Breaking Down Barriers to Innovation Act of 2015

Summary: Breaking Down Barriers to Innovation Act of 2015 Revises procedures established under the Digital Millennium Copyright Act for the Librarian of Congress to conduct an administrative rulemaking every three years to determine whether to exempt certain noninfringing uses of a copyrighted work from the statutory prohibition on circumventing a technological measure controlling access to a particular class of work. Requires the Librarian, when evaluating whether to allow an administrative exemption, to consider the impact of the circumvention prohibition on: (1) any reduction in the availability for use of copyrighted works; (2) repairs, recycling, or other fair uses when applied to copyrighted works, as well as access to information not subject to copyright protection; (3) accessibility of works and technologies for persons with disabilities; and (4) security research. Prohibits the Librarian from placing the burden of proof on the proponent of an exemption. Requires consideration of the totality of the evidence.  Allows the Librarian to make administrative exemption determinations through rulemaking proceedings outside of the three-year review process if it is substantially likely that users of a copyrighted work are, or are likely to be in the succeeding three-year period, adversely affected by virtue of the prohibition in their ability to make noninfringing uses. Requires the Librarian to automatically renew for an ensuing three-year period any exemptions granted under a rulemaking unless, as a result of changed circumstances, it is unlikely that users are adversely affected by the prohibition.  Establishes a presumption that users are likely to be adversely affected if a technological measure inhibits noninfringing uses that improve accessibility of works or technologies for persons with disabilities. Expands existing statutory exceptions by removing certain restrictions and conditions that apply to permissible circumventions for:  reverse engineering to achieve interoperability of an independently created computer program with other programs; encryption research on copies, phonorecords, performances, or displays of a published work; activities to prevent the collection or dissemination of personally identifying information about a natural person; or authorized security testing on computer systems or networks. 

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Breaking Down Barriers to Innovation 
Act of 2015''.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) the Librarian of Congress (referred to in this section 
        as the ``Librarian'') should ensure that noninfringing uses of 
        copyrighted works, as well as activities unrelated to the 
        copyrighted works, are not unduly burdened by the application 
        of section 1201 of title 17, United States Code;
            (2) the Librarian should apply section 1201 of title 17, 
        United States Code, in a manner that strikes a balance between 
        the ability of persons to make noninfringing use of copyrighted 
        works and the legitimate protection of intellectual property 
        rights;
            (3) the Librarian, in considering whether to grant 
        exemptions to the prohibition on the circumvention of 
        technological protection measures, should recognize that such 
        measures prevent persons from undertaking activities unrelated 
        to the use of copyrighted works; and
            (4) the Librarian--
                    (A) should not impose undue burdens on proponents 
                of exemptions; and
                    (B) should ensure that the rulemaking process for 
                considering exemptions is responsive to changes in the 
                technological landscape.

SEC. 3. CIRCUMVENTION OF COPYRIGHT PROTECTION SYSTEMS.

    (a) Violations Regarding Circumvention of Technological Measures.--
            (1) In general.--Section 1201(a)(1) of title 17, United 
        States Code, is amended--
                    (A) in subparagraph (A), by striking the second 
                sentence;
                    (B) in subparagraph (C)--
                            (i) in the matter preceding clause (i)--
                                    (I) by striking ``During the 2-year 
                                period described in subparagraph (A), 
                                and during each succeeding 3-year 
                                period,'' and inserting ``Every 3 
                                years,''; and
                                    (II) by striking ``the Librarian 
                                shall examine'' and inserting ``the 
                                Librarian shall consider, if 
                                applicable'';
                            (ii) in clause (i), by striking ``the 
                        availability for use of copyrighted works'' and 
                        inserting ``any reduction in the availability 
                        for use of copyrighted works as a result of the 
                        prohibition on the circumvention of 
                        technological measures'';
                            (iii) in clause (iii), by striking ``or 
                        research'' and inserting the following: 
                        ``repair, recycling, research, or other fair 
                        uses, and on access to information not subject 
                        to copyright protection'';
                            (iv) by redesignating clauses (iv) and (v) 
                        as clauses (vi) and (vii), respectively; and
                            (v) by inserting after clause (iii) the 
                        following:
                            ``(iv) the impact that the prohibition on 
                        the circumvention of technological measures has 
                        on the accessibility of works and technologies 
                        for persons with disabilities;
                            ``(v) the impact that the prohibition on 
                        the circumvention of technological measures has 
                        on the furtherance of security research;'';
                    (C) by redesignating subparagraph (D) as 
                subparagraph (F);
                    (D) by striking subparagraph (E);
                    (E) by inserting after subparagraph (C) the 
                following:
    ``(D) In making a determination under subparagraph (C), the 
Librarian--
            ``(i) shall consider the totality of the evidence available 
        to the Librarian; and
            ``(ii) may not assign the burden of proof to a proponent of 
        an exemption.
    ``(E) The Librarian, at the discretion of the Librarian, may 
conduct a rulemaking proceeding under subparagraph (C) outside of the 
3-year review process described in that subparagraph if the Librarian 
determines that it is substantially likely that persons who are users 
of a copyrighted work which is in a particular class of works are, or 
are likely to be in the succeeding 3-year period, adversely affected by 
virtue of the prohibition under subparagraph (A) in their ability to 
make noninfringing uses of that particular class of works under this 
title.'';
                    (F) in subparagraph (F), as redesignated--
                            (i) by striking ``The Librarian'' and 
                        inserting ``(i) The Librarian'';
                            (ii) by striking ``adversely affected, and 
                        the prohibition'' and inserting the following: 
                        ``adversely affected.
    ``(ii) The prohibition''; and
                            (iii) by adding at the end the following:
    ``(iii) At the end of each 3-year period described in subparagraph 
(C), the Librarian shall renew for the ensuing 3-year period each 
exemption granted under subparagraph (C) unless the Librarian 
determines that, as a result of changed circumstances, it is unlikely 
that any persons who are users of a copyrighted work in the class of 
copyrighted works to which the exemption relates will be adversely 
affected by virtue of the prohibition under subparagraph (A) in their 
ability to make noninfringing uses of that particular class of works 
under this title.''; and
                    (G) by inserting after subparagraph (F), as 
                redesignated, the following:
    ``(G) For purposes of this paragraph--
            ``(i) persons are `adversely affected' if a technological 
        measure that effectively controls access to a work which is in 
        a particular class of copyrighted works diminishes the ability 
        of the persons to make noninfringing uses of that particular 
        class of works under this title;
            ``(ii) if a technological measure inhibits noninfringing 
        uses of a work which is in a particular class of copyrighted 
        works relating to improving accessibility of works or 
        technologies for persons with disabilities, there shall be a 
        presumption that persons who use that particular class of work 
        are likely to be adversely affected; and
            ``(iii) the Librarian may find that a use of a work is 
        noninfringing based upon the totality of the circumstances, 
        including--
                    ``(I) the presence of supporting judicial 
                precedent;
                    ``(II) the absence of contrary judicial precedent;
                    ``(III) the intent of Congress; and
                    ``(IV) any other factors relevant to--
                            ``(aa) assessing the applicability of 
                        copyright protection; or
                            ``(bb) exceptions to or limitations on 
                        copyright protection.''.
            (2) Report.--Not later than 1 year after the date of 
        enactment of this Act, the Librarian of Congress, in 
        consultation with the Register of Copyrights and the Assistant 
        Secretary for Communications and Information of the Department 
        of Commerce, shall--
                    (A) conduct a study, including by soliciting public 
                comment, on--
                            (i) ways to ease the burden on persons 
                        requesting an exemption under section 
                        1201(a)(1)(C) of title 17, United States Code, 
                        as amended by paragraph (1);
                            (ii) how the process for requesting and 
                        granting exemptions described in clause (i) can 
                        be used to foster security research; and
                            (iii) how the process for requesting and 
                        granting exemptions described in clause (i) can 
                        be expanded to enable the sale and 
                        dissemination of circumvention tools, as 
                        described in subsections (a)(2) and (b)(1) of 
                        section 1201 of title 17, United States Code, 
                        for the sole purposes of enabling 
                        circumventions with respect to the classes of 
                        copyrighted works that the Librarian has 
                        published under subparagraph (F) of subsection 
                        (a)(1) of such section, as redesignated by 
                        paragraph (1); and
                    (B) shall submit to Congress a report on the study 
                conducted under subparagraph (A) that includes--
                            (i) proposed legislation to achieve the 
                        goals described in clauses (i) and (ii) of 
                        subparagraph (A); and
                            (ii) a description of any obstacles to the 
                        expansion described in clause (iii) of 
                        subparagraph (A) and proposed legislation for 
                        achieving such an expansion.
    (b) Reverse Engineering.--Section 1201(f) of title 17, United 
States Code, is amended--
            (1) in paragraph (1), by striking ``for the sole purpose'' 
        and all that follows through ``engaging in the circumvention'' 
        and inserting the following: ``for the sole purpose of 
        undertaking activities aimed at achieving interoperability of 
        an independently created computer program with other 
        programs'';
            (2) in paragraph (2), by striking ``in order to enable'' 
        and all that follows through ``achieve such interoperability'' 
        and inserting the following: ``for the activities described 
        under paragraph (1), or for the purpose of enabling 
        interoperability of an independently created computer program 
        with other programs''; and
            (3) in paragraph (3), by striking ``if the person'' and all 
        that follows through ``other programs, and''.
    (c) Encryption Research.--Section 1201(g) of title 17, United 
States Code, is amended--
            (1) in paragraph (1)(A)--
                    (A) by striking ``activities necessary to identify 
                and analyze flaws'' and inserting ``activities relating 
                to the identification and analysis of flaws''; and
                    (B) by striking ``to advance the state of knowledge 
                in the field of encryption technology'' and inserting 
                ``for research purposes'';
            (2) in paragraph (2)--
                    (A) in subparagraph (B), by striking ``necessary to 
                conduct'' and inserting ``undertaken in the course of 
                conducting''; and
                    (B) in subparagraph (D), by striking all that 
                follows ``infringement under this title'' and inserting 
                a period;
            (3) by striking paragraphs (3) and (5);
            (4) by redesignating paragraph (4) as paragraph (3); and
            (5) in paragraph (3)(B), as redesignated, by striking 
        ``with whom he or she is working collaboratively''.
    (d) Protection of Personally Identifying Information.--Section 
1201(i)(1)(D) of title 17, United States Code, is amended--
            (1) by striking ``solely''; and
            (2) by striking ``who seeks to gain access to the work 
        protected, and is not in violation of any other law''.
    (e) Security Testing.--Section 1201(j) of title 17, United States 
Code, is amended--
            (1) in paragraph (2), by striking all that follows 
        ``infringement under this title'' and inserting a period;
            (2) by striking paragraph (3);
            (3) by redesignating paragraph (4) as paragraph (3); and
            (4) in paragraph (3), as redesignated, by striking 
        ``subsection (2)'' and all that follows and inserting 
        ``paragraph (2)''.