing
utility for video game preservation by libraries, archives, and
museums'' and will continue to be needed in the future because
``[s]ubstantial numbers of historic video games were published with
[TPMs] in place, and digital preservation is an ongoing, iterative
process.'' \176\ LCA asserts the exemption has become a ``crucial
tool'' in these institutions' ``ongoing efforts to save digital game
culture before it disappears.'' \177\ LCA petitioned for this exemption
during the 2018 triennial rulemaking and has petitioned for its renewal
in each subsequent rulemaking.\178\ Elkins states that owners of
lawfully acquired videogames, like himself, ``remain exposed to the
continuing risk that authentication or server dependencies can prevent
access to [the] functionality of software they lawfully acquired,''
such as when a videogame developer stopped supporting an original
version of a game for online use that he purchased.\179\ Austin also
attests that he has games ``with [digital rights management (``DRM'')]
that can no longer authenticate due to defunct online servers'' and
without the exemption, he cannot access the games to restore
playability, ``despite the fact [he] lawfully acquired them.'' \180\
These two individual petitioners possess personal knowledge and
experience relevant to the exemption's provisions.
---------------------------------------------------------------------------

\176\ LCA Abandoned Video Games Renewal Pet. at 4.
\177\ Id.
\178\ Id.
\179\ Elkins Abandoned Video Games Renewal Pet. at 4.
\180\ Austin Abandoned Video Games Renewal Pet. at 4.
---------------------------------------------------------------------------

V. Computer Programs--Software Preservation

LCA petitions to renew the exemption for computer programs, other
than video games, for the preservation of computer programs and
computer program-dependent materials by libraries, archives, and
museums (codified at 37 CFR 201.40(b)(20)).\181\ No comments were filed
opposing renewal.
---------------------------------------------------------------------------

\181\ LCA Software Preservation Renewal Pet.
---------------------------------------------------------------------------

LCA states that libraries, archives, and museums continue to need
and rely on the exemption to preserve and curate software and materials
dependent on software, which is ``an ongoing [and] iterative process.''
\182\ For example, it explains that ``[s]ubstantial numbers of computer
programs were published with [TPMs] in place,'' and that ``[r]esearch
interest in preserved software will only grow as scholars and students
become increasingly aware of the research value of these materials.''
\183\ On behalf of its members who rely on this exemption, LCA has
participated in previous triennial rulemaking proceedings, petitioning
for the adoption and renewal of this exemption.\184\
---------------------------------------------------------------------------

\182\ Id. at 4.
\183\ Id.
\184\ Id.
---------------------------------------------------------------------------

Based on the information provided in the renewal petition and the
lack of opposition, the Office concludes that

[[Page 67800]]

the conditions that led to the adoption of this exemption are likely to
continue during the next triennial period. Accordingly, the Register
intends to recommend renewal.

W. Computer Programs--3D Printing

Michael Weinberg petitions to renew the exemption for computer
programs that operate 3D printers to allow use of alternative material
(codified at 37 CFR 201.40(b)(21)).\185\ No comments were filed
opposing renewal.
---------------------------------------------------------------------------

\185\ Weinberg 3D Printers Renewal Pet.
---------------------------------------------------------------------------

Weinberg, who has participated in each triennial rulemaking in
which this exemption has been considered, declares that he has been
``involved with the 3D printing community and industry for over a
decade.'' \186\ The petition asserts that while 3D printer
manufacturers ``continue to use TPMs to limit the types of materials
used in printers,'' the current exemption has continued to result in
``an expansion of third-party materials available for 3D printers.''
\187\
---------------------------------------------------------------------------

\186\ Id. at 4.
\187\ Id.
---------------------------------------------------------------------------

X. Computer Programs--Copyright License Investigation

SFC petitions to renew the exemption for computer programs, for the
purpose of investigating potential infringement of free and open source
computer programs (codified at 37 CFR 201.40(b)(22)).\188\ No comments
were filed opposing renewal.
---------------------------------------------------------------------------

\188\ SFC Copyright License Investigation Renewal Pet.
---------------------------------------------------------------------------

SFC states it ``regularly and routinely investigates computers and
computerized devices . . . to determine whether the manufacturers are
complying with the relevant [free and open source software] licenses.''
\189\ It also states that ``reports of violations of [these] licenses
have more than doubled in only the last year'' and that it has recently
observed ``an increase in locking down computerized devices'' that
prevents investigations into license compliance.\190\ SFC has
participated in the previous rulemakings regarding this exemption and
contributed to the rulemaking record that led to the Register
recommending the exemption.\191\
---------------------------------------------------------------------------

\189\ Id. at 4.
\190\ Id.
\191\ Id.
---------------------------------------------------------------------------

III. Analysis and Classification of Proposed New or Expanded Exemptions

In addition to petitions to renew existing exemptions, the Office
received twenty-five petitions for new or expanded exemptions. The
Office has reviewed and consolidated related and/or overlapping
proposed exemptions to simplify the rulemaking process and encourages
joint participation among parties with common interests (although
collaboration is not required).\192\ The Office proposes ten
consolidated classes of works, including the meaningfully opposed
renewal petition.
---------------------------------------------------------------------------

\192\ NOI at 34798.
---------------------------------------------------------------------------

Each proposed class is briefly described below, and additional
information can be found in the underlying petitions posted on the
Office's website. As explained in the NOI, the proposed classes
represent `` `only a starting point for further consideration in the
rulemaking proceeding,' and will be subject to `further refinement
based on the record.' '' \193\ The description of each class also
includes preliminary legal and factual areas of interest that the
Office hopes commenters will address in their submissions. These early
observations are offered without prejudice to the Office's ability to
raise other questions or concerns at later stages of the proceeding,
and commenters should offer all legal arguments and evidence they
believe necessary to create a complete record. Finally, the Office
reminds exemption proponents that ``where an exemption request
resurrects legal or factual arguments that have been previously
rejected, the Office will continue to rely on past reasoning to dismiss
such arguments in the absence of new information.'' \194\
---------------------------------------------------------------------------

\193\ Id. (quoting 88 FR at 37489).
\194\ Section 1201 Study at 147; see also 79 FR 55687, 55690
(Sep. 17, 2014).
---------------------------------------------------------------------------

A. Proposed Class 1: Audiovisual Works--Accessibility and Captioning

Accessibility Petitioners jointly petition for a new exemption to
permit libraries and other public entities to circumvent access
controls on audiovisual works hosted on web or mobile app interfaces
for purposes of captioning and audio description ``to provide the
accessibility required by recently adopted regulations relating to the
Americans with Disabilities Act.'' \195\ They assert that an exemption
is needed for public entities to comply with recently adopted
accessibility regulations that ``ensure accessibility features, such as
audio descriptions or synchronized captions, are available to persons
with disabilities.'' \196\
---------------------------------------------------------------------------

\195\ Accessibility Petitioners Class 1 Pet. at 2.
\196\ Id.; see also 28 CFR 35.200 (discussing the requirements
for web and mobile accessibility as part of the Americans with
Disabilities Act (``ADA'')).
---------------------------------------------------------------------------

The current captioning and audio description exemption is limited
to disability services offices or similar units at educational
institutions.\197\ Accessibility Petitioners seek an exemption for a
broader class of public entities to correspond with the entities
subject to 28 CFR 35.200, including public libraries that will be
obligated to provide accessible versions of online content they supply
to their users.\198\
---------------------------------------------------------------------------

\197\ Accessibility Petitioners Class 1 Pet. at 2; see 37 CFR
201.40(b)(2).
\198\ Accessibility Petitioners Class 1 Pet. at 2 (noting that
``[t]he broad definition of public entity under the Americans with
Disabilities Act includes `any state or local government, any
department, agency, special purpose district, or other
instrumentality of a state or local government . . . .' '').
---------------------------------------------------------------------------

The Office seeks comment on whether the proposed exemption should
be adopted, including any proposed regulatory language. Commenters
should describe with specificity the relevant TPMs sought to be
circumvented and whether their presence is adversely affecting
noninfringing uses. Commenters should address whether the works are
available in accessible formats that do not require circumvention and
any anticipated effect that circumvention of TPMs would have on the
potential market for or value of the relevant copyrighted works.

B. Proposed Class 2: Audiovisual Works--Criticism and Comment

Jayden Milne petitions to expand the current exemption allowing for
circumvention of access controls protecting motion pictures on DVDs,
Blu-ray discs, and digitally transmitted video for criticism and
comment purposes.\199\ Milne requests that the exemption be extended to
include Ultra HD Blu-ray Discs protected by Advanced Access Content
System 2 (``AACS2'') and not be limited to non-commercial uses, with
the provision

[[Page 67801]]

that certain videos would be licensed, sold, or distributed for
commercial purposes.\200\ The proposed expansion also appears to
eliminate the current use categories of criticism and comment so that
users, who are ``[i]ndividuals who own the disc, remain in continuous
lawful possession, and create the critical work alone, with
collaborators, or for an entity'' can incorporate the work ``into a
video, film, or nonfiction multimedia e-book for criticism or
comment.'' \201\ Milne explains that an exemption is needed because
``some UHD editions contain distinct cuts, restorations, or
presentation attributes, while licensed Windows-PC UHD-disc playback
has ceased, narrowing potential source workflows.'' \202\
---------------------------------------------------------------------------

\199\ Milne Class 2 Pet. at 2.
\200\ Id.
\201\ Id.; see 37 U.S.C. 201.40(b)(1)(i).
\202\ Milne Class 2 Pet. at 2.
---------------------------------------------------------------------------

The Office notes that in the two previous triennial rulemakings it
considered whether this exemption should be expanded to include AACS2
technology. During those rulemakings, the Office determined that the
rulemaking records were insufficient to justify proposed
expansions.\203\ The Office seeks comment on whether any changed legal
or factual developments warrant altering those determinations and
whether, or to what extent, the proposed expansion should be adopted,
including any proposed regulatory language. Commenters should also
address whether it is necessary to expand the exemption beyond the uses
permitted under the current exemption (i.e., documentary filmmaking,
noncommercial videos, and nonfiction multimedia e-books), to cover all
criticism and commentary, including commercial uses, and the extent to
which those other uses are or are likely to be adversely affected.
Commenters should also discuss whether eligible users may access the
works in ways not requiring circumvention.
---------------------------------------------------------------------------

\203\ See 2021 Recommendation at 39-40 (``[T]he record does not
support a finding that AACS2 technology is adversely affecting
noninfringing uses or that it is sufficiently similar to AACS1 to be
covered by the current exemption.''); 2018 Recommendation at 39-41
(``None of the petitions expressly seek expansion to AACS2, and the
record does not support a finding that such technology is adversely
affecting noninfringing uses or that it is sufficiently similar to
AACS1 to be covered by the current exemption.'').
---------------------------------------------------------------------------

C. Proposed Class 3: Audiovisual Works--Playback on Unsupported Devices

Jayden Milne submits two petitions seeking new exemptions for
contemporaneous, private, local, noncommercial playback of DVD, Blu-
ray, and Ultra HD Blu-ray discs on an owner-controlled general-purpose
personal computer for which no licensed player is available.\204\ The
proposed exemptions would permit circumvention of discs protected by
Content Scramble System (``CSS''), Advanced Access Content System
(``AACS''), AACS2, and BD+.\205\
---------------------------------------------------------------------------

\204\ See Milne Class 3 Pet. #1 at 2 (Unsupported-Platform
Optical-Disc Playback); Milne Class 3 Pet. #2 at 2 (Ultra HD Blu-ray
PC Playback).
\205\ Milne Class 3 Pet. #1 at 2; Milne Class 3 Pet. #2 at 2.
---------------------------------------------------------------------------

The Office notes that the Register recommended against similar
proposals in the 2015, 2010, 2006, 2003, and 2000 triennial
rulemakings.\206\ These proposed exemptions would have permitted the
circumvention of DVD access controls to enable playback on personal
computers running incompatible operating systems, such as Linux. For
instance, in the 2003 rulemaking, the Office explained, ``[w]hile it is
unfortunate that persons wishing to play CSS-protected DVDs on
computers with the Linux operating system have few options,'' they have
the ``same options that other consumers have. . . . [A]ll motion
pictures on CSS-protected DVDs remain available even to Linux users.
The Linux users simply must use the consumer electronic devices used by
most consumers to view those DVDs.'' \207\ Therefore, the Office seeks
comment on any differences in the two proposals and whether any changed
legal or factual circumstances warrant a different conclusion here.
Additionally, the Office seeks general comment on the impact this
proposed exemption would have on the ability of rightsholders to
exercise their rights and the ability of consumers to make
noninfringing uses of audiovisual works. Commenters addressing both
proposals should provide supporting evidence sufficient with respect to
each, including evidence establishing adverse effects on noninfringing
uses with respect to each proposal and similarities between the
proposals, if any, regarding the relevant factual and legal issues.
---------------------------------------------------------------------------

\206\ See 2015 Recommendation 126; U.S. Copyright Office,
Section 1201 Rulemaking: Fourth Triennial Proceeding to Determine
Exemptions to the Prohibition on Circumvention, Recommendation of
the Register of Copyrights 224 (2010) (``2010 Recommendation''),
<a href="https://cdn.loc.gov/copyright/1201/2010/initialed-registers-recommendation-june-11-2010.pdf">https://cdn.loc.gov/copyright/1201/2010/initialed-registers-recommendation-june-11-2010.pdf</a>; U.S. Copyright Office, Section 1201
Rulemaking: Third Triennial Proceeding to Determine Exemptions to
the Prohibition on Circumvention, Recommendation of the Register of
Copyrights 72-73 (2006) (``2006 Recommendation''), <a href="https://cdn.loc.gov/copyright/1201/docs/1201_recommendation.pdf">https://cdn.loc.gov/copyright/1201/docs/1201_recommendation.pdf</a>; 2003
Recommendation at 145-46; 65 FR 64556, 64569 (Oct. 27, 2000).
\207\ 2003 Recommendation at 145-46.
---------------------------------------------------------------------------

D. Proposed Class 4: Audiovisual Works--Replacement

Six petitions seek to circumvent access controls on motion pictures
distributed on optical discs or through streaming services to make
replacement copies when the disc or the equipment needed to play it are
unavailable, or a digital copy of the work is no longer usable or
available. For reasons of administrative efficiency, the Office has
grouped these proposals into one overall class with three subclasses.
Each commenter may submit only a single comment addressing Class 4,
which may address some or all subclasses. Supporting evidence must be
sufficient to establish an adverse effect on noninfringing uses with
respect to each subclass.
Proposed Subclass 4(a): Preservation
Three separate petitions, two from Jayden Milne and one from James
and Rebekkah Stakebake, propose a new exemption to facilitate personal,
noncommercial preservation of audiovisual works stored on lawfully
acquired DVDs, Blu-ray discs, and Ultra HD Blu-ray discs protected by
CCS, AACS, AACS2, and BD+.\208\
---------------------------------------------------------------------------

\208\ Milne Class 4(a) Pet. #1 at 2 (Preventative Personal
Preservation); Milne Class 4(a) Pet. #2 at 2 (Damaged or
Deteriorating Optical-Disc Replacement); Stakebake & Stakebake Class
4(a) Pet. at 2.
---------------------------------------------------------------------------

One Milne petition and the Stakebakes' petition both propose an
exemption that would permit individuals to create digital copies due to
disc damage or deterioration.\209\ Milne further specifies that the
original disc would be ``retained and retired from ordinary viewing
once the replacement is used'' and could be voluntarily transferred,
but the proposal would still permit certain subsequent uses of both the
original and replacement disc.\210\ In a second petition, Milne
proposes an exemption that would permit individuals to preemptively
preserve discs prior to deterioration by creating one noncommercial
copy, which could be used for ``integrity testing and private
viewing.'' \211\ The petition does not

[[Page 67802]]

specify whether the copy would be on disc or digital.
---------------------------------------------------------------------------

\209\ See Stakebake & Stakebake Class 4(a) Pet. at 2
(identifying purpose of ``[p]ersonal, noncommercial archival
preservation and creation of backup copies to prevent loss due to
physical media deterioration [and] damage''); Milne Class 4(a) Pet.
#2 at 2 (``The purpose is to make one secured, noncommercial
personal replacement while an owned disc is actually damaged or
objectively deteriorating but remains recoverable.'').
\210\ Milne Class 4(a) Pet. #2 at 2.
\211\ Milne Class 4(a) Pet. #1 at 2. Petitioner proposes
``owner-only use'' as a fallback if household viewing is not
included in the exemption.
---------------------------------------------------------------------------

The Office notes that the Register considered a similar request in
the 2021 rulemaking pertaining to preservation and replacement copies
of motion pictures by libraries, archives, and museums.\212\ In that
rulemaking, the Register recommended the exemption be granted in part
and denied in part. With respect to damaged or deteriorating discs, the
Register recommended an exemption, provided that the motion pictures in
question were not reasonably available for purchase or streaming, but
determined that proponents had not established that copying discs prior
to deterioration was fair use.\213\ The Librarian adopted this
exemption in the final rule and renewed it in the 2024 rulemaking;
\214\ the Register is again recommending it for renewal in this
rulemaking.\215\
---------------------------------------------------------------------------

\212\ 2021 Recommendation at 83-98.
\213\ Id. at 94.
\214\ 86 FR 59627, 59633 (Oct. 28, 2021) (2021 final rule); 89
FR 85437, 85440 (Oct. 28, 2024) (2024 final rule).
\215\ See supra Section II.H.
---------------------------------------------------------------------------

The Office seeks comment on whether preservation for personal
purposes, as opposed to institutional purposes, impacts the analysis
and whether there have been any legal or factual developments regarding
preemptive preservation. The Office encourages commenters to develop
the legal and factual administrative record, including addressing with
specificity the format of the proposed copies, the proposed uses of
both the original and the copy, and the impact the exemption would have
on the market for the copyrighted works at issue.
Proposed Subclass 4(b): Hardware Obsolescence
Two petitions propose a new exemption that would allow
circumvention of technical measures protecting motion pictures and
television programs that are stored and released on optical discs.\216\
James and Rebekkah Stakebake, in the same petition as discussed in
class 4(a), also petition to allow ``[p]ersonal, noncommercial archival
preservation and creation of backup copies to prevent loss due to . . .
hardware obsolescence,'' where the media is lawfully purchased.\217\
The Stakebakes explain that the TPMs on the physical media ``currently
prevent users from copying the content to secure digital storage for
preservation purposes.'' \218\ Jamlark also petitions for an exemption
permitting both ``individual consumers and physical media rental
libraries maintaining circulating collections'' to ``format-shift[] . .
. a lawfully owned disc to a digital file for personal or controlled-
circulation use,'' when hardware required to play that disc is
``experiencing continuing, accelerating decline in availability.''
\219\ It asserts that ``[w]hile used playback hardware for some formats
remains findable on secondary markets, that supply is finite, non-
replenishing, and subject to ongoing depletion through failure and
attrition.'' \220\ While Jamlark seeks to allow personal and commercial
users to make use of the backup copy in circumstances where the work is
otherwise unavailable, the Stakebakes' petition does not specify
conditions for use of the copy.\221\
---------------------------------------------------------------------------

\216\ Jamlark, LLC (``Jamlark'') Class 4(b) Pet. at 2; Stakebake
& Stakebake Class 4(b) Pet. at 2.
\217\ Stakebake & Stakebake Class 4(b) Pet. at 2.
\218\ Id.
\219\ Jamlark Class 4(b) Pet. at 2.
\220\ Id.
\221\ Id.; Stakebake & Stakebake Class 4(b) Pet. at 2.
---------------------------------------------------------------------------

The Office seeks comment on whether this proposed exemption should
be adopted, including any proposed regulatory language. The Office
notes that the Register has repeatedly declined to recommend proposed
exemptions for space- or format-shifting, finding that proponents
failed to establish that format-shifting is a noninfringing use.\222\
The Office seeks comment on all aspects of this proposed exemption,
including whether, in the past three years, there has been a change in
the legal or factual circumstances regarding whether space-shifting and
format-shifting are noninfringing fair uses and the effects the
proposed exemption would have on the market for or value of the
relevant works.
---------------------------------------------------------------------------

\222\ See 2021 Register's Recommendation at 99-101; 2018
Recommendation at 111-28; 2015 Recommendation at 107-26; 2012
Recommendation at 157-66; 2006 Recommendation at 69-72; 2003
Recommendation at 126-41.
---------------------------------------------------------------------------

Proposed Subclass 4(c): Digital Service Discontinuation
Two petitions filed by Jayden Milne and Zakaria Zerhouane propose a
new exemption to circumvent technological protection measures that
control access to audiovisual works where licensed or lawful access to
a digital version of the work is discontinued.\223\ The petitions seek
to allow circumvention of TPMs on physical media, such as those
protected by CSS and AACS, as well as ``proprietary [digital rights
management], geo-locking, and session-based access controls'' on
streaming platforms.\224\ Petitioners explain that many distributors
who previously made these works accessible are now ``defunct,''
distributors' websites and services ``ended,'' and ``previously
available . . . digital copies . . . no longer supported or
available.'' \225\ For physical media, such as lawfully made and
acquired DVDs, expired codes attached to that media ``are not renewed
or replaced'' or distributors ``have since dissolved, entered
bankruptcy, or ceased operations.'' \226\ The petitions limit
circumvention to individual owners, ``individual viewers, researchers,
archivists, and preservationists,'' for personal and noncommercial
uses, including preservation.\227\
---------------------------------------------------------------------------

\223\ Milne Class 4(c) Pet. at 2; Zerhouane Class 4(c) Pet. at
2.
\224\ Milne Class 4(c) Pet. at 2; Zerhouane Class 4(c) Pet. at
2.
\225\ Milne Class 4(c) Pet. at 2; Zerhouane Class 4(c) Pet. at
2.
\226\ Milne Class 4(c) Pet. at 2; Zerhouane Class 4(c) Pet. at
2.
\227\ Milne Class 4(c) Pet. at 2; Zerhouane Class 4(c) Pet. at
2.
---------------------------------------------------------------------------

The Office seeks comment on whether the proposed exemption should
be adopted, including any proposed regulatory language. Commenters are
encouraged to develop the legal and factual administrative record in
their initial submissions, including describing with specificity the
relevant TPMs for all proposed media and platforms containing access
controls they seek to circumvent and whether the presence of the TPMs
is adversely affecting noninfringing uses, whether eligible users may
access the works through alternate channels that do not require
circumvention, and the legal basis for concluding that the proposed
uses are likely to be noninfringing. Similarly, commenters should
address any anticipated effect that circumvention would have on the
market for or value of the relevant copyrighted works.

E. Proposed Class 5: Audiovisual Works--Personal Playback

Referencing 17 U.S.C. 110(11), added to the Copyright Act by the
Family Movie Act of 2005,\228\ Jayden Milne petitions for a new
exemption to allow circumvention of access controls protecting motion
pictures (including television programs, videos, and supplementary
motion-picture works) on DVDs, Blu-ray discs, and Ultra HD Blu-ray
discs for purposes of ``apply[ing] automatic mute or skip instructions
to limited portions of audio or video content . . . during
contemporaneous private-home

[[Page 67803]]

playback directly from the authorized disc.'' \229\ The proposed
exemption contemplates the use of either ``preexisting or household-
authored'' instructions to filter the work, and would only apply to a
particular disc edition when licensed filtering products and services
or noncircumventing methods are unavailable.\230\ The petition limits
circumvention to individual owners ``in continuous lawful possession''
of the discs, including owners acting ``by or at the direction of a
member of the owner's private household.'' \231\
---------------------------------------------------------------------------

\228\ Public Law 109-9, sec. 202(a), 119 Stat. 218, 223 (2005).
\229\ Milne Class 5 Pet. at 2.
\230\ Id.
\231\ Id.
---------------------------------------------------------------------------

The Office seeks comment on whether this proposed exemption should
be adopted, including any proposed regulatory language. Commenters
should include information on whether TPMs are adversely affecting
noninfringing uses, including whether eligible users may filter discs
without circumventing TPMs.

F. Proposed Class 6: Audiovisual Works--Public Domain Works

Jayden Milne petitions for a new exemption to allow circumvention
of technological measures that control access to a combination of
material--both works protected by copyright and motion pictures in the
public domain--for the purpose of copying the public domain material
from a ``lawfully made and lawfully acquired'' DVD, standard Blu-ray
disc, or Ultra HD Blu-ray disc for preservation purposes.\232\ The
petition would limit the exemption to individuals who ``lawfully own,
rent, borrow, or are otherwise authorized to possess, access, and use
the source disc,'' and have determined that, after reasonable effort,
no equivalent is ``reasonably available at a fair price.'' \233\ Milne
explains that an exemption is needed because access controls continue
to prevent circumvention of physical optical discs, despite an
increasing number of copyrighted works falling into the public domain
since 2019.\234\
---------------------------------------------------------------------------

\232\ Milne Class 6 Pet. at 2.
\233\ Id.
\234\ Id.
---------------------------------------------------------------------------

The Office notes that in the 2012, 2010, and 2003 triennial
rulemakings, the Register declined to recommend proposed exemptions for
literary and audiovisual works in the public domain and public domain
works generally, finding that the circumvention prohibition does not
apply to public domain works because they are not protected by
copyright law, a requirement of the prohibition under section
1201.\235\ However, the Register acknowledged that ``additional
questions may arise'' and ``further information would be required''
when technical measures controlling access to public domain material
also control access to other works protected by copyright.\236\
---------------------------------------------------------------------------

\235\ 2012 Recommendation at 13-15; 2010 Recommendation at 255-
56; 2003 Recommendation at 99-102.
\236\ 2012 Recommendation at 15; 2003 Recommendation at 100-01.
---------------------------------------------------------------------------

The Office seeks comment on whether the proposed exemption should
be adopted, including any proposed regulatory language. Commenters are
encouraged to develop the legal and factual administrative record in
their initial submissions, including whether eligible users may access
the public domain works through alternative means that do not require
circumventing other non-protected formats and examples of access
controls protecting a combination of copyrighted and public domain
material.

G. Proposed Class 7: Computer Programs--Jailbreaking

Three petitions were filed for new or expanded exemptions covering
computer programs, for the purpose of adding, removing, or modifying
software on consumer electronic devices (``jailbreaking'').\237\ FULU
seeks to expand the current exemption for smart TVs to permit the
``removal of software,'' specifically, automatic content recognition
software.\238\ In a separate petition, FULU seeks a new exemption for
consumer devices to ``disable, remove, or prevent the rendering of
advertising surfaces . . . pushed onto the user interface . . . after
the device was originally sold.'' \239\ Finally, Public Knowledge and
FULU jointly seek a new exemption for ``consumer video home-monitoring
devices'' to ``allow the device to route video data to a local
server.'' \240\
---------------------------------------------------------------------------

\237\ FULU Foundation (``FULU'') Class 7 Pet. #1 at 2 (Automatic
Content Recognition); FULU Class 7 Pet. #2 at 2 (Advertising);
Public Knowledge & FULU Class 7 Pet. at 2; see 37 CFR 201.40(b)(9)-
(12) (listing the current jailbreaking exemptions).
\238\ FULU Class 7 Pet. #1 at 2 (proposing a modification of 37
CFR 201.40(b)(10)).
\239\ FULU Class 7 Pet. #2 at 2.
\240\ Public Knowledge & FULU Class 7 Pet. at 2.
---------------------------------------------------------------------------

The Office seeks comment on whether these proposed exemptions
should be adopted, including any proposed regulatory language.
Commenters should include information clearly describing the computer
programs at issue, the TPMs that control access to those programs, and
whether the prohibition on circumvention adversely affects users in
their ability to make noninfringing uses of those programs. With
respect to the petition for jailbreaking to remove advertising from
consumer devices, such as ``smart home appliances, smart TVs, voice-
assistant devices, e-readers, media players, and car consoles,'' \241\
the Office invites comments on whether there are sufficient
similarities across devices--in computer programs, TPMs, and adverse
effects--to support a single exemption. Comments should also include
discussion of the extent to which the proposed activities may or may
not be addressed by current regulatory exemptions.
---------------------------------------------------------------------------

\241\ FULU Class 7 Pet. #2 at 2.
---------------------------------------------------------------------------

H. Proposed Class 8: Computer Programs--Repair

Several organizations and one individual submitted petitions for
new or expanded exemptions relating to diagnosis, maintenance, repair,
and modification of software-enabled devices.\242\ Additionally, the
Office received multiple petitions to renew the existing exemption of
computer programs in or controlling medical devices or systems for
diagnosis, maintenance, or repair of those devices or systems.\243\ As
discussed, the Office has determined that there is meaningful
opposition to this renewal petition.\244\ Therefore, the Office will
evaluate all the proposed repair-related uses of copyrighted works on
medical devices and systems together as a potential new exemption.
---------------------------------------------------------------------------

\242\ 37 CFR 201.40(b)(13), (15)-(17).
\243\ See BMI Medical Device Repair Renewal Pet.; Caylor Medical
Device Repair Renewal Pet.; Crothall Medical Device Repair Renewal
Pet.; ECMS Medical Device Repair Renewal Pet.; iFixit Medical Device
Repair Renewal Pet.; ImageOne Medical Device Repair Renewal Pet.;
Shannon Medical Device Repair Renewal Pet.; Trimedx Medical Device
Repair Renewal Pet.; 37 CFR 201.40(b)(17).
\244\ See supra Section II.S.
---------------------------------------------------------------------------

For reasons of administrative efficiency, the Office has grouped
all repair-related proposals into one overall class with two
subclasses: one subclass for medical device repair and one covering
repair-related proposals for other types of devices and equipment.
Commenters may submit a single comment on Class 8, which may address
one or both subclasses.\245\ Supporting evidence must be sufficient to
establish an adverse effect on noninfringing uses with respect to each
subclass.
---------------------------------------------------------------------------

\245\ See infra Section IV.A.3 (discussing page limits for each
of the three rounds of written public comments).
---------------------------------------------------------------------------

Proposed Subclass 8(a): Device and Equipment Repair
FULU, and Public Knowledge and iFixit jointly, filed petitions to
expand

[[Page 67804]]

the exemption for computer programs that control devices designed
primarily for use by consumers for diagnosis, maintenance, or repair of
the device.\246\ FULU proposes expanding the exemption to permit users
to access and modify consumer device programs, which ``are typically
stored in the device's firmware or accessed through cloud-based
services/servers,'' so they can ``continue to use the product for its
intended purpose'' when the manufacturer ``(a) has discontinued service
or software support essential to its use; or (b) has ceased business.''
\247\ The proposed exemption would ``include[] the ability for
consumers to maintain, repair, install, or substitute the discontinued
software for third-party or community-developed software.'' \248\
Public Knowledge and iFixit propose expanding the consumer device
repair exemption, which covers ``diagnosis, maintenance, [and]
repair,'' to include ``reconfiguration, continued use, or reuse of the
device or system'' and extend to ``business and enterprise IT devices
such as laptops, [secure cell phones,] servers, and storage.'' \249\
They note that it is unclear if the existing exemption applies to
devices purchased in bulk for employees or students; and they propose
that eligible users of the expanded exemption also include
``enterprise, industrial, and government owners and operators of these
devices.'' \250\ The Office notes that in 2024, the Register considered
a similar proposal and declined to conclude that users were being
adversely affected from engaging in noninfringing diagnosis,
maintenance, and repair of enterprise IT based on the rulemaking
record.\251\ In this cycle, the Office seeks additional examples of how
users are adversely affected by the prohibition against circumventing
TPMs to engage in the proposed activities.
---------------------------------------------------------------------------

\246\ FULU Class 8(a) Pet.; Public Knowledge & iFixit Class 8(a)
Pet.; 37 CFR 201.40(b)(15).
\247\ FULU Class 8(a) Pet. at 2.
\248\ Id.
\249\ Public Knowledge & iFixit Class 8(a) Pet. at 2.
\250\ Id.
\251\ 2024 Recommendation at 157-58.
---------------------------------------------------------------------------

The Repair Association and iFixit jointly filed a petition
proposing a new exemption to maintain and repair ``software-enabled
fixtures or integrated systems installed on commercial, institutional,
and multi-family premises.'' \252\ The exemption would ``include[] the
ability to maintain, repair, install, or substitute the discontinued
software for third-party or community-developed software.'' \253\
Eligible users would be owners and operators of the equipment.\254\ The
Office notes that, in previous rulemaking cycles, proponents of broad
exemptions to repair commercial or industrial systems cited building
systems as examples.\255\ As the Register previously observed that some
users appeared to have adequate alternatives to circumvention for
engaging in repair-related activities,\256\ the Office seeks comments
that show the extent to which these activities are being adversely
affected by the prohibition against circumvention.
---------------------------------------------------------------------------

\252\ Repair Association & iFixit Class 8(a) Pet. #1 (Commercial
Premises Equipment) (listing ``commercial HVAC, battery energy-
storage systems, elevator systems, building management systems, and
other similar equipment'' as examples).
\253\ Id. at 2.
\254\ Id.
\255\ 2024 Recommendation at 137 n.667 (``automated building
management systems''); 2021 Recommendation at 194 (``facility
management systems controlling commercial building access'').
\256\ 2021 Recommendation at 197 n.1083.
---------------------------------------------------------------------------

In a second petition, the Repair Association and iFixit jointly
propose a new exemption for the circumvention of TPMs that ``control
software-enabled scientific and laboratory equipment for purposes of
diagnosis, maintenance, calibration, and physical repair,'' including
``installation or substitution of discontinued software with third-
party or community-developed software.'' \257\ To the extent necessary
for these purposes, the proposed exemption would permit ``access and
modification'' of ``copyrighted programs . . . stored in the
instrument's firmware or accessed through manufacturer-controlled
software and servers.'' \258\
---------------------------------------------------------------------------

\257\ Repair Association & iFixit Class 8(a) Pet. #2 at 2
(Scientific and Laboratory Equipment).
\258\ Id.
---------------------------------------------------------------------------

The Repair Association, iFixit, and Bull Moose Project jointly
petition for a new exemption to ``permit access and modification to
software operating industrial equipment'' or ``software-enabled
manufacturing equipment and integrated manufacturing-facility systems''
for diagnosis, modification, maintenance, and repair.\259\ The Office
notes that in the last rulemaking, the Register found that ``the
rulemaking record does not support a broad proposed class that would
cover all commercial and industrial equipment and devices because it is
unclear that all such equipment and devices share sufficient
commonalities and that the users are similarly situated.'' \260\ In
addition, the Register stated that the ``overall the record [was]
inconclusive as to whether users [of programmable logic controllers]
are being adversely affected.'' \261\ Accordingly, the Office seeks
comment on whether there are sufficient commonalities among the
equipment and systems in the proposed class as well as comments
demonstrating the extent to which users are being adversely affected
from engaging in repair-related activities.
---------------------------------------------------------------------------

\259\ Repair Association, iFixit, & Bull Moose Project Class
8(a) Pet. at 2 (listing ``programmable logic controllers and
process-control systems, production line control systems, industrial
robots and motion controllers, additive-manufacturing equipment,
semiconductor-fabrication equipment,'' and other systems and
equipment as examples).
\260\ 2024 Recommendation at 143.
\261\ Id. at 155.
---------------------------------------------------------------------------

Proposed Subclass 8(b): Medical Device Repair
As previously discussed, the Office concluded that the renewal
petitions for the current medical device repair exemption faced
meaningful opposition, and therefore, must be evaluated as a new
exemption and proceed through the normal rulemaking process, including
the three rounds of public comment. Those renewal petitions are
discussed in Section II.S and are incorporated into Class 8(b) with
petitions for expanding the existing exemption.
Regarding proposed exemption petitions, Marshall Shannon petitions
to expand the exemption to access computer programs that are contained
in and control the functioning of medical devices or systems, and
related data files, for diagnosis, maintenance, or repair.\262\ Shannon
requests ``clarification'' that the current exemption already covers
or, alternatively, proposes that the exemption be expanded to
``expressly cover[ ] owner-authorized installation, reinstallation,
software setup, operating-system and application restoration,
relocation, commissioning, calibration, performance verification,
service-data access, cybersecurity-related reconfiguration, and return
to service for new, used, and resold medical devices.'' \263\ Shannon
further seeks to expand the class of works to include ``[c]omputer
programs that operate, control, diagnose, monitor, configure,
calibrate, install, service, maintain, test, or restore medical devices
or systems, including related service interfaces, logs, configuration
data, certificates, credentials, utilities, and technical materials''
for the purposes of ``lawful diagnosis, installation, maintenance,
repair, calibration, cybersecurity, or return to service.'' \264\ In
addition,

[[Page 67805]]

because Trimedx lists ``regulatory compliance'' among the purposes
covered by the existing exemption notwithstanding that that use is not
expressly covered by the exemption, the Office considers it here as a
proposed expansion.\265\
---------------------------------------------------------------------------

\262\ Shannon Medical Device Repair Renewal Pet. at 3; 37 CFR
201.40(b)(17) (discussing the current medical device or system
diagnosis, maintenance, or repair exemption). See supra note 134
(explaining that the Office will consider portions of Shannon's
submission that seek ``clarification or a modified exemption'' as a
petition for an expanded exemption).
\263\ Shannon Class 8(b) Pet. at 3.
\264\ Id.
\265\ Trimedx Medical Device Repair Renewal Pet. at 4; see supra
note 134 (discussing the Office's treatment of Trimedx's renewal
petition discussing ``regulatory compliance'' as a proposed
expansion and beyond the scope of the streamlined renewal process).
---------------------------------------------------------------------------

The Office seeks comments and documentary evidence that explain,
under the current exemption and proposed expansions, the type of works
(i.e., types of computer programs and related data files) that would be
covered; how those works are configured on medical devices and systems;
for each type of work, whether the current and proposed uses are
noninfringing; and how the adverse effects analysis applies to the
different types of works and uses. Commenters should submit evidence
specific to the issues and circumstances raised by the proposed
exemption, identify any materials from prior proceedings on which they
rely, and explain how those materials bear on the proposed exemption.
The Office will assess the comments and evidence developed in the
current proceeding, together with relevant records from previous
proceedings, in deciding whether and to what extent to recommend
adoption of the proposed exemption.\266\
---------------------------------------------------------------------------

\266\ See Section 1201 Study at 110 (recognizing the Office's
discretion to take administrative notice of evidence); id. at 112
(including evidence administratively noticed by the Office in the
rulemaking record); id. at 143 n.776 (explaining, in its discussion
of renewal, that de novo assessment can draw on a prior record if
parties provide a basis to assess its continuing relevance).
---------------------------------------------------------------------------

Commenters should explain the extent to which each proposed
activity would require expansion of the current regulatory exemption
for medical device repair. When addressing each proposed activity or
type of work that is not covered by the current exemption, commenters
should explain why that particular use is likely to be noninfringing as
well as how that use is adversely affected by the prohibition against
circumvention. Commenters are also encouraged to submit documentary
evidence demonstrating how medical device software and other
copyrighted works that a petitioner seeks to access via circumvention
are configured.\267\
---------------------------------------------------------------------------

\267\ See MITA, slip op. at 13 (concluding that there was no
record in the 2018 and 2021 triennial rulemakings to support ``the
proposition that there is a distinct body of repair software
independent from the clinical-operation software and that it
occupies its own standalone market'').
---------------------------------------------------------------------------

Finally, regarding the proposed new exemption petitions for each
subclass, the Office notes that most of them include ``modification''
among the proposed uses. Outside of the vehicle repair exemption, which
permits ``lawful modification of a vehicle or vessel function,'' \268\
the Register has consistently declined to recommend that repair-related
exemptions extend to device modification due to uncertainty about
whether modifications of device software, as opposed to physical
modifications, would infringe the software owner's right to prepare
derivative works.\269\ Commenters for each subclass should explain
whether ``modification'' is likely to be noninfringing for the various
device types described in the petitions. Because three of the current
exemptions define ``repair'' as ``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,'' \270\
commenters should also address whether this definition should apply to
any proposed exemption for Class 8(a) and 8(b) when discussing their
proposed regulatory language.
---------------------------------------------------------------------------

\268\ 37 CFR 201.40(b)(13).
\269\ See 2024 Recommendation at 158; 2021 Recommendation at
204-06; 2018 Recommendation at 206-08.
\270\ 37 CFR 201.40(15)(ii), (16)(ii); see 37 CFR 201.40(17)(ii)
(applying to a ``device or system''); cf. 17 U.S.C. 117(d).
---------------------------------------------------------------------------

I. Proposed Class 9: Video Games--Operating System Incompatibility

Ken Austin petitions for a new exemption to permit circumvention by
``individual owners of video games'' which have ``DRM [that] no longer
function[ ] properly'' due to ``incompatibility or other errors'' with
modern computers' operating systems.\271\ The petition explains that
``many old [video] games released for Windows on CD and DVD'' rely on
DRM, such as SafeDisc, that ``no longer work[ ] on modern versions of
[Windows] operating system[s],'' due to operating systems flagging
games' TPMs as security threats.\272\ Austin also states that a subset
of these games ``lack official patches to remove or repair the faulty
DRM, or new, working versions that are reasonably available for
purchase.'' \273\
---------------------------------------------------------------------------

\271\ Austin Class 9 Pet. at 2.
\272\ Id.
\273\ Id.
---------------------------------------------------------------------------

The Office notes that last cycle it considered and rejected a
substantively identical proposal regarding video games that were no
longer functional due to incompatibility with computer operating
systems.\274\ That petition ``was not supported by a sufficient record
in [last cycle's] proceeding,'' and the Office lacked evidence to
determine that ``the harm identified . . . involve[d] `distinct,
verifiable and measurable impacts' occurring in the marketplace.''
\275\ The Office encourages proponents to develop a more robust
administrative record. Commenters should describe with specificity the
relevant TPMs and whether their presence is adversely affecting
noninfringing uses, including identifying whether eligible users may
access the software through alternate channels that do not require
circumvention, the basis for concluding that the proposed uses are
likely to be noninfringing, and examples of games that may be subject
to the proposed exemption. In general, the Office seeks comment on
whether the proposed exemption should be adopted, including any
proposed regulatory language.
---------------------------------------------------------------------------

\274\ See 2024 Austin Class 6(b) Pet.; 2024 Recommendation at
172-73.
\275\ 2024 Recommendation at 172-73 (quoting Commerce Comm.
Report at 37).
---------------------------------------------------------------------------

J. Proposed Class 10: Video Games--Network Play

Dan Elkins petitions to expand the current exemption covering
continued play of video games.\276\ The petition proposes that
``personal, local gameplay'' be expanded to include online gameplay and
permit circumvention of access controls on lawfully acquired games ``to
interoperate with [an] independently implemented replacement network
infrastructure'' when the copyright owner has ``discontinued,
materially degraded, or replaced external server functionality
originally used by those games'' without providing ``materially
equivalent original functionality.'' \277\ The proposed expansion would
not permit ``unauthorized reproduction or distribution of games,
unauthorized access to copyright-owner servers, or copying of
proprietary server software'' and would leave ``[m]odern entitlement
and authentication mechanisms'' intact.\278\
---------------------------------------------------------------------------

\276\ Elkins Class 10 Pet. at 2; 37 CFR 201.40(b)(19)(i)(A).
\277\ Elkins Class 10 Pet. at 2.
\278\ Id.
---------------------------------------------------------------------------

The Office notes that when considering the original exemption, the
Register concluded that ``proponents ha[d] not satisfied their burden
with respect to a need for an exemption for continued online
multiplayer play.'' \279\ The Office seeks comment on whether the
proposed expansion should be

[[Page 67806]]

adopted, including any proposed regulatory language. Commenters
responding to this petition should include information on whether there
have been new factual or legal developments that would support an
expansion and whether its scope should be modified, including whether
alternate methods to access online play exist that do not require
circumvention. Comments should also describe with specificity the
relevant TPMs, their location, and whether the prohibition on
circumvention is adversely affecting noninfringing uses, the methods of
circumvention sought, whether persons ``developing or operating
replacement infrastructure'' for owners are users within the meaning of
1201(a)(1), and examples of games potentially subject to the
exemption.\280\ In general, the Office seeks comment on whether the
proposed exemption should be adopted, including any proposed regulatory
language.
---------------------------------------------------------------------------

\279\ 2015 Recommendation at 337, 345-46.
\280\ Elkins Class 10 Pet. at 2.
---------------------------------------------------------------------------

Proposed New or Expanded Exemptions Not Considered
As stated in the NOI, the Office will not at the NPRM phase
``reject any petitioned-for exemption unless it fails to meet the
threshold requirements of section 1201(a).'' \281\ After reviewing the
petitions that seek new exemptions, the Office observes that two
petitions cannot be granted as a matter of law, as they fail to allege
``a particular class of works'' or ``distinct, verifiable and
measurable impacts'' on noninfringing uses.\282\
---------------------------------------------------------------------------

\281\ NOI at 34798 (discussing an overview of the triennial
rulemaking process) (citing 79 FR 73856, 73859 (Dec. 12, 2014)).
\282\ 17 U.S.C. 1201(a)(1)(B); Commerce Comm. Report at 37. The
Register has repeatedly declined to recommend proposed exemptions
that have failed to define the class of works to be covered with
sufficient particularity. See, e.g., 2018 Recommendation at 131-32;
79 FR at 73859; 2006 Recommendation at 17-19; see also 85 FR at
65308-09 (allowing a proposed exemption that sought to permit
circumvention of access controls across all classes of copyrighted
works for accessibility purposes to proceed to the public comment
phase ``[i]n light of [its] important public policy considerations''
and subject to substantial provisions regarding the need to develop
proposed exemptions within the Librarian's authority to adopt).
---------------------------------------------------------------------------

The first petition proposes that ``researchers, journalists,
educators, students, investigators, legal professionals, archivists,
nonprofit workers, and individuals'' be permitted to circumvent
``online audiovisual works, web pages, images, PDFs, and related
metadata'' for ``documentation, research, evidence preservation,
citation, accessibility, archival review, journalism, education, legal
investigation, or personal recordkeeping'' purposes.\283\ The relevant
barriers to access include TPMs and ``streaming-only delivery, expiring
URLs, platform restrictions, embedded players, account-gated access,
anti-download controls, disappearing or modified online content, and
formats that prevent users from saving evidence-quality local copies of
materials they can lawfully view.'' \284\
---------------------------------------------------------------------------

\283\ MuCache Multiple Works Pet. at 2.
\284\ Id.
---------------------------------------------------------------------------

The second petition proposes ``a class-wide remedy for motion
pictures on protected consumer optical discs'' where users,
``[un]limit[ed] . . . by ownership or occupation,'' can circumvent the
works for unrestricted purposes, including ``private disc-present
playback without a fixed copy; private-home filtering under [section]
110(11); criticism or comment using short portions; disability access;
public-domain-only use; qualifying replacement or preservation; and
restoration of a specifically promised bundled copy.'' \285\ The
relevant barriers to access include CSS on DVDs, AACS on HD DVD and
standard Blu-ray discs, and AACS2 on Ultra HD Blu-ray discs.\286\
---------------------------------------------------------------------------

\285\ Milne Class-Wide Relief Pet. at 2.
\286\ Id.
---------------------------------------------------------------------------

These proposed exemptions are beyond the Librarian's authority to
adopt because they do not meet the statutory requirements of an
exemption authorized by section 1201. As previously discussed, section
1201 requires that any exemption adopted as part of the triennial
rulemaking be limited to ``a particular class of copyrighted works.''
\287\ Legislative history explains that Congress intended the phrase to
encompass ``a narrow and focused subset of the broad categories of
works . . . identified in [s]ection 102 of the Copyright Act.'' \288\
Therefore, the Office uses the section 102 categories as a starting
point and refines the proposed classes by other criteria, such as the
types of TPMs used or the types of uses. As Congress explained, while
the category of ``literary works'' under section 102(a)(1) ``embraces
both prose creations such as journals, periodicals or books, and
computer programs of all kinds,'' ``[i]t is exceedingly unlikely that
the impact of the prohibition on circumvention of access control
technologies will be the same for scientific journals as it is for
computer operating systems.'' \289\ Congress concluded the ``two
categories of works . . . do not constitute a single `particular class'
for purposes of'' section 1201(a)(1).\290\ Neither the first petition
(which proposes an exemption for all or nearly all works available
online) nor the second petition (which proposes an exemption for all
motion pictures with an express lack of limits as to users and uses)
\291\ propose an exemption for a single particular class for the
purposes of section 1201.
---------------------------------------------------------------------------

\287\ 17 U.S.C. 1201(a)(1)(C).
\288\ Commerce Comm. Report at 38; see also id. at 36
(explaining that the rulemaking ``allow[s] the enforceability of the
prohibition against the act of circumvention to be selectively
waived, for limited time periods, if necessary to prevent a
diminution in the availability to individual users of a particular
category of copyrighted materials'' (emphasis added)); Staff of H.
Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of
H.R. 2281 as Passed by the United States House of Representatives on
August 4th, 1998, at 6 (``[T]he main focus of the rulemaking
proceeding will be on whether a substantial diminution of that
availability is actually occurring in the market for particular
classes of copyrighted works.'' (emphasis added)).
\289\ Staff of H. Comm. on the Judiciary, 105th Cong., Section-
by-Section Analysis of H.R. 2281 as Passed by the United States
House of Representatives on August 4th, 1998, at 7.
\290\ Id.
\291\ Milne Class-Wide Relief Pet. at 2 (``These uses are
examples of the recurring problem, not limits on the primary
request.'').
---------------------------------------------------------------------------

``Determining the appropriate scope of a `class of works' for an
exemption may also involve consideration of the adverse effects an
exemption may have on the market for or value of copyrighted works.''
\292\ Adverse effects may be shown by demonstrating ``distinct,
verifiable and measurable impacts'' on noninfringing uses.\293\ The
second petition contains multiple undefined uses that lack any clear
bounds and is premised on the concept that they should not have to show
adverse effects use-by-use. The Register and the Librarian are unable
to analyze the adverse effects of unbounded uses in order to determine
whether an exemption could be granted.\294\ The Office's determination
not to offer this petition for comment does not foreclose consideration
of any of the listed uses: the petition itself states that ``each
narrower alternative can stand alone,'' \295\ and each of those uses
were filed by the same petitioner as separate petitions for new
exemptions, which the Office has put forth for consideration
above.\296\
---------------------------------------------------------------------------

\292\ 2021 Recommendation at 9.
\293\ Commerce Comm. Report at 37.
\294\ Id.
\295\ Milne Class-Wide Relief Pet. at 2.
\296\ See supra Sections III.B-F.
---------------------------------------------------------------------------

Because these two petitions fall outside the scope of exemptions
that the Register can recommend and the Librarian can adopt under
section 1201, the Office declines to put these petitions forward for
public comment.

[[Page 67807]]

IV. Phases of the Tenth Triennial Rulemaking

A comprehensive administrative record for the section 1201
triennial rulemaking is developed through written comments, public
hearings, post-hearing questions, and ex parte meetings. The Register
then makes her recommendation to the Librarian, who adopts a final
rule. Each future phase of the administrative process is described
below.\297\
---------------------------------------------------------------------------

\297\ See also NOI at 34796 (discussing an overview of the
triennial rulemaking process).
---------------------------------------------------------------------------

Late filed submissions in any phase of the rulemaking, including
amendments or supplements thereto, will not be accepted without a
showing of good cause, and their acceptance is subject to the Office's
discretion.\298\ Participants should timely file complete comments
using the appropriate form. Informational guides explaining section
1201 and the rulemaking process can be found on the Office's section
1201 rulemaking web page at <a href="https://www.copyright.gov/1201">https://www.copyright.gov/1201</a>.
---------------------------------------------------------------------------

\298\ See, e.g., 2024 Recommendation at 20 n.72 (``[T]he
Register has no obligation to consider untimely comments.'').
---------------------------------------------------------------------------

A. Public Comment Phase

This NPRM initiates the second phase of the triennial rulemaking:
the public comment phase, which consists of three rounds of written
public comments regarding the petitions for new exemptions and any
meaningfully opposed renewal petitions. Commenters should present their
complete legal and evidentiary case in support of or in opposition to
the proposed exemption. In this proceeding, the Office is initiating a
page limit requirement for each of the three rounds of written public
comments.
1. Substance of Comments
Parties wishing to address proposed exemptions, including the one
meaningfully opposed renewal petition, in written comments should
familiarize themselves with the substantive legal and evidentiary
standards for the granting of an exemption under section 1201(a)(1), as
described in the Addresses section of this notice above. In addressing
factual matters, commenters should be aware that the Office favors
specific, real-world examples supported by evidence over hypothetical
observations. Commenters should describe with specificity the TPMs that
control access to the work, the method of circumvention of those TPMs,
whether their presence is adversely affecting noninfringing uses, and
whether eligible users may engage in the proposed use through alternate
means that do not require circumvention. In general, the Office seeks
comment on whether these proposed exemptions should be adopted,
including any proposed regulatory language.
Commenters' legal analysis should explain why the proposal meets or
fails to meet the criteria for an exemption under section 1201(a)(1),
including why the uses sought are or are not noninfringing as a matter
of law. The legal analysis should also discuss statutory or other legal
provisions that could impact the necessity for or scope of the proposed
exemption. Legal assertions should be supported by statutory citations,
relevant case law, and other pertinent authority. In cases where a
class proposes to expand an existing exemption, participants should
focus their comments on the legal and evidentiary bases for modifying
the exemption, rather than the underlying exemption. As discussed
above, the Register intends to recommend all but one current temporary
exemption for renewal, which was meaningfully opposed. That petition
will be subject to three rounds of public comment.
2. Comment Submission Instructions and Three Rounds of Written Public
Comment
To ensure a clear and definite record for each of the proposals,
separate submissions must be submitted for each proposed class and not
combined. Accordingly, the same party may submit multiple written
comments on different proposals. The Office acknowledges that the
requirement of separate submissions may require commenters to repeat
certain information across multiple submissions, but concludes that the
administrative benefits of creating a self-contained, separate record
for each proposal justify the modest added effort.
The first round of public comment is limited to submissions from
proponents (e.g., those who proposed new exemptions during the petition
phase or provide the legal and evidentiary basis for them during the
public comment phase) and other members of the public who support the
adoption of a proposed exemption. Those who neither support nor oppose
an exemption may also comment with pertinent information. Proponents
should present their complete affirmative case for an exemption during
the initial round of public comment, including complete legal and
evidentiary support.
The second round of public comment seeks comments from those who
oppose a proposed exemption; these commenters should present the full
basis for their opposition, including complete legal and evidentiary
support. The third round of public comment is limited to reply comments
from those permitted to comment in the first round, addressing
arguments and evidence presented by others during prior rounds. Reply
comments should not raise new issues or evidence.\299\
---------------------------------------------------------------------------

\299\ Newly raised issues and evidence are not permitted in the
third round of written public comments or in any subsequent
rulemaking phase. NOI at 34796.
---------------------------------------------------------------------------

3. Comment Page Limit
In this proceeding, the Office is establishing a page limit for
each of the three rounds of written public comments per class. Each
commenter may submit a maximum of twenty-five (25) pages, in at least
12-point type, per class per round of comments, except for Proposed
Class 8: Computer Programs--Repair, where comments submitted for each
subclass should total twenty-five (25) pages or less.\300\ The
limitation applies to all comments, including jointly submitted
comments.\301\ This page limit does not apply to documentary evidence;
specifically, those containing material authored by persons other than
the comment submitters (e.g., affidavits, exhibits, letters).
---------------------------------------------------------------------------

\300\ The Office established this page limit after reviewing
comments from the previous two triennial rulemakings and determining
that the overwhelming majority of comments were fewer than ten pages
(excluding documentary evidence) and reviewing other federal
agencies' page limits. See, e.g., 49 CFR 553.21, 800.37 (discussing
the National Highway Traffic Safety Administration's and the
National Transportation Safety Board's fifteen-page limit for
comments submitted in response to agency rulemakings). The page
limit applies separately to each proposed class in each round. Pages
submitted in one class do not count toward the limit in any other
class.
\301\ A submitter who has reached the page limit for a class may
not file, individually or jointly with another, any additional
submission addressing that class during the same comment round.
---------------------------------------------------------------------------

Commenters wishing to exceed the page limit must contact the
Office, using the contact information contained within the For Further
Information Contact section of this NPRM, prior to submission.\302\ The
decision to grant a commenter's request is subject to a showing of good
cause and at the Office's discretion.
---------------------------------------------------------------------------

\302\ See supra page 2.
---------------------------------------------------------------------------

The Office has determined that the authority to impose this page
limit is within section 1201(a)(1) and is further supported by its
accompanying legislative history. As the Office stated in its Section
1201 of Title 17 study, ``section 1201 appears to give the Office
considerable flexibility to define and

[[Page 67808]]

tailor the rulemaking process.'' \303\ The relevant statutory
provisions do not ``mandate [the] specific processes that the Register
must follow'' for conducting the rulemaking,\304\ beyond ``report[ing]
and comment[ing] on . . . her views in making'' recommendations to the
Librarian.\305\ Corresponding legislative history also evidences
Congress's intent that the specific rulemaking procedures beyond
``permit[ting] interested persons an opportunity to participate through
the submission of written statements, oral presentations at one or more
of the public hearings, and the submission of written responses to the
submissions or presentations of others,'' lie within the Office's
purview.\306\ The Office concludes that the page limit is consistent
with its informal rulemaking requirements under the Administrative
Procedure Act \307\ and is a needed change to improve the rulemaking
process, ``while maintaining procedural rules necessary for it to
administer the rulemaking efficiently within the statutorily mandated
period.'' \308\
---------------------------------------------------------------------------

\303\ Section 1201 Study at 107.
\304\ Id. at 24.
\305\ 17 U.S.C. 1201(a)(1)(C).
\306\ H.R. Rep. No. 106-464, at 149 (1999); see also H.R. Rep.
No. 105-796, at 64 (1998) (``It is the intention of the conferees
that, as is typical with other rulemaking under title 17, and in
recognition of the expertise of the Copyright Office, the Register
of Copyrights will conduct the rulemaking, including providing
notice of the rulemaking, seeking comments from the public,
consulting with the Assistant Secretary for Communications and
Information of the Department of Commerce and any other agencies
that are deemed appropriate, and recommending final regulations in
the report to the Librarian.'').
\307\ 5 U.S.C. 553(c) (requiring, absent specific exceptions,
that an agency ``give interested persons an opportunity to
participate in the rule making through submissions of written data,
views, or arguments''); see also H.R. Rep. No. 106-464, at 149
(explaining that the removal of previous draft legislative language
was ``a technical correction to clarify the intent of Congress that
the Copyright Office shall conduct the [section 1201] rulemaking . .
. as an informal rulemaking proceeding'').
\308\ Section 1201 Study at 107.
---------------------------------------------------------------------------

B. Public Hearings Phase

After the public comment phase, the Office will hold online public
hearings in spring 2027. The hearings will focus on unresolved issues
material to proposed exemptions that the Office finds unclear or
underdeveloped in the written record, and may offer the opportunity to
introduce demonstrative evidence. Demonstrative evidence is limited to
demonstrations that illustrate uses, technological measures, or methods
of circumvention already described in the written record; it is not a
vehicle for new factual showings. Participants may not submit
additional written evidence during or after the hearings or introduce
new evidence or arguments at the hearings. A separate notice providing
details about the hearings and how to participate will be published in
the Federal Register.
1. Post-Hearing Questions
Following the hearings, the Office may direct written questions to
specific participants to discuss discrete issues in particular classes,
including suggestions regarding regulatory language. Although
submission deadlines are provided, responses to these questions are
voluntary. Responses will be posted on the Office's website as part of
the public record.
2. Ex Parte Communication
As in prior proceedings, the Office will permit ex parte
communications after the conclusion of the hearings. Participating
parties will be required to follow the Office's regulation on ex parte
communications.\309\ No ex parte communications with the Office
regarding this proceeding will be permitted before the hearings have
concluded or at any time outside of the permitted period. The Office
will identify the specific time period it will accept requests for ex
parte communications in the notice it publishes to initiate the public
hearings phase.
---------------------------------------------------------------------------

\309\ See 37 CFR 201.1(d), 205.24; see generally Ex Parte
Communications, U.S. Copyright Office, <a href="https://www.copyright.gov/rulemaking/ex-parte-communications/">https://www.copyright.gov/rulemaking/ex-parte-communications/</a> (last visited Oct. 23, 2026).
---------------------------------------------------------------------------

C. Register's Recommendation and Librarian's Final Rule

The Office will analyze the complete administrative record, which
may include submissions from other parts of the federal
government.\310\ Following consultation with the National
Telecommunications and Information Administration, the Register will
issue her written recommendation to the Librarian as to which
exemptions are warranted, including proposed regulatory text for
adoption as a final rule. The Librarian, after consideration of the
Register's recommendation, will adopt a final rule announcing any
exemptions.\311\
---------------------------------------------------------------------------

\310\ See Letters Between the U.S. Copyright Office and Other
Agencies, 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. 23, 2026); Section 1201 Study
at 150-51.
\311\ 89 FR at 85445-50.

Dated: October 23, 2026.
Emily L. Chapuis,
General Counsel and Associate Register of Copyrights.
[FR Doc. 2026-21939 Filed 10-27-26; 8:45 am]
BILLING CODE 1410-30-P

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