Federal Register / Vol. 79, No. 180 / Wednesday, September 17, 2014 / Proposed Rules 55687 

1The original version of the bill did provide for 

certain permanent exemptions, including for library 

browsing, reverse engineering, and other activities, 

Continued 

FOR [ENTER PRODUCTION COMPANY] 

lllllllllllllllllllll

Signature and Date 

Name of Production Company 

Representative: 

lllllllllllllllllllll

Title and Address 

Dated: September 11, 2014. 

Aaron Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2014–22030 Filed 9–16–14; 8:45 am] 

BILLING CODE 5001–06–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 201 

[Docket No. 2014–07] 

Exemption to Prohibition on 

Circumvention of Copyright Protection 

Systems for Access Control 

Technologies 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of inquiry and request for 

petitions. 

SUMMARY: The United States Copyright 

Office is initiating the sixth triennial 

rulemaking proceeding under the Digital 

Millennium Copyright Act, concerning 

possible exemptions to the Act’s 

prohibition against circumvention of 

technological measures that control 

access to copyrighted works. The 

Copyright Office invites written 

petitions for proposed exemptions from 

interested parties. Unlike in previous 

rulemakings, the Office is not requesting 

the submission of complete legal and 

factual support for such proposals at the 

outset of the proceeding. Instead, in this 

first step of the process, parties seeking 

an exemption may submit a petition 

setting forth specified elements of the 

proposed exemption, as explained in 

this notice. After receiving petitions for 

proposed exemptions, the Office will 

consider the petitions, group and/or 

consolidate related and overlapping 

proposals, and issue a notice of 

proposed rulemaking setting forth the 

list of proposed exemptions for further 

consideration. The notice of proposed 

rulemaking will invite full legal and 

evidentiary submissions and provide 

further guidance as to the types of 

evidence that may be expected or useful 

vis-a`-vis particular proposals, with the 

aim of producing a well-developed 

administrative record. 

The Office believes that the 

adjustments it is making to its process, 

as discussed in this notice, will enhance 

public understanding of the rulemaking 

process, including its legal and 

evidentiary requirements, and facilitate 

more effective participation in the 

triennial proceeding. 

DATES: Written petitions for proposed 

exemptions must be received no later 

than November 3, 2014. 

ADDRESSES: Each proposal for an 

exemption should be submitted as a 

separate petition. The Copyright Office 

strongly prefers that petitions for 

proposed exemptions be submitted 

electronically. See the SUPPLEMENTARY

INFORMATION section below for 

information about the content and 

format requirements for petitions. A 

petition submission page and a template 

petition form will be posted on the 

Copyright Office Web site at http:// 

www.copyright.gov/1201/. To meet 

accessibility standards, all petitions 

must be uploaded in a single file in 

either the Portable Document File (PDF) 

format that contains searchable, 

accessible text (not an image); Microsoft 

Word; WordPerfect; Rich Text Format 

(RTF); or ASCII text file format (not a 

scanned document). The maximum file 

size is 6 megabytes (MB). The name of 

the submitter (and organization) should 

appear on both the form and the face of 

the comments. Petitions will be posted 

publicly on the Copyright Office Web 

site in the form they are received, along 

with the name of the submitter or 

organization. If electronic submission is 

not feasible, please contact the 

Copyright Office at 202–707–8350 for 

special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Jacqueline C. Charlesworth, General 

Counsel and Associate Register of 

Copyrights, by email at 

jcharlesworth@loc.gov or by telephone 

at 202–707–8350; Sarang V. Damle, 

Special Advisor to the General Counsel, 

by email at sdam@loc.gov or by 

telephone at 202–707–8350; or Stephen 

Ruwe, Attorney-Advisor, by email at 

sruwe@loc.gov or by telephone at 202– 

707–8350. 

SUPPLEMENTARY INFORMATION: As 

contemplated by 17 U.S.C. 1201(a)(1), 

the U.S. Copyright Office is initiating a 

proceeding to determine whether there 

are any classes of copyrighted works for 

which noninfringing uses are, or in the 

next three years are likely to be, 

adversely affected by the prohibition on 

circumvention of technological 

measures that control access to 

copyrighted works. The Office invites 

submission of petitions for proposed 

exemptions, the requirements for which 

are described in part IV.B.1 below. 

I. Background 

In 1998, Congress enacted the Digital 

Millennium Copyright Act (‘‘DMCA’’) to 

implement certain provisions of the 

WIPO Copyright Treaty and WIPO 

Performances and Phonograms Treaty. 

See generally Public Law 105–304, 112 

Stat. 2860 (1998). The DMCA governs 

many aspects of the digital marketplace 

for copyrighted works by establishing ‘‘a 

wide range of rules . . . for electronic 

commerce’’ and ‘‘defin[ing] whether 

consumers and businesses may engage 

in certain conduct, or use certain 

devices, in the course of transacting 

electronic commerce.’’ Report of the H. 

Comm. on Commerce on the Digital 

Millennium Copyright Act of 1998, H.R. 

Rep. No. 105–551, pt. 2, at 22 (1998) 

(‘‘Commerce Comm. Report’’). 

Among other things, title I of the 

DMCA, which added a new chapter 12 

to title 17 of the U.S. Code, prohibits 

circumvention of technological 

measures employed by or on behalf of 

copyright owners to protect access to 

their works (also known as ‘‘access 

controls’’). Specifically, section 

1201(a)(1)(A) provides in pertinent part 

that ‘‘[n]o person shall circumvent a 

technological measure that effectively 

controls access to a work protected 

under [title 17].’’ Under the statute, to 

‘‘circumvent a technological measure’’ 

means ‘‘to descramble a scrambled 

work, to decrypt an encrypted work, or 

otherwise to avoid, bypass, remove, 

deactivate, or impair a technological 

measure, without the authority of the 

copyright owner.’’ 17 U.S.C. 

1201(a)(3)(A). A technological measure 

that ‘‘effectively controls access to a 

work’’ is one that ‘‘in the ordinary 

course of its operation, requires the 

application of information, or a process 

or a treatment, with the authority of the 

copyright owner, to gain access to the 

work.’’ 17 U.S.C. 1201(a)(3)(B). In 

enacting this prohibition, Congress 

noted that technological protection 

measures can ‘‘support new ways of 

disseminating copyrighted materials to 

users, and to safeguard the availability 

of legitimate uses of those materials by 

individuals.’’ Staff of House Comm. on 

the Judiciary, 105th Cong., Section-bySection Analysis of H.R. 2281 as passed 

by the United States House of 

Representatives on August 4, 1998, at 6 

(Comm. Print 1998) (‘‘House Manager’s 

Report’’). 

As originally drafted, the prohibition 

in section 1201(a)(1)(A) did not provide 

for an exemption process.1 The House of 


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which were included in section 1201 as finally 

enacted. See S. Rep. No. 105–190, at 13–16 (1998). 

2Exemptions adopted by rule under section 

1201(a)(1)(C) apply only to the prohibition on the 

conduct of circumventing technological measures 

that control ‘‘access’’ to copyrighted works, e.g., 

decryption or hacking of access controls such as 

passwords. The Librarian of Congress has no 

authority to adopt exemptions for the prohibitions 

contained in subsections (a)(2) or (b) of section 

1201, which concern trafficking in circumvention 

tools. See 17 U.S.C. 1201(a)(1)(E) (‘‘Neither the 

exception under subparagraph (B) from the 

applicability of the prohibition contained in 

subparagraph (A), nor any determination made in 

a rulemaking conducted under subparagraph (C), 

may be used as a defense in any action to enforce 

any provision of this title other than this 

paragraph.’’). The statute contains exemptions from 

the trafficking prohibitions for certain limited uses, 

such as reverse engineering or encryption research. 

See 17 U.S.C. 1201(f)(2), (g)(4). 

3See H. R. Rep. No. 105–796, at 64 (1998) 

(‘‘Conference Report’’) (‘‘[A]s 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.’’). 

4 77 FR 65260 (Oct. 26, 2012) (‘‘2012 Final Rule’’), 

modified by 79 FR 50552 (Aug. 25, 2014) (codified 

at 37 CFR 201.40); 75 FR 43825 (July 27, 2010) 

(‘‘2010 Final Rule’’); 71 FR 68472 (Nov. 27, 2006); 

68 FR 62011 (Oct. 31, 2003) (‘‘2003 Final Rule’’); 

65 FR 64555 (Oct. 27, 2000). 5Register of Copyrights, Section 1201 

Rulemaking: Fifth Triennial Proceeding to 

Determine Exemptions to the Prohibition on 

Circumvention, Recommendation of the Register of 

Copyrights (Oct. 2012) (‘‘2012 Recommendation’’); 

Recommendation of the Register of Copyrights in 

RM 2008–8, Rulemaking on Exemptions from 

Prohibition on Circumvention of Copyright 

Protection Systems for Access Control Technologies 

(June 11, 2010) (‘‘2010 Recommendation’’); 

Recommendation of the Register of Copyrights in 

RM 2005–11, Rulemaking on Exemptions from 

Prohibition on Circumvention of Copyright 

Protection Systems for Access Control Technologies 

(Nov. 17, 2006); Recommendation of the Register of 

Copyrights in RM 2002–4, Rulemaking on 

Exemptions from Prohibition on Circumvention of 

Copyright Protection Systems for Access Control 

Technologies (Oct. 27, 2003); 65 FR 64555 (Oct. 27, 

2000) (final rule including the full text of the 

Register’s recommendation). The final rules and the 

Register’s recommendations can be found at 

www.copyright.gov/1201/. 

6Subsequently, the Librarian adopted regulatory 

amendments to reflect the new legislation. See 79 

FR 50552 (Aug. 25, 2014) (codified at 37 CFR 

201.40(b)(3), (c)). 

7Although it commenced in 2008, the fourth 

triennial rulemaking did not conclude until 2010. 

Representatives Commerce Committee 

was concerned, however, that the lack 

of such an ability to waive the 

prohibition might undermine the fair 

use of copyrighted works. Commerce 

Comm. Report at 35–36. The Committee 

acknowledged that the growth and 

development of the internet had had a 

significant positive impact on the access 

of students, researchers, consumers, and 

the public at large to information, and 

that a ‘‘plethora of information, most of 

it embodied in materials subject to 

copyright protection, is available to 

individuals, often for free, that just a 

few years ago could have been located 

and acquired only through the 

expenditure of considerable time, 

resources, and money.’’ Id. at 35–36. At 

the same time, the Committee was 

concerned that ‘‘marketplace realities 

may someday dictate a different 

outcome, resulting in less access, rather 

than more, to copyrighted materials that 

are important to education, scholarship, 

and other socially vital endeavors.’’ Id. 

at 36. The Committee thus concluded 

that it would be appropriate to ‘‘modify 

the flat prohibition against the 

circumvention of effective technological 

measures that control access to 

copyrighted materials, in order to 

ensure that access for lawful purposes is 

not unjustifiably diminished.’’ Id. 

Accordingly, the Commerce 

Committee proposed a modification of 

proposed section 1201 that it 

characterized as a ‘‘ ‘fail-safe’ 

mechanism.’’ Id. The Committee Report 

noted that ‘‘[t]his mechanism would 

monitor developments in the 

marketplace for copyrighted materials, 

and allow the enforceability of the 

prohibition against the act of 

circumvention to be selectively waived, 

for limited time periods, if necessary to 

prevent a diminution in the availability 

to individual users of a particular 

category of copyrighted materials.’’ Id. 

As ultimately enacted, the ‘‘fail-safe’’ 

mechanism in section 1201(a)(1) directs 

the Librarian of Congress, pursuant to a 

rulemaking proceeding, to publish any 

class of copyrighted works for which the 

Librarian has determined that 

noninfringing uses by persons who are 

users of a copyrighted work are, or are 

likely to be, adversely affected by the 

prohibition against circumvention in the 

succeeding three-year period, thereby 

exempting that class from the 

prohibition for that period. See 17 

U.S.C. 1201(a)(1). The Librarian’s 

determination to grant an exemption is 

based upon the recommendation of the 

Register of Copyrights. Id. at 

1201(a)(1)(C). The Register in turn is to 

consult with the Assistant Secretary for 

Communications and Information of the 

Department of Commerce, who oversees 

the National Telecommunications and 

Information Administration (the 

‘‘Assistant Secretary’’).2 Id. As explained 

by the Commerce Committee, ‘‘[t]he goal 

of the proceeding is to assess whether 

the implementation of technological 

protection measures that effectively 

control access to copyrighted works is 

adversely affecting the ability of 

individual users to make lawful uses of 

copyrighted works.’’ See Commerce 

Comm. Report at 37. 

In keeping with that goal, the primary 

responsibility of the Register and the 

Librarian in the rulemaking proceeding 

is to assess whether the implementation 

of access controls impairs the ability of 

individuals to make noninfringing use 

of copyrighted works within the 

meaning of section 1201(a)(1). To do 

this, the Register develops a 

comprehensive administrative record 

using information submitted by 

interested parties, and makes 

recommendations to the Librarian 

concerning whether exemptions are 

warranted based on that record.3

Under the statutory framework, the 

Librarian, and thus the Register, must 

consider ‘‘(i) the availability for use of 

copyrighted works; (ii) the availability 

for use of works for nonprofit archival, 

preservation, and educational purposes; 

(iii) the impact that the prohibition on 

the circumvention of technological 

measures applied to copyrighted works 

has on criticism, comment, news 

reporting, teaching, scholarship, or 

research; (iv) the effect of circumvention 

of technological measures on the market 

for or value of copyrighted works; and 

(v) such other factors as the Librarian 

considers appropriate.’’ 17 U.S.C. 

1201(a)(1)(C). As noted above, the 

Register must also consult with the 

Assistant Secretary, and report and 

comment on his views, in providing her 

recommendation. Upon receipt of the 

recommendation, the Librarian is 

responsible for promulgating the final 

rule setting forth any exempted classes 

of works. 

The Librarian has thus far made five 

determinations under section 

1201(a)(1) 4 based upon the 

recommendations of the Register.5 This 

notice announces the commencement of 

the sixth triennial rulemaking under the 

statutory process. 

II. The Unlocking Consumer Choice 

and Wireless Competition Act 

Earlier this year, Congress enacted the 

Unlocking Consumer Choice and 

Wireless Competition Act (‘‘Unlocking 

Act’’), effective as of August 1, 2014. 

Public Law 113–144, 128 Stat. 1751 

(2014).6 The Unlocking Act did three 

things. First, it changed the existing 

exemption allowing circumvention of 

technological measures that control 

access to computer programs that enable 

wireless telephone handsets to connect 

to wireless communication networks—a 

process commonly known as ‘‘cellphone 

unlocking’’—by substituting the version 

of the exemption adopted by the 

Librarian in 2010 7 for the narrower 


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See 73 FR 79425 (Dec. 29, 2008); 2010 Final Rule 

at 43827. 

8The 2010 rule allowed unlocking of cellphones 

initiated by the owner of the copy of the handset 

computer program in order to connect to a wireless 

network in an authorized manner. 2010 Final Rule 

at 43839. Based on the record in the 2012 

rulemaking proceeding, the 2012 rule ended the 

exemption with respect to new phones acquired 

after January 26, 2013 (90 days after the rule went 

into effect), but permitted the unlocking of older, 

or ‘‘legacy,’’ phones. 2012 Final Rule at 65263–66. 

Congress enacted the Unlocking Act after public 

calls for a broader exemption than provided in the 

2012 rule. See We the People, Making Unlocking 

Cell Phones Legal, https://petitions.whitehouse.gov/ 

petition/make-unlocking-cell-phones-legal/

1g9KhZG7 (last updated July 25, 2014). 

9See 79 FR at 50554; see also 37 CFR 201.40(c) 

(‘‘To the extent authorized under paragraph (b) of 

this section, the circumvention of a technological 

measure that restricts wireless telephone handsets 

or other wireless devices from connecting to a 

wireless telecommunications network may be 

initiated by the owner of any such handset or other 

device, by another person at the direction of the 

owner, or by a provider of a commercial mobile 

radio service or a commercial mobile data service 

at the direction of such owner or other person, 

solely in order to enable such owner or a family 

member of such owner to connect to a wireless 

telecommunications network, when such 

connection is authorized by the operator of such 

network.’’). 

10Congress indicated that the rulemaking under 

section 1201(a)(1) should be conducted ‘‘as is 

typical with other rulemaking under title 17.’’ 

Conference Report at 64. Thus, it is appropriate to 

look to the APA, which governs rulemaking under 

title 17. See 17 U.S.C. 701(e). 

version adopted in 2012. See Public 

Law 113–144, sec. 2(a).8 The language of 

the Unlocking Act makes clear, 

however, that the Register is to consider 

any proposal for a cellphone unlocking 

exemption according to the usual 

process in this triennial rulemaking. See 

Public Law 113–144, sec. 2(c)(2) 

(referencing the possibility of a new 

cellphone unlocking exemption adopted 

‘‘after the date of enactment’’ of the 

Unlocking Act); id. sec. 2(d)(2) 

(‘‘Nothing in this Act alters, or shall be 

construed to alter, the authority of the 

Librarian of Congress under section 

1201(a)(1) of title 17, United States 

Code.’’). 

Second, the legislation provides that 

the circumvention permitted under the 

reinstated 2010 exemption, as well as 

any future exemptions to permit 

wireless telephone handsets or other 

wireless devices to connect to wireless 

telecommunications networks, may be 

initiated by the owner of the handset or 

device, by another person at the 

direction of the owner, or by a provider 

of commercial mobile radio or data 

services to enable such owner or a 

family member to connect to a wireless 

network when authorized by the 

network operator. Public Law 113–144, 

sec. 2(a), (c). This directive is 

permanent, and is now reflected in the 

relevant regulations.9 Accordingly, 

circumvention under any future 

‘‘unlocking’’ exemption for wireless 

telephone handsets and other wireless 

devices adopted by the Librarian may be 

initiated by the persons Congress 

identified in the Unlocking Act. 

Third, the legislation directs the 

Librarian of Congress to consider as part 

of this next triennial rulemaking 

proceeding whether to ‘‘extend’’ the 

reinstated 2010 cellphone unlocking 

exemption ‘‘to include any other 

category of wireless devices in addition 

to wireless telephone handsets’’ based 

upon the recommendation of the 

Register of Copyrights, who in turn is to 

consult with the Assistant Secretary. 

Public Law 113–144, sec. 2(b). This 

provision does not alter or expand the 

Librarian’s authority to grant 

exemptions under section 1201(a)(1), 

but merely directs the Librarian to 

exercise his existing regulatory 

authority to consider the adoption of an 

exemption for other wireless devices. 

Accordingly, as part of this rulemaking, 

the Copyright Office is soliciting and 

will consider proposals for one or more 

exemptions to allow unlocking of 

wireless devices other than wireless 

telephone handsets. 

The Office invites petitions regarding 

other wireless devices with the caveat 

that the proposals should be made with 

an appropriate level of specificity. The 

evaluation of whether an exemption 

would be appropriate under section 

1201(a)(1)(C) is likely to be different for 

different types of wireless devices, 

requiring distinct legal and evidentiary 

showings. Thus, a petition proposing a 

general exemption for ‘‘all wireless 

devices’’ or ‘‘all tablets’’ could be quite 

difficult to support, in contrast to a 

petition that focuses on specific 

categories of devices, such as allpurpose tablet computers, dedicated ebook readers, mobile ‘‘hotspots,’’ smart 

watches with mobile data connections, 

etc. 

III. Rulemaking Standards 

In adopting the DMCA, Congress 

imposed legal and evidentiary 

requirements for the section 1201 

rulemaking proceeding. Participants in 

the proceeding are encouraged to 

familiarize themselves with these 

requirements, which are summarized 

below, so they can maximize the 

effectiveness of their submissions. 

A. Burden of Proof 

Those who seek an exemption from 

the prohibition on circumvention bear 

the burden of establishing that the 

requirements for granting an exemption 

have been satisfied. In enacting the 

DMCA, Congress explained that that 

‘‘prohibition [of section 1201(a)(1)] is 

presumed to apply to any and all kinds 

of works’’ until the Librarian determines 

that the requirements for the adoption of 

an exemption have been met with 

respect to a particular class of works. 

Commerce Comm. Report at 37. In other 

words, the prohibition against 

circumvention applies unless and until 

the Librarian determines that ‘‘persons 

who are users of a copyrighted work are, 

or are likely to be in the succeeding 3- 

year period, adversely affected by the 

prohibition . . . in their ability to make 

noninfringing uses under this title of a 

particular class of copyrighted works.’’ 

17 U.S.C. 1201(a)(1)(C). This approach 

is also consistent with general 

principles of agency rulemaking under 

the Administrative Procedure Act 

(‘‘APA’’).10 See 5 U.S.C. 556(d) (‘‘Except 

as otherwise provided by statute, the 

proponent of a rule or order has the 

burden of proof.’’). 

To satisfy this burden, as the 

Copyright Office has previously 

explained, the proponent ‘‘must prove 

by a preponderance of the evidence that 

the harm alleged is more likely than 

not.’’ 2010 Recommendation at 10. This 

requirement stems from the statute, 

which requires a demonstration that 

users are, or are likely to be adversely 

affected by the prohibition on 

circumvention. 17 U.S.C. 1201(a)(1)(B) 

(emphases added). The preponderance 

of the evidence standard conforms to 

basic principles of administrative law. 

The APA provides that a rule may not 

be issued pursuant to formal agency 

rulemaking ‘‘except on consideration of 

the whole record or those parts thereof 

cited by a party and supported by and 

in accordance with the reliable, 

probative, and substantial evidence.’’ 

See 5 U.S.C. 556(d) (emphasis added); 

see also Steadman v. SEC, 450 U.S. 91, 

102 (1981) (holding that the APA ‘‘was 

intended to establish a standard of proof 

and that the standard adopted is the 

traditional preponderance-of-theevidence standard’’). 

B. De Novo Consideration of 

Exemptions 

Congress made clear in enacting the 

DMCA that the basis for an exemption 

must be established de novo in each 

triennial proceeding. See Commerce 

Comm. Report at 37 (explaining that for 

every rulemaking, ‘‘the assessment of 

adverse impacts on particular categories 

of works is to be determined de novo.’’). 

As Congress stressed, ‘‘[t]he regulatory 

prohibition [of section 1201(a)(1)] is 

presumed to apply to any and all kinds 

of works, including those as to which a 


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waiver of applicability was previously 

in effect, unless, and until, the 

[Librarian] makes a new determination 

that the adverse impact criteria have 

been met with respect to a particular 

class and therefore issues a new 

waiver.’’ Id. (emphases added). 

Accordingly, the fact that an exemption 

has been previously adopted creates no 

presumption that readoption is 

appropriate. This means that a 

proponent may not simply rely on the 

fact that the Register has recommended 

an exemption in the past, but must 

instead produce relevant evidence in 

each rulemaking to justify the 

continuation of the exemption. 

That said, however, where a 

proponent is seeking the readoption of 

an existing exemption, it may attempt to 

satisfy its burden by demonstrating that 

the conditions that led to the adoption 

of the prior exemption continue to exist 

today (or that new conditions exist to 

justify the exemption). This could 

include, for instance, a showing that the 

cessation of an exemption will 

adversely impact users’ ability to make 

noninfringing uses of the class of works 

covered by the existing exemption. 

Assuming the proponent succeeds in 

making such a demonstration, it is 

incumbent upon any opponent of that 

exemption to rebut such evidence by 

showing that the exemption is no longer 

justified. 

C. Adverse Effects on Noninfringing 

Uses 

Proponents who seek to have the 

Librarian exempt a particular class of 

works from section 1201(a)(1)’s 

prohibition on circumvention must 

show: (1) That uses affected by the 

prohibition on circumvention are or are 

likely to be noninfringing; and (2) that 

as a result of a technological measure 

controlling access to a copyrighted 

work, the prohibition is causing, or in 

the next three years is likely to cause, 

an adverse impact on those uses. See 17 

U.S.C. 1201(a)(1)(B). These 

requirements are explained below. The 

Register also considers potential 

exemptions under the statutory factors 

set forth in section 1201(a)(1)(C), as 

discussed below. 

Noninfringing Uses. As noted above, 

Congress believed that it is important to 

protect noninfringing uses. There are 

several types of noninfringing uses that 

could be affected by the prohibition of 

section 1201(a)(1), including fair use 

(delineated in section 107), certain 

educational uses (section 110), certain 

uses of computer programs (section 

117), and others. 

The Register will look to the 

Copyright Act and relevant judicial 

precedents when analyzing whether a 

proposed use is likely to be 

noninfringing. A proponent must show 

more than that a particular use could be 

noninfringing. Instead, the proponent 

must establish that the proposed use is 

likely to qualify as noninfringing under 

relevant law. As the Register has stated 

previously, there is no ‘‘rule of doubt’’ 

favoring an exemption when it is 

unclear that a particular use is a fair use. 

See 2012 Recommendation at 7. Rather, 

the statutory language requires that the 

use is or is likely to be noninfringing, 

not merely that the use might plausibly 

be considered noninfringing. See 17 

U.S.C. 1201(a)(1)(C). And, as noted 

above, the burden of proving that a 

particular use is or is likely to be 

noninfringing belongs to the proponent. 

Adverse effects. The second 

requirement is a showing that users of 

the class of copyrighted works currently 

are, or are likely in the ensuing threeyear period to be adversely affected by 

the prohibition against circumvention. 

17 U.S.C. 1201(a)(1)(C). In weighing 

adverse effects, the Register must assess, 

in particular, ‘‘whether the prevalence 

of . . . technological protections, with 

respect to particular categories of 

copyrighted materials, is diminishing 

the ability of individuals to use these 

works in ways that are otherwise 

lawful.’’ Commerce Comm. Report at 37. 

Congress stressed that the ‘‘main 

focus of the rulemaking proceeding’’ 

should be on whether a ‘‘substantial 

diminution’’ of the availability of works 

for noninfringing uses is ‘‘actually 

occurring’’ in the marketplace. House 

Manager’s Report at 6. To prove the 

existence of such existing adverse 

effects, it is necessary to demonstrate 

‘‘distinct, verifiable and measurable 

impacts’’ occurring in the marketplace, 

as exemptions ‘‘should not be based 

upon de minimis impacts.’’ Committee 

Report at 37. Thus, ‘‘mere 

inconveniences’’ or ‘‘individual cases’’ 

do not satisfy the rulemaking standard. 

House Manager’s Report at 6. 

To the extent that a proponent is 

relying on claimed future impacts rather 

than existing impacts, the statute 

requires the proponent to establish that 

such future adverse impacts are 

‘‘likely.’’ 17 U.S.C. 1201(a)(1)(B) 

(emphasis added). An exemption may 

be based upon anticipated, rather than 

actual, adverse impacts ‘‘only in 

extraordinary circumstances in which 

the evidence of likelihood of future 

adverse impact during that time period 

is highly specific, strong and 

persuasive.’’ House Manager’s Report at 

6. 

The proponent must also demonstrate 

that the technological protection 

measure is the cause of the claimed 

adverse impact. ‘‘Adverse impacts that 

flow from other sources, or that are not 

clearly attributable to implementation of 

a technological protection measure, are 

outside the scope of the rulemaking.’’ 

Commerce Comm. Report at 37. For 

instance, adverse effects stemming from 

‘‘marketplace trends, other 

technological developments, or changes 

in the roles of libraries, distributors or 

other intermediaries’’ are not cognizable 

harms under the statute. House 

Manager’s Report at 6. 

D. Statutory Factors 

In conducting the rulemaking, the 

Librarian must also examine the 

statutory factors listed in section 

1201(a)(1)(C). Those factors are: ‘‘(i) The 

availability for use of copyrighted 

works; (ii) The availability for use of 

works for nonprofit archival, 

preservation, and educational purposes; 

(iii) the impact that the prohibition on 

the circumvention of technological 

measures applied to copyrighted works 

has on criticism, comment, news 

reporting, teaching, scholarship, or 

research; (iv) the effect of circumvention 

of technological measures on the market 

for or value of copyrighted works; and 

(v) such other factors as the Librarian 

considers appropriate.’’ 17 U.S.C. 

1201(a)(1)(C). In some cases, weighing 

these factors requires the consideration 

of the benefits that the technological 

measure brings with respect to the 

overall creation and dissemination of 

works in the marketplace. As Congress 

explained, ‘‘the rulemaking proceedings 

should consider the positive as well as 

the adverse effects of these technologies 

on the availability of copyrighted 

materials.’’ House Manager’s Report at 

6. 

E. Defining a Class 

Section 1201(a)(1) specifies that the 

exemption adopted as part of this 

rulemaking must be defined based on ‘‘a 

particular class of works.’’ See 17 U.S.C. 

1201(a)(1)(B) (emphasis added). Thus, a 

major focus of the rulemaking 

proceeding is how to define the ‘‘class’’ 

of works for purposes of the exemption. 

The starting point for any definition of 

a ‘‘particular class’’ under section 

1201(a)(1) is the list of categories 

appearing in section 102 of title 17, such 

as literary works, musical works, and 

sound recordings. House Manager’s 

Report at 7. But, as Congress made clear, 

‘‘the ‘particular class of copyrighted 

works’ [is intended to] be a narrow and 

focused subset of the broad categories of 

works . . . identified in section 102 of 

the Copyright Act.’’ Commerce Comm. 

Report at 38 (emphasis added). For 


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11 In the earliest rulemakings, consistent with the 

records in those proceedings, the Register rejected 

proposals to classify works by reference to the type 

of user or use (e.g., libraries, or scholarly research). 

In the 2006 proceeding, however, the Register 

concluded, based on the record before her, that in 

appropriate circumstances a ‘‘class of works’’ that 

is defined initially by reference to a section 102 

category of works or subcategory thereof may 

additionally be refined not only by reference to the 

medium on which the works are distributed or 

particular access controls at issue, but also by 

reference to the particular type of use and/or user 

to which the exemption shall be applicable. The 

Register determined that there was no basis in the 

statute or in the legislative history that required her 

to delineate the contours of a ‘‘class of works’’ in 

a factual vacuum. At the same time, tailoring a class 

solely by reference to the use and/or user would be 

beyond the scope of what a ‘‘particular class of 

works’’ is intended to be. See 2006 

Recommendation at 9–10, 15–20. 

12 In the fifth triennial rulemaking, the Copyright 

Office provided a mechanism allowing for the 

submission of untimely proposed exemptions based 

on exceptional or unforeseen circumstances. 76 FR 

60398 at 60404. However, the revised process 

described herein will make it substantially easier 

for a party to submit a proposal, as it does not 

require submission of a full-fledged case at the 

outset. Thus, the Office is not providing for a 

specific process for untimely petitions. The Office 

nevertheless reserves its ability to exercise 

discretion to address unanticipated concerns as 

appropriate. 

13This was the first time in a triennial rulemaking 

that the Office had held a hearing specifically 

focused on the technologies involved. 14The post-hearing questions and responses can 

be found on the Copyright Office’s Web site at 

http://copyright.gov/1201/2012/responses/. 15See Letter from Lawrence E. Strickling, 

Assistant Secretary for Communications and 

Information, U.S. Department of Commerce, to 

Maria Pallante, Register of Copyrights, Sept. 21, 

2012, available at http://copyright.gov/1201/2012/

2012_NTIA_Letter.pdf. 16The Register’s 2012 recommendation can be 

found at http://www.copyright.gov/1201/2012/

Section_1201_Rulemaking_2012_

Recommendation.pdf. 

example, 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,’’ 

Congress explained that ‘‘[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.’’ House 

Manager’s Report at 7. Thus, ‘‘these two 

categories of works, while both ‘literary 

works,’ do not constitute a single 

‘particular class’ for purposes of’’ 

section 1201(a)(1). Id. 

At the same time, Congress 

emphasized that the Librarian ‘‘should 

not draw the boundaries of ‘particular 

classes’ too narrowly.’’ Id. Thus, while 

the category of ‘‘motion pictures and 

other audiovisual works’’ in section 102 

‘‘may appropriately be subdivided, for 

purposes of the rulemaking, into classes 

such as ‘motion pictures,’ ‘television 

programs,’ and other rubrics of similar 

breadth,’’ Congress made clear that it 

would be inappropriate ‘‘to subdivide 

overly narrowly into particular genres of 

motion pictures, such as Westerns, 

comedies, or live action dramas.’’ Id. 

The determination of the appropriate 

scope of a ‘‘class of works’’ 

recommended for exemption may also 

take into account the adverse effects an 

exemption may have on the market for 

or value of copyrighted works. For 

example, the class might be defined in 

part by reference to the medium on 

which the works are distributed, or even 

to the access control measures applied 

to them. But classifying a work solely by 

reference to the medium on which the 

work appears, or the access control 

measures applied to the work, would be 

inconsistent with Congress’ intent in 

directing the Register and Librarian to 

define a ‘‘particular class’’ of works.11

Ultimately, ‘‘[d]eciding the scope or 

boundaries of a ‘particular class’ of 

copyrighted works as to which the 

prohibition contained in section 

1201(a)(1) has been shown to have had 

an adverse impact is an important issue 

to be determined during the rulemaking 

proceedings.’’ House Manager’s Report 

at 7. Accordingly, the Register will look 

to the specific record before her to 

assess the proper scope of the class for 

a recommended exemption. 

IV. Rulemaking Process 

A. Prior Rulemakings 

The administrative process employed 

in the fifth triennial rulemaking largely 

paralleled that of prior earlier 

rulemakings. See generally 79 FR 60398 

(Sept. 29, 2011). First, the Copyright 

Office initiated the rulemaking process 

by calling for the public to submit 

proposals for exemptions. Id. Notably, 

the Office required proponents to 

provide complete legal and evidentiary 

support for their proposals at the outset 

of the rulemaking process, in the 

proponents’ initial submissions. See id. 

at 60403 (stressing that ‘‘[p]roponents 

should present their entire case in their 

initial comments’’ and explaining that 

‘‘the best evidence in support of an 

exemption would consist of concrete 

examples or specific instances’’ of 

adverse effects on noninfringing uses).12

After receiving the initial submissions 

containing the proposed exemptions 

and posting them on its Web site, the 

Office published a notice of proposed 

rulemaking describing the proposals 

and inviting interested parties to submit 

comments both in support of and in 

opposition to those proposals. 76 FR 

78866, 78868 (Dec. 20, 2011) (asking for 

‘‘additional factual information that 

would assist the Office in assessing 

whether a Proposed Class is warranted 

for exemption and, if it is, how such a 

class already proposed should be 

properly tailored’’). The Office then 

invited reply comments in support of 

and in opposition to the proposed 

classes, limited to addressing the points 

made earlier in the proceeding. Id. at 

78868. 

After the close of the comment period, 

the Office held a series of public 

hearings to further explore the proposed 

exemptions. 77 FR 15327 (Mar. 15, 

2012). The first hearing was a 

‘‘technology hearing’’ conducted in 

Washington, DC in May 2012, and was 

limited to demonstrations of the 

‘‘technologies pertinent to the merits of 

the proposals.’’ Id. at 15328.13 The 

Office requested that ‘‘[w]itnesses 

wishing to present demonstrations . . . 

do so at this hearing rather than at the 

other hearings, in order to permit the 

other hearings to proceed on schedule.’’ 

Id. Following the technology hearing, 

the Office held additional hearings in 

Los Angeles, California, and 

Washington, DC to hear testimony 

regarding the exemptions. Id. Those 

hearings ‘‘consist[ed] of presentations of 

facts and legal argument, followed by 

questions from Copyright Office staff.’’ 

Id. 

After the hearing, the Office directed 

specific follow-up questions to a 

number of hearing participants in an 

effort to address unresolved questions 

regarding the proposed exemptions.14

Then, based on the resulting record 

before the Office, and following 

consideration of the Assistant 

Secretary’s views,15 the Register 

provided a recommendation to the 

Librarian as to the classes of works that 

should be entitled to an exemption from 

section 1201(a)’s prohibition on 

circumvention.16 The Librarian, after 

consideration of that recommendation, 

adopted a final rule announcing the 

exemptions. 77 FR 65260 (Oct. 26, 

2012). 

B. Sixth Triennial Rulemaking 

The Copyright Office is modifying its 

administrative process for the sixth 

triennial rulemaking. As in prior 

rulemakings, the overall aim of the 

process is to create a comprehensive 

record on which the Register can base 

her recommendation and the Librarian, 

in turn, can adopt final exemptions. The 

Office believes that the procedural 

changes it is making will further that 

objective by, among other things, 

making the process more accessible and 

understandable to the public, allowing 

greater opportunity for participants to 

coordinate their efforts, encouraging 


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17Note that apart from any contact information 

set forth in the petition itself, the Office requires the 

provision of certain contact information, including 

name, address, phone number, and email address, 

as part of the electronic submission process so that 

the Office may contact submitters (for example, to 

confirm receipt of the submission). Apart from the 

name of the submitter, the information requested as 

part of the electronic submitting process (as 

opposed to information contained in the petition) 

is not posted online. 

18Those who oppose exemptions, too, are 

encouraged to coordinate their efforts at the 

opposition stage if they wish. 

19Parties should keep in mind, however, that any 

private, confidential, or personally identifiable 

information appearing in their petition will be 

accessible to the public. 

participants to submit effective factual 

and legal in support for their positions, 

and reducing administrative burdens on 

both the participants and the Office. 

We describe below the administrative 

process that will be employed for this 

rulemaking. 

1. Petition Phase 

With this notice of inquiry, the 

Copyright Office is calling for the public 

to submit petitions for proposed 

exemptions. In a departure from prior 

rulemakings, the Office is not requiring 

the proponent of an exemption to 

deliver the complete legal and 

evidentiary basis for its proposal with 

its initial submission. Instead, the 

purpose of the petition is to provide the 

Office with basic information regarding 

the essential elements of the proposed 

exemption, both to confirm that the 

threshold requirements of section 

1201(a) can be met, and to aid the Office 

in describing the proposal for the next, 

more substantive, phase of the 

rulemaking proceeding. The petitions 

should comply with the below 

requirements. To assist participants, the 

Office has posted a recommended 

template form on its Web site, at 

http://www.copyright.gov/1201. If there 

are extenuating circumstances such that 

a participant cannot meet one or more 

of the requirements, the participant 

should contact the Copyright Office 

using the above contact information. 

a. Petitions requesting a proposed 

exemption should be limited to five 

pages in length (which may be singlespaced but should be in at least 12-point 

type). 

b. Petitions should address a single 

proposed exemption. That is, a separate 

petition must be filed for each proposal. 

Although a single petition may not 

encompass more than one proposed 

exemption, the same party may submit 

multiple petitions. The Office will be 

requiring participants in later rounds 

also to make separate submissions with 

respect to each proposed exemption (or 

group of related exemptions). The Office 

anticipates that it will receive a 

significant number of submissions, and 

requiring separate submissions for each 

proposed exemption will help both 

participants and the Office keep better 

track of the record for each proposed 

exemption. In the past, submitters 

sometimes combined their views on 

multiple proposals in a single filing, 

making it difficult and time-consuming 

for other participants and the Office to 

sort out which arguments and evidence 

pertained to which. Separating the 

submissions by proposal will allow for 

more focused responses and replies and 

a clearer record overall. 

The Office also urges submitters to 

consider the appropriate level of 

specificity for their petitions, including 

the particular type of copyrighted work, 

and the specific medium or device at 

issue. For instance, as noted above, with 

respect to petitions to unlock wireless 

devices, the Office encourages 

participants to submit petitions that 

clearly identify a particular category of 

device. 

c. The petition should concisely 

address each of the following elements 

of the proposed exemption, in separate 

sections as identified below, and in the 

below order, bearing in mind that more 

complete information—including legal 

and evidentiary support—will be 

permitted in later rounds of 

submissions. 

Petition Requirements 

1. Submitter and Contact Information 

The petition should clearly identify 

the submitter and, if desired, a means 

for others to contact the submitter or an 

authorized representative of the 

submitter by either email or telephone. 

Petitions will be published on the 

Copyright Office’s Web site, and 

providing such contact information in 

the petition will allow parties with 

aligned interests to more easily 

coordinate their efforts during later 

stages of the rulemaking should they 

wish to do so.17 The Office believes that 

the opportunity for those with 

substantially similar proposals to 

combine their efforts with respect to 

their legal and evidentiary submissions 

may yield a more complete record in 

some cases.18 In addition, law clinics 

and other organizations that may be in 

a position to offer assistance to others 

will be aware of the proposals before 

full submissions are due.19

2. Brief Overview of Proposed 

Exemption 

The submitter should provide a brief 

statement describing the overall 

proposed exemption (ideally in one to 

three sentences), explaining the type of 

copyrighted work involved, the 

technological protection measure 

(‘‘TPM’’) (or access control) sought to be 

circumvented, and any limitations or 

conditions that would apply (e.g., a 

limitation to certain types of users or a 

requirement that the circumvention be 

for a certain purpose). While the 

petition may seek to propose precise 

regulatory language for the exemption, it 

need not do so. The petition should 

focus instead on providing a clear 

description of the specific elements of 

the proposed exemption. The Office 

notes that the specific language for the 

regulation that the Office ultimately 

recommends to the Librarian will 

necessarily be tied to the full record at 

the end of the proceeding. Thus, at the 

petition phase, particularized regulatory 

language matters less than the substance 

of the proposal. 

3. Copyrighted Works Sought to be 

Accessed 

The petition must identify the specific 

class, or category, of copyrighted works 

that the proponent wishes to access 

through circumvention. The works 

identified should reference a category of 

works referred to in section 102 of title 

17 (the Copyright Act) (e.g., literary 

works, audiovisual works, etc.). Unless 

the submitter seeks an exemption for an 

entire category in section 102, the 

description of works should be further 

refined to identify the particular subset 

of work to be subject to the exemption 

(e.g., e-books, computer programs, or 

motion pictures) and, if applicable, by 

reference to the medium or device on 

which the works reside (e.g., motion 

pictures distributed on DVDs). 

4. Technological Protection Measure(s) 

The petition should describe the TPM 

that controls access to the work. The 

submitter does not need to describe the 

specific technical details of the access 

control measure, but should offer 

sufficient information to allow the 

Office to understand the basic nature of 

the technological measure and why it 

prevents open access to the work (e.g., 

the encryption of motion pictures on 

DVD using the Content Scramble 

System or the cryptographic 

authentication protocol on a garage door 

opener). 

5. Noninfringing Uses 

The petition must also identify the 

specific noninfringing uses of 

copyrighted works sought to be 

facilitated by circumvention (e.g., 

enabling accessibility for disabled users, 

or copying a lawfully owned computer 

program for archival purposes), and the 

statutory or doctrinal basis or bases that 


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20The notice of proposed rulemaking will also 

provide instructions for parties who seek to present 

demonstrations, but lack the means to record them. 

support the view that the uses are or are 

likely noninfringing (e.g., because it is a 

fair use under section 107, or a 

permissible use under section 117). The 

description should include a brief 

explanation of how, and by whom, the 

works will be used. But while the 

petition must clearly articulate the 

proposed use and the legal basis for the 

claim that it is noninfringing under 

current law, it need not provide fully 

developed legal or factual arguments in 

support of the claim. Such arguments 

and additional legal support can and 

should be fleshed out in the proponents’ 

later submissions. 

6. Adverse Effects 

Finally, the petition needs to describe 

how the inability to circumvent the 

TPM has or is likely to have adverse 

effects on the proposed noninfringing 

uses (e.g., the TPM prevents connection 

to an alternative wireless 

communications network or prevents an 

electronic book from being accessed by 

screen reading software for the blind). 

The description should include a brief 

explanation of the negative impact on 

uses of copyrighted works. The adverse 

effects can be current, or may be adverse 

effects that are likely to occur during the 

next three years, or both. Again, while 

the petition must specifically describe 

the adverse effects of the TPM, it need 

not provide a full evidentiary basis for 

that claim. Such evidence should be 

presented during the public comment 

phase of the rulemaking. 

While the Office intends to err on the 

side of inclusiveness in interpreting 

petitions for proposed exemptions, it 

reserves the right to decline to proceed 

with further consideration of a proposed 

exemption if the proponent fails to 

identify the essential elements required 

for an exemption. In addition, if it is 

apparent from the face of the petition 

that the proposed exemption cannot be 

granted as a matter of law, the Office 

may decline to further consider the 

proposal. See, e.g., 77 FR 65260 at 

65271–72 (concluding that a proposed 

exemption ‘‘to access public domain 

works’’ was beyond the scope of the 

rulemaking proceeding since section 

1201’s prohibition on circumvention 

applies only to works protected under 

title 17). Any such determinations will 

be noted in the Federal Register notice 

announcing the proposed exemptions to 

be considered. 

2. Public Comment Phase 

The Copyright Office will study the 

petitions and publish a notice of 

proposed rulemaking identifying the 

proposed exemptions and initiating 

three rounds of public comment. The 

Office plans to consolidate or group 

related and/or overlapping proposed 

exemptions where possible to 

streamline the rulemaking process and 

encourage joint participation among 

parties with common interests (though 

such collaboration is not required). As 

in previous rulemakings, the 

exemptions as described in the notice of 

proposed rulemaking will represent 

only a starting point for further 

consideration in the rulemaking 

proceeding, and will be subject to 

further refinement based on the record. 

See 76 FR 78866, 78868 (Dec. 20, 2011). 

The notice of proposed rulemaking will 

also provide guidance regarding specific 

areas of legal and factual interest for the 

Office with respect to each proposed 

exemption, and suggest particular types 

of evidence that participants may wish 

to submit for the record. In the past, 

some submissions have been lacking in 

evidentiary support, which is critical to 

the process. The Office hopes that 

additional guidance as to the types of 

evidence that might be expected or 

useful vis-a`-vis particular proposals will 

yield a more robust record. 

To ensure a clear and definite record 

for each of the proposals, as noted 

above, both proponents and opponents 

are required to provide separate 

submissions for each proposed 

exemption (or group of related 

exemptions) during each stage of the 

public comment period. Although 

participants may submit or comment on 

more than one proposal, a single 

submission may not address more than 

one exemption. The Office 

acknowledges that this format may 

require some parties to repeat certain 

general information (e.g., about their 

organization) across multiple 

submissions, but the Office believes that 

the administrative benefits for both 

participants and the Office of creating 

self-contained, separate records for each 

proposal will be worth the modest 

amount of added effort involved. 

In an additional departure from past 

rulemakings, the first round of public 

comment will be limited to submissions 

from the proponents (i.e., those parties 

that proposed exemptions during the 

petition phase) and other members of 

the public that support the adoption of 

a proposed exemption, as well as any 

parties that neither support nor oppose 

an exemption but seek only to share 

pertinent information about a specific 

proposal. These submissions may 

suggest refinements to the proposed 

exemptions described in the notice of 

proposed rulemaking, but may not 

propose entirely new exemptions. The 

proponents should present their entire 

case for the exemption during this 

round of public comment (other than 

responding to any opponents), 

including the complete legal and 

evidentiary basis for the proposal. In the 

notice of proposed rulemaking, the 

Office will offer additional guidance as 

to the format and content of these 

submissions, including instructions for 

providing documentary evidence. 

In addition to their primary written 

submissions, where it may be helpful to 

establishing their case, proponents will 

have the option of submitting 

multimedia presentations of the 

proposed noninfringing use, adverse 

effects, and/or other pertinent material. 

More specific guidance with respect to 

the kinds of demonstrations the Office 

would find useful and the format and 

method for submitting, as well as the 

means to access such demonstrations, 

will be provided in the notice of 

proposed rulemaking.20

The second round of public comment 

will be limited to submissions from 

opponents of the proposed exemptions. 

These, too, may include documentary 

evidence and/or multimedia 

presentations submitted in accordance 

with Office guidelines. The third round 

of public comment will be limited to 

supporters of particular proposals, or 

parties that neither support nor oppose 

a proposal, in either case who seek to 

reply to points made in the earlier 

rounds of comments. Reply comments 

shall not raise new issues, but should be 

limited to addressing arguments and 

evidence presented by others. 

3. Public Hearings 

The Copyright Office intends to hold 

public hearings following the last round 

of public comments. The hearings are 

expected to be conducted in 

Washington DC and California, although 

the specific dates and locations have not 

yet been determined. A separate notice 

providing details about the hearings and 

how to participate will be published in 

the Federal Register. The Office expects 

to identify specific items of inquiry to 

be addressed during the hearings, and 

may offer particular participants the 

opportunity to demonstrate technologies 

that are unknown or are unclear to the 

Office. 

4. Post-Hearing Questions 

Following the hearings, the Copyright 

Office may request additional 

information with respect to particular 

proposals from parties who have been 

involved in the rulemaking process. 

While this has been done in the past, 


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1For further information, see the comments 

obtained during the Copyright Office’s two-year 

Special Projects process, particularly the Special 

Project on Technical Upgrades to Registration and 

Recordation Functions. Comments pertaining to the 

Special Project on Technological Upgrades to 

Registration and Recordation Functions are 

available on the Copyright Office Web site at http:// 

www.copyright.gov/_upgrades/comments/. 

the Office may rely on this process 

somewhat more in this proceeding to 

the extent it believes it would be useful 

to provide a final opportunity for 

proponents, opponents or others to 

supply missing information for the 

record or otherwise resolve issues that 

the Office believes are material to 

particular exemptions. Such requests for 

responses to questions will take the 

form of a letter from the Copyright 

Office and will be addressed to 

individual parties involved in the 

proposal as to which more information 

is sought. While responding to such a 

request will be voluntary, any response 

will be need to be supplied by a 

specified deadline. After the receipt of 

all responses, the Office will post the 

questions and responses on the Office’s 

Web site as part of the public record. 

5. Recommendation and Final Rule 

Finally, in accordance with the 

statutory framework, the Register will 

review the record, consult with the 

Assistant Secretary, and prepare a 

recommendation with proposed 

regulations for the Librarian. See 

Conference Report at 64. Thereafter, the 

Librarian will make a final 

determination and publish the 

exemptions in the Federal Register for 

later codification in title 37 of the CFR 

17 U.S.C. 1201(a)(1)(D). 

6. Schedule of Proceedings 

As noted above, petitions for 

proposed rulemaking are due on 

November 3, 2014. After the Office 

publishes the notice of proposed 

rulemaking, it intends to give 

proponents at least 45 days to prepare 

and file their evidentiary submissions. 

The opponents will then have at least 45 

days to respond, followed by a reply 

period of at least 30 days. The Office 

will provide at least 30 days’ notice 

before the public hearings begin. Parties 

who receive post-hearing questions will 

be given at least 14 days to respond. The 

precise dates for these future aspects of 

the proceeding will be provided in 

subsequent Federal Register notices. 

Dated: September 11, 2014. 

Jacqueline C. Charlesworth, 

General Counsel and Associate Register of 

Copyrights. 

[FR Doc. 2014–22082 Filed 9–16–14; 8:45 am] 

BILLING CODE 1410–30–P 

LIBRARY OF CONGRESS 

U.S. Copyright Office 

37 CFR Part 201 

[Docket No. 2014–08] 

Fees for Submitting Corrected 

Electronic Title Appendices 

AGENCY: U.S. Copyright Office, Library 

of Congress. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The U.S. Copyright Office 

published elsewhere in this issue of the 

Federal Register a final rule amending 

its regulations to allow remitters to 

submit title lists in electronic format 

when recording a document pertaining 

to 100 or more copyrighted works. As 

the rule explains, when a remitter 

submits an electronic title list along 

with a document for recordation, the 

Office will use the information in the 

electronic list to populate its online 

Public Catalog. In response to comments 

received during the electronic title list 

rulemaking, the Office also established 

a process to allow a remitter to correct 

inaccuracies in the Office’s online 

Public Catalog resulting from errors in 

an electronic list submitted by the 

remitter. In this separate notice of 

proposed rulemaking, the Office seeks 

to establish a new fee for this correction 

service at the rate of seven dollars per 

corrected title. 

DATES: Written comments are due on or 

before October 17, 2014. 

ADDRESSES: All comments shall be 

submitted electronically. A comment 

submission page is posted on the 

Copyright Office Web site at http://

copyright.gov/rulemaking/etitle-fees/. 

The Web site interface requires 

commenting parties to complete a form 

specifying their name and organization, 

as applicable, and to upload comments 

as an attachment via a browser button. 

To meet accessibility standards, 

commenting parties must upload 

comments in a single file not to exceed 

six megabytes (MB) in one of the 

following formats: A Portable Document 

File (PDF) format that contains 

searchable, accessible text (not an 

image); Microsoft Word; WordPerfect; 

Rich Text Format (RTF); or ASCII text 

file format (not a scanned document). 

The maximum file size is 6 megabytes. 

The form and face of the comments 

must include both the name of the 

submitter and organization. The Office 

will post the comments publicly on the 

Office’s Web site in the form that they 

are received, along with associated 

names and organizations. If electronic 

submission of comments is not feasible, 

please contact the Office at 202–707– 

8350 for special instructions. 

FOR FURTHER INFORMATION CONTACT: 

Sarang V. Damle, Special Advisor to the 

General Counsel, by email at sdam@

loc.gov or by telephone at 202–707– 

8350, or Abi Oyewole, AttorneyAdvisor, by email at aoye@loc.gov or by 

telephone at 202–707–8350. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Over the past several years, the 

Copyright Office has sought public 

input on technological upgrades to the 

recordation function. See 78 FR 17722 

(Mar. 22, 2013); 79 FR 2696 (Jan. 15, 

2014). In addition to seeking written 

comments, the Office has held focused 

discussions with copyright owners, 

users of copyright records, technical 

experts, public interest organizations, 

lawyers, and professional and industry 

associations regarding the same. See 79 

FR 6636 (Feb. 4, 2014). Participants in 

these processes have expressed a 

number of concerns about the current 

recordation system, including 

frustration with the submission process, 

the amount of time the Office requires 

to record remitted documents, and the 

searchability of the public record. These 

problems are related in part to the fact 

that recordation remains a paper-driven 

process (in contrast to most registration 

transactions, which occur 

electronically).1

To date, recordation specialists have 

had to review paper documents and 

manually transcribe selected 

information from the documents into an 

electronic format in order to permit 

indexing in the Office’s online Public 

Catalog. Among the information that 

must be transcribed are the titles of 

copyrighted works associated with a 

document submitted for recordation, 

which are typically presented in a list 

appended to the document, referred to 

informally as a ‘‘title appendix.’’ A title 

appendix associated with a document 

can include hundreds, or even 

thousands, of titles. The Office 

attributes the long processing times 

associated with document recordation 

in considerable part to the manual entry 

of these titles. In an effort to reduce 

processing time for recorded document 

submissions, on July 16, 2014, the 


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